In Search of Consensus: New Zealand’s Electoral Act 1956 and its Constitutional Legacy
Victoria University Press, $40.00,
As I write, the sitting president of the United States of America is reported to be seriously contemplating the use of his powers of pardon to pardon himself. Such proposed conduct illustrates just how much all constitutions, written or unwritten, require large measures of self-restraint on the part of officials and politicians in order to work properly. Constitutional lawyers, political scientists and pundits tend to focus on these and other incidents in which politicians test the limits of their powers. In her new book, In Search of Consensus: New Zealand’s Electoral Act 1956 and its Constitutional Legacy, Elizabeth McLeay does something which is much more original. She makes a study of the voluntary and wholly politically enforced self-restraint by New Zealand politicians in the Electoral Act 1956 and its successor legislation.
The Electoral Act 1956 introduced the requirement for a parliamentary super-majority, or a referendum of the voters, before key aspects of New Zealand’s parliamentary democracy could be changed. The protected matters include the three-year term, the voting age, the composition of the body which determines electoral boundaries (Representation Commission), and definitions of the “European” (now general) electoral roll. The protective provisions appear to have been the result of an initiative from within the elite ranks of the National-led government and were not the result of public pressure. The process of the Act’s passing was not propitious: it was not the subject of wide consultation and was passed under urgency. Nevertheless, it was passed unanimously; the provisions have been preserved in what is now the Electoral Act 1993, and the protections have been observed (the ongoing litigation about prisoner voting rights notwithstanding). It has become conventional practice that certain electoral changes can only be made by way of special procedures.
The abolition of the upper house in 1950 by a simple majority under the Holland National government (Labour had opposed) had raised disquiet in National Party ranks about just how easy it was to make major constitutional changes in New Zealand. But, as McLeay observes, that cannot fully explain the constitutional impulse at the time. It was not as if the old Legislative Council had operated as an instrument of constraint. There was no limit on the number of members or appointments to the chamber, and hence no prospect of veto. Indeed, Holland had appointed members of the so-called “suicide squad” on the basis that they would agree to abolish their own office. Nevertheless, abolition of the Legislative Council, and a more general concern from both sides of the political spectrum about the concentration and potential misuse of executive power, put constitutional reform on the politicians’ agenda. To appease the bicameralists in the National Party, a promise had been made to explore the possibility of a written constitution. For a time, some within the National government actively investigated proposals for a new improved version of an upper house. In the end, however, the constitutional reform option adopted was that of entrenchment. And that preferred solution, in the words of Jack Marshall, Minister of Justice and in charge of the electoral department at the relevant time, “had a moral sanction rather than a legal one”. Parliament would itself enforce its rules restricting constitutional change. The protected measures of the Electoral Act would be the subject of ongoing political bargaining and compromise, and leave a significant constitutional legacy for how New Zealand approaches constitutional change.
McLeay tells a fascinating story of the political consensus building around the Electoral Act 1956, drawing deftly and fluently from the primary sources. Certain electoral matters were, and remained, highly contested, such as the issue over boundary drawing and the balance of town and country. But, unlike the United States, where electoral boundary drawing has long been heavily litigated, a political and bipartisan solution was adopted. McLeay also skilfully sets out the history of the Māori seats and Māori representation more generally. The failure to reach consensus on the Māori seats explains why they, unlike other important matters, were never protected by entrenchment.
Much has changed since the 1950s: much for the better and some for the worse. The casual racism on issues of Māori representation and voting is striking. (Māori were given the secret ballot much later than their Pākehā counterparts.) On the other hand, there were extremely high levels of citizen engagement in politics: McLeay calculates that, in the 1950s, half of those who voted for the National Party were also paid up members of the Party. Despite this, constitutional reform was exclusively elite-led.
The idea of describing a political constitutional culture through a single statute is a striking and effective one and, in many ways, provides a window into New Zealand’s political culture more generally. Like the Electoral Act, The New Zealand Bill of Rights Act’s enactment was not particularly auspicious, and neither was that of the Treaty of Waitangi Act 1975 which set up the Waitangi Tribunal. The political practices which surround such statutes nevertheless achieve the character of “constitutional” accretions over time.
This is a wonderful book, exposing an interesting and important era of New Zealand political and constitutional history and its legacy. The author wears her learning lightly, and draws together the historical, political and legal strands in an accessible and rewarding read.
Janet McLean is Professor of Law at the University of Auckland.