What can business do next, now that Margaret Wilson’s Supreme Court is on its way?
Labour MP Tim Barnett has supplied one answer: make more submissions to Parliament’s justice and electoral law committee, which he chairs. The committee is moving on to a wider inquiry into the constitution.
Prime Minister Helen Clark declares she is not planning any more major constitutional changes. A republic is “inevitable”, she says, but low on her agenda.
She has good reason. Snared in the foreshore wrangle, it makes no sense to set another pesky political hare running for Maori and others to chase. Barnett’s inquiry sidesteps that problem — and meets requests by some Maori who made submissions on the Supreme Court Bill for just such a wider inquiry.
For those Maori, putting the tie with the Privy Council also symbolically cuts a tie with the Crown — the council is technically the Queen’s advisory body. They are jealous of an almost mystical relationship with the Crown which, for them, the Treaty of Waitangi enshrines. They also like to think the Privy Council is a backstop against court decisions that go against them — though the record is unconvincing.
Business’s prime need, on the other hand, is legal certainty. Those in business who worry about these matters worry about “judicial activism” — changing the law in substance, not just in fine degrees of interpretation — and they worry about New Zealand judges having the requisite degree of commercial expertise, even though the select committee has provided for the appointment of technical advisers to help the Supreme Court.
Business New Zealand, the Business Roundtable and other business-friendly opponents of the Supreme Court need look no further than the Appeal Court decision on the foreshore.
It can be classed as a conservative decision in that it reached back to eighteenth and nineteenth century precedents, notably in the United States, to decide there may be subsisting tribal or family claims to the foreshore and seabed that the arrival of the British and imposition of British law did not extinguish. But it was also a radical decision — in that it overturned previous decisions and legal doctrine laid down by this country’s arguably finest jurists of the past.
That willingness to remake past decisions has business worried about the loss of appeals to the Privy Council. It makes the law less certain. And in that it has support from a leading legal commentator, Jack Hodder, who argues that significant change such as the foreshore decision should be left to Parliament, not made by non-elected judges. Hodder has given only qualified support to abolishing Privy Council appeals, fearing “the judicialisation of political issues”.
Stir in Barnett’s inquiry. It is set to range over the whole constitution, including all constitutional documents and unwritten conventions, the Treaty of Waitangi, the state-citizenship relationship, whether to move to a republic and whether to have a written constitution that enshrines rights and is justiciable before the Supreme Court.
OK, whatever Barnett comes up with in what might well be a long-running show is not going to result in instant change. Clark has made that clear.
But the inquiry will collect a great deal of information and canvass the full range of public opinion. And it will keep the constitution on the radar. It might well provide the basis, perhaps even the wellspring, for change sometime down the track.
The issue for business is what might turn up in a written constitution.
Already, the Bill of Rights Act, passed in 1990, is leading the courts down byways they once eschewed. A supposedly toothless act, according to some in 1990, because it did not automatically override other legislation, it has been gaining legal weight in the hands of some judges.
Now imagine a written constitution that gave added legal weight to the Bill of Rights and maybe added some more — the right to housing, the right to a job, for example, not to mention the indigenous rights of Maori via incorporation of the Treaty of Waitangi.
As Hodder said in his submission on the Supreme Court Bill, “the risk is that our Supreme Court will be mistaken (and perhaps over time mistake itself) for a United States-style final constitutional court, making decisions on difficult policy issues such as capital punishment, abortion and privacy and on government resource allocations, eg for prisons or the homeless”.
This is at the outer end of what might in time flow from a remade constitution. The Australian constitutional convention in 1998, for example, resoundingly rejected codification of “economic” and “social” rights. There is no compelling reason to expect a different result here any time in the near future. The current fuzzy unwritten constitution suits most people nicely.
But there is a flipside.
Wolfgang Kasper of the Australian Centre for Independent Studies, argued in a monograph a couple of years back that the Labour-led government was undermining the “economic constitution” by tightening labour laws and other regulations and raising taxes.
Perhaps, if the constitution was written to embed some business rights, it might be something for business to argue for.