Colin James for the Future Maker or Future Taker lecture series to mark the 25th anniversary of the Institute of Policy Studies 9 September 2008
On 7-8 April 2000 the Institute of Policy Studies ran an invited conference in the Legislative Council Chamber in Parliament Buildings “to involve a wider range of New Zealanders with as diverse a range of views as practicable in a debate on the constitution which has already begun and possibly to project forward a path for continuing broad-based debate”. The steering committee, composed of two former Governors-General, a former Prime Minister, a leading businessman and a leading Maori academic, declared a “belief that the constitution belongs to the whole people, can draw its legitimacy only from a broad-based agreement of the whole people and must not be changed without the approval of the whole people”. Both these statements were made widely available, in media statements and on the institute’s website.
The conference was part-funded by the government on a decision made by a National party minister in 1999. A Speaker of Parliament from that era sanctioned the use of the Legislative Council Chamber. Nevertheless, the leader of a small party tried to have the conference evicted from the Chamber and alleged a “hidden agenda” by a supposedly self-anointed elite to advance the republican ambitions of the new Labour Prime Minister. He conjured up spectres of separate development of Maori and non-Maori. By means of this fiction, he excited a rare interest in the constitution in the daily media, talkback radio and even Women’s Weekly, which stunned its readers with a plot to remove the Queen. When reporters discovered on the opening morning that the two former heads of state and one former Prime Minister had been nefariously plotting to engage in serious discussion, the media bench quickly and permanently emptied.
This was instructive as to how some politicians treat facts when they sense an opportunity for publicity. I never again gave that small-party leader the benefit of the doubt. I could not know when he was making it up.
The disruptive intervention was also instructive in two more important ways, recorded in the prologue of the book of the conference. (1) One was that any serious proposal to alter the constitution substantially “may well excite great passions” and so would require “careful informing of the public”. The second was that if the public were to be carefully informed, the news media would need to be helped to “overcome the discomfort they exhibit with complex matters, even when those matters are at the heart of the nation’s political health”, a discomfort exhibited even in the grimly uninformed leading articles of major daily newspapers. The prologue concluded that “these are potentially disabling factors for a systematic review of the constitution”.
Does this matter? Yes, it does. That is not because republicans’ ambitions may be thwarted. It is because the constitution has been significantly altered over the past three decades by way of incremental pragmatism, with no coherent programme, no explicit or even implicit touchstones and with very little discussion by the public, whose constitution it properly is. With one exception — the introduction of the mixed-member proportional (MMP) voting system which was the subject of two referendums — these changes have been made by Parliament alone or just by changing practice, sometimes recorded officially (for example, in the Cabinet Manual) and sometimes not (for example, the changing nature of arrangements for small-party support of governments). Even the patriation of the highest court from London to Wellington by establishing the Supreme Court was effected by a narrow majority in Parliament. The government disingenuously portrayed that constitutional amendment as reorganising the courts, not needing popular endorsement.
In other words, the constitution in New Zealand is for politicians to define and amend and they do that ad hoc. There is a signal exception, Sir Geoffrey Palmer’s rewrite of the Constitution Act in 1986. But that was more a spring clean than a reshaping, as required for all legislation from time to time. The much adjusted 1852 Constitution Act, designed for a fledgling colony but required to serve an independent nation-state, needed his attention.
The Constitution Act is only one document in our sprawling constitution. The best short summary is Sir Kenneth Keith’s introduction in the Cabinet Manual (2). But no one with an interest in the topic should be without Philip Joseph’s Constitutional and Administrative Law in New Zealand (3) or the several texts of Palmer pere et fils beginning with Unbridled Power? (4) in 1979 , with yet another on the way from Matthew Palmer. David McGee’s Parliamentary Practice in New Zealand (5) and Andrew Geddis’s Electoral Law in New Zealand (6) are indispensable in their fields. For historical reference no constitutional bookshelf should lack Ken Scott’s The New Zealand Constitution (7). I should note in passing that both Sir Kenneth and Sir Geoffrey attempted to teach me constitutional law 27 years ago, though neither are responsible for any of my wild and woolly thoughts.
You will note the preponderance of lawyers in that list but you will also note that one, Sir Geoffrey, descended from the Olympus of academic law to the ampitheatre of reality-politics. And many political scientists — I make special mention of Keith Jackson (8) — have written on the constitution in its broadest sense. I make that point because, while a constitution is necessarily a matter of law, or of convention that has a moral force analogous to that of the law, a constitution is ultimately politics, because its function is to apportion power and it is therefore broader in reach and in practice than the legal documents and must be read in a political, not just a legal context. (An object lesson is to be found in over-legalistic advice from the Crown Law Office to the Auditor-General on parties’ electioneering with parliamentary funding.) The constitution constitutes the state as the sole locus of legitimate force in our society and sets out the rules under which the state may exert force on behalf of or against its citizens. The constitution sets out the structures of the state, who may command the state’s mechanisms, how the commanders are to be chosen and removed or replaced, the limits to their command, the checks and balances among those in command of the state and the rights of and protections for the citizens against the state and its servants.
When we think of the state, we commonly think in terms of the nation-state, that is, we think of the state and the nation as coterminous. That is the Westphalian sovereignty principle and it is the foundation of the United Nations, both its strength and its weakness. However, the nation-state is a construct, not a necessary entity. The French state existed long before there was a French nation, at least in the way we think of the French nation now: villages were distinct in mores, language and self-perception well into the nineteenth century. (9) The Scots were absorbed only with some difficulty into the English state, the Irish likewise; most of the Irish have long since escaped and the Scots are maybe on the way. Kosovo has detached itself from Serbia and South Ossetia has recently got help to leave Georgia. Can one talk of Solomon Islands or Papua New Guinea as nations? Is China a nation or many nations, given the resistance of the Tibetans and Uighurs to incarceration inside its state? Here the Tuhoe nation argues that it has never considered itself subsidiary within the New Zealand state.
Nevertheless, the state is not a disembodied entity. In a democracy the state is rooted in the people within its sphere: the people are sovereign now, not the monarch in whose name our state operates. The state derives its legitimacy, its power over its citizens, from its citizens. Thus the modern democratic state is subordinate as well as superior. A constitution must reflect, however tardily and imperfectly, changes in the citizenry: changes in the citizenry’s composition, values and claims on rights.
So in speculating on how our constitution might change, I will start with the people.
First, I argue that New Zealand did not become fully independent, that is unselfconsciously of this place and not displaced from another, until the baby-boomers made their mark from the 1970s onwards, first in the arts, then in business and most spectacularly in policy after 1984. The baby-boomers “indigenised”.
Second, I argue that around the same time Maori “re-indigenised” — reclaimed first-people, or first-nation, status. That has profoundly changed our society and power-system. This society is now consciously two nations in one nation (he iwi tahi tatou). It is no longer just in the Pacific but increasingly of the Pacific, in custom and culture. I have called this the Pacific-ation of New Zealand.
Third, I argue that we are Australasianising — or, rather, re-Australasianising. New Zealand was once a kin British colony with the Australian colonies. In the twentieth century we drew apart and more recently our Pacific-ation and our different strategic perspective have made us foreign to Australia. But since the 1970s New Zealanders have been reintegrating with Australia by meshing our economy with Australia’s and going in droves to live there. We don’t find much more difference going to Australia now than Gisbornians found when they migrated in droves to Auckland in the 1960s. Mokopuna of Ngati Porou who made that 1960s transition can become Ngati Kanguru in Australia with probably less of a wrench. That easy integration makes us family with Australia.
That integration reaches into the constitutional sphere: New Zealand ministers sit in the councils of Australian federal and state ministers; in a wide variety of ways we have been making our laws and practices more compatible; our courts cooperate in ways that are unusual for two sovereign jurisdictions; we have one joint supranational agency and another just awaiting commonsense from the National party.
Fourth, I note that we are Asianising. This is in three senses. One Asianisation is our growing dependency on east Asia for export destinations and tourist sources, sealed by this year’s trade agreements with China and ASEAN, with Korea, Japan and India in the wings. The second Asianisation is in immigration, which is changing the demography of our citizenry. In 1991 3% of our population was ethnic Asian; now 11% is and the trajectory is up. The third Asianisation is that we are moving from having been in the Atlantic sphere of influence, the dominant source of ideas in science and social and political organisation for 500 years — and our kin — to the Asian, or more particularly the Chinese, sphere of influence. Increasingly, the ideas in science and social and political organisation will come from China and to a lesser extent India. Only a minority of us are kin to those societies.
Fifth, I record that we have been and are globalising: in finance and capital; in goods and services; in long and complex global supply chains; in the ubiquity of instant and cheap communication by written word, voice and image; in mass migration; in the recent globalisability of terror. We necessarily sign dozens of treaties or international agreements each year, some of which remove decision-making over internal matters to international bodies over which we have limited or no influence. Thus, we have less autonomy over many matters of critical importance to us. That is a significant challenge to our “sovereignty”.
Sixth, I argue that we are in generational transition. This is usually spoken of as a transition from the baby-boomer generation to generation X, with generation Y and presumably Z to follow: taking the first Xs as aged about 47 or 48, roughly half the voting-age population is X or younger, which makes this election a pivot in generational change. It is inappropriate to translate marketing concepts to the political world but we can broadly say that Xs — and more so Ys and Zs — do not approve a one-size-fits-all factory state: they have grown up expecting customised goods and services, including from the state.
Seventh, related to the sixth, I note a degree of localisation, a wish to claim back from central authorities for local authorities and non-government organisations some of the authority and activity handed upwards by earlier generations. This should not be overstated; there is no return to village life, the term “community” often signifies empty wishfulness and there is much grumping that “they”, by which is meant the central government, “should do something”. But the frequent pejorative references to the nanny-state indicate a feeling that the limits to the appropriate reach of the state are narrower than earlier generations tolerated. All these changes — on which I have written and spoken at length elsewhere — have drawn us away from Westminster and the constitutional forms and customs bequeathed us by the mother of all empires and the mother of all parliaments.
First, independence and the severance from Britain. Commentators in the 1960s used to refer to our “republican” habits, by which they did not mean lese majeste but a general disrespect for class and an expectation that politicians and other authorities should be “one of us”, even as they must also be exceptional. In the 1980s Sir Geoffrey Palmer talked of Washminster, meaning that we had adopted some practices more appropriate to Washington than to Westminster. However debatable those two notions are, there is no doubting that we are much less Westminster than we were.
The Prime Minister chooses and in effect appoints a distinguished New Zealand citizen as head of state and the Queen exercises her powers only in accordance with an act passed by our Parliament. We have patriated our highest court. We have adopted the voting system used in Germany and that has shifted the balance between Executive and Parliament in Parliament’s direction. The principles of cabinet government and collective ministerial responsibility have been loosened, notably through the agree-to-disagree provision to accommodate smaller coalition partners. In order to accommodate minority governments, imaginative varieties of support mechanisms have been devised to maintain governments in office. Ministers must assemble majorities bill by bill, often at real cost to the wording and to the Exchequer. They must submit to hostile and embarrassing questioning from committees, most of the members of which have agendas different from or opposed to the cabinet’s. Select committees, once ministers’ pups, now routinely change bills, conduct inquiries and scrutinise treaties with foreign states, a power which is likely to expand over time. We have introduced citizens-initiated referendums, though limited them to expressions of opinion. We may be about to experiment with citizens juries and/or assemblies. We have, in a variety of ways, starting with the Office of the Ombudsman and including the Official Information Act, the State Sector Act and the Public Finance Act, made our public and state servants more open to public scrutiny and thereby made them more accountable whereas once, in theory at least, only ministers were accountable. We have formally distinguished the state’s commercial activities from its administrative, regulatory, funding and services activities. The conduct of monetary policy is independent of ministers’ day-to-day whims, worries and wishes. We have codified citizens’ rights in a Bill of Rights, which the state may not override without Parliament’s express consent and which guides the courts to a much greater extent than its status as ordinary legislation would have led one to expect.
That is a long list. And we haven’t finished.
Still, the monarchy stays, with some lingering powers, one of which the Prime Minister undemocratically exercises in naming the election date. We still have a flag reminiscent of empire; the nearest to a distinctive emblem is on the tail of Air New Zealand planes. Of course, the flag is not an element of the constitution. But the Union Jack on the hybrid flag we have symbolises the constitution’s transitional state.
We will abolish the monarchy sometime in the next 25 years, maybe not too long after Australia does which may be within half a decade. We will probably tinker with the voting system, though actually the electorate is gradually working out how to make it work better: it has whittled down the “wasted” vote and may this year start whittling down the number of parties in Parliament, with New Zealand First at risk and the Greens possibly so and the Progressive party set to join Labour after the election. If that doesn’t work, the supplementary member system is the likely fallback. We are likely at some point in the next 25 years to follow New South Wales and Victoria and write into the Constitution Act fixed terms for Parliament, with a requirement for a constructive vote of no-confidence if a government is to be challenged.
Second, the Pacific dimension. This takes us farther away from Westminster.
We must work out what to do with the Treaty of Waitangi. Acts of Parliament, judicial activism and administrative practice have revived the Treaty in law, politics and custom over the past three decades. Iwi and hapu are now part of the formal power structure as mandated advisers and consultative parties in a range of acts, in some cases with veto power.
That has created a paradox. The Treaty has recovered much of its original mana, which has encouraged some to assert it is the constitution of Aotearoa-New Zealand, that it constituted the state of New Zealand and is therefore superior to the Parliament and courts. But in fact the Treaty has drawn much of its modern strength and authority from that Parliament and those courts. It did not bind the courts and Parliament. It needed those courts and Parliament to regain legal force.
The Treaty did lay down broad rules for governing the new colony after 1840: Britain, or its delegated authority, was to have plenipotentiary state power (though the reo version is not so definitive); iwi and hapu were to continue to manage their own affairs, including taonga; and Maori and later arrivals were to have equal civil rights as British subjects — citizens, we would now say. But on its own the Treaty did not determine the distribution and exercise of power. That needed a more definitive document. The Treaty is more usefully thought of as the enabling document for constituting the colonial state. So the Treaty was the founding document of a would-be nation, not the constitution of the state here.
But what to do with the Treaty in any major overhaul of the constitution? At the Institute of Policy Studies conference in 2000 some thought it must not be diminished by incorporation into a new document — but what, other than moral or electoral force, is to stop some future Parliament stripping it from legislation and returning it to curiosity status. Some thought it could be referenced in the preamble. Some thought it could be a superior bill of (indigenous) rights within a new constitutional document. A few argued for embedding the “partnership” principle conjured by the Court of Appeal in the State-owned enterprises case in 1986 in the parliamentary structure and establishing two houses, each with its sphere of responsibility, one iwi-based, and a super-house to resolve overlapping or conflicting matters; but this is most improbable. An option some argue is to “entrench” the Treaty with a requirement for special procedures for amendment but it is not clear how that could effectively be achieved.
Uncertainty over what to do with the Treaty deters more than incremental, pragmatic amendment of the constitution in the near term. But look out 25 years. There will be Maori whose whakapapa is only one two hundred and fifty-sixth, even less, of their bloodline. Will they be accepted as tangata whenua and some seventh-generation English-descended New Zealander not be accepted as indigenous? Will the Maori electorate seats survive in the electoral system? I think not. As the focus shifts from the recovery of article 2 iwi and hapu rights to article 3 citizenship opportunities with the rise of a younger Maori middle class, the Treaty will biodegrade as a complexity in constitution-making. So if we make haste slowly, the Treaty conundrum may resolve itself. Forcing the issue before we are all ready might well delay change.
Meantime, the Treaty has raised many practical management issues that have a constitutional ring. Should publicly-funded Maori entities such as health clinics, waananga and grants-distributing authorities (for example, in science and the arts) set their own rules for financial management and oversight? For now, we say no, as the government intervention in the Waananga o Aotearoa and the Huata prosecutions illustrate. But there is less firmness about the place of koha and lafo in public life. That reflects the diversity of custom to which we are becoming accustomed. Are we tip-toeing into an era in which the Public Finance Act and the Auditor-General may be required to apply more than one standard, depending on ethnicity or whakapapa? That would be a major constitutional change, akin to differential treatment according to class. It is inconceivable now but will it be inconceivable 25 years from now? Twenty-five years ago it was only just becoming conceivable that the Treaty would reach as far into our law and public life as it has.
And if we can stretch a constitutional point for Maori and Pasifika, what about Asians? How far can our acceptance of diverse belief and custom go without shaking the foundations of the constitution and triggering disintegration? Look out 25 years and factor in China’s gravitational pull at that time: our biggest trading partner, probably one of the biggest investors in our economy, the source of a large portion of our population and generator of science and technology we need and use. As we work out how to respond to Chinese interpretation of our free trade agreement from a position of gross asymmetry, will we change our law and practices or will we cling to Enlightenment and British-derived doctrines? I suspect the former.
Australia poses smaller but more immediate issues of asymmetry. That may at some point cause us to draw back from the integration of our laws and administrative systems and the creation of supranational agencies. More likely, I think, is that over the next 25 years we will continue to integrate: a common currency and border will be actively on the agenda at some point. Family will win out over foreign — though not to the degree that we become Australian, as distinct from Australasian, especially in the constitutional sense, unless there is catastrophe.
It goes to “sovereignty”, that is, exclusivity in the management of our affairs. That is the constitutional challenge of globalisation, which, by necessitating international, multinational and global regulation and regulatory bodies with force in this jurisdiction, limits Parliament’s practical, if not its theoretical, capacity for independent and “sovereign” legislation. We can refuse to comply with, or withdraw from, treaties and international arrangements but at an economic or security cost we will usually think too high.
It is possible that at some point in the next 25 years globalisation will reverse, that around the world the inviolable nation-state will reassert its primacy as the organiser of power within its borders and that these assertively national states will retreat into economic and cultural protectionism. Water, food and resources wars cannot be ruled out — indeed, if climate change takes the course United Nations physicists project, famine and mayhem are likely because for nation-states climate change is a classic prisoners’ dilemma and that points to a suboptimal post-Kyoto agreement, widely cheated on. For New Zealand a global retreat into protectionism could be painful, disruptive and even disintegrating: the remarkably calm way in which we re-established two-nations-in-one and absorbed large numbers from other cultures has been in part facilitated by having benefited from a buoyant and rapidly integrating world economy and the distance of conflict. If those conditions change for the worse, this society may turn fearful of the world outside and intolerant of difference within. Already, we have limited civil rights in fear of international terror, though none has reached us; in more fearful times, civil rights would likely erode more. Our constitutional guarantees of rights are fragile.
But it is equally possible that such events weaken the nation-state and drive nations and peoples to search harder and with genuine intent for global responses to water, food, resources and climate changes as we near the end of my 25-year horizon. Mass migration, by mixing up populations and multiplying links to those in other nation-states, may make it harder for nation-states to retreat into their shells. That would be better for the economy and social calm here but would likely further limit our “sovereignty”.
But if power is flowing outwards it is likely also to flow downwards over the next 25 years. The Xs and Ys are less wedded to the nation-state, they are more footloose and they want their government more customised. That points to faster and more convenient dealings with the state, with lower transaction costs: a single entry point in cyberspace and “no wrong door” in the physical world, with strong privacy protections, with pressure for more flexibility in departmental structure and in the relationship between state departments and non-government organisations and the private sector, in order to respond more effectively and speedily to demands and needs. It also points to a degree of devolution of power, which the 2002 Local Government Act in theory enables but which in practice hasn’t eventuated: critical to significant devolution would be more revenue-raising options and powers for subnational authorities. And in a small population devolution is likely to be limited: the central government logically plays a large part.
This brings me back to my central assumption: that the constitution is a political construct. Whatever the law says, ultimately political practice defines the boundaries and functions of the constitution. Thus, much of what I have been talking about would fall outside a lawyer’s definition. The law may have much to say in the case of doubt or conflict but politicians, and behind them the people, are the final arbiters, even in the United States with its iconic holy writ.(10) Here, Parliament can change any legal documents and overturn any court decision with a single vote on a majority of one, including any entrenched provisions. Some argue that plenipotentiary parliamentary power requires the corrective of a justiciable document spelling out its limits and setting out rights, to be ultimately arbitrated by the Supreme Court.
I don’t think we will get to that in 25 years. In practice Parliament cannot change the constitution or quasi-constitutional laws at will. There are moral constraints, conventions and embedded practices which have acquired the force almost of law and which politicians transgress, abrogate or bend at risk of punishment in the media and maybe also by voters, the more so if the majority for a parliamentary initiative is narrow, as it was for the ill-drafted Electoral Finance Act. In the absence of catastrophe or crisis, incremental pragmatism is the likely and usual approach.
In fact, to belatedly pick up my title, in constitutional matters leading is most prudently done by following. Formal change to the constitution will be most durable when it recognises and codifies organic change and at most takes it a careful step or two further. The Treaty’s restoration came after the street battles and intra-family arguments of the 1981 Springbok tour made clear to a rising generation that honorary white status appropriate to empire was inappropriate in an independent two-nation nation. The Ombudsman and the Official Information Act reflected a reaction to the much greater size and extent of the state sector in the era of the welfare state and the mixed economy. The Bill of Rights attended to a generation more jealous of its rights than its parents had been. The change in the voting system vented deep resentment at the two old parties’ misuse of single-party rule after 1984 and gave electoral form to the rising generation’s more plural social form and mores. The abolition of appeals to the Privy Council had the prior endorsement of the great majority of lawyers and thoughtful commentators and was not pub talk fodder. Knighthoods went with scarcely a whimper: they were long an anachronism in “republican” New Zealand.
By that yardstick of prior accommodation, we citizens of article 3 of the Treaty are not ready yet to be led by those eager to abolish the monarchy or the Maori electorates, still less ready for a flag of our own and even less ready to call our nation by its own name, Aotearoa. The fictional furore over the Institute of Policy Studies’ 2000 conference told us that. Instead, in the near term Parliament, the Executive and the state sector will continue to evolve incrementally, as will the courts’ willingness to test the limits of Parliament’s writ and Executive privilege, the evolution of official information and the structure of government, the reach of the Treaty, and our responses to the external influences of Asia and Australia and the pressures of globalisation and geopolitical strategic change. But look out 25 years. Xs and Ys will not settle for a foreign monarch. They probably won’t settle for perpetually separate electorates for Maori. Parliament’s role in scrutinising foreign treaties will grow. The governance rules will adjust to accommodate a more pluralistic society. The mix of rights we hold most dear will change. Sir Geoffrey’s elegant Constitution Act will need an overhaul. Society changes. So, consequently, does the constitution.
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1. James, Colin, ed, Building the Constitution (Institute of Policy Studies, Wellington, 2000), p8. The objective is printed in Appendix I, p439ff
2. Keith, Rt Hon Sir Kenneth, “On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government” in the Cabinet Manual (Cabinet Office, 2008), p1
3. Joseph, Philip A, Constitutional and Administrative Law in New Zealand (Brookers, Wellington, 2007)
4. Palmer, Geoffrey, Unbridled Power? (Oxford University Press, Auckland, 1979
5. McGee, David, Parliamentary Practice in New Zealand (Dunmore, Wellington, 2005)
6. Geddis, Andrew, Electoral Law in New Zealand (LexisNexis, Wellington, 2007)
7. Scott, K J, The New Zealand Constitution (Oxford, London, 1962)
8. An example is Jackson, Keith, New Zealand: Politics of Change (Reed Education, Wellington, 1973), chII “Look No Hands”, pp17-32.
9. Robb, Graham, The Discovery of France (Picador, 2008), as referenced in Michael Sheringham, “Oui Oyi Awe Jo Ja Oua”, London Review of Books, 31 July 2008, p27
10. Presidents routinely seek to influence Supreme Court judgments by their appointments. Some of President George W Bush’s “signing statements” have in effect refused to implement legislation passed by Congress. And, of course, the constitution can be amended, though the procedure is cumbersome.