Vice-Chancellor's Lecture University of Waikato

Some Observations on the Evolution of New Zealand's Constitution

Mr Vice-Chancellor, Gerald Bailey, Professor Spiller, colleagues, family and friends. May I thank you for the opportunity to address you this evening. May I also thank the University again for the honour of awarding me an Honorary Doctorate last week. As many of you are aware I value greatly my relationship with Waikato University and in particular, my relationship with the Law School.

As you will have noted, I have chosen in my address to make a few comments on the evolution of New Zealand's constitutional arrangements. I have chosen this subject because I have been privileged to have had the opportunity to study and teach New Zealand's constitutional law, and now have the responsibility as a Minister of the Crown and as Attorney General to practice what I once taught. This can be a sobering experience, but it has also given me valuable insights into the working reality of our constitution.

The comments may be timely because New Zealand is currently engaged in a discussion on the principles, values and institutions that govern us. I think it is fair comment to say that New Zealanders are a pragmatic people, not much given to theory and ideology. We are grounded in the practical realities of day-to-day life that revolve primarily around our families, our
workplaces and our immediate communities. This does not mean we do not take an interest in who and how the decisions that affect us are made whether it is in local or central government. I would argue that New Zealanders have one of the most direct forms of democracy, and that we jealously guard it when we think our voices are not being heard.

I was reminded of this during the four-year debate that accompanied the establishment of our own final court - the New Zealand Supreme Court. Most of the submissions did not directly comment on the new Supreme Court but raised more fundamental issues relating to merits of New Zealand having a written constitution; the legal and constitutional status of the Treaty of Waitangi; the best method by which to place checks and balances on executive decision making, such as a second chamber; and of course the question of whether or not the time has come for New Zealand to stand alone and become a republic. The Select Committee in its Report
recognized that it could not pursue these matters in the context of the Supreme Court Bill, but did recommend that the time had come for a forum to be provided in which these issues and others could be debated.

Just how representative these submissions were of the general population is difficult to know. What was clear however was that people do think about such matters seriously. The current discussion around the nature and role of the Treaty of Waitangi in New Zealand is further evidence that New Zealanders are willing to engage in constitutional issues. Although this public debate is sometimes negative when it descends into the abuse and the emotionalism of the politics of race, for me the positive aspect of this debate is that it highlights the continuing importance of the Treaty and the need to clarify its role, function and relevance in our constitutional arrangements today. It is part of our continuing conversation as to the best ways by which we should govern ourselves. This is the essence of what we call constitutionalism. It is simply who has the authority, the legitimacy to make rules, laws that can be enforced to ensure good order, peace and governance of the community as a whole. How that authority is gained and how it is exercised that is the substance of the constitution.

I sometimes think New Zealanders tend to avoid talking about our constitutional arrangements because it sounds too complex or just too grand or airy-fairy. We are a plain speaking people who like to deal in the concrete and not the abstract. That is why we often have little tolerance for academics and intellectuals. There is a feeling they are putting something over us and therefore should be kept firmly within their institutional place and not let loose on the community! Of course the contradiction to this attitude is that most New Zealanders aspire for their children to attend tertiary education and to be well educated.

(As an aside, I have reflected on why it is that the most frequent term of
abuse I have received, as a politician is that I am an academic. I have wondered what other country in the world would see being educated and knowledgeable about matters you work on, as a disqualification for the job.)

Although then we may be reluctant to engage in intellectual debate on constitutional matters, it would be a mistake to assume we are not interested in or involved in the way we govern ourselves. We are proving that at this time.

Of course this University has made and continues to make a major contribution to this constitutional conversation, especially on matters relating to the Treaty of Waitangi. From its foundation, Waikato University has recognized the need to acknowledge, understand and respect Maori and their culture on their own terms, while at the same time also recognizing that we are all citizens of this country, who as citizens share a common set of values and commitments that do not detract from our cultural, ethnic, religious identities. My own research before I left Waikato University for Parliament was exploring the relationship between how we maintain our individual identities while at the same time engage as citizens in the community. My emphasis was on the role the law plays in this process and the type of regulation we need to be a well governed and functional community.

One of the first things you note however as a teacher of constitutional law is the lack of basic knowledge of students about our constitutional arrangements. They have opinions and attitudes but little knowledge. There is a lack of awareness of our own history, pre and post the arrival of the settlers, or the history of the countries from which immigrants travelled to create a new society. We need this knowledge to understand the values, characteristics and attitudes that define New Zealanders as a people distinct from all others. Such knowledge of our past helps explain why New Zealand has evolved a set of constitutional arrangements that are so different from other countries.

It may be useful at this stage if I briefly described the main elements of our constitution. The institution with the legal authority to make laws and collect revenue is the Parliament. The Parliament consists of the Sovereign in right of New Zealand, represented in New Zealand by the Governor General, and the House of Representatives. The House of Representatives consists of 120 representatives of the people, who must be elected in accordance with the provisions of the Electoral Act 1956, which provide the details of the mixed member proportional system. Ministers of the Crown, who comprise the executive, must be drawn from Members of Parliament. A Parliament has a life of no more than three years, at which time a general election must be held so the people can have the opportunity to renew the mandate in their elected representatives. These arrangements are set out in the Constitution Act 1986.

The judiciary and their right to be independent of the executive and Parliament is given protection in the Constitution Act in an indirect way.
The Act provides no judge can be removed except on the grounds of misbehaviour or incapacity. And that removal is undertaken by Parliament. To ensure the judiciary remains free from corruption and intimidation, provision is also made in the Constitution Act for their salaries not to be reduced.

And that is about all you will find in the Constitution Act. It is not in itself a "constitution" in the accepted sense of such a document. It is an Act of
Parliament setting out some of the essential institutions of governance. The Act has no special status and may be repealed or amended by simple majority in Parliament. It contains no aspirational statement of commitment to the principles or values of democracy, the rights of the individual, or private property. There is no reference to the agencies that enforce the decisions of Parliament - the public service, the police and the armed forces. These institutions have their own Acts of Parliament that are equally free of the language of constitutionalism. The rights of the individual to political and civil rights is contained in the Bill of Rights Act 1990, and the right not to be discriminated against on one of 13 grounds is found in the Human Rights Act 1993. Again these Acts affirm New Zealand's commitment to international Covenants and Conventions, but contain no statement of what may be termed constitutional principle. They also do not entrench these rights but make them subject to amendment or repeal by a simple majority of Parliament.

The Treaty of Waitangi has not been enacted in an Act of Parliament. There was an attempt to incorporate it in the Bill of Rights Act but Maori rejected this because it demeaned its mana or status. Although the Treaty itself has no formal legal status, the Court of Appeal has accorded the Treaty constitutional status as a founding document. The reason for this status is simple. The Treaty provided the legitimacy for the Crown to assert sovereignty and the governance of New Zealand, while at the same time protecting the right of Maori to full, exclusive and undisturbed possession of their lands, fisheries and toanga. And finally it accorded Maori the same rights as British subjects. These are matters that are fundamentally constitutional. Reference to the Treaty and its obligations is today found in an increasing number of Acts of Parliament. Whatever the nature and wording of these 'Treaty clauses', their purpose is to ensure the interests of Maori are not overlooked in decisions that affect them. That was the commitment given in the Treaty of Waitangi.

I have mentioned only the most important parts of our constitutional arrangements. The textbooks make reference to many other Acts of
Parliament, conventions, and protocols that all go together to make up what we describe as our 'constitution' or what I think more accurately describes New Zealand's 'constitutional arrangements'. Given the inaccessibility, complexity and lack of coherence of our constitution, it is little wonder most New Zealanders do not use the language of the constitution when engaging on issues relating to decision-making and governance. As I have already mentioned however this does not mean we are not interested in constitutional issues.

When I am describing New Zealand's constitutional arrangements to people overseas, I start by saying New Zealand has one of the most direct and accessible forms of democracy in the world. Our lack of a formal written coherent constitutional document; our one chamber House of Representatives, with no upper chamber or house of review; our mixed
member proportional representation electoral system that is designed to be truly representative which is evidenced in producing minority or coalition governments; and our corruption free judiciary and public service, all lead to a very functional form of democratic government.

I must say that many people look at me in disbelief and ask how such a system could possibility function. To the outsider our constitutional arrangements lack certainty and the level of regulation that is required to enable the diverse interests in a society to be reconciled in such a way that authoritative decision making can take place in a timely manner. New Zealanders however value the lack of constitutional formalism. It gives us flexibility and the opportunity to be innovative. For example, the change to the electoral system from first past the post to mixed member proportional representation was affected through a public debate and referenda that was passed by a small majority, but which has been supported by the majority once the decision was made.

Many outsiders also see the fact that our governments have a life span of three years as building instability into the system and again creating uncertainty. The markets in particular respond badly to uncertainty as to what the rules for the conduct of business are going to be. And the evidence would suggest that New Zealand is capable of quite extreme changes. For example the high level of state intervention of the Muldoon era was followed by the introduction of the radical policies of structural adjustment in the 1980s and 1990s, and these in turn were rejected by the people in the 1999 election to be replaced by a period of readjustment to achieve a greater balance between public and private interest.

The New Zealand people have responded to these changes by voting governments in and out. While these electoral changes were taking place there was a level of political stability, though little was achieved towards the end in effective decision-making. This was one reason there was a change of government in 1999. The people were tired of political conflict and wanted a period of stability so the economy could be rebuilt and people could get on with their lives. Although people adjusted to the challenges of
globalisation it was not without its cost to many individuals and their family's life chances. It is a tribute to our capacity to take risks and adjust to change that we now have the lowest unemployment rates in 15 years, that our economic growth is around 3%, and more importantly New Zealand is reinventing itself by developing the skills we need to survive in the future.

To the outsider the lack of entrenched individual rights is also seen by some as making minority groups and interests vulnerable to abuse of power by the majority. The evidence would suggest however that New Zealand does have a good record on human rights. Of course we can do better and are actively working through the Human Rights Plan of Action currently being undertaken by the Human Rights Commission to improve our performance in this area. There is a consciousness however that the well being of the community as a whole is dependent on being fair to the individual.

It has been interesting to observe in the current debate on the Treaty how ingrained the notion of equality of treatment is to our sense of ourselves as a people. As someone who has campaigned for equality for women all my life, I have been very affirmed by this aspect of the discussion. This notion of equality is not a simple equation of everyone being treated the same however because we know from experience everyone is not the same. What is important to note is that our talk of equality is tempered by the notion of fairness, which provides the space for the needs of the individual to be accommodated within the principle of equality that is so essential to any democratic system.

The challenge for us as New Zealanders however is what is our response when the evidence demonstrates there are people in a particular group who appear to be systematically not treated equally in the sense of fairly. Some of us confronted this issue when campaigning for women's rights. Currently the group under scrutiny is Maori. And I expect in the future given the demographic changes, the group will be the elderly. The fundamental issue remains the same however. How does a majority accommodate the difference of the minority, whatever form that difference takes?

One response has been to regulate. In constitutional terms this means to make these rights - both individual and groups rights - part of the written constitution to which all citizens then subscribe. As we have observed however, in New Zealand we have no written constitution in this sense.

There has been no event in our history that required us as a people to declare what principles and values and institutions we would support to govern our actions. Our constitutional arrangements have evolved in a somewhat ad hoc pragmatic way as a response to a particular set of circumstances.

The Treaty of Waitangi was a pragmatic response to the need to regulate settlement in such a way to protect the interests of Maori, and to provide some recognized authority to ensure peace and order. It is interesting to observe that New Zealand never actively sought independence from the United Kingdom like other Dominions. New Zealand's reluctance to assume responsibility for its own affairs was seen in the fact that the Statute of Westminster 1931 was not adopted by New Zealand until 1947. Also the decision to establish our own final court of appeal was driven by the reality of the changes to the appellate court structure in the United Kingdom - we were in effect the last to leave!

I have reflected on our reluctance as a people over time to commit ourselves to a formal constitution. I have come to the conclusion that we have a deep-seated resistance to being told what to do. There is a running commentary in New Zealand about the level of government regulation. The business community is currently expressing this old discourse in terms of compliance costs. The fact that the World Bank has recently produced a report showing New Zealand has the lowest compliance costs of any country when establishing a business will not deter the stream of complaints.

There appears to be a natural resistance in New Zealanders to being told what to do. I sometimes think we only support the laws we have because then we know what to break! This makes us sound a lawless people and we are clearly largely law abiding given the high levels of peace and good order that prevail in our community. The point I am making however is that laws, when they are made in New Zealand today, are accompanied by a high level of acceptance. There is also an increasing expectation that there will be high levels of consultation. This was not always the case, as I recall in the Muldoon era, and it does not mean everyone is happy with the final product. There is however an expectation of involvement in the laws that binds us.

Most laws are an attempt to reconcile difference in the community. The art of politics is in understanding the nature of the differing views and then to try and reconcile them. Sometimes it is possible sometimes it is not. The nature of our constitutional arrangements is such however that if the
lawmakers move too far away from the people then that is expressed at the next three-year election. I think we undervalue the close connection we have between the people and the lawmakers and the fact that the laws that are enacted frequently reflect levels of acceptance in the community as a whole.

I would argue then that the 'glue' that has held our constitution together is not rules and regulations, but the nature of the relationship between the people and their government. In constitutional terms New Zealand has a relatively 'high trust' relationship that is characterized by a lack of
formality, accessibility to decision making, and confidence in the institutions that administer and enforce the rules; compared with 'low trust' constitutions that are characterized by a great many rules and regulations and consequential litigation, and little confidence that participation in the process will affect change.

The fact then that New Zealand does not have a formal written constitution has been a combination of an accident of history and the nature of the relationship between the people and their government. The question we may be facing is whether such an arrangement can or should continue in the future.

The current call for a formal public debate through a Royal Commission into the Treaty of Waitangi and our constitutional arrangements may indicate that we feel the time has come to reflect on whether we can continue to rely on the high levels of consensus on the way in which we govern ourselves.

The fact that Maori have not felt part of that consensus and want to fully participate in the public life of the country is the trigger for this debate. The
assumption that we are all the same and should be treated the same is a notion that now needs to be tested against the assertion of Maori, and other
groups in New Zealand today that they are different and want that difference formally recognized, whether it is in legislation or recognition of the right to behave differently. Equality does not mean being the same.

It may be no comfort to know that New Zealand is not the only country that is currently reassessing the old accepted forms of governance. David Goodhart's essay in the Guardian on the theme of Discomfort of Strangers is relevant reading in this context. He argues that the values of sharing and solidarity that bind a society start to break down when there is increasing diversity, particularly ethnic diversity. People are happy to share and help those they know - family, members of a community - but are more reluctant to share with strangers - people who are not known to them.

I think there is much truth in his analysis but the real question is how to find the 'glue' that will bind the community again, without people having to deny what is fundamental to their identity - whether it is their religion, ethnicity or culture. For me part of the answer lies in incorporating the 'stranger' group through finding the point of similarity and not of difference. By this I do not mean assimilation. Quite the reverse. We should celebrate our differences. It is equally important however to be clear what are the values we hold in common and which we believe the community as a whole should hold in common. I have sometimes used the notion of citizenship to construct that public identity. Citizenship describes the matters we consider a community needs to agree on if it is to hold together as a community.

For this we need rules and those are the type of rules normally found in a constitution. Which brings me back to where I started. We are having a constitutional debate in our own ad hoc pragmatic way because we need to stop and check that we all do share the core common democratic values that provide the basis for our constitutional arrangements. What form that debate takes has yet to be seen. I believe it is not only healthy that we are talking about these matters; but that it is entirely consistent with the way we approach constitutional issues. We talk about them until we reach a sufficient consensus of understanding, that we feel we can safely put the
conversation to one side and get on with our lives until the next time we need to review these matters.

I feel another lecture coming on and you have all been very patient so I shall conclude my presentation with this observation. It is important at this time that we look for what unites us and not what divides us. We must never underestimate the passion such matters can stir in our community. Passion can be a force for good or evil. While I have confidence that the New Zealand values of fair play, tolerance and respect for others will be seen in the debate, I am also realistic enough to know that intolerance, prejudice and violence are part of our history as well.

I therefore thank you the University for providing a forum for such matters to be discussed. It is the role of the University in society to encourage and promote rational debate and reasoned argument, and this University is fulfilling that role.

Thank you.