Constitutional meta-principles in New Zealand

The need for meta-principle

In Alefaio v District Court at Waitakere, Palmer J wrote “It is heartening when counsel make arguments based on constitutional doctrine”.[1] Assuming for the sake of argument this is correct,[2] the ability to make such arguments requires a person to be able to articulate the constitutional doctrine upon which they rely.

Lists of constitutional principles tend to peter out around number four or five. People might venture Parliamentary sovereignty, representative democracy, the rule of law, and recognition of the Treaty of Waitangi.  After that the suggestions amount to “be a tidy Kiwi” or “always blow on the pie”.  We treat our constitution like we treat our national anthem: we’re not great on the Māori parts and we only know the first two verses.

This does not indicate the absence of a constitution. We have one.  Rather, what it indicates is a failure of every constitutional taxonomy to date.  I can recall those television advertisements for ACC where the lady falls through the glass coffee table, and they last aired years ago.  But if I can do that, and can’t rattle off Aotearoa New Zealand’s constitutional principles, doesn’t that tend to suggest there’s an issue with the description and articulation of the principles themselves?[3]

Structural solutions will take time. Law faculties cannot be merged with marketing departments overnight.  But the necessary rebranding exercise will face the same difficulty in identifying what counts as a constitutional principle unless there is a way of knowing a constitutional principle when we see one.  Definitions to date have tended to be descriptive: constitutional principles are ‘the rules of the game’, at the level of fundamental principle.  But even that is open to debate: scholars favour their own principles and their own fundaments.  Many even cheat by claiming principles like the rule of law which is a sort of Russian nesting doll of constitutional principles.

The way to avoid this debate is to focus instead on constitutional meta-principles – the principles that inform the principles. They capture the values that underpin the principles of the constitution of Aotearoa New Zealand.  Attaining certainty about meta-principle will in turn assist us in the debate about what is (or is not) a first-order principle.

In this piece, I argue Aotearoa New Zealand’s constitutional meta-principles are:

    • “That sounds like a lot of effort.”
    • “But we could if we wanted to.”
    • “Don’t mention the C-word.”

“That sounds like a lot of effort.”

The first constitutional meta-principle of Aotearoa New Zealand is “that sounds like a lot of effort”. Constitutions are hard work, and we do our best to shirk it wherever possible.  Our constitutional principles reflect this.

That begins with the idea of not getting around to writing down everything in one place. Keith Jackson and John Harre once wrote that New Zealand can “lay claim to possession of one of the shortest and most ridiculous written constitutions of any modern state”.[4]  It is not so much that things are not written down (though there is much that isn’t).  Rather, it is the fact that so little is properly labelled.  Where other countries have constitutional documents we have a constitutional conspiracy; you have to join a lot of dots before you realise it goes all the way to the top.

Jackson and Harre made their observations in 1969. The observant will note that since they wrote those words we gained the Constitution Act 1986.  An Act that purports to “bring together into one enactment certain provisions of constitutional significance” but omits the Treaty of Waitangi.  An Act that simply “continues” Parliamentary sovereignty and in so doing leaving the idea undefined.[5]  An Act that simply points to other Acts like the Electoral Act 1993 and says “whatever that one says”.  An Act that predates the New Zealand Bill of Rights Act 1990, the Supreme Court of New Zealand, and any other number of matters that arguably impact the constitution of Aotearoa New Zealand.  Far from indicating a willingness for constitutional spadework, the Constitution Act 1986 confirms one of the defining characteristics of our constitution is to scrape by with the bare minimum of effort.

And it is not just the writing down that we find exhausting. It is the practice as well.  Aotearoa New Zealand operates a unicameral Parliament because nobody could be bothered going on with a second chamber past the 1950s.

We pay lip service to the separation of powers but operate a Westminster system of government that merges the executive and legislature in a sort of one-circle Venn diagram. As David Baragwanath once observed:[6]

No one really believes that Montesquieu’s notion of the separation of powers applies to Westminster type systems of Government.  An executive which by Order in Council promulgates some 1648 pages of legislation a year and which exercises total control over the legislature is about as distinct from it as gin from tonic after they have been swallowed.

And, for most of the modern period of government in this country, the one branch of government we managed to keep separate we could not even bring ourselves to administer in our own territory. The apex of the judicial branch remained in London, as if in the process of the colonial move the English left behind some boxes, with the result we spent the next 160 years without a tin-opener.  Robert Stout thought this indicated a lack of sense: “The English,” he wrote, “are not, like the French, a logical people.  The existence of the final Colonial Court of Appeal sitting in London, with Judges not appointed by the Colonies, is a proof of the statement”.[7]

Proof, too, I submit, of an abiding laziness when it comes to matters constitutional. An indigenous apex court sounds like a lot of effort.  That is why it only took a mere 100 years after Stout wrote those words for the Supreme Court of New Zealand to finally get out of bed, having hit the constitutional snooze button 5,840,000 times.[8]  Not so much a constitutional moment whose time had come, but a constitutional bus the country chased down the street.

And, lastly, the continued avoidance of true recognition of, and accountability to, Māori within New Zealand’s constitutional arrangements. We have had literally decades where it has been impossible to plead ignorance.  And yet we have not made changes at the constitutional level.  True, it is also likely to be a product of pathologies more serious than laziness, but it is another mark in the ledger for my thesis.

As a result, I say that “that sounds like a lot of effort” is a constitutional meta-principle. One cannot understand the constitution of Aotearoa New Zealand without understanding that it is made and administered by a society not willing to “do the mahi”.

“But we could if we wanted to.”

The second constitutional meta-principle of Aotearoa New Zealand is “but we could if we wanted to”. It underpins our constitutional obsession with theoretical powers that are never exercised.  It acts both as a touchstone for Parliamentary sovereignty and a psychological comfort blanket for those who fear that sovereignty.  It informs how the constitution of Aotearoa New Zealand is in large part a truce of institutions maintained by the belief of each that they would be the victor should constitutional push come to critical shove.

In Aotearoa New Zealand, Parliament is sovereign.[9] Parliament makes the law and the courts apply it – “whether the Courts think it is sensible or not”.[10]  Parliament’s law-making power extends to making bad law, unfair law, and unjust law.  That includes the power to enact legislation ordering the death of every blue-eyed baby, or red-haired child.[11]  “We won’t”, says Parliament, “but we could if we wanted to.”

At the same time, courts’ commitment to applying legislation wavers at the same extremes. “Some common law rights presumably lie so deep that even Parliament could not override them”, said Cooke J.[12]  “We won’t go rogue this time,” say the Courts, “but we could if we wanted to.”

The same type of uneasy relationship can be found in other corners of our constitution. Everyone believes the Governor-General acts on advice.  As Sir Michael Hardie-Boys described it: “I do as I am advised, which is a constitutional euphemism for doing as I am told”.[13]  But even in doing that the Governor-General retains the dream that maybe, just maybe, they could act differently.  In the same speech, Sir Michael said:[14]

I no longer exercise an independent judgement – although I enjoy the thought that like the razor strap my father kept in the hall cupboard, I could if I really had to.

In other words, “he could if he wanted to”.

I want to be clear. The “but we could if we wanted to” meta-principle is not to be mistaken for “go on, if you think you’re hard enough”.  It is not a meta-principle founded on aggression, where constitutional balance is maintained through fear of what another constitutional actor might do if one oversteps.  Rather, it is founded on insecurity and self-delusion.  Institutions reassure themselves that, despite their comparative impotence, if something was truly important enough then they could do something about it.  The meta-principle still maintains balance in its own way by permitting institutions to rationalise as a strength their compliance with expectations even in difficult situations.  And in doing so, this meta-principle informs a number of important constitutional principles for Aotearoa New Zealand.

“Don’t mention the C-word.”

The third constitutional meta-principle of Aotearoa New Zealand is “don’t mention the C-word”. Whatever you do, don’t acknowledge that something is constitutional.  It can be legal, political, or societal.  It just can’t be called constitutional.

At first blush, this might be thought of as a contradiction in terms. Constitutional principles can hardly be informed by a meta-principle that demands a lack of constitutional-ness.  But the meta-principle is concerned with labels, not substance.  Constitutional principles will, by definition, concern the constitution; they just can’t say they do.  The only thing worse than having a constitution is being seen to discuss it.

Everything constitutional, every constitutional principle, is divvied up into neat taxonomical boxes in order to avoid the spectre of being labelled as constitutional. So, the Cabinet Manual is a guide to executive government, not a codification of some core constitutional conventions.  The rule of law is a legal concept guarded by judges.  Our electoral system is a political concept.  Our relationship with Realm countries is a mystery known only to MFAT and Dame Alison Quentin-Baxter.

The one exception is the Constitution Act 1986, the material shortcomings of which are addressed above. That document alone is willing to state out loud that it is about the constitution.  An exception that proves the rule, to be sure.  But what you have to remember is that it was the product of someone who studied in the United States and subsequently admitted it was “an experience that changed my life so considerably I have not yet recovered from it”.[15]  And beyond that, even the finest “constitutional” cases disclaim their constitutional nature.  For example, in Fitzgerald v Muldoon Wild CJ hurried to explain that the constitutional law case only really meant applying an Act of Parliament to the facts at hand.[16]

Meta-principles in summary

Understanding meta-principle will help us to better articulate what is and is not properly constitutional, by knowing what underpins them. I do not propose to have listed the constitutional meta-principles exhaustively. Further meta-principles can and should be derived, preferably aided by substantial funding from the Borrin Foundation.

JC Beaglehole once said the constitution should not be “some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe”.[17] And until we identify meta-principle, the sleepless priests will reign.

_________________________________________________

[1]     Alefaio v District Court at Waitakere [2020] NZHC 3118 at [8].

[2]     It is not.  It is deeply irritating.

[3]     Readers in search of serious people who will likely disagree might look to Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014).   Bruce Harris New Zealand Constitution: An Analysis in Terms of Principles (Thomson Reuters, Wellington, 2018); Sir Kenneth Keith “On the Constitution of New Zealand: an Introduction to the Foundations of the Current Form of Government” in Cabinet Manual (Government Printer, Wellington, 2017); or “Chapter 4: Fundamental constitutional principles and values of New Zealand law” in Legislation Guidelines: 2018 edition (Legislation Design and Advisory Committee, Wellington, 2018).  I disagree with all of these people and you should listen to me instead.

[4]     Keith Jackson and John Harre New Zealand (1969) at 73.

[5]     Constitution Act 1986, s 15.

[6]     WD Baragwanath “FW Guest Memorial Lecture: The Dynamics of the Common Law” (1987) 6 Otago Law Review 355 at 357.  Footnotes omitted.

[7]     Robert Stout “Appellate Tribunals for the Colonies” (1904) 2 CL Rev 3 at 4.

[8]     Assuming a standard iPhone nine minute snooze period, and excluding leap years.

[9]     See for example Tannadyce v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [3]; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC) at 595.

[10]    Christchurch Readymix Concrete v Canterbury Regional Council (2011)16 ELRNZ 748 at [14].

[11]    AV Dicey’s childhood bully had blue eyes and red hair.  These two examples have stuck with constitutional scholars ever since.

[12]    Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398.

[13]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[14]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[15]    Geoffrey Palmer “The provision of legal services to government” (2000) 31 VUWLR 65 at (internal pagination 2).

[16]    Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC) at 622.

[17]    JC Beaglehole “The Old Empire and the New” in New Zealand and the Statute of Westminster: Five Lectures (Victoria University College, Wellington, 1944) at 50.

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