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Wilson, Margaret --- "Book Review" [1995] WkoLawRw 12; (1995) 3 Waikato Law Review 207

BOOK REVIEW

ESSAYS ON THE CONSTITUTION ed Philip A Joseph. Wellington, Brooker's, 1995, xxx and 411 pp. Price $110 plus GST (clothcover), $75.00 plus GST (softcover).

It has become a cliche to state that New Zealand is living in interesting constitutional times. It has certainly been a time of great change to New Zealand's constitutional arrangements. The extent of the changes that have taken place over the past 10 years can be seen from a recitation of the major constitutional events, which began with the enactment of the Constitution Act 1986. This Act defined the constitutional institutional framework. It was followed closely by a restructuring of the state sector, including the transfer of resources and functions from the public sector to the private sector; the formal recognition by the Electoral Royal Commission and the Court of Appeal of the constitutional significance of the Treaty of Waitangi; the enactment of the Bill of Rights Act 1990; a fundamental change to the system of political representation; an extension to the jurisdiction of the Human Rights Commission; the restructuring of local government; and changes to the jurisdiction of the courts.

This period of constitutional activity does not appear to be at an end yet. It is only a question of time before appeals to the Privy Council are repealed, which will prompt a further restructuring of the court system. Also, the decision of Australia to move towards the creation of a republic has raised the question as to whether New Zealand should retain the monarchy. The republican debate is a reminder of the close links between Australia and New Zealand, not only on economic matters, but also through their shared history and tradition of parliamentary democracy. While both countries have developed different forms of parliamentary democracy, they share the issue of how to right the wrongs to indigenous peoples, and create a new more equal partnership amongst the distinct groups that now occupy the same territory. Further, they are faced with preserving their own identity within a region where they are a cultural minority.

On an even more fundamental level, New Zealanders have begun the debate on the meaning of the concept of sovereignty for New Zealand. This debate will provide a focus for the post-colonial quest of establishing a national identity in an age where there is a serious question as to whether the nation-state will survive as a viable entity of governance on any matter of importance. The consequences of globalisation on national economies highlights the fragility of the nation-state as an independent entity. The development of communication and information technologies also threatens the preservation of distinctive cultural identity. For those who wish to comment on current constitutional developments, there is much to discuss. The challenge, when compiling a collection of essays on constitutional matters, must be what to include and what to exclude. Such dilemmas are normally resolved by organising the essays around a unifying theme.

In the case of the present collection, that theme appears to be the institutional constitutional framework, and, more specifically, the legal framework. While the need to make a choice of material to include in the essays is understandable, it is important to acknowledge that the perspective on the constitution conveyed through this collection is a limited one. It is limited because the constitution is viewed through the dominant lens of legal institutions and rules. The exception to this approach is found in the excellent essay by Paul McHugh on the “Historiography of New Zealand's Constitutional History”. His argument for a contextualist approach to understanding the way in which history is a construction provides the necessary conceptual framework within which to read many of the other essays. After reading this essay which was positioned at the end of the book, I wondered why it had not been the lead essay.

One of the interesting aspects of this collection is the insights it gives us into the thinking of the country's leading judicial officers. The President of the Court of Appeal discusses the suggested evolution, or as he describes revolution, of the New Zealand constitution from a monarchy to a republic, and raises the legal difficulties in effecting such a change. His essay again raises the complex relationship between the legislature and the judiciary, and whose view should prevail in matters of constitutional importance. This whole question is explored in much more detail in the essays of F M Brookfield and B V Harris. Professor Harris' conclusions seem to fall on the side of curtailing the powers of the judiciary, and to support the recently advocated position of the Business Roundtable that judges can be made accountable through fixed non-renewable terms of appointment. He further argues for appointment of judges to be vested in a group which is representative of the community. Since Parliament contains such a group under our system of democracy, I wondered who these people would be and how they themselves would be made accountable. Emeritus Professor Brookfield in contrast argues for the powers of Parliament to be subject to judicial review. He also argues for a written constitution, with which I would agree, that protects both the rights conferred under the Treaty of Waitangi and the Bill of Rights.

The Chief Justice's essay on the foreshadowed repeal of appeals to the Privy Council provides an important reminder of the need to acknowledge the contribution that Privy Council judgments have made to the development of a New Zealand jurisprudence. While the abolition of appeals to the Privy Council is not only inevitable but necessary for New Zealand to continue on the path of developing its own jurisprudence, this essay is a useful reminder of the perils of failing to acknowledge our historical legal roots. In contrast, yet also complementary to the Chief Justice's essay, are the two essays on New Zealand's relationship with Australia. These essays speculate on the nature and form of future legal institutions in New Zealand as the dominance of the English tradition is replaced by that of the Asia-Pacific region. Professor Taggart's essay “Public Utilities and Public Law” explores the need for New Zealand jurisprudence to develop to fill the legal gaps created through the corporatisation and privatisation of former public services and assets. He also explores our common law roots to establish the legitimacy of the concept of the public interest, and mines the rich jurisprudence of the United States for future directions for New Zealand jurisprudence.

Sir Ivor Richardson in his essay addresses one of the most important constitutional issues that have been highlighted by the policies associated with the structural adjustment. He describes it as "[t]he challenge for our society to develop laws and institutions which provide a proper balance between the rights and obligations of individuals - those of minority groups, particularly indigenous and ethnic minorities - and those of the community". This issue is not a new one and lies at the heart of any democracy. In the New Zealand context the challenge is greater because of the need to balance individual human rights with group rights, as asserted presently by Mori, but they are unlikely to be the only ethnic group in the future to seek specific recognition of group rights. The consequences of the failure to find solutions to these questions is seen in the tragedy that has befallen the former Yugoslavia. Although there is much to comment on in this essay, of particular note is the increasing need to provide the courts with a cost-benefit analysis when presenting a case. The increasing acceptance of "non-legal" evidence is yet another example of the increasing acceptance of what is sometimes called the "contextualist" approach to analysis and decision-making.

There are two other essays that provide a valuable insight into parts of the constitutional process that are not often reviewed in collections of this nature. They are the essays of David McGee on “The Legislative Process and the Courts”, and the Honourable Paul East's essay “The Role of the Attorney-General”. A former Attorney-General, Sir Geoffrey Palmer, has played a major role through his writing in making the policy-making process more transparent. The Honourable Paul East continues in this tradition. His essay will provide a valuable resource for teachers of public law. Likewise, David McGee's essay provides a useful reminder that the primary business of the legislature is not politics, but law-making. While the two processes are interwoven, there is a technical side to law-making that is often more determinative on the nature of the legal outcome than the political posturing that achieves the media headlines.

Other essays in the collection include Professor John Burrows’ essay on “Freedom of the Press under the New Zealand Bill of Rights Act 1990”, which argues for the media having constitutional importance in our society. While one can only agree with the importance of freedom of information being an integral part of New Zealand's constitutional arrangements, it is equally important to acknowledge the reality of knowing who controls the media and in whose interests the media are controlled. The globalisation of the media raises serious issues for any country’s constitutional arrangements. Alan McRobie's essay on “The Electoral System” is useful, as is Peter Oliver's essay on “Cutting the Imperial Link - Canada and New Zealand”, which rehearses the arguments as to whether New Zealand is really independent. The legal answer to this question depends on whether the New Zealand constitution is self-embracing, and therefore has broken the tie with the English constitutional institutions which have provided the grundnorm for the constitution.

As I read the collection of essays I was struck by the emergence of a theme that was frequently unstated in the essays, but which seemed nevertheless to dominate the discussions. It was a genuine preoccupation with how we define what is meant by a New Zealand identity. The editor expresses something similar in his introduction when he claims that “[t]hese essays are a reflection of our national culture”. I would have felt more comfortable with his claim if it had said “aspects of our culture”. My reason for this is twofold. First, the contributors are not representative of our culture, but only one, albeit powerful sector of New Zealand society. There are no Mori or women contributors, and few from other disciplines outside the law. The essence of the culture that is emerging for some of us is that diversity is formally acknowledged, and that it is from this platform that the task of constitutional development can proceed into the next century.

The second reason is that culture is a difficult concept but it does encompass a sense of distinctive identity. A preoccupation with identity is understandable at a time of real change. There is an uncertainty and ambivalence about whether there exists in reality a cultural identity through which all New Zealanders can claim some distinctive national identity. In constitutional terms, a search for identity is associated with a search for legitimacy. In the context of the discussion in this collection, which focuses on the institutional constitutional arrangement, legitimacy is sought through the never-ending search for the grundnorm. In the past we have looked through the mists of English, then British, history for the origins of the common law and the institutions through which those fundamental principles that underpin our society are expressed. However, if one conducts the search only through institutional arrangements, especially legal institutional arrangements, it is unlikely that one will ever find the legitimacy that is necessary to create a new, distinctive and representative national identity. The search must be much wider, as is indicated in Dr McHugh's essay.

“Essays on the Constitution” raises these important constitutional issues, but it does not develop them. This is not its purpose, however. The strength of the collection lies in that it provides a snapshot of the thinking of those individuals who are influential in the formation of constitutions. It provides much useful information and stimulating ideas and will be gratefully used by teachers of public law. It will also hopefully provoke a publisher to commission a cross-disciplinary collection of essays on constitutional issues, so that a comprehensive and inclusive debate on these importance issues can take place.

MARGARET WILSON[*]

[*] LLB (Hons), M.Jur (Auckland), Professor of Law, University of Waikato.