Alison Quentin-Baxter Dominion symposium speech

'Building on the Past and Looking at the Future' by Alison Quentin-Baxter DCNZM, Barrister of the High Court of New Zealand. Speech for Dominion Status Symposium, Legislative Council Chamber, Parliament Buildings, Wellington, 26 September 2007.

Transcript

INTRODUCTION

My name is Alison Quentin-Baxter. I want to pick up where David McIntyre and Andrew Ladley left off, and carry forward the story of our nationhood after 1947.

Looking at what we have done over the last 50 years to develop our constitution and our national identity, I see three themes. One is how we perfected our constitutional independence. Another is how we control the power of our Government and Parliament. The third is how we see ourselves as a nation, and embody that vision in our constitutional arrangements. I shall try to trace those interwoven threads

Then I shall draw on what has gone before, and make some predictions and suggestions about what our constitutional future might hold.

PERFECTING OUR CONSTITUTIONAL INDEPENDENCE

After the adoption of the Statute of Westminster, and the passing of the New Zealand Constitution Amendment Act 1947, we still had quite a lot of tidying up to do, in order to perfect our constitutional independence.

Abandoning the title “Dominion”

Even before 1947, New Zealand, along with the other independent members of the Commonwealth, no longer called itself a “Dominion”. The name had fallen out of favour, as suggesting some remaining subjection to the United Kingdom.

Clarifying the power to make laws

In 1973, because of a court decision that in my view had got it wrong, we had to amend the 1852 Constitution Act again, to make it clear that Parliament already had the power to make laws on any subject. That statement was reiterated in the new Constitution Act of 1986.

The divisibility of the Crown

We also had to work through the implications of the fact that, as soon as the Sovereign began to be separately advised by ministers in each of the self-governing colonies, later the Dominions, the Crown had in reality become divisible. As a legal person the Sovereign needs to be treated differently in the law of each Commonwealth monarchy.

After 1950, when the Republic of India became a member of the Commonwealth, there was agreement that the Queen should be recognized as the Head of the Commonwealth. Otherwise each Commonwealth monarchy would give her its own Royal Style and Titles.

In 1953, we described Queen Elizabeth II as “… Queen of the United Kingdom, New Zealand and Her other Realms and Territories …”.

Since 1974 we have described Her Majesty simply as “… Queen of New Zealand, and Her other Realms and Territories …”. The United Kingdom figures only as one of the Queen’s “other Realms”.

Revision of the Letters Patent constituting the Office of Governor-General

We also had to revise the 1917 Letters Patent constituting the Office of Governor-General. Under our constitution the executive authority of New Zealand – that is the power to govern – is vested in the Crown in right of New Zealand.

The 1983 Letters Patent make it clear that the Sovereign has delegated the whole of the executive authority to the Governor-General. The new document is also brought up to date in other ways. It does not, however, attempt to codify the constitutional conventions about the need for the Governor-General to act on the advice of his or her ministers, except when it is necessary to appoint a ministry or perhaps dismiss one.

Our own New Zealand citizenship

In 1949 we ceased to be British subjects, a status we had acquired because we had been born within the allegiance of the Crown. Instead we became New Zealand citizens under a statutory scheme enacted by our own Parliament.

Abolition of appeals to the Privy Council

Most recently of all, in 2004, we repealed the right of appeal to the Judicial Committee of the Privy Council, formerly our highest court, and substituted a right of appeal to a new New Zealand Supreme Court. That is now our highest court.

The consequences of these developments

All but the last of these developments passed virtually unnoticed. That was because they really were of a tidying-up nature. The abolition of appeals to the Privy Council was substantive, and also controversial. Some people were genuinely worried about whether, within New Zealand, it would be possible to find enough high quality judges to sit in our own highest court. Many Maori had other priorities. Those opposed to the legislation called unsuccessfully for a referendum. In Parliament, the voting was on strict party lines. But that seemed to be more a reflection of the overall political situation than of real concern about what Parliament was doing and how it was doing it.

The Sovereign’s role as Queen of New Zealand, and as such our Head of State, is our only remaining constitutional link with the United Kingdom. That link does not, of course, give the United Kingdom Government or Parliament any role in respect of New Zealand.

WHAT WE DID TO CONTROL OUR PARLIAMENT AND GOVERNMENT

My second theme is the things we did to control our Parliament and Government. They take two forms. Some focus on the content of the laws that Parliament makes. Others help us to find out what Ministers and officials are really doing, and then to hold them to account. One, the New Zealand Bill of Rights Act 1990, does both.

Constraints on the content of the law

Abolition of the Legislative Council

One of the first things Parliament did, after 1947, in exercise of its newly-acquired power to amend the 1852 Constitution Act, was to abolish the Legislative Council, in 1950.

Theoretically the Council’s job was to check any excesses of the popularly elected House of Representatives. As a body whose members were appointed by the Government of the day, it was not able to do that job well. Unless a second chamber represents a different constituency, as it does in a federal State, it is seldom an effective check.

Amending the Electoral Act

In 1956 Parliament decided to put the constitutional aspects of our electoral system beyond the risk of alteration by a majority. In the past there had been some manipulation for party political advantage. Now any change needs either a 75% majority in Parliament or approval by a majority of the voters in a referendum.

Obtaining official information.
One difficulty in holding a government to account is how do we find out what ministers and officials are actually doing? They, themselves, always hope that information which is likely to embarrass them will not come to light. Two New Zealand developments have significantly improved the amount of official information in the public domain

The Official Information Act 1982

First, in 1982, Parliament repealed our Official Secrets Act and passed an Official Information Act. The philosophy of the new Act was the exact opposite of the legislation it replaced. Information must be made available unless there is good reason for withholding it for one of the reasons expressly set out in the Act.

Public Interest Immunity

Second, our courts have narrowed down the scope for the Crown to withhold documents from litigants on the ground of public interest immunity. That rule of law will not be allowed to prevent a litigant from getting at the truth unless there are clear and convincing reasons.

Holding ministers and officials accountable

Once we have found out what is going on, the next question is how can we influence the policies and legislative proposals of the government or call in question the decisions of ministers and officials? Parliament took several initiatives to improve or build on the arrangements that had traditionally been available for those purposes.

Judicial review

In 1972 it enacted a new, single procedure for the judicial review of the exercise of a statutory power. Citizens seeking justice no longer have to face unnecessary procedural hurdles. As a remedy judicial review is concerned with the legality of a decision rather than its merits, but it can be a powerful tool.

The Ombudsmen

In 1975 Parliament created a new officer of Parliament called the Ombudsman, the first to be appointed outside Scandinavia. Ombudsmen have the discretion to investigate, and recommend a remedy for, any matter of administration on a wide range of grounds, including simply that the action complained of is wrong.

Parliamentary select committees

Questions in Parliament and formal debates are rather structured and politicised procedures for examining the policies and legislative proposals of the government. To a large extent the task of monitoring the executive has now passed to select committees.

Since 1979, all Bills, except money Bills or Bills to which the House has accorded urgency, must be referred to a select committee. Select committees also have a wide range of other investigatory powers.

The New Zealand Bill of Rights Act 1990

In 1985 a Government White Paper put forward a proposal for a New Zealand Bill of Rights that would control the powers and actions of the legislature as well as the executive. It proposed that, once enacted, the Bill of Rights should be supreme law. Otherwise it could be cut down or modified by any inconsistent legislation.

The White Paper was referred to the Justice and Law Reform Committee. The key finding in the Committee’s Final Report of 1988 is worth quoting:
A large majority of the submissions did not favour this type of approach at all. The power given to the judiciary by the White Paper draft was the principal reason for opposition … . The main thrust of that argument concerned the redistribution of power this was thought to entail from elected representatives of the people … to the judiciary… .
The Committee considers that there is a limited public understanding of, and support for, the role of the judiciary under a bill of rights. In countries which do have a bill of rights, the judiciary does not usually see it as their function to thwart the wishes of the elected representatives by striking down legislation without a very good reason. In fact, they rarely exercise the power. Nonetheless, the Committee has concluded that New Zealand is not yet ready, if it ever will be, for a fully fledged bill of rights along the lines of the White Paper draft.

The Committee therefore recommended the introduction of a Bill of Rights as an ordinary statute.

The New Zealand Bill of Rights Act 1990 does not empower the courts to strike down legislation on the ground that it conflicts with the Bill of Rights. Even so, it was a major addition to the machinery for securing compliance with civil and political rights that have long been recognised in our own law and internationally.

The effect of these developments

These various developments opened up New Zealand’s governmental and legislative processes to the scrutiny of its citizens. They now have better opportunities to influence government policy, better standards by which to evaluate it, and better access to remedies for wrongs done to them by the State or its agencies. The process of enacting some of the legislation revealed public perceptions about the roles of Parliament and of the courts. These have implications for the nature of our constitutional arrangements in the future.

HOW WE SEE OURSELVES AS A NATION

My third theme is how we see ourselves as a nation and the effect that has had on our constitutional arrangements.

The introduction of MMP

My first topic is our mixed member system of proportional representation – MMP. The MMP electoral system was recommended by the Royal Commission on the Electoral System in December 1986. The Commission’s terms of reference had included the question “How should voting support for candidates, parties and groups in the community be translated into the election of members of Parliament and the establishment of governments?”

The Commission examined the working of the existing plurality system, known as “first past the post” – FPP. It found that FPP had some positive aspects but also serious weaknesses. As an alternative to FPP the Commission recommended the MMP voting system. That system produced proportional representation nationally while still dividing New Zealand into the requisite number of single-member territorial constituencies.

The new system was adopted after an indicative referendum in 1992, in which a large majority of electors, 85%, voted for change to a new electoral system. The MMP system was preferred to the other systems on offer. Then, in 1993 there was a further referendum in which a majority voted for the MMP system instead of choosing to retain the FPP system. MMP has been used at all general elections since 1996.

The move to that system has had consequences for our constitutional arrangements. In particular, new constitutional conventions about the formation and survival of a government are still evolving. The political accommodations required in order to form and maintain stable government need to be found by the political parties themselves. Under our constitution the Governor-General must not be left without responsible advisers. His or her role is to give the political leaders any encouragement they may need in agreeing on how they will meet that constitutional imperative.

More generally, Members of Parliament have become much more representative of the community they serve. A higher proportion of members are women, though still less than 50%. The number of Maori MPs is roughly in proportion to the number of Maori in the population. Several MPs come from ethnic groups that, previously, were not represented at all or not in proportion to their population share.

The place of Maori in our Constitution.

The Treaty of Waitangi

On 6 February 1840, at Waitangi, Her Majesty Queen Victoria, Queen of the United Kingdom and Ireland, entered into a Treaty with the Maori Chiefs and Tribes of New Zealand. The Government of New Zealand – often referred to in this context as “the Crown”, is now the successor to the rights and obligations of Her Majesty.

Differences between the Maori and English texts, as well as differences in the experience and expectations of the parties, have led to differences in the understanding of each party about what the Treaty of Waitangi meant at the time of its signing and has come to mean subsequently.

For a long time the Treaty seemed to have become a document of purely historical interest, at least in the minds of non-Maori New Zealanders. But in the last three decades it has become increasingly influential although the debate about its present-day relevance goes on. Nowadays, the Treaty is often described as New Zealand’s founding document. At the least, that acknowledges the place in our national community of Maori tribes and subtribes – Iwi and Hapu.

Some more recent Acts and cases give us an impression of the place that Maori occupy today in our constitutional arrangements.

The Waitangi Tribunal

The Treaty of Waitangi Act, 1975 set up the Waitangi Tribunal. It was given jurisdiction to consider claims that current or projected legislation, policies or actions are inconsistent with the principles of the Treaty. It may make recommendations to the Crown on remedial measures. In 1985 the jurisdiction of the tribunal was widened to include “historic claims”, that is claims going back to the date of the Treaty, 6 February 1840, even if the measures concerned are no longer in force.

The State-Owned Enterprises Act 1986 and similar legislation

Another Parliamentary initiative, taken for quite specific and benevolent reasons, was to include in the State-Owned Enterprises Act 1986 the following provision: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”. Similar provisions were subsequently put into other legislation.

The landmark decision on what the “principles of the Treaty” require is New Zealand Maori Council v The Crown ([1987] 1 NZLR 641). The Court of Appeal held that the Treaty establishes a partnership between Maori and the Crown. The Treaty partners have a duty to act reasonably towards one another and in the utmost good faith.

The constitutional recognition of Maori as a group or groups

Gradually the decisions of the Waitangi Tribunal and the courts, coupled with the settlement of a number of historic claims, were beginning to give Maori some confidence that a place in our constitution for the recognition of their identity as a distinct group or groups was slowly being carved out. But there was also a political backlash, among those who sighed after the assimilationist policies of the 1950s and 60s.

The Foreshore and Seabed Act 2004

Then, in 2002, a bombshell was dropped when the Court of Appeal in The Attorney-General v Ngati Apa ([2003] 3 NZLR 643) unanimously held, contrary to previous understanding, that such customary rights as Maori may possess in the foreshore and seabed have not been extinguished. There was a panicky reaction that the public might no longer have a right of access to the beaches. The Government quickly announced that it would overturn the decision by legislation. Many Maori were outraged. Large-scale but peaceful protests were organised.

After a process involving rather rushed consultations, Parliament passed the Foreshore and Seabed Act 2004. The Act vests the foreshore and seabed in the Crown but preserves a limited right for Maori to pursue customary rights claims through the courts. If the court finds in favour of the applicant group any redress must be negotiated between it and the Crown. Apparently that compares quite well with what has been done about indigenous rights in the foreshore and seabed in other jurisdictions, but that may not be saying much.

My main concern is with the process that was followed. The Government set a strict timetable for the enactment of the legislation. Because of that, and the highly-charged atmosphere, it cannot be said that the Foreshore and Seabed Act was broadly acceptable to most Maori, as well as to the community as a whole. Some Maori formed a new political party with a platform of repealing the 2004 Act. Thanks to MMP it is now represented in Parliament.

Maori representation in Parliament

That brings me to another strand of our constitutional arrangements as they affect Maori. In 1867 Parliament, again for specific and benevolent reasons, had provided that four members of the House of Representatives should be elected by Maori males. Except for a brief period in 1975, the number remained at 4, despite the increasing number of electors on the Maori roll.

The Royal Commission on the Electoral System concluded that the Maori seats had gone some way towards providing for the effective political representation of Maori interests. But they did not ensure that Maori electors had an effective voice, or that all MPs were, in some degree, dependent on their support. It recommended MMP as the best system for those purposes, with or without the Maori seats.

In 1993 Parliament decided that the Maori seats should be retained, along with the “Maori option” introduced in 1975 to permit all persons of Maori descent to choose, after every census, whether to be on the Maori roll or the general roll. The number of Maori electoral districts is now determined on the same population basis as the general electorates. But, unlike other important provisions of the Electoral Act, the existence of the Maori seats is not protected against alteration or repeal by a majority in Parliament.

PEERING INTO THE FUTURE

We arrive at last at my gaze into the crystal ball. I see three issues that we may need to deal with:

• One is whether we should become a republic.
• Another is whether, and if so how, and for what purposes, we need to give express constitutional recognition to the place of Maori as a distinct group or groups within our community.
• The third is whether we should identify the key elements in our constitution and make them supreme law.

I shall say something about each, not as an advocate, but as someone who has tried to think about some of the implications.

Becoming a republic

Any strong impetus for New Zealand to become a republic is likely to be driven by events or our perception of events outside this country – perhaps a move in that direction by our near neighbour, Australia, or perhaps a sense that royalty has lost its charm.

In 1867, Walter Bagehot, the best commentator on the English Constitution in the 19th century, said this:
“[S]ecrecy is … essential to the utility of English royalty as it now is. Above all things, our royalty is to be reverenced, and if you begin to poke about it you cannot reverence it. … Its mystery is its life. We must not let in daylight upon magic.” (Walter Bagehot, The English Constitution, reprinted by Collins, The Fontana Library, Farnhill, 1965, p 100.)
Well, we have let in daylight. It remains to be seen whether New Zealanders as a whole will someday decide that the magic has gone and care about that enough to want New Zealand to become a republic.

If so, it would not, as some have suggested, just be a matter of going through the statute book, deleting “Queen” and “Governor-General”, and substituting “President”. We would have to decide how we should choose a President and what powers the President should have.

Even if they are the powers the Governor-General has now, I am not sure that it is realistic to vest the executive authority of New Zealand in a President, and then require the President to act on the advice of ministers, on all but the rare occasions when there is doubt about who those ministers are. The concept of acting on advice seems to me difficult to transplant to a republican setting, especially if the President were to be popularly elected. So if we are interested in becoming a republic we would need to think out the details of how that would work in practice.

The constitutional recognition of Maori as a distinct group or groups within our community
For the reasons I have explained the question whether, and if so how, our constitution should recognise Maori as a distinct group or groups within our community is a live issue. I do not think that, with the passage of time, it will simply go away. Nor is the question likely to be answered satisfactorily by the “one law for all” approach at one extreme or at the other extreme by simply making the Treaty of Waitangi part of our law.

It seems more likely that, over a period of time, we will find some New Zealand answers to the questions about the constitutional place of Maori, and do so in a New Zealand way. We will probably need to draw on a range of techniques, including some we are using already. Although the solutions must be our own, we should, however, take account of things that have worked well in other countries where distinct minorities have been fearful that their needs and interests would be swallowed up by those of the majority.
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The Royal Commission on the Electoral System made a number of useful suggestions about how the Maori desire for a measure of self-determination might be met. But it ruled out a power of veto for any minority group in the legislature of a democratic nation. That, however, is not such a revolutionary idea as it might seem.

Emeritus Professor Arend Lijphart, formerly of the University of California at San Diego, made a study of the constitutional arrangements of Switzerland, the Netherlands and Belgium. In different parts of those countries the populations are of different descent or speak different languages or have different religions – sometimes all three. Ways have been found of recognising and protecting the special interests of these distinct groups. Professor Lijphart calls the three countries consociational democracies.

The essential elements include

• the devolution of decision-making authority to the affected group whenever possible; and
• if that is not possible and the group’s vital interests are at stake, there should be strenuous efforts to reach a consensus but, in the absence of a consensus, the group should have the right to veto the decisions of the majority.

These arrangements are seen as legitimate in the three Western European countries mentioned, not in order to separate the various ethnic groups, but to help them live together harmoniously.

Consociation principles have been drawn upon in other multi-ethnic societies. They work best in a country that is relatively sophisticated and committed to its essential unity. I simply want to draw attention to the existence of those principles as a possible ingredient in our distinctively New Zealand mix.

Making our constitution harder to change than the ordinary law

Because aspects of our electoral system had previously been manipulated for party political advantage, Parliament has made some of them harder to change than the ordinary law. Legislation inconsistent with the protected provisions would be unconstitutional though the task of determining unconstitutionality has not yet been given to the courts. The original proposal for a Bill of Rights would have given the courts the power to determine whether Acts of Parliament, as well as the actions of the executive, were consistent with it. But, in that form, it was not then acceptable to the public or Parliament.

In New Zealand the fear of giving undue power to unelected judges has been strong. It seems to be based on two things. First, people do not have a good understanding of the techniques the courts use, in countries where the constitution is supreme law, to deal with legislation that is claimed to be inconsistent with the Constitution. One is by reading down the effect of the legislation so that inconsistency is avoided. But if the courts do hold that all or part of an Act is invalid they try to give the injured party a remedy without inflicting undue hardship or inconvenience on those who have relied on it up to that point.

Second, some people seem to believe that there is a constitutional principle called the sovereignty of Parliament that endows Parliament with the power to make any laws whatsoever and that this power should not – or perhaps cannot – be taken away. That is a mistaken notion. The sovereignty or supremacy of Parliament is a rule of the common law. It simply means that the courts will regard as law any document that, on its face, is an Act of Parliament, made in the required manner and form. The sovereignty of Parliament has no bearing on the question whether Parliament should enact a law by a simple majority, some greater majority, or after some other procedure that measures the extent of public support.

The idea of a Constitution that is supreme law is not unusual or unorthodox. Parliament did not hesitate to enact such Constitutions for the Cook Islands and Niue, New Zealand’s two self-governing, associated States, though those Constitutions came into force only when they had been approved by the local voters. Whether or not the people of New Zealand, too, should give themselves a Constitution that is supreme law is for them to decide freely and on the basis of full information. That information would need to include a good understanding of how our constitutional arrangements work now.