Constitutional change and democratic renewal | Sir Geoffrey Palmer | TEDxVUW

Constitutional change and democratic renewal | Sir Geoffrey Palmer | TEDxVUW

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Translator: Ivana Krivokuća
Reviewer: Peter van de Ven Kia ora koutou. It’s a really great pleasure for me
to talk to you tonight about how we are governed,
about constitutional change. We are one of the world’s
oldest democracies, but I think we need
some democratic renewal. I came to this university, the very university
where this talk is being recorded, in 1960 to study law and politics, and I became absolutely fascinated
with how this country is governed. I became so interested in it
that I became a law professor, and I’ve taught constitutional law
in four countries. I once taught it
to American students in France, but I taught them
the Turkish Constitution. Can you imagine that? I later wrote a book
called “Unbridled power?” in which I said there was
too much executive power in government and that we needed electoral reform
and we needed parliamentary reform. We’ve had some, but not enough. I then went into Parliament
and managed to become a minister, which many MPs want to do
when they go there. I became Minister of Justice,
Attorney-General. I became Leader of the House,
Deputy Prime Minister, and finally, Prime Minister. When I left politics,
I started practicing law in Wellington, and I became President
of the Law Commission, so I’ve been lucky enough to see
how the New Zealand government works from many different points of view. The conclusion that I reached
was that while we do okay in New Zealand, we could do much better,
and we need to repair our Constitution. I met Andrew Butler many years ago when he arrived in New Zealand
as a young Irish lawyer – he’s now a partner in Russell McVeagh –
and we joined forces. We wrote this book called
“A constitution for Aotearoa New Zealand.” What it says is that we should have
a written constitution, a codified constitution
that sets out the rules. Andrew comes from Ireland;
they have that sort of constitution there. It is of great help. Well, you know, what is a constitution? A constitution is something
that makes people go to sleep if you talk about it. (Laughter) The important thing
to remember about a constitution is that it sets out the rules
for the government, and those rules have to be
contained in institutions. And those institutions
will comprise a legislature – that is a place that makes law;
you can’t do without law in a democracy. And we have to have an executive, someone who carries out the government
on a day-to-day basis. In New Zealand, that is the Cabinet
and the public service. You must also have a judiciary, and the judiciary
have to interpret the laws because if the same people
who made the law both enforced it and adjudicated on it, you’d have a perfect recipe
for a dictatorship. In a democracy, you need
to divide the powers up. So that is what we have endeavored
to do in this book. We have had 400 submissions.
We got a website. You can see the website on our logo.
We want more submissions. The submissions close
on the 1st of December this year. We are going to write a second book
that sets out our revised ideas about how the New Zealand
constitution should work. Because, you know, the New Zealand
constitution is very unusual. We are onе of three countries in the world that do not have a written,
codified constitution. It’s like riding a bike with no hands –
you can easily fall off. I think we often do. There have been
plenty of policy blunders in New Zealand. Think of the terrible mine disaster
on the West Coast. Think of leaky homes.
Think of climate change. Think of our polluted rivers. All these things are governed by law. All these laws are made by Parliament,
and often they’re made too quickly, and our lawmaking and policymaking system
needs to be improved. Democracies are in some trouble
in the West, these days. We’ve had in the United Kingdom
Brexit; they’re not happy. They’ve had a series
of constitutional problems there. They are one of the three countries that don’t have a written,
codified constitution. The other one is Israel,
and the third one is us. I don’t think this sort of exceptionalism
is necessarily proving its worth to us. I also think that it’s really important that we actually stop
and think a little bit before we do things. We’ve just had an election.
It was quite exciting. We had policies like blizzards
coming down upon us day after day from party after party, and you couldn’t figure out at the end
of it what the result was going to be. We’ll get a government out of this;
that’s what an election is for. The House of Representatives are the ones
who choose the government under our revised electoral system, but you don’t know what the policy
is going to turn out like. So what we ought to be doing
is having democracy all year round, seven days a week, all the time. We shouldn’t just be waiting
to have it at election time. At election time is when the voters
have the most power, but of course, we should have citizens involved in the decisions all the time, not just some of the time. That means some profound changes. We need to have deliberative democracy. In a deliberative democracy,
citizens are involved all the time. Their views are sought. They are consulted. When plans are made for big decisions, they are announced
and people can see them and think about them
and make their views known. One of the difficulties
with our Parliament these days is they spend so much time negotiating
and talking with each other that they forget about the public
who they are supposed to be serving. I really do think they need
to be more outward looking, and they need to take on board much more
of what the public thinks about things because one of the problems
with both Brexit and indeed what is going on
in the United States demonstrates that people have
less faith in democracy that they used to. They feel disconnected from it. They don’t feel the decisions
are being made in their interest, and it is, of course,
very important in democracy. If people don’t have confidence in it, you’re going to have
all sorts of problems, and that’s what’s happening
in Western countries, and we’re not immune from that. We have to repair our democracy
while we’ve got time. We’re not in this terrible difficulty
they they’re in in the UK or the United States, but we never want
to get into that difficulty. We need to pay attention
to how we are governed, and we need to do it better. Now, one of the things we can do. Well, the first thing we could do
would be to educate people about how the system works,
because it’s complicated. And do you know that by 2023
there will be more people in New Zealand of Asian ethnic origin
than there are Maori in New Zealand? You can’t expect all the people
who come here from overseas to understand by osmosis
how this system works. They ought to be able to find out. How do they find out?
They look at the constitution. Where do they find it? You can’t find it. (Laughter) Why can’t you find it?
Because it isn’t written down. Where is it? It’s in a whole lot of different
UK statutes and New Zealand statutes and prerogative instruments. Some of the biggest legal powers
are contained in the letters patent which create the office
of Governor-General. How many of you read the letters patent? I bet there isn’t anyone
in this room who’s read them. Yet they’re a part of our constitution. The danger is, if people
can’t find out what the rules are, they aren’t going to take much part
in the way that government works. That is a serious difficulty that we have. So what we need to do
is to have more civics, better education. We need to have citizenship education. We need to be able to say to people,
“This is how our government works. You are a respected office holder in it
because you’re a voter.” Young people tend to be
turned off by this system. I found that out teaching
advanced public law this year. Why are they turned off? Because they don’t think
it’s in their interests. They certainly don’t think the climate change policies
are in their interests. I think it’s probably time
to give 16-year-olds the vote, so if we educated them properly at school
and gave them the vote, they’d vote always. Our voting levels are not high enough, and once you get a democracy
where people don’t care anymore, you lose your democratic freedoms
which have been hard won over many centuries. So we need to have
a much more deliberative democracy with much better education
about how it works, and the first way of doing that
is to write the rules down so people can see them. Well, now, what would you put
in the constitution? We’ve made some proposals about that,
and I’ll just summarize them for you. First of all, we want
a codified constitution that everyone can see in one,
relatively short document that sets out the basic rules
about how power is used in a society, in this society. The second thing is, we think that this constitution
should be superior law. That is to say, it’s not like
all the other statutes that we have on the books
that can be changed by a majority of one, with diligent use
of the urgency provisions of the Standing Orders
of the Parliament overnight. That happens here. It happened in 2013, when the carers of people
who are handicapped fought through the courts
to get a right to some money to reimburse them for their caring. After going through three levels
of the legal system, the government took it away
using urgency in one day, no select committee hearings at all. They made it a matter
of confidence and supply, and the rights were gone, just like that. That’s not the way things should be done
in a properly organized democracy. On 37 occasions in the 26 years
that we’ve had the Bill of Rights, the Parliament has overruled it. The Parliament should be
bound by it, we say. They shouldn’t be able
to take people’s rights away whenever they feel like it. That’s the second thing we would do. We would make the
constitution superior law, and it would have
the Bill of Rights in it. We would also make
the head of state a New Zealander. We think the monarchy
served New Zealand very well, but we’ve got to the stage now where we need our own
head of state, our own identity. We’re not a colony as we started out;
we’re a self-reliant competent democracy. We ought to stand on our own feet,
forge our own identity, in our own space in this world. We need to do that. We need also to limit
the use of urgency in the Parliament. We need to have more rule of law by increasing the ability of the courts
to rule on rights matters. But we don’t want to have
an American Constitution here. We do want to ensure that Parliament
has the last word on all matters, but to breach the constitution only if it can raise a 75% majority
in the House for it. There are considerable
protections in that. There changes are important;
they’re not the only changes. The Treaty of Waitangi
is one of our most important documents. The Treaty is one of the most
difficult issues we’ve faced, and we have to have a profound
national conversation to sort that out. Because it is really important. I do say to you this: that in New Zealand,
by democratic methods, by listening to people, by being tolerant, by having a profound
national conversation, we can make our government work better. We can do that. We should do that. We should do it
when we’re not in a crisis, so that we have time to sort it out. Many constitutions
are forged in times of crisis. It’s better not to do that. So I urge all New Zealanders:
think about your constitution. Thank you. (Applause)

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