How to fix our short-sighted constitutional instability

Comment: The need for long-term public policy is a prominent theme in this election. New Zealand has a pattern of short-term policy reversals that contributes to instability and underinvestment in, for example, environmental, infrastructure, and financial policy.

We need to replace policy instability with conventions and institutions that enable strategic development.

We should also take the same approach to our constitution.

Talking about the constitution is not a Kiwi thing, and it’s rarely mentioned in policymaking. That isn’t surprising. The New Zealand constitution is a complex web of statutes, legal decisions, and political conventions. Those documents and norms determine how we, as a nation, decide what to do and on the values and practices that shape who we are. But that complexity and informality mean that when policy issues have constitutional implications, we can change the constitution even when we aren’t talking about it.

The previous parliament was extraordinarily active in reshaping New Zealand’s constitution. For example, it revisited and reversed rules relating to te Tiriti o Waitangi, Māori wards, and electoral law.

The Treaty Principles Bill saw some of the largest hui and the highest number of select committee submissions in New Zealand history. Parliament killed the bill in the face of popular opposition in 2025 but then continued with much the same agenda through a trio of successor bills, each of which would have constitutional implications. Bill 347-1, for example, introduced a new standard formula for giving effect to Treaty principles: affected laws would “take into account” the principles. In short, Parliament would devise a new constitutional convention defining a role for the Treaty in New Zealand’s constitution, despite, and perhaps, to spite popular opposition.

The story behind the Māori wards is similar. For two decades, councils needed a referendum before creating a Māori ward. In 2021, Parliament scrapped that requirement, unleashing a wave of new Māori wards across the country. Parliament changed the rules again in 2024, imposing a requirement to have a referendum retrospectively: councils had to pay for a referendum if they wished to retain a Māori ward after 2025. Around 26 such wards came and went between 2021 and 2025.

Constitutional instability is also apparent in changes to electoral law. Parliament has a longstanding habit of passing laws inconsistent with the Bill of Rights (1990). Concerned by that constitutional malady, courts and Parliament co-developed a new constitutional safeguard: the judicial declaration of NZBORA inconsistency, in which courts can declare when a law breaches protected rights.

The first declaration stated that a wholesale ban on prisoner voting was rights-inconsistent. The second said that excluding 16 and 17-year-olds from voting breached their rights. Initially, Parliament responded by enfranchising some prisoners and all those 16 years or older in local body elections. Importantly, Parliament also amended NZBORA to embed the declaratory regime into the Parliamentary process in 2022. That constitutional change had unanimous cross-party support .

However, after the 2023 election, Parliament abandoned plans to lower the voting age in local government elections, and reinstated a blanket ban on prisoner voting rights in 2025.

Parliament thereby made New Zealand less rights-compliant while simultaneously undermining the efficacy of the declaration of inconsistency: a beneficial constitutional development that all parties had previously agreed on.

These short-term changes are creating constitutional instability; and worse, it’s not clear that law-makers know what they are doing. One MP on the select committee for the prisoner-voting legislation told me that she hadn’t considered that the ban would undermine a new and fragile constitutional development.

Indeed, although the select committee report notes that the proposed bill would infringe NZBORA rights and contradict a Supreme Court judgment, it is silent on the bill’s constitutional implications regarding the declaratory mechanism. Things might have been different if the committee had an explicit constitutional remit.

The public reaction to the Treaty Principles Bill shows that constitutional issues matter when people recognise them as such. Thousands of New Zealanders made submissions, signed petitions and joined marches and hui because they knew the bill would have constitutional consequences.

What should we do? We don’t need American-style reverence for a written constitution, but it would be good to have a better way of recognising when issues of public policy have constitutional implications.

Just as commentators are right to argue that we should institutionalise stable long-term public policy planning, we need to build institutions that enable us to be responsible constitutional stewards. Perhaps we should have a standing constitutional select committee like those in Sweden and the UK . Parliament can currently establish constitutional committees ad hoc, exemplified by that created for the Parliament Bill (2024). Making that ad hoc expedient into a standing committee would create a body with an established constitutional remit and, hopefully, help develop a reservoir of precedent and expertise.

That is just one option. Maybe we could do the same thing better in another way. The larger point is that we need consistent institutional processes and settled conventions to encourage a more stable approach to our constitution.

New Zealand’s constitution deserves our attention and respect. That begins by recognising when legislation has constitutional implications. We should talk more about the constitution, recognise and assess the consequences of legislation, and develop a much-needed framework to moderate our short-sighted constitutional instability.

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