Hon Margaret Wilson: Vice-Chancellor's Lecture University of Waikato

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.

ENDS

© Scoop Media