Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.

 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate


On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.


RSS 2.0

Change NZ’s constitution this way? Give me a break

By James Allan - posted Thursday, 23 June 2022

One of the things that really bugged me about this report was the way in which it shamelessly elevated international law to the same level – heck, to a higher level – than the domestic law of New Zealand. Now let's be clear about this. Any statute passed in New Zealand or here in Australia has incredibly high democratic credentials. Every citizen counts the same and votes for an elected representative and those elected MPs vote to pass statutes, or not.

International law, by comparison, barely has a single democratic bone in its body. Take treaties and conventions, because customary international law is even more illegitimate in democratic terms. Americans take these seriously. There they need to pass a two-thirds, super-majoritarian vote in the Senate.

The report elevates international law to a higher level than domestic law as implemented by the NZ parliament. Picture: Getty Images.


Compare that to the Westminster world that includes Canada, Britain, Australia and New Zealand. All treaties are entered into under the prerogative power. What's that? In simple terms this is the leftover executive power of the monarch, what remained in the centuries long, non-linear battle between the monarch and the parliament. Today this prerogative power is exercised by the cabinet and prime minister. If a prime minister decides to enter into some treaty, and he or she can make cabinet fall in line, that's it. There is no veto or gainsaying by parliament.

The same goes for any UN declaration – which to be clear does not even have the status of a treaty or convention. I do not go too far out on a limb to say the democratic warrant or credentials of this or any UN declaration, or even of any treaty or convention entered into under the prerogative power, is massively below that of basically any statute.

Yet this UN declaration with these enervated, emasculated, second-rate democratic credentials is what the authors of He Puapua hang their hat on. It is one of the key foundations of their entire building. Let me be blunt. The legitimacy of this sort of foundation is so meagre and exiguous that it's close to laughable.

Let me finish by reminding people that New Zealand's unwritten constitution anchored in parliamentary sovereignty is one of the world's most successful setups. It has stood the test of time. Remember, it is the current constitutional model that saw New Zealand be the first country in the world to grant women the vote. It was the model that saw four electorates or constituencies specifically set aside for MÄÂÂori way back in 1867. It was the same unwritten Kiwi constitutional model that saw New Zealand be the first country in the democratic world to bring in social democratic laws in the early decades of the twentieth-century. The list goes on.

Yet it is that that parliamentary sovereignty model, the world's most democratic, that the He Puapua report wants to overturn, and to overturn or rewrite in favour of one in which the Treaty of Waitangi and a UN declaration (not even a treaty or a convention but a declaration) are wedged into some sort of European-style written constitution with strong judicial review at its heart which will inevitably make a committee of unelected top judges immensely more powerful. There are myriad other problems with the report but that is the gist of the matter, as I shall be arguing this week.


  1. Pages:
  2. 1
  3. Page 2
  4. All

This article was first published in The Australian.

Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

8 posts so far.

Share this:
reddit this reddit thisbookmark with Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

James Allan is Garrick Professor of Law at the University of Queensland.

Other articles by this Author

All articles by James Allan

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Photo of James Allan
Article Tools
Comment 8 comments
Print Printable version
Subscribe Subscribe
Email Email a friend

About Us Search Discuss Feedback Legals Privacy