New Zealand has a constitution. You cannot order a copy because it is unwritten. it includes royal letters patent, Acts of Parliament, unwritten conventions, older British statutes including the Magna Carta and Bill of Rights, and the Treaty of Waitangi.

New Zealand is stable and is a prosperous developed nation. Yet tensions exist from the absence of a written constitution.

We have a parliament sovereign in all matters reconstituted every three years, creating what Sir Geoffrey Palmer calls the “fastest laws in the west.”

Ongoing constitutional tensions surrounding the Treaty of Waitangi as our foundational document, the role of the monarch (more consequential than we realise), abandoned regional devolution and failed governance add to existing constitutional strains.

It may come as no surprise that the sole judicial reference in Kiwi jurisprudence to a constitutional right to natural law, Justice Cooke statement that parliamentary sovereignty has limits, comes from a case about the right to sell eggs without a licence (Taylor v New Zealand Poultry Board).

Being an obiter dicta, it is only a persuasive judicial statement, but it underlines the point that parliament is unrestrained by higher laws or principles.

``Parliament is sovereign,’’ our politicians bleat after unpopular decisions. They do what they want.

In most countries parliament is moderated by a fundamental law, setting out the rights and obligations of the state and its citizens. Provisions intentionally difficult to change.

In the United States amending the constitution requires a two-thirds votes of both houses of Congress and ratification by two-thirds of the states. Government must operate within the the constitution.

Not New Zealand. Parliament operates under what are termed constitutional laws, including the Constitution Act 1986 and the New Zealand Bill of Rights Act 1990, alongside Letters Patent defining the Governor-General’s role and conventions such as the Cabinet Manual and the Principles of the Treaty of Waitangi.

Until a government changes its mind, that is. Parliament cannot be bound by past decisions or judicial precedent.

Every three years, a new parliamentary majority can alter almost anything it wishes without reference to binding constitutional principles.

We have seen how this works. In the current coalition, Act New Zealand promoted the controversial Treaty Principles Bill and the Regulatory Standards Act 2025. The former failed amid strong opposition, but the latter passed as part of the coalition agreement, despite unease within the government.

Had the Treaty Principles Bill become law, it would have fundamentally altered the role of the Treaty in New Zealand’s legal framework.

The Regulatory Standards Act carries different but significant implications. It creates a Regulatory Standards Board able to issue non-binding judgments on whether existing and proposed laws align with principles of private property and fiscal restraint favoured by Act.

While formally advisory, such assessments create new avenues for legal and political challenge to legislation and departmental action.

In this respect, the board’s role extends beyond the traditional scrutiny exercised by the Human Rights Commission and the Attorney-General when assessing legislative compatibility with the New Zealand Bill of Rights Act 1990. It has a quasi constitutional force.

Successive governments have respected New Zealand’s constitutional framework but nothing prevents Parliament from amending these arrangements.

Many nations use entrenchment, where certain laws cannot be changed without a referendum. In New Zealand the Electoral Act 1993 contains such provisions, including rules governing elections.

The British European Communities Act 1972 was entrenched, yet was repealed Boris Johnson’s government in 2019 with a simple parliamentary majority.

Even entrenched legislation establishing devolved governments in Scotland and Wales can technically be overturned by Parliament.

The issue is that New Zealand’s democratically elected law-making body has the power to alter constitutional arrangements on a whim, regardless of public opinion.

Recent events in the United States, Russia, Europe and Latin America show what happens when leaders weaken the rule of law. We once believed such things impossible in stable democracies.

The America and Britain I knew in my youth seemed immune to autocracy, yet their institutions are now weakened. It is unwise to assume New Zealand is exempt from such pressures.

Given the complexities of New Zealand’s origins, the Treaty of Waitangi, the creation of the colony of New Zealand and the convoluted steps leading to independence, let alone role of the monarch, I do not advocate a written constitution lightly. Even modest constitutional change will be difficult.

I do not promote any specific constitutional principles. Rather, we cannot continue indefinitely with governments acting without recourse to higher, incontrovertible and stable principles underpinning our expectations as a nation.

We have a habit of avoiding decisions; pushing hard choices down the road.

However, Two Kiwi traditions may help: the hui and No. 8 wire.

We can begin the conversation and seek practical solutions to begin the journey to a written constitution that guarantees a stable and prosperous future.

  • Dr Duncan Connors is a former University of Otago academic.