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Last Updated: 20 November 2022
New Zealand Constitution: An Analysis in Terms of Principles
247
New Zealand Constitution:
An Analysis in Terms of Principles
(By Bruce Harris, Thomson Reuters, 2018)
A pragmatic strand of jurisprudence has long been evident in New Zealand public law. Key examples of that jurisprudential strand in recent times have been provided by Keith Jackson,1 Ted Thomas,2 Matthew Palmer,3 Dean Knight,4 and Mai Chen,5 among others. But Bruce Harris is perhaps the most emblematic New Zealand scholar working within the pragmatic tradition given the breadth and depth of his published research. This research often exemplifies pragmatic scholarship through both its style and substance. In terms of style, there is a characteristic focus on providing practical recommendations for genuine issues of constitutional practice, with a penchant for the topical over the perennial. This no-nonsense approach carries over into Harris’s expression, which relies on straightforward language that seeks to capture nuance without descending into undue complication. A premium is placed on accessibility – it’s clear that Harris believes academics ought to make their work relevant to the wider public, not just other academics.
This pragmatic style both complements and foreshadows more substantive commitment to constitutional pragmatism as an intellectual tradition. According to this tradition a constitution is an instrument – a means to an end – and constitutional scholarship ought to be functionalist in its orientation. This style of analysis prioritises what works, rather than how or why it works. The preference is for contextualism over abstraction, and incrementalism over wholesale, systematic reform. Theory has its place but its role is limited. It is a tool for engaging with what is in reality a complex and multifaceted institution. But just because a constitution is complex and multifaceted does not mean that it is elitist or rarefied. It must serve the needs of the community first and foremost, and in doing so bows to neither esoteric theory nor blunt ideology. These
features of the pragmatic style of public law analysis are all evident in Harris’s body of work.
Harris’s new book, New Zealand Constitution: An Analysis in Terms of Principles (hereafter New Zealand Constitution),6 continues this commitment to accessible style and practical substance. In doing so it reflects his best features as an academic scholar committed to New Zealand public law. Its primary goal is to present an accessible account of New Zealand’s opaque and evolving constitutional arrangements. But it also represents a compelling case for the value of using a pragmatic style of analysis for parsing New Zealand public law issues. In time, its contribution to New Zealand public law theory may be recognised alongside its laudable attempt to democratise many of our most fundamental constitutional principles.
The straightforward language and analysis we expect from Harris’s work is on show in New Zealand Constitution in abundance. There is the use of the passive voice to introduce key ideas (“discourse on the concept of the rule of law may be supported by case law”),7 the unsentimental language used to refer to moral obligations (“expected compliance”)8 and the compelling use of deliberate understatement (“A government without funding would be unsustainable”).9 These language choices serve to emphasise the pragmatic nature of the substantive analysis, but they also do the important work of assisting the reader’s comprehension. Sophisticated readers will usually understand the nuance in play, whereas casual readers will readily appreciate the broad force of the key point more than adequately. This in itself is a testament to the care with which the text has been compiled.
Turning to the substantive analysis, the conceit of New Zealand Constitution is that the constitutional system makes manifest a series of principles and that these principles can be used as an organising framework for constitutional analysis.10 This might initially strike the reader as an odd approach for a committed pragmatist, but it is motivated by a distinctively pragmatic intention. Conceptualising the constitution as a collection of principles allows for a systematic account of an integrated constitutional structure, drawing together otherwise disparate laws, rules, norms and values into a coherent whole.11 It enables the neat presentation of tensions within actual constitutional practice, where the differing weight afforded to competing principles provides some normative substance and direction to what are undeniably flexible constitutional arrangements.
6 Bruce Harris New Zealand Constitution: A Analysis in Terms of Principles
(Thomson Reuters, Wellington, 2018).
7 At 22.
8 At 7.
9 At 109.
10 At 3.
11 At 15.
An analysis in terms of principles also has the advantage of providing a means of holding together the legal and non-legal influences over constitutional practice. This is important for at least two reasons. First, it reconciles an awkward distinction between justiciable positive law and non-justiciable manifestations of constitutional propriety (conventions being the primary example). Both are able to be given appropriate emphasis as the underlying principle justifying the relevant constitutional rule is the same in each case. Second, using principles as a framing device highlights the ability to translate constitutional theory into justiciable law in a given factual context.12 Constitutional rules have instrumental value both as rules and as constitutional precepts; functioning as both a justification for the current state of constitutional affairs as well as providing a reason for future action. This instrumentality sets Harris’s pragmatism apart from scholarship influenced by more naked adhocracy and antitheoretical traditions.13 What Harris offers in New Zealand Constitution is a much richer account based on the maintenance of a constitutional order that is desirable (subject always to responsible reform) because it preserves the order that society wants. Indeed, this emphasis on the constitution as an instrument to deliver on societal expectations is made plain right from the beginning:14
The constitution is not an end in itself, but rather has instrumental value in allowing society to have the order that it wants. The rules and decisions made by the system ideally are all ultimately for the benefit of the electorate and all others living in New Zealand. Development of the system tends to be incremental in response to the everchanging expectations of New Zealand society and the world community. Context plays a decisive role in what is accepted as currently provided by constitutional law, conventions and political theory.
The remainder of New Zealand Constitution is devoted to fleshing out this highly pragmatic account of the constitution.
That account transverses 16 principles of the New Zealand constitution, leading to a comprehensive (although not exhaustive) treatment of public law issues. Following the introduction the analysis begins with three chapters (Chapters 2, 3 and 4 respectively) covering the rule of law, the Treaty of Waitangi (and other Māori rights issues), and the democratic system. These are the core values of the constitution, and the context they provide frames the analysis in the remainder of New Zealand Constitution. Immediately with these three chapters the advantages and limitations of Harris’s pragmatic analysis are evident. The importance of the rule
12 At 16.
of law as a basic principle is supported by the matter-of-fact claim that if it were otherwise it is ”likely that there would be little order”.15 Similarly, the text states without further explanation that: “the Treaty [of Waitangi]’s centrality to constitutional understanding is reinforced by the moral responsibility the constitution has to protect the interests of Māori as the indigenous people of New Zealand”.16 These statements may initially strike the informed reader as something of an understatement, but it is also a simple and direct way of communicating an important point to readers unfamiliar with constitutional analysis. Further, the shape of pragmatic thinking is on display early. Harris prefers to locate the role of norms in the development of positive law, rather than set up abstract, idealised standards to assess constitutional legitimacy. This leads, for example, to a scepticism regarding “thick” conceptions of the rule of law.17 Jurists that advocate for such a thick conception – Harris does not name them although he appears to have specific individuals in mind – violate the pragmatic instinct by inappropriately substituting their own views for those of the wider community. “These jurists are effectively claiming that they have an appreciation of what procedural and substantive principles should be part of the justiciable law of every country”.18 Harris has no time for such ideological motivations.
Chapters 5, 6 and 7 address Parliament, dealing with legal sovereignty, accountability for Crown finances and parliamentary privilege. Here the text presents pragmatic analysis in all its glory, as the discussion frames Parliament as an institution with distinct functions to perform. The usual navel gazing about the limits of legislative sovereignty are helpfully reconstituted through a pragmatic lens. The Cooke dicta on the possible limits of parliamentary sovereignty are noted but not endorsed or criticised.19 Perhaps interestingly given Harris’s emphasis on community expectations, the possibility of manner and form entrenchment is afforded some support. Societal views can relate to process as well as substance, and so it is open to the community to expect that substantive differences between laws may mean that those laws are enacted by substantially different processes.20 But it is the presentation of realist arguments concerning the constraints on Parliament’s lawmaking sovereignty that are most compelling when it comes to accountability for legislation – it hardly need be noted that political and societal (popular)
15 At 20.
16 At 28.
17 For example, that discussed in Philip A Joseph “The rule of Law: Foundational Norm” in Richard Ekins (ed) Modern Challenges to the Rule of Law (LexisNexis NZ, Wellington, 2011) 47.
18 At 21.
19 At 86-88 citing: L v M [1979] NZCA 59; [1979] 2 NZLR 519 (CA); Brader v Ministry of Transport [1981] 1 NZLR 73 (CA); New Zealand Drivers’ Assoc v New Zealand Road Carriers [1982] 1 NZLR 374 (CA); Fraser v State Services Commission [1984] 1 NZLR 116 (CA); and Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA).
20 At 98.
support, financial viability and that which is not physically possible all constrain legislative sovereignty in very effective ways.21
Chapter 8 deals with the principle that the Governor-General normally acts on the advice of Ministers. A lot of work is being performed by the word “normally” in this formulation. While the conventional role of Ministerial advice is widely understood, a more nuanced description is necessary to account for the Governor-General’s reserve powers. These powers are in fact of particular interest as they tend to sit uncomfortably with traditional understandings of the constitution in terms of either legal or political accountability. Harris suggests that despite these discontinuities the reserve powers “would be missed” if the office of the Governor-General was to be discontinued because they have “practical value”.22 The role of the Governor-General risks being downplayed in conventional analysis of the constitution, where it can be treated as a curiosity or historical anomaly. But the practical effect of an independent office holder that can “consult, encourage and warn” is potentially significant,23 especially in a relatively small, closeted constitutional community such as in New Zealand. Given this pragmatic value in the office generally, it is interesting to observe Harris wondering aloud to the reader why the Executive Council continues to exist.24 He essentially answers his own question here, whether deliberately or not. The office is the “fulcrum” upon which all three branches of government hinge.25 Relationships between Executive government Ministers, as the Governor-General’s advisors, and the holder of the office remain critically important, especially to the extent they separate the constitutional from the hurlyburly of ordinary politics. Having a forum for these relationships and interactions to play out seems vital.
Chapters 9, 10 and 11 address the Executive branch of government. Here the primary challenge becomes distilling meaningful governing principles from the reality of a convoluted Leviathan. Chapter 11 is the most straight-forward, dealing with the accountability of the Executive to Parliament in standard terms, but Chapters 9 and 10 are more interesting. A purported “principle” that the Executive government is carried on by multifarious agencies is hardly a principle at first blush,26 although it is obviously a key feature of our constitutional practice. Framing the analysis in these terms does bring to light the complex and varied accountability mechanisms in play. The fact that some semblance of order and structure is drawn out of very complicated machinery is to Harris’s credit. Also notable is the unusually detailed treatment of emergency
21 At 76.
22 At 140-141.
26 At ch 9.
powers.27 But then, this treatment very much reflects the instrumentalist strand of the pragmatist’s cause. Government needs to be effective, and study of the use of emergency powers in practice underscores this. Readers familiar with Harris’s previous scholarly work will also not be surprised to see extensive analysis on the “Third Source” of authority for Executive government in these chapters.28 This is not the forum for an extended consideration of Harris’s contribution to this area of the law, although it merits mention because here again the pragmatic instinct is clearly on display. The text openly concedes that Third Source authority is “not the result of deep constitutional theory”.29 It is the fact that it is not inconsistent with constitutional theory that really matters, and so it forms a key part of our vibrant public law enterprise.
Something of a coda to these three chapters is presented in Chapter 13, which argues that Executive government is held to account in part by the integrity branch of government. Here the discussion focuses on public servants and other officials that exercise functions critical to accountability pathways. This idea strikes to the heart of the reality of political and official power in our system of government. Harris is to be commended for incorporating this concept into his core analysis, and for neatly avoiding any debate between political and legal constitutionalist conceptions of accountability while doing so, but the reader may feel that there is considerably more to be said here. There are other contributions on this topic at the theoretical level,30 but where are the empiricists wading through Ombudsman decisions or analysing the contribution of the Auditor-General? Here perhaps Harris has identified an important agenda for future research. How and why these mechanisms operate, to ensure the integrity of government, matters, and one would hope that they receive their own detailed treatment in due course.
Chapters 12, 14 and 15 address the Judicial branch of government. Chapter 12 discusses the role of judicial review in holding the Executive branch to account, providing a useful basic summary of the grounds of review. A certain emphasis is also placed on practical issues that tend to limit the availability of review in practice, such as standing, justiciability, and deference.31 Chapter 14 addresses the important principle of judicial
independence, and the multiple examples of how this principle manifests, demonstrate how central “separation-of-powers” thinking remains in New Zealand. It is somewhat curious, therefore, that the concept of judicial accountability is then discussed in Chapter 15 in terms that fold the independent role of the courts into the same over-arching constitutional basis of community support and approval. “The courts exist to serve the community”, Harris writes, “[t]hey are an essential part of the overall system of government that the community owns and pays for”.32 The consequences of this perspective for judicial independence is never made completely clear.
As useful as the pragmatic perspective can be, its limits are most clearly revealed in Chapter 16’s consideration of New Zealand Bill of Rights Act 1990 (NZBORA) issues. The normative language of rights is notably absent, and the result is that parliamentary consideration of rights issues is not presented in compelling or aspirational terms.33 It is suggested that the government will “bear in mind the political consequences” of not complying with the courts’ view of rights issues, but there is a genuine question as to whether this is enough in a modern democracy. That question is alluded to, but not fully answered, in a short section addressing the possibility of entrenchment of NZBORA.34 Here again the now familiar reliance on community standards and expectations as the primary constitutional standard is presented as determinative, but I would argue it is difficult to accept that this is sufficient to address the question of rights in its full legal and political context. More reflective readers may question whether this means constitutional pragmatism ultimately lacks the critical and normative resources to address the desirability of government action in even the most foundational terms.
Ashort final principle-based chapter charts the influence of international law. This is a field with increasing practical influence on New Zealand, and so perhaps serves as a fitting finale. New Zealand’s dualist approach to international law, the willingness of the courts to translate international instruments into justiciable standards, and parliamentary scrutiny of Executive government action in the international arena are all discussed.
New Zealand Constitution concludes by listing a range of potentially beneficial constitutional reforms.35 These include: improving access to constitutional rules; adopting a written constitution; the republican question; and greater recognition of Māori interests and human rights issues. But Harris remains largely non-committal, leaving the full case for reform in the hands of the voting public. He simply notes, for example, that “major consideration” is still required in respect of important issues such as the appointment or election of a republican head of state.36 This is a refreshing approach which serves to set out the competing arguments
32 At 255.
33 At 286.
34 At 292-293.
35 At ch 18.
36 At 309.
in a balanced fashion. The pragmatic implication is that ad hoc evolution is likely to continue, with community support and underlying principle shaping the trends that meet an emerging context.
So, where does New Zealand Constitution leave the reader overall once all 16 principles have been considered? One response to this question is to note that Harris’s considered account, firmly rooted as it is in the pragmatic tradition of public law scholarship, cuts through many of the apparent tensions inherent in our constitutional practice by considering context and what works. Despite complexity and disagreement, there is usually a constitutionally sound path to return the system of government to a democratic footing, or to reinvigorate community expectations and societal standards, even in light of the non-justiciable nature of much constitutional practice and the ad hoc posturing of modern politics. Reality has a tendency to trump theory, even if it cannot ignore it. Harris has demonstrated this well by marshalling the conceptual tools of the pragmatic tradition.
Further, the book clearly achieves the aims it set for itself. It represents as full and complete a pragmatic analysis of our constitutional arrangements as is likely to be provided. As such it will be a great resource for those approaching the thorny issues of New Zealand public law for the first time. Parliamentarians and senior civil servants will find value in its pages, particularly as issues are discussed pragmatically rather than focusing on theory. In our unwritten constitution, what actually happens remains a key determinant of what is constitutional. New Zealand Constitution explains what actually happens while giving an appreciation of why, and in that sense it is itself certainly valuable for students and practitioners of the art and science of government. It may also prove a useful reminder for those of us – myself included – who tend to approach constitutional analysis through a more normative lens, of the merit of grounding our analysis firmly in the real world.
Edward Willis, Faculty of Law,
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URL: http://www.nzlii.org/nz/journals/OtaLawRw/2019/14.html