Dr Andrew Butler and Sir Geoffrey Palmer’s new book, A Written Constitution for Aotearoa New Zealand, proposes radical changes.

This is not entirely a surprise. Sir Geoffrey railed eloquently for decades against unbridled (parliamentary) power. He long advocated MMP as part of the remedy. The title of his 1997 book, co-authored with his son Dr Matthew Palmer, now a High Court judge, was Bridled Power.

That book also included a proposed written constitution, making it clear that bridled power was not enough. 
Its s54 conferred massive discretionary power on the High Court. Anyone could ask it to stop any law or government action that it deemed to be inconsistent with the proposed constitution. 

Unbridled power

The court could order any remedy that was “fair and reasonable in the circumstances.” Parliament appeared to have no ability to respond. S3 decreed the constitution prevailed; s2 entrenched it. The problem with this, of course, is that it confers unbridled power on unelected judges.

The Butler and Palmer proposal is marginally more nuanced. It gives Parliament 12 months to validate a law the Supreme Court considers unconstitutional. However, that validation requires the support of 75% of all parliamentarians. That looks a remote prospect under MMP. Minor parties would hold the major governing party to ransom.

This nuance aside, their proposal increases the need for political decision-making by the Supreme Court. In particular, many of the provisions seek to entrench rights to other people’s money.

One new right is an “adequate standard of living.” Another is to a “free” state education.” Does this means someone who chooses not to work for a living is entitled to an “adequate” standard of living , while tax-funded spending is anything but free?
In a democracy, political decisions are best made by voters, either directly or through their elected representatives. The cut and thrust of political debate includes ridicule, mockery, slander and abuse. A judiciary embroiled in this would not be a good thing. I concur on this with University of Queensland law professor James Allan (NBR, Sept 2).

Yet the status quo is unsatisfactory. Sir Geoffrey is rightly concerned that too many laws and regulations fail to comply with good law-making principles. We may differ over the reasons. Sir Geoffrey argues the problem is haste due to the three-year parliamentary term. But do countries with four-year terms do better? Interest group politics and political expediency know no time limits.

In a 2001 report for the NZ Business Roundtable I proposed a Regulatory Responsibility Act, modelled on the Fiscal Responsibility Act. Parliament would require those developing laws and regulations to certify whether they complied with enumerated legal and economic principles. Public opinion alone would discipline transgressions. The enumerated principles included compensation for property rights taken or impaired by the Crown. Strangely, this venerable principle was not included in the Palmer and Palmer 1997 constitution.

Good laws
In 2009, I was a member of a government taskforce charged with ensuring parliamentary laws better accorded with broadly accepted principles of good legislation. The proposal developed 11 principles under six headings. These comprised the rule of law, liberties, taking of property, taxes and charges, the role of the courts and good law-making.

To strengthen the certification discipline, its proposal allowed the courts to declare that a government measure was inconsistent with the listed principles. This power was purely declaratory. The offending law or regulation would remain. The court could not offer the plantiff any remedy. In short, the power was like a slap with a wet bus ticket.

So did Sir Geoffrey support this proposal or did he reject it on the grounds that it fell lamentably short of the powers he would confer on the courts?

It was neither actually. He rejected it because it amounted to “a substantial constitutional change.” Really? 

“It can be seen”, he continued, “as a shift in power away from executive branch of government towards the courts.” Well, he couldn’t support that, could he? Next he questioned the legitimacy of such a shift in power. Good question.

In the same article he wrote that the “implied message in the changes proposed is that ministers make bad choices and must be prevented from making them. In democratic terms this is a highly arguable proposition.” 

Yet, if ministers don’t make bad choices why seek to bridle ministerial power in the first place? And why is his written constitution needed?

Contrary to Sir Geoffrey’s assertion, the taskforce’s proposal did not prevent Parliament from passing any law or regulation. Instead, it aimed to induce better compliance with sound principles during policy processes. 

Putting all this to one side, it was some consolation to see the Butler-Palmer proposal includes a section recognising citizens’ rights to their possessions. It is s104. Its key remedy for a violation is that “deprivation by way of expropriation shall be subject to the prompt payment of just and equitable compensation.” And so it should.

This generation knows best?

So when should compensation be paid for impairments in practice? I don’t criticise Butler and Palmer for not spelling that out. It depends on the circumstance. Much attention is being given to this question internationally. It is in the context of the growth in foreign direct investment and provisions in trade agreements.  Important aspects identified in this literature include materiality, the absence of proper public interest and discriminatory intent. 

Another important consideration is offsetting benefits.  If regulations really do benefit the people being regulated, there is no case for cash compensation. 

What about the proposed constitution as a whole? It is hard to escape the feeling that it aims to saddle future generations with the entitlement follies of the past half century, along with a new folly of unbridled power for unelected judges.

The strongest case against a written constitution for New Zealand is that we would make a mess of it. We presume too much if we think our generation knows best. Regardless, I wonder if Sir Geoffrey has any objection now to the proposed Regulatory Responsibility Act that would not apply with much greater force to his own proposal.

Dr Bryce Wilkinson is a senior fellow at The New Zealand Initiative.