Address by Sir Geoffrey Palmer QC

Queenstown Events Centre

Thursday 9 February 2017 at 5.30 pm

 

Introduction

Thank you for coming to the meeting.

Andrew Butler and I have been speaking around New Zealand to groups  about our book published in September last year by the Victoria University Press, A Constitution for Aotearoa New Zealand.

It is a short book written for lay people. The Constitution is not and should not be the preserve of lawyers.

We want to leave plenty of time for questions and answers. What we say on the front of our book is what we aim to do.

We propose a written, codified Constitution for New Zealand. That Constitution aims to set out in an accessible form and a single document the fundamental rules and principles under which New Zealand is to be governed. It defines the powers of the basic institutions of government and the rights of individuals. It deals not with individual elements of the constitution in isolation, but sets out the constitutional world as coherent whole.

This is all about who has power, how it can be exercised, and what happens if it is abused.

One of the reasons in the 1960s for deciding that a written constitution was unnecessary in New Zealand was that we were British – we did not need to write it down. Hardly correct now – 25 per cent of the people who live here were not born here. That figure rises to 40 per cent in Auckland. People of Asian ethnicity will outnumber Māori by 2038 according to Statistics New Zealand.

How can people of diverse backgrounds understand how this country is governed unless they can find the rules all together in one document written down?

There are some disconcerting issues emerging for governance in countries with whom we have close ties.

The United States’ election of Donald Trump as President and the referendum on Brexit in the United Kingdom both raise issues about how democratic politics is conducted. In particular, these developments suggest a loss of confidence in the institutions of representative government.

They challenge the manner in which politics has traditionally been conducted in western democracies. The expressions of anger, hate, racism, misogyny, lying and policy recklessness set a new low in democratic discourse. How do politics in what has been called the post-truth age of the social media work?

New Zealand is free of those tendencies to a great extent now, but can we sure that will continue?

A Short Account of our Constitutional history

One reason for the primitive nature of the New Zealand Constitution is the slow march of New Zealand from colony to nation and constitutional independence that followed the enactment of the New Zealand Constitution Act 1852 (UK).

There never seemed to be an opportunity for the nature of New Zealand’s constitutional arrangements to be systematically considered or designed during the whole period. They just evolved.

The establishment of responsible government arrived early in 1857, along with power to repeal most of the 1852 Act, save 21 provisions. The abolition of the provinces came in 1876. Dominion status was acquired in 1907. New Zealand sat in its own right at the negotiations leading to the Treaty of Versailles, ending the First World War. New Zealand joined the League of Nations as an independent nation. The Balfour Declaration of 1926 was followed by the Statute of Westminster 1931 (UK).

The passage of the Statute of Westminster Adoption Act in New Zealand occurred in 1947. The final step in repatriation of our constitutional arrangement was marked by the passage of the Constitution Act 1986 that revoked the application in New Zealand of the 1852 enactment of the United Kingdom Parliament.1

The consequence of this slow march was that the overall issues of constitutional design in New Zealand have never been considered as a whole.

A Second Chamber

One thing that does not appear in our proposals is a second chamber. That is because the history of the second chamber in New Zealand is so vexed that any revival will be impossible and it is likely to be undemocratic. That constitutional horse has bolted and cannot be put back in the stable more than 65 years after the demise of the Legislative Council. A design that would enhance the performance of government and not obstruct it unreasonably seems too difficult.

It is very interesting to see that Dr Gareth Morgan and his new political party advocate an upper house. We welcome Dr Morgan’s advocacy for a written constitution. The New Zealand Parliament had a second chamber until 1 January 1951, close to a hundred years. But we doubt whether that experience that New Zealand had with a second chamber inspires confidence that one could work now.

New Zealand’s first Professor of Political Science, Professor Leslie Lipson was scathing in his assessment of the Legislative Council. He argued in 1948 that New Zealand’s must be considered one of the most futile and ineffective second chambers in the world. It had no share in the decisions that really counted. It was a place for putting political hacks out to grass providing a handy source of patronage.2

Both Australia and Canada have had continuing difficulties with their upper houses and efforts to reform them – which have been more or less continuous – have always fallen short of arriving at satisfactory solution.

Bi-cameral Parliaments were part of the Westminster system. In constitutional theory upper houses are regarded as having real legislative influence in revising legislation, improving it, and providing the opportunity for sober second thought by delaying legislation. As well, they could act as something of a check and a balance on the lower house and constitute a brake on the power of the Executive Government.

It did not work in New Zealand and it cannot be made to work now. It will be a recipe for confusion and frustration. How can a second chamber be designed which can perform useful functions of checking and revising the work of the other chamber but not be so potent as to obstruct it? The search for more checks and balances needs to be elsewhere.

Conclusion

The real problem with New Zealand’s constitutional development is that there was no real point of time when the New Zealand electorate got to decide what the design of government should be. The question does just not did not arise.

A most interesting submission to the website Constitution Aotearoa said this:

The New Zealand Colonial Government gained its authority to govern from an Act of the British Parliament, not the New Zealand electors. New Zealand politicians lost this authority to govern the very day New Zealand became independent and regardless of whether the date was 1920, 1947, 1986 or 1988, the principle is the same.

From 11th January 1920, despite independence, New Zealand politicians continued to govern New Zealand as though it was still a colony of Britain-as though no change at all had occurred. Ideally, the former New Zealand colonial government should have immediately issued a new constitution and had it ratified by the People of New Zealand.

This wasn’t done and has never been done!

The origins of our present system remain colonial.


Notes

1. For an authoritative legal account of how the law developed see Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed., Brookers, Wellington,2014) 119-122
2. Leslie Lipson The Politics of Equality-New Zealand’s Adventure in Democracy (University of Chicago Press, Chicago 1948) 357- 358


Appendix: A brief history of the Legislative Council

The Legislative Council, the upper house of New Zealand’s Parliament, first met in May 1854. It comprised at first members appointed for life, and after 1891 new members had a seven-year term, but with eligibility for re-appointment.i Members were not elected but nominated by the Governor. After 1868 there was no legal requirement for approval from London for appointment and appointments were made even before 1868 on the advice of New Zealand ministers.

For much of the 19th century the Chamber was reasonably effective in amending and promoting legislation. It clashed with the Liberal Government in 1891 and the Government found its Bills wrecked by amendments in the Council.ii The difficulty was overcome by the Government securing the appointment of more members, a request refused by the Governor but acceded to by the Colonial Office when the Government successfully appealed to London, an important victory for the then Premier Ballance.

Calls for reform became insistent and the leader of the Reform Party W F Massey included a policy of reform in the party’s 1912 election policy. Massey’s key argument was that appointees lost their independence rapidly and became subservient supporters of the party in power. Sir Francis Bell, a leading Wellington lawyer, was appointed to the Council as its leader, the first non-Liberal party appointment in 21 years.iii His newness to the Council did not assist his efforts to reform it. After several attempts, he procured the passage through the Parliament of the Legislative Council Act 1914. It provided for a Council elected by proportional representation. It was a stern struggle to secure this legislation, as the Council was resistant to it.iv

The reformed Council was to comprise 40 elected members, to be elected at the time of elections for the lower house representing four electorates, into which the whole country was divided. The legislation had many merits over the Council’s original framework. It could not be swamped by new appointments. It defined with some particularity the powers of the Chamber, particularly in relation to money bills and financial matters, making it subordinate to the House of Representatives. By being elective it would have enjoyed democratic legitimacy. But its real purpose may have been politically suspect.

The First World War occurred in the same year the legislation was passed and its implementation was to be phased in anyway. The Act was never brought into force. A coalition government formed during the war but the price of Liberal membership was to not bring the legislation into force. Nevertheless, the statute remained on the statute book until formally repealed in 1950, as part of the legislation that abolished the Council.

Long in Opposition and hungry for office the National Party saw a political opportunity. The Leader of the National Opposition S G Holland in 1947 proposed a Member’s Bill to abolish the Council. It was defeated. There followed a series a constitutional manoeuvres within the Parliament that set in train the events that led to a substantial constitutional change. Many in the Labour caucus would have voted for Holland’s Bill. But Prime Minister Fraser held it up by pointing out that the New Zealand Parliament did not have power to abolish the Council.

Two things happened. First, the government legislated to adopt the 1931 Statute of Westminster that New Zealand had always been ambivalent about, reluctant to cut the apron strings with the United Kingdom. The Statute of Westminster Adoption Act was enacted in 1947.

Second, immediately after Parliament passed the New Zealand Constitution (Request and Consent) Act 1947 asking the British Government to legislate. The United Kingdom Parliament soon passed the New Zealand Constitution (Amendment) Act 1947 (UK). This repealed the New Zealand Constitution Amendment Act 1857 and empowered the New Zealand Parliament to “alter, suspend or repeal” all or any of the 1852 Act. Whether New Zealand had the power to legislate without going through this process needs further attention.

At the same time a Joint Constitutional Committee of the two houses was set up to consider the issue of the second chamber. In 1948 it reported that it was unable to agree on a recommendation. Holland, still in opposition, introduced his Bill and again it was defeated. In 1949 The National Party ran in the general election on a platform of abolition of the Council. It won and proceeded to implement its policy.

Many of the difficulties encountered with securing agreement on the 1914 legislation were overcome by appointing members to the Council who could be relied upon to vote for abolition. They were known as the “suicide” squad. Some of them may have changed their mind after appointment so Holland appointed some more.

The strategy adopted by the Prime Minister was cunningly devised not oppose to bi-cameralism outright. The policy was to abolish the Council and then see what, if any, replacement may be required. Too many members of Holland’s caucus, R M Algie and J R Marshall and Sir Matthew Oram (the Speaker from 1950 to 1957) were ardent proponents of a second chamber. Thus, a blunt rejection of bi-cameralism was not feasible.

Abolition of the Legislative Council led a prolonged period of constitutional consideration, even agitation, concerning an alternative to the Legislative Council. A procession of petitions and Select Committee reports that lasted until the mid 1960s, when the efforts having failed to produce a new second chamber finally petered out. The 1952 report is worthy of close study and made a brave attempt to rehabilitate the idea of a second chamber and provide a function for it.v But it was for a nominated chamber. The proposition was re-examined along with others in 1961 but was again unsuccessful.vi But the idea never quite died.

New Zealand’s first Professor of Political Science, Professor Leslie Lipson was scathing in his assessment of the Legislative Council. He argued in 1948 this must be considered one of the most futile and ineffective second chambers in the world.vii It had no share in the decisions that really count.

In 1954 this was followed by devastating judgment about the Council made by Professor K J Scott in a book about New Zealand’s constitutional development published in London:viii

It was not an effective revising body; it did not prevent the passing of hasty and ill-considered legislation; it did not relieve members of the Lower House from the ardours of committee work; and it did not represent a distinct interest in the community.

The task to securing public acceptance of a second chamber at this point in New Zealand’s history seems impossible. There have been real and continuing troubles with second chambers in both Australia and Canada. What would it actually do that is different from the House of Representatives?


Notes
i. Legislative Council Amendment Act 1891.
ii. Leslie Lipson The Politics of Equality-New Zealand’s Adventure in Democracy (University of Chicago Press, Chicago 1948) 357-358
iii. W J Gardiner in 2 Dictionary of New Zealand Biography (Bridget Williams Books Department of Internal Affairs, 1993) 35.
iv. W K Jackson, The New Zealand Legislative Council-A Study of the Establishment, Failure and Abolition of an Upper House (University of Otago Press, Dunedin,1972) at 166-176.
v. Reports of the Constitutional Reform Committee [1952] AJHR I 18
vi. Report of the Public Petitions M to Z Committee [1961] AJHR I 2A; Report of the Constitutional Reform Committee [1965] AJHR 114. See also L Cleveland and A D Robinson (eds) Readings in New Zealand Government (Reed Education, Wellington 1972) pp14 -145;183-271.)
vii. Leslie Lipson The Politics of Equality (University of Chicago Press, Chicago, 1948), at 360.
ix. K J Scott “Parliament” in JL Robson (ed) New Zealand: The Development of its Laws and Constitution, Stevens & Sons, London 1954 at 38.