An interview with Peter Dunne

In an edited transcript of an interview with Herald assistant editor Fran O'Sullivan, Peter Dunne spells out why he is prepared to be so frank about his personal stance.

I've been deliberately upfront because I don't want anyone to accuse me of having a secret agenda. I've been quite open so people can discount my views and my biases.

I'm an ardent Republican. I think it's inevitable that New Zealand will become a republic. And I think we ought to now be in the process of making that transition. But it's a long step.

Q: Just how long would it take for a transition to a republic?

A: My timetable would see the committee's report recommending either a royal commission or a new parliamentary select committee.

That process would take most of the next Parliament to 2008.

The Government would then mull over its recommendations and reach decisions about the way forward during 2008 to 2011.

It would probably pass legislation akin to the MMP legislation where you set it up to be triggered by a public referendum which would occur somewhere between 2011 and 2014. The change would be implemented by Parliament after that.

That removes any suggestion this is a group of today's politicians trying to figure out career moves. Or that there is some sort of rush to change.

That's assuming you actually want to make a change.

If you don't, the process stops and the Government says "thanks but no thanks".

Q: Spell out your personal vision for a New Zealand republic.

A: In my ideal world the republic of New Zealand is one based on the sovereignty of Parliament. There is a parliamentary democracy with an elected head of state who performs similar functions to those of the Governor-General today.

In many respects we've got a republic now, given that the ties between New Zealand and Britain are so tenuous.

They are virtually non-existent in that the Governor-General is effectively what I would envisage the President being - even if I'd prefer to see them elected rather than appointed.

So you could argue it from both sides - you could say, "Since we've got it virtually now, why change?"

My argument is since we've virtually got it now, where's the harm in completing the change? The net effect in terms of precedent, constitutional practice and the way in which the Government operates, is that a change of that nature would be pretty minimal.

The word republicanism or the concept is not part of our terms of reference. At the same time that is the inevitable long-term outcome. So it looms in the background.

It may well be that we get a whole set of public feeling about that range of issues, rather than the biggies about the Queen and the republic.

Q: Where will the Treaty of Waitangi fit in?

A: The short answer is that the treaty is going to have to be a critical part of the blueprint that emerges. Whether it is something the current committee can address in the time available to it, I'm far from certain.

But I think we need to knock a few things on the head. While the treaty is an important element of New Zealand's constitutional development, I don't think it's the foundation of the constitution.

Q: What is the foundation then, if it's not the treaty?

A: I think it's the common law we have inherited over a long period. It might be the Magna Carta, or certainly the 1689 Bill of Rights.

But the treaty does have an important role as to where it fits in relation to those common held notions, bearing in mind that the treaty was initially a way of respecting the property rights of the two partners in 1840.

So this debate needs to be held, but we've got to be careful we don't do either of two extreme things - simply shunt the treaty into a backroom never to be seen again, or elevate it so it takes on a role far greater than it ought to.

Q: Hasn't the judiciary already done that?

A: You could argue that. I think that gets back to your point about some of the uncertainties over where it lies in relation to other elements of the constitution.

The fundamental uncertainty there is you can look at various periods in history where it has been interpreted in totally different ways, as a constitutional nullity or the living breathing document emphasis that seems to be coming through at the moment. I suspect the truth is somewhere in the middle.

The American constitution has been amended more than 20 times in the past 200 years. I'm a little bemused by the fact that the treaty is seen in New Zealand not just as sacred but carved in stone which can never be shifted.

I'm not suggesting we try to amend it. I'm just raising the possibility that one of the long-term outcomes of all this is that you have a new treaty which embraces the provisions of the existing treaty and brings together all the other elements of our constitution into one document and you call it, for historical reasons, the new Treaty of Waitangi.

We run the risk of taking a document signed in particular circumstances in 1840 and saying it should live forever untouched when clearly it's not the experience of constitutions the world over. I'm just saying it's not a document that is above being reviewed.

Q: You had been advocating constitutional change for ever, and nothing happened. What changed the dynamic?

A: It was the timing after the Orewa speech (National leader Don Brash on race issues). I took the opportunity to raise it with Helen Clark then and say this is what we should be doing. The lid's off the pot, but there are no solutions.

She was far from keen. The reason we didn't get it out sooner last year was that it took most of the year to persuade her it was actually worth doing.

Orewa provided the spark ... but she didn't want to get caught into it being seen as a reaction.

A few months later when the heat had died down she came round and said now is the time.

Q: Won't you be seen as a political poodle?

A: I don't think so, partly because I can point with hand on heart to having been the sole advocate for this for more a decade.

Q: Do you believe the judiciary should review legislation?

A: My own view is not to propose a role for the judiciary beyond that it currently has, where they can examine legislation on the basis of case.

But I'm certainly not proposing a more activist role in terms of striking down bills as unconstitutional or anything of that nature. I just don't think that's appropriate.

Q: What about safeguards?

A: There are safeguards in the Bill of Rights which obviously, if you are to move to a written constitution, need to be cross-referenced, if not brought into it.

I think those safeguards are plenty for citizens at the moment and New Zealanders would prefer that the ultimate political accountability sits with their politicians, not unelected courts.

Q: Many politicians have little say anyway because of the nature of executive power?

A: I wouldn't propose a change there. I don't think that dynamic would alter, so the debate would still be as it is today, about where the boundary is drawn between the courts and Parliament.

Let's come back to the role of the judiciary - why has it been so controversial? Parliament has created the opportunity for judicial activism by not taking the responsibility that only a sovereign Parliament should take, which is to define the meaning of citizenship and to define the role of the treaty.

The courts have filled that gap.

There is a middle ground and I think some judges have gone there saying in terms of interpreting legislation, we certainly need to look at the literal word of the law but we also need to look at the Government's intent.

And if the literal word doesn't quite capture the intent then we need to be pointing out where the gray area is.

I think the sense "I don't care what you meant. This is what you've done" is an increasingly rigid and outmoded view.

Q: Why has the advent of a New Zealand Supreme Court been accompanied by so much noise?

A: It became a knee-jerk reaction - misplaced fear of political appointments to the Supreme Court.

I think you had a cocktail there that was somewhat inevitable.

What's been fascinating to me is that since the court has been established the criticisms have largely melted away and I think that, given the calibre of judges, that will continue to be the case.

I was interested to have a meeting with US Court of Appeals Judge Clifford Wallace.

He was most laudatory about New Zealand courts and judges and particularly the Supreme Court judges. He thought they were an outstanding group who would in his view be competitive in a world sense.

Q: Do you think the judiciary's powers should be increased?

A: No, I don't. I think one of the debates we will have is how the powers might be more clearly defined and some of the boundaries that are murky at the moment are made a little bit more precise.

But I don't detect any huge enthusiasm for creating a whole set of new powers for the judiciary.

People would say now we've got our own Supreme Court. We've got a local Court of Appeal and our local court structure, in effect. We need to see that working properly rather than make another raft of reforms here.

I think that one thing even the opponents of the Supreme Court would agree on is that you need to take time for it to settle down.

The Supreme Court opposed the Government and cleared the way for Algerian refugee Ahmed Zaoui to be released on bail.

I'm very comfortable with the courts acting in that way. I think that's entirely appropriate that they do point out by a deliberate ruling, or the way in which they conduct a case, the difficulties in the law as it stands.

The ability of the courts to be occasionally embarrassing to the Government - in terms of saying well, you got into this mix by the law you passed - I think is a good and proper function.