New Zealand: Parliamentary or People Sovereignty

8/4/2019 New Zealand: Parliamentary or People Sovereignty

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New Zealand: Parliamentary or People Sovereignty?

by Steve Baron

(890 words)

[Steve Baron holds a Bachelor of Arts degree in Political Science & Economics. He is a published

author, a regular columnist in various publications throughout NZ, the Founder of Better

Democracy NZ and a former businessman and Waipa Mayoral candidate.]

In 1840 the British government signed the Treaty of Waitangi with indigenous Maori

tribes which gave Britain sovereignty over New Zealand. In 1852 the New Zealand

Constitution Act was passed to implement the British Westminster style of government,

which is based on the doctrine of Parliamentary Sovereignty. British constitutional theorist,Prof. Alfred Dicey said that Parliamentary Sovereignty was, the right to make or unmake

any law whatever; and, further, that no person or body is recognised by the law of England

as having a right to override or set aside the legislation of Parliament. Given that New

Zealand does not have a codified (written) constitution, this gives the government of the

day supreme power, making it unaccountable to voters apart from once every three years

at an election.

The core of the doctrine of Parliamentary Sovereignty is that parliament can do anything it

likes except bind its successor. The principal behind this doctrine would appear to be that

a single sovereign authority will control power much better perhaps, than the system used

in the United States of Americathe home of the most famous and oldest constitution

which was founded in 1787. There, a written constitution, overseen by the separation of

powers, and an elected president, effectively reduces Parliamentary Sovereignty.

The 20th century has seen an explosion in the introduction of constitutions around the

world. A constitution is a powerful way for society to influence government as it puts a


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check and balance on government powers, promotes accountability, and protects the

rights of minorities and all citizens. A constitution also critically restricts what a government

is able to do in terms of passing laws. There are two types of constitutions, a codified

constitution which is a single document, and an uncodified constitution which may exist

across a number of documents. New Zealand's system is an uncodified system. Further,constitutions may be flexible orrigidin terms of their potential for challenge and

modification. Britain and New Zealand are examples of flexible constitutions and are

relatively easily changed, most often by a simple majority in parliament. Parts of the New

Zealand constitution such as Section 268 of the Electoral Act 1993 are entrenched and

require a 75% majority in parliament or the majority in a referendum to be changed.

However, this is rather misleading because a simple majority in parliament can remove the

entrenchment, thus making it possible for a simple majority to then change it. For example,the New Zealand Bill of Rights Act 1990can be changed with a simple majority in

parliament. These are important considerations for a society. If a government can change

the rules of the game with a simple majority, it leaves the political system open to abuse

and at the whim of the controlling party in government.

While New Zealand governments have been fairly democratic on a number of important

issues, such as having national referendums to change the electoral system, it has not

been so democratic on others. A good example of how easy it is to change laws in New

Zealand was the removal of the right of citizens to appeal to the Privy Council in London.

This was what most would consider a major constitutional change that should be agreed to

by voters in a referendum. However, the Clark Labour government did just this in 2003

with a majority vote in parliament. In 1951 Parliamentary Sovereignty was also

strengthened when parliament (or perhaps more accurately, the Party or Cabinet in power)

removed the second chamber (Upper House) with a simple majority vote, and parliament

became unicameral. What was surprising is that this important decision for a constitutional

change was not even put to the people in a referendum.

Although it might be argued that Parliamentary Sovereignty has been limited for many

years now, parliament still wields immense power over people's lives. Perhaps more than

it should? In a bye-gone era, society at large was mostly uneducated and illiterate and

people looked up to their elected representatives, who were the learned and successful

people in society. This is not the case today. The vast majority of educated and successful

people in society do not enter parliament. Arguably, the standard of elected


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representatives has dropped and their records leave a lot to be desired. Given huge

improvements in education and a far more informed society, it is no surprise there are now

more calls for the Parliamentary Sovereignty that still exists, to be reduced. Simply electing

politicians once every three years is no longer satisfactory, given so much water can pass

under the political bridge during this period, and so much damage can be done. The trendand demand for more public sovereignty is growing worldwide and also in New Zealand.

Cabinet Government still holds too much power and it must be reduced if real democracy

is to prevail. In my opinion, New Zealanders put a huge amount of faith in a benevolent

dictatorship with few real checks and balances. So long as this faith is respected there is

no need for concern. If not, the outcome does not bear thinking about and one has to

wonder why more precautions have not been put in place before the unthinkable happens.

A codified constitution and the public's right to veto any government legislation may verywell be the first steps in the right direction.

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New Zealand: Parliamentary or People Sovereignty