Building the Constitution
ed Colin James
Institute of Policy Studies, $45,
Some time in 1997, with the prolonged aftermath of the first MMP election still agitating the establishment and mightily diverting the rest of us, the idea gained currency that it might be useful to have a conference about it all. It being the constitution and what if anything should be done to, with or for it. Things being what they are in New Zealand, the Institute of Policy Studies got to run the show, corporate and official sponsors were solicited, and what is carefully not called a committee but a Steering Group emerged.
The Institute of Policy Studies is known for slim volumes on matters currently concerning the academy, the senior public service, Simon Upton and a handful of others of – if not up to – his ilk. The IPS method – invite a few learned persons from round about to discourse briefly and have the select bureaucrats and pollies around for a post-work conversazione – is roughly what went down on a much grander scale, come this “Building the Constitution” conference. Ironically, given the post-colonial angst hanging about at the conference, the method is (how shall I say it?) very Anglo-Saxon establishmentarian.
No-one with an interest in constructive thinking in New Zealand would want to knock the IPS. It is the only thing approaching an independent policy think-tank we have. More like a think-bowl, however, when it comes down to it: with zilch funding, its norms are not exactly conducive to deep-think at the welcome end of a tiresome day. Nor, beyond casting its slim volumes into the bookshops, can it be a populariser.
At 448 pages, including lists of people who registered to attend and the self-selected observers, this is by no means a slim volume. The question, then, is whether it’s better than a slim volume or series thereof, and what is it for? About the conference itself we know little. The ACT Party and Winston Peters and a clutch of commentators got their knickers in a twist, scenting elitism, subversion and plots if not gunpowder and treason. So that is what mostly got reported. If the fourth estate spends its time barking away at the bottom of the wrong tree, it gets a bit difficult to launch a public debate, which is what the conference was supposed to do. What this volume provides is the text of opening speeches and all the short papers that the organisers requested, and which were circulated before the various discussion sessions. Of the debate and the arguments that actually took place, we have merely a “Thematic Summary” from the Institute’s programme director. This is prefaced with a disclaimer so elaborate as to provoke questions about what hairy moments, hours even, can have produced this species of grovel?
Somewhere in the promotional bumf for Building the Constitution the book is claimed to be “a seminal resource for anyone studying the constitution”. I suppose they would say that, wouldn’t they? Maybe I’m old-fashioned, but I always thought that a seminal resource would be a book of documents. Of course, debates (Lincoln-Douglas, Putney), speeches (Gettysburg) and papers (Federalist) are seminal documents, but all these are from protagonists, actors on the political stage. What is said by judges may become critical in constitutional development, but mainly when they say it in court – though their explanatory and exculpatory remarks may also be sought out by constitutional historians. Sir Geoffrey Palmer is clearly a quondam participant and an expert exegete. Lord Cooke of Thorndon may have done more damage or contributed more to our constitutional development, depending on your point of view; but it is what he said in various judgments that is seminal documentation, not his brief disquisition here on the Privy Council.
That said, there is lots of useful stuff here for classroom teachers and stage one tutors to copy off and transform into check-lists; some of the papers include useful references. Bill Oliver and Colin James do well and succinctly by New Zealand constitutional development. Philip Joseph and the aforesaid Sir Geoffrey provide informative analysis of the legal history and framework. Professors Boston and McLeay plonk worthily through the Public Service and Cabinet; but both are limited, and it is difficult to know whether by the brief they were given or by a failure of nerve and imagination.
There are some really good bits. Janet McLean, dealing with and to referenda, lays about her with cutting effect. I wish though she had told us exactly which knuckle-head was responsible for subjecting the electorate to the hydra-headed monster that masqueraded as a single yes/no question at the last election. A duet of papers from Janine Hayward and Andrew Ladley on the head of state question should be, like McLean’s piece, reprinted frequently; whenever, that is to say, tempers are frazzled and unseasonable silly seasons break out.
If anyone other than your reviewer reads from front to back, they should be assured that on the very last pages there is some respite from the assumption that we need and might even attain “a systematic approach to future change”. Alex Frame and Jack Hodder are sceptics. Frame rather spoils the effect of questioning the capacity of “rational inquiry and skilled drafters [to] produce an optimal constitutional structure”, by proceeding to propose “a Commission (perhaps Royal) … to inquire into the meaning of … our citizenship”. Oh dear, and here was I thinking that truly, deeply shameful Shipley questionnaire had been burnt and buried. I doubt Hodder would have any of such a Commission save as political device. Significant changes have been achieved, he points out, without enormous turmoil. We have dramatic change in both laws and social attitudes regarding homosexuality, matrimonial property, the Treaty of Waitangi – all still developing. Hodder includes nuclear power in the list. If it seems out of place, drive north, dear reader and visit the site of what was to be our first nuclear power station. Good roads to nowhere should always provoke citizen queries.
Which brings us round to the civil society question; Hodder begs it. He hopes that New Zealand can continue to be “a model liberal democracy” and opines that this involves “constant incremental change in response to political forces, not always coherent, but subject to the rule of law”. We might perhaps agree that “the essential risk of the written constitution is the rule of lawyers by reference to anachronistic rules”; but many of the Maori contributors to this volume might not so easily agree that liberal democracy and a part in civil society are all that they’re cracked up to be.
Building the Constitution includes a plethora of statements about what the or a constitution is about. Roughly, they range from “the way we do things” to “the distribution of power among institutions”. What gets very short shrift, outside of papers on questions of sovereignty and the Treaty, is the “what” and the “whose” and “whence” of power. It is an odd thing that having gathered up so many learned and knowledgeable, experienced people, there should be so little by way of analysing the second- and third-level assumptions that accrue like fungus through the papers.
In part this begin-in-the-middle approach seems a hangover from the 1997 agitation out of which the conference idea arose. In part it may be a latter-day legacy from Truby King: “a systematic approach to future change” is New Zealand code for tidying people up with a timetable. The Conference Objective document in fact spells this out: “there is a growing unease and anticipation among many of the people [and] it is timely to give this a national focus”. Unease ? How very genteel! Brassed off more likely; with the Alamein Kopu shenanigans, with Mrs Shipley’s matronising and with the sneers of her little-boy ministers. Maori voters were on the move again; sundry hapu found time to repudiate the rangatira settlements preferred by the Tories of both sides. No wonder there was unease among the establishment.
We know the course of the conference did not run smooth for none of the continuing structures imagined at the outset seems to have eventuated. At the turn of the century, the old practice of forming a defensive square of committees to box a problem failed. Next thing you know, there will be proper arguments about power and principles and how to do the same thing several different ways without bringing on another round of identity angst.
Ruth Butterworth taught for many years in the Political Studies Department at the University of Auckland.