Legislative Council Chamber 7-8 April 2000
(This deals with the period post-1980, picking up where Bill Oliver left off.)
In his 1992 book, New Zealand’s Constitution in Crisis, Sir Geoffrey Palmer noted a marked lack of interest, not only among the public, but even among his ministerial colleagues, in his reform of the Constitution Act in 1986.
Since then interest has grown, though patchily.
• Faced with a report from Sir Geoffrey’s Royal Commission on the Electoral System in 1986 recommending proportional representation, the main political parties in 1990 promised a referendum and the National party in power after 1990 made good its promise. Faced with single-party, major-party governments which had radically transformed the policy environment and the economy after 1984, breaching promises in the process, voters took the opportunity to cane both Labour and National in 1993 and vote for the recommended system.
• Legislation in 1985 to address Maori grievances, coinciding with the rise of a new generation of assertive Maori intellectuals and activists, revived debate among Maori on sovereignty and power-sharing.
• The passage of a non-mandatory Bill of Rights in 1990 stimulated a sporadic debate, mainly among lawyers, about the place of rights in the constitution, a debate occasionally joined by interest groups and also by Maori in arguing for inclusion of the Treaty of Waitangi in any written constitution. Lawyers have also begun to debate the constitution more widely.
• Jim Bolger as Prime Minister argued for the head of state to be a New Zealander. This has more recently been taken up by the new Prime Minister, Helen Clark. Meanwhile, Australia has considered and rejected a proposal to replace the monarchy with an appointed president, though this issue is not yet settled.
• Former Labour Prime Minister Mike Moore argued in 1997-99 for a council of eminent persons to shape a process for debate and decision.
This patchy debate has so far been confined almost entirely to Maori and lawyers, with sporadic contributions by a tiny minority of interested politicians. The debate has been fractured and fragmented by widely differing motivations for change – or fear or abhorrence of change.
But there will be a debate and it will result in change. That is not a wish or advocacy on my part. It is a simple observation of the political tides. In several ways we are being carried towards change – what the change will be will depend on the nature of the political debate, who takes part and with what energy and motives.
Note: political debate, not legal debate. A constitution is a political matter in its substance and a legal matter only in its form. And it is a political matter in the widest sense, for a constitution is the property of the people, not the agitators, the professional politicians or the lawyers.
The main ingredients of these political tides – actually, currents, eddies, cross-currents, backwaters, deep pools and rapids – are:
Independence
This is Mark Williams’ “postcolonialism” in another guise. But I think it is more than that. Leaving behind the colonial period and then the colonial mentality in a political sense is a matter of developing a new national expression that is not defined by reference to the past nor by reference to the coloniser or “mother country”. By the 1980s there was evident a stronger and more confident “voice” among our creative artists (novelists, dramatists, musicians, film-makers) matched by a newly self-confident brand of business operators.
This goes beyond the formal independence (accepted belatedly in 1947) or foreign policy independence (developed gradually through the past several decades and kicked along after the nuclear-weapons breach with the United States). It is the assumption of full independence by citizens in their hearts and minds.
Independence in this sense will in due course find expression in constitutional change, informal and/or formal. The republic debate is to some extent a factor of this assumption of independence. Abltion of appeals to the Privy Council (desired by Jim McLay as Minister of Justice in the early 1980s and the subject of a lapsed bill by a successor of McLay’s, Paul East, in the early 1990s), is another example. Helen Clark’s “nation-building” is another way of expressing this independence and it dovetails neatly with republican sentiment.
Momentum
There has been a great deal of constitutional lawmaking and administrative adjustment in the past 20 years, among them notably:
• the Official Information Act in 1982, which has made governance profoundly more transparent, far beyond the expectations of its framers and advocates;
• the rewriting of the Governor-General’s Letters Patent in 1983;
• Sir Geoffrey’s Constitution Act in 1986;
• the deep reforms in the public service from the late 1980s onwards, legislatively enshrined in (among others) the State-owned Enterprises, State Sector, Reserve Bank, Public Finance and Fiscal Responsibility Acts;
• the Treaty of Waitangi Amendment Act in 1985 and the legislation and court decisions that flowed from that, plus concomitant change of administrative processes within the executive;
• the Bill of Rights Act in 1990;
• extensive parliamentary procedural reform from the late 1980s onwards;
• the introduction of MMP in 1996.
This flurry of constitutional activity has created a momentum which is not yet abating and logically leads on to a discussion of issues at the core of the constitution. This is not to say the momentum will inevitably continue, just that it is strong and will take some stopping.
If, as likely, Australia becomes a republic in this decade, that will add, though not decisively, to the momentum of demands for a republic here.
Public disenchantment
Society and therefore the electorate has become more diverse and consequently less firmly anchored to the dominant political parties. Voters have become more alienated from the system: registration to vote (despite being compulsory) dropped from an average of 92% in 1945-69 to 90% in 1970-90; turnout of those registered to vote dropped from an average of 90% in 1945-69 and 87% in 1970-90.
There was widespread dismay at the economic and other reforms and breaches of election promises in the 1980s and early 1990s. At a deeper level this dismay reflects discomfort with the social and economic changes which prompted the policy reforms. This found expression in the vote for proportional representation in 1993 and also in votes for populist or minor parties in the 1990s. Combined support for the mainstream Labour and National parties dropped from a peak of 99.8% in 1951 to 69.7% in 1993 (62.0% in 1996).
At the centre of this disenchantment were two elements;
• a sense that authorities imposed policy, without proper consultation or concern for the welfare of ordinary folk;
• wrapped up in that, a desire for a mechanism to guarantee social and economic rights that were felt to have been disregarded or degraded during the 1980s-90s policy reforms.
If disenchantment persists demands for more constitutional change are likely to gain more widespread currency. On the other hand, if there is a period of stable government and economic prosperity demands are likely to fade, at least among non-Maori, for more constitutional change (including in the electoral system).
The Maori renaissance
Since the 1960s Maori have become increasingly numerous as a proportion of the population, assertive in demanding redress of injustices and breaches of Treaty of Waitangi guarantees, assertive of their status as prior inhabitants and insistent on autonomous control over Maori affairs, partnership with the government and “sovereignty”, variously defined. All of this is underpinned by a renewed confidence and vibrancy in Maori arts and culture.
These factors are now beginning to find expression in parliamentary politics, with a new breed of MP in Maori electorates and, at least for the moment, a Labour leadership recognising that if Labour is to keep those electorates it must respond in some convincing way to these MPs’ agenda. This agenda is partly constitutional.
These developments pose deep and inescapable constitutional questions, among them:
• appropriate consultation and representation at all levels of government and administration;
• distinct and separate arrangements for delivery of social services and assistance and administration of justice;
• institutional change to reflect the status of Maori as prior inhabitants and/or treaty signatories and/or a large minority with special claims and/or a set of self-governing communities.
In these questions the Treaty of Waitangi looms large. If the constitution is to be changed to repatriate the head of state (the republic), many Maori argue that the treaty must be at least recognised in the changed constitution. Mason Durie draws attention in his paper to the constitutional status of the treaty. It is not just a founding document, he argues, nor a mechanism for obtaining redress of past wrongs, laying claim to shared resources or claim and eliminating “citizenship” differences in education, health, employment and economic status – the discharge of those functions would render the treaty lifeless if that was all there was to it. The treaty is in this view a constitutional instrument of self-governance.
Professor Durie’s point raises a point which goes to the core of the constitutional debate. If the treaty is not constitutional in his sense, it is a declaration of rights. Its incorporation in the constitution would then become a matter of the incorporation of a particular set of rights. It would then become part of the debate about the wisdom and practicability of incorporating declarations of rights in the constitution, about which there is wide disagreement.
Non-Maori resistance
There is little doubt the majority of non-Maori would reject self-governance and/or parallel (especially equal) institutions (as, for example in the Anglican Church’s model) and rely on the numerical superiority of non-Maori to ensure that majority gets its way. Some see that as a temporary state until there is a Maori, or at least a polynesian, majority but Ian Pool in his paper raises doubts whether that change in majority will come about.
Since the 1985 act there has been only a muted challenge to the Maori constitutional momentum. A liberal consensus among the political and administrative elite in Wellington has helped keep that challenge muted. This consensus has been breached by the ACT party which used the code phrase, “one country”, in the 1999 election to give voice to that challenge. There is some evidence the National party will edge in ACT’s direction.
Partly as a result of this but also for a variety of other social, intellectual and political reasons, we are likely to see over the next decade:
• challenges to Maori leaders’ claim to speak for all (or even most) Maori;
• challenges to Maori cultural practices that are at odds with the majority culture’s civil and human rights values, such as the rights of women;
• political points-scoring off any shortcomings in accountability or administration of devolved Maori social services and other organisations;
• juxtaposing the status and claims of other, notably Asian-origin, ethnic minorities, thus treating treaty-based constitutional claims as no more than issues of cultural rights and respect and lumping together multiculturalism and biculturalism.
These challenges are likely in turn to prompt the re-emergence of direct action, potentially violent, by some Maori – and possibly counter-action by some non-Maori. There are also likely to be divisions among Maori which complicate the promotion of treaty-based constitutional claims.
Dealing effectively at the political level with these conflicting perspectives, expectations and demands will require more imaginative thinking and action than a rejigging of Enlightenment-based institutional designs.
Other factors
Supranational institutions and sovereignty: The greatly expanded and speeded up movement of information, capital, money and people, coupled with widening international treaty-making on issues ranging from the environment to weapons control to human rights both constrains central government and is perceived to do so – and is resented by a population used to swift and untrammelled action by its governments in response to its demands, especially since to ordinary folk power seems to many to have been ceded to multinational companies.
Subnational government: The new government’s decision to grant a power of general competence to and enter into a new partnership with local government, implying a degree of power-sharing or at least governance-sharing (devolution, not just delegation), has constitutional implications in a country hitherto thoroughly unitary in its governance arrangements. (Tino rangatiratanga has, in some definitions, a parallel implication.)
Immigration and refugees: The presence and growth of ethnic minorities will challenge the values underlying our constitutional arrangements.
Direct democracy has become more important in voters’ minds as the mass party, with its broad channels for education and feedback, has been replaced by the cadre party. It is now unthinkable that major changes can be made to the constitution without a referendum. (Also it is very unlikely voters would accept a nominated president instead of a directly-elected one.) The demands in the 1980s for means to restrain governments by means of referendum have abated since MMP and since the relative failure of the citizens-initiated referendum (CIR) process. However, if Parliament does not act on the two CIRs passed overwhelmingly in 1999 demands for a binding referendum process may redevelop. Politicians’ sensitivity to public opinion polls has also introduced a dimension of direct democracy.
The media are a more important element in the political process as the mass party has declined. The media also provide another (unreliable) channel of direct feedback through talkback radio.
The courts have assumed a wider role in challenging government actions and legitimacy and, in the case of the Treaty of Waitangi, developing the constitution. It is unclear how voters will react if this process continues.