Speech
We the People(s) Conference
I begin by greeting everyone in the languages of the realm of New Zealand, in English, Māori, Cook Island Māori, Niuean, Tokelauan and New Zealand Sign Language. Greetings, Kia Ora, Kia Orana, Fakalofa Lahi Atu, Taloha Ni and as it is the morning (Sign)
I specifically greet you: Hon Simon Power, Minister of Justice and fellow members of Parliament; Professor Tony Smith, Dean of Law at Victoria University of Wellington and fellow staff and students; former Prime Minister Rt Hon Sir Geoffrey Palmer and former Ministers Hon Margaret Wilson and Hon David Caygill; Distinguished Guests otherwise; Ladies and Gentlemen.
It has been with much pleasure that my wife Susan and I have accepted the invitation to attend the beginning of this conference organised by the Centre for Public Law at the Law School of Victoria University of Wellington. As Governor-General, it also gives me great pleasure to welcome international guests attending the conference to New Zealand, particularly from Canada, the United States and Australia. I trust that you will make the most of the opportunity of being here to explore a little of our country.
I would like to speak to the theme of the conference — public engagement and participation in government. With a little history and by drawing on some observations from my professional career, I wish to emphasise the centrality of people in New Zealand’s constitutional arrangements and democracy, and the need to engage people in its virtues — continuingly.
The phrase “the people” is regularly used in political discourse, often with little questioning as to its meaning. Politicians seek the support of “the people” in elections, organisations advocating for various causes claim to be speaking for “the people” and the media often describes itself as the eyes and ears of “the people.” Talkback radio callers, writers of letters-to-the-editor and, I might add, some correspondents with Government House, often complain that the interests of “the people” are being trampled on. Clearly the notion of “the people” means different things to different individuals and interests, not only in the present context, but also in the past.
The catch line of this conference, “we the people,” repeats, of course, the opening words of the preamble of the United States Constitution. Reflecting Enlightenment ideals and the work of thinkers and writers in Europe who believed that human reason could be used to combat ignorance, superstition, and tyranny and build a better world without an aristocracy, the notion rejected the concept that state power derived from kings who claimed a divine right to rule. This then revolutionary concept — that power comes from the people and that rulers rule with their consent — continues to be spelled out, in many places, whenever individual liberties are suppressed.
While all constitutions balance the rights of many competing interests, the United States Constitution, at least in its original form and understanding, was a product of its time. Its framers were all well-educated people of means — many of them lawyers. But their concept of “the people” did not include women or the slaves whom some of them owned. They were equally wary of a potentially hot-headed populace. Having boldly opened with a preamble that placed “the people” at the centre of government, they then placed a series of checks on the direct will of the same people being expressed. Over time, the concept of “the people” in the American context changed. Women were enfranchised, voters came to directly elect their senators and, following the tragic loss of much life in a bloody civil war, slavery was ended.
In New Zealand, the concept of “the people” is no less central. While ours is a young nation by modern standards, it is also one of the world’s older democracies. New Zealand has been self-governed for more than 150 years—and for 117 years, all New Zealanders, regardless of gender, wealth, race, or religion, have had a right to vote in national elections. The first elected House of Representatives sat for the first time in 1854, following elections during the year before. As the historian John Martin noted: “New Zealand parliamentary democracy was one of the earliest colonial examples.” In 1893, New Zealand was the first nation to grant women the right to vote. It is also a nation where permanent residents, as opposed to citizens, can vote in national elections. New Zealand’s record in democratic longevity and participation is, one can say, a creditable one.
And yet, because New Zealand has no codified constitution, there is no single document that encapsulates the fundamental truth of the centrality of New Zealand people in their democracy. The Constitution Act 1986, for example, while it proclaimed New Zealand’s national sovereignty , and is a key formal statement of our system of government, makes no reference to “the people”. Instead of an inspiring affirmation of New Zealand’s constitutional and democratic virtues, in a legalistically matter-of-fact way the preamble says it is: “An Act to reform the constitutional law of New Zealand, to bring together into one enactment certain provisions of constitutional significance, and to provide that the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom shall cease to have effect as part of the law of New Zealand.”
Indeed, rather than emphasising the primacy of the people in New Zealand’s democracy, the language of the wider constitution often suggests the reverse. The Letters Patent which establish the Office of Governor-General suggest that the Queen, who the Governor-General represents, holds a powerful office. The difference between the language and substance was explained well by British journalist and author Robert Hardman in describing the State Opening of Parliament at Westminster in a recently published (2007) book. He said:
“The State Opening of Parliament is the moment when all the important elements of the British constitution remind each other —and the outside world—where they stand. The Monarch comes to Parliament in a fairy-tale carriage, puts on a crown and summons the elected representatives from the House of Commons to the unelected House of Lords where she announces her Government’s plans for the year ahead. But it is the elected lot, squashed in the back of the room, who have written her script. The message is very clear: Parliament derives its authority from the Queen, but the Queen abides by its democratic decisions. In other words, the Queen is in charge. The people are in control.”
A New Zealand Governor-General does not wear a Crown and the Government House Jaguar is just short of being a fairy-tale carriage — despite being an XJ8 — but the same principles apply at the State Opening of our Parliament, where there is pomp and ceremony, albeit with a distinctively New Zealand flavour.
This disjuncture between form and function has its origins in constitutional changes in Britain that saw that country change from a feudal and autocratic monarchy into a constitutional monarchy founded on democratic principles. When Parliament won the English Civil Wars the outcome was not a written and codified British Constitution that overtly placed “the people” at the centre of government. But it did settle the question of the dominant player in government. Parliament sets the terms of the contract with the Monarch, and not the other way around.
Like many other nations, New Zealand has inherited the Westminster tradition, adapting it to suit our circumstances, and without constitutional violence. But even so, the fundamental principle — that the Queen reigns, and her democratically-elected Government rules — remains paramount.
The fundamental means by which New Zealanders engage and participate with their democracy is through voting in triennial elections to elect their representatives in Parliament. While each person only votes once, their collective participation gives life to democracy. As the famous New Zealand suffragette Kate Sheppard once said: "Do not think your single vote does not matter much. The rain that refreshes the parched ground is made up of single drops."
Moreover, New Zealand’s Parliament is not only a House of Representatives but a House that, particularly since the adoption of a system of proportional representation, can be said increasingly to represent New Zealand's diversity. For example, about a quarter of today’s Members of Parliament are of either Māori, Pacific or Asian descent and several of those people are Ministers. In contrast, after the 1978 Election, only seven of the 92 MPs were of Māori descent — one of whom was a Minister — and there were no MPs of Pacific or Asian ancestry at all. In 1978 all but four MPs were men whereas almost a third of those elected in 2008 were women.
The primary vehicle that links the people with their Parliament and their government are the political parties. As one of our country’s most esteemed jurists, Rt Hon Sir Kenneth Keith has noted: “The competition for the power of the state, exercised through the House of Representatives and the ministry, is a competition organised by and through political parties. It is party strength in the House after elections that decides who is to govern. It is the parliamentary party or parties with the support of the House (and the ability to ensure supply—the money to fund the state's functions) that provides the government.”
It is this engagement by the parties with the public that begins a process that eventually results in the Governor-General being able to appoint a democratically-elected Prime Minister. This singular act of appointing a Prime Minister in turn provides the constitutional and democratic authority for that person (the Prime Minister) to in turn advise the Governor-General to appoint the rest of the Executive Council and advise on other matters, including giving the Royal Assent to legislation and summoning and dissolving Parliament. It will also be the Prime Minister who will advise the Queen to appoint the person who will become New Zealand’s next Governor-General.
Members of the Executive Council also advise the Governor-General to sign regulations and to exercise the other powers and functions of the Office. One of them — the Attorney-General — advises in regard to appointment of the members of the third branch of government, the judiciary. Other Executive councillors advise regarding the signing of commissions for officers of the New Zealand Defence Force and to make a host of other public appointments. So while one could be forgiven for thinking from the language of New Zealand’s constitution that power stems from the top down, in reality, the fundamental basis for all decisions percolate from the bottom upwards to the top.
I would now like to turn to some observations from my professional career. Together these point to the breadth of citizen engagement and participation in our democracy that goes beyond the right to vote. In 40 years I have had an opportunity to observe and participate in New Zealand’s constitution and government from a number of angles. While I have never held elected office I have been privileged to participate in all three branches of government.
The first branch of government with which I was involved was the courts. As a practitioner officer of the court, I was bound by oath to uphold its rules. Twelve years in that phase were followed by 13 years as a Judge with a jury trial warrant. In both roles, I saw at first hand one of the most important and oldest democratic practices at work. For if the right to vote in free and fair elections is the right upon which all others depend, surely the next in line must be the right to trial by jury when one is accused of a serious crime. The ancient right to “lawful judgement by his peers” is one New Zealanders continue to enjoy thanks to clause 29 of Magna Carta which remains a part of our laws by virtue of the Imperial Laws Application Act 1988. With few exceptions, the decision as to the guilt or innocence of a person being prosecuted for a serious crime in New Zealand will be made by a jury of the people, who bring their collective and commonsense wisdom to bear on the facts placed before them. Trial by jury is a right whose effective operation depends not only statute, but on the obligation of New Zealanders to respond to the summons which they receive to serve.
The courts also provide an avenue for the expression of key civil and human rights. While Parliament in our system is supreme and can pass legislation to over-rule decisions with which it disagrees with, the courts have often forced major changes in public policy. For example, the Court of Appeal’s affirmation of the right of everyone, including alleged drink drivers, to be given the opportunity to be represented by legal counsel. Likewise in Simpson v the Attorney-General 1994 , better known as Baigent's case, the Court removed the Crown's protection from civil liability in cases where a right under the Bill of Rights had been infringed. While the New Zealand Bill of Rights is a statute no different from any other, the courts have ensured it is a living charter of fundamental civil rights.
Another case worthy of mention, and which seems particularly pertinent given the passage of Waitangi Day during this last week, was the Court of Appeal’s 1987 decision in the New Zealand Maori Council v Attorney-General. Along with the establishment of the Waitangi Tribunal in 1975 and the extension of its jurisdiction a decade later, the Court's unanimous decision was a watershed in New Zealand's long overdue debate about the place of the Treaty of Waitangi in our national life. The case has also re-engaged many Māori with New Zealand’s government and democracy.
Following my work in the courts, from 1995 I served two five-year terms as an Ombudsman. Along with the Auditor-General and the Parliamentary Commissioner for the Environment, Ombudsmen are appointed on the recommendation of the House of Representatives rather than the Executive.
The Ombudsmen, along with the other Officers of Parliament, play a vital role in connecting the public and the executive and the wider public sector. In any democracy it is important that everyone feels they have a channel through which they can pursue issues or voice concerns.
The Office of the Ombudsmen provides one such avenue. Whilst an ombudsman, I joined in dealing with complaints about unfairness on the part of government officials, assessed governance processes, and worked in the freedom of information jurisdiction.
Through contact with a range of citizens, the Ombudsmen contribute significantly to the governance of the public sector with human rights being a core concern. In this respect Ombudsmen respond to complaints on the actions of authorities such as police, customs, prisons or immigration officials.
The Ombudsmen also receive complaints about the administration of local and central government bodies. It is important that the public sector upholds efficient and effective standards at all times. By providing a channel through which the public can address issues, the Ombudsmen provide public engagement from the bottom up.
In 2005, having completed two terms as an Ombudsman, I had the opportunity to see New Zealand’s Parliament from a new perspective when I was appointed as the first Registrar of Pecuniary Interests. As Registrar, I compiled the register, and provided advice and guidance to MPs on their obligation to make annual returns of pecuniary interests. The position, which continues to evolve under the stewardship of Dame Margaret Bazley, is designed to enhance transparency so the public can have greater confidence that their legislature is free of corruption.
Finally, in August 2006, I was appointed by the Queen of New Zealand as New Zealand’s 19th Governor-General. For an audience such as this there is often much focus on the Governor-General’s constitutional role, which encompasses a wide range of matters. As I mentioned earlier, it includes, to name a few responsibilities, appointing members of the Executive Council and, on advice from the Prime Minister or Ministers, giving the Royal Assent to legislation, signing regulations and appointing a wide range of officials. In particular, there is much attention given to the so-called “reserve powers,” which, with the exception of the appointment of a Prime Minister following an election, no New Zealand Governor-General has ever needed to use.
Most of the time, however, is in undertaking the ceremonial and community leadership aspects of the Governor-General role. This work is often not given the same level of attention by scholars, for example, and yet all three roles—constitutional, ceremonial and community leadership—are interrelated and together create something more than the sum of their individual parts. As I have already mentioned, a pivotal ceremonial task — the State Opening of Parliament — symbolically highlights fundamentals of our constitutional arrangements. Likewise, participating in other important ceremonial roles and events, such as ANZAC Day and Waitangi Day, are opportunities to reinforce and highlight values of nationhood and the consequences of citizenship.
The Governor-General also provides community leadership of a non-partisan kind, particularly in patronage of many charitable, service, sporting, cultural and community organisations. On average, Susan and I will host or attend more than 400 community functions every year. Many of them also have a ceremonial dimension, such as officially opening new buildings, schools and other facilities, presenting awards, launching special events and appeals, and giving addresses to open or close conferences such as this one.
Undertaking regional visits and participating in community events also allows us to see New Zealanders at their best, meeting a wide range of people, both young and old, at work in community and sporting groups, schools, universities, hospitals and businesses. It is not only an opportunity for us to engage with New Zealanders, but for New Zealanders — the people — to engage with a key part of their government, the representative of their Head of State, at the most human and individual level.
Since being appointed, through a number of speeches, I have emphasised a need for New Zealanders to recognise our nation's cultural, religious and ethnic diversity, to be more engaged with their communities, to recognise excellence and to promote the importance of civic education. These themes all touch on the subject of your conference.
While New Zealand has a proud democratic tradition, we cannot rest on our laurels. Ensuring the strength of our democracy requires New Zealanders to remain engaged with their democracy. It enables them to make submissions on bills before Parliament or policies being considered by central or local government. It involves the wise use of the right to peaceably assemble and to petition governments. As I have mentioned, it enables them to serve on juries and, most importantly, it requires them to vote.
New Zealand once had one of the highest voting records in the Western world. Despite voting being voluntary there was a time when more than 90 percent of eligible people regularly voted. By 2008, just three-quarters of those aged 18 years and over exercised their democratic right to vote. The reasons for the decline are complex and there are no simple answers. While New Zealand’s record continues to compare favourably with many other nations, I believe that this gradual decline should be seen as both a matter of concern and as a challenge.
A key issue is highlighted by the bracketed letter (s) in the name of this conference, We the People(s). While we are all New Zealanders, we are also the members of many different communities and many different cultures. Some of those cultures and communities are defined by traditional divisors such as race, ethnicity, religion, geography and socio-economic status that intersect and overlap. Reaching out and engaging with these differing communities requires initiatives tailored to meeting their needs on their terms.
As the wide-ranging agenda of this conference makes clear, many of the points I have made will feature in your discussions today and tomorrow. With a wealth of knowledge and experience represented here from academia, politics, the media and the public and private sectors, I look forward to hearing more of your discussions and of reading the outcome in papers.
My challenge to those participating in this conference is therefore to reaffirm the principles that underlie our constitution and democracy, and also to look afresh at how we might engage all New Zealanders in their significance and relevance. In the 170 years since the Treaty of Waitangi established New Zealand as a modern nation, its people have established an enduring democracy that has evolved to meet new needs and new challenges. Even so, as I have noted in pointing to declining participation in national elections, there is ever present a danger of complacency. The point was well made by one of New Zealand’s most eminent international lawyers, the late Professor Quentin Quentin-Baxter. In an essay published 30 years ago he famously compared a constitution to a city, emphasising that everyone needed to play a part in its care and evolution. As Quentin-Baxter then said:
“A constitution is a human habitation. Like a city, it may preserve its life and beauty through centuries of change. It may, on the other hand, become either a glorious ruin from which life has departed, or a dilapidated slum that no longer knows the great tradition of its builders. Constitutions, like ancient buildings, need the care and protection of an Historic Places Trust, to draw attention to weaknesses in the fabric, and to suggest how present needs can be met without sacrificing the inspiration of the past. They also need an enlightened and interested general public, with a strong collective feeling about the difference between a folly and a landmark of enduring significance.”
And on that note of support for people in our democracy I will close in New Zealand’s first language Māori, offering everyone greetings and wishing you all good health and fortitude in your endeavours. No reira, tēnā koutou, tēnā koutou, kia ora, kia kaha, tēnā koutou katoa.