Every constitution changes over time, and New Zealand’s constitution changes constantly – whenever there are changes in the laws, court judgments, instruments of government and constitutional conventions that make up its unwritten constitution.
In 2005 the government moved three versions of a supplementary order paper to change the Constitution Act 1986 in two ways. The changes were relatively technical and were supported by all political parties. Despite their significance, they received only six submissions from the public, which took 20 minutes to hear. They were the subject of little debate and went largely unnoticed.
Other than the entrenched provisions, constitutional statutes can be changed by a simple majority vote in the House of Representatives. Sometimes these changes are large and noticeable, such as the enactment of the system of mixed-member proportional (MMP) electoral system in the Electoral Act 1993, which followed two referendums, and the enactment of the New Zealand Bill of Rights Act 1990 after four years of debate. Some are controversial, such as abolishing New Zealanders’ right to appeal to the Judicial Committee of the Privy Council in the United Kingdom by the Supreme Court Act 2003.
Agreeing to disagree
The constitutional convention that ministers may not publicly disagree with cabinet decisions is what gives cabinet its power. From 1999 coalition governments adopted ‘agree to disagree’ procedures to manage significant differences between coalition partners. Since 2005 there has been an additional innovation that a minor coalition party could be bound by cabinet unanimity in respect of some cabinet decisions, relating to the portfolios its own members held as ministers, but not in relation to other cabinet decisions.
Some changes to New Zealand’s constitutional statutes happen quickly. The Constitution Act 1986 was passed through its second reading, committee stages and third reading in a single evening in December 1986.
Less visible changes
Changes to instruments of government such as the Cabinet manual or Parliament’s standing orders are generally easier to implement and happen less publicly than changes to statutes.
Changes to constitutional conventions can be hard to notice. A change to a convention occurs simply with a change in practice. But it has to be a change in practice that is accepted and sustained over a lengthy period to qualify as a change in convention.
In a 2005 report, the Constitutional Arrangements Committee of the House of Representatives said: ‘Although the characterisation of New Zealand’s constitutional history did not come easily to us, we rapidly agreed on the characteristic qualities of New Zealand’s approach to constitutional change through its modern history. We adopted the tag of “pragmatic evolution”. By this we mean New Zealanders’ instinct to fix things when they need fixing, when they can fix them, without necessarily relating them to any grand philosophical scheme.’1
How easily a nation’s constitution may change is important. It determines how easy it is to change the rules that govern the exercise of public power – for the better or for the worse.
New Zealand’s constitution is easy to change compared to other nations. That means that it is flexible and can adapt to changing circumstances quickly and easily. It also means that people may not notice when the constitution changes – in this sense, New Zealand’s constitution is relatively vulnerable to changes that allow the abuse of public power. New Zealanders have varied views on the trade-off between flexibility and vulnerability in their constitution.