Dialogue: Better laws can improve life for all our children

Justice DAVID BARAGWANATH* gives a personal view on what he considers are the main legal and constitutional principles needed in New Zealand.


All societies need laws. They guide conduct - you must drive on the left; regulate conduct - murder is criminal; grant authority - how to become a JP. But law, like landscape, has its high and low ground.

The high ground of New Zealand law, which may be termed constitutional or structural, is the expression of core values, the breach of which would destabilise our society. The low ground is the detail provided by our other laws, important though they are, as comprising rules with which we must all comply.

To map out what should be the structural laws for the future of New Zealand society requires more than listing our present constitutional statutes despite the essential contribution to stability that they provide. Nor is it enough to look at what other states have adopted even though they can provoke thought. Rather, there is need to examine our values and how the law can best contribute to their promotion.

Constitutional laws deal with how society is constituted. They include the Constitution Act 1986 (the Sovereign is the head of state; her powers may be exercised by the Governor-General; Parliament has power to make laws); and the Electoral Act 1956. Others are described as constitutional because they either constitute or record vital rights: Magna Carta (prohibiting exile, condemnation except by lawful judgment, and the sale or delay of justice); the Bill of Rights 1688 (only Parliament may tax or suspend laws); the Habeas Corpus Acts 1640, 1679 and 1816 (detention must be justified to the court); the New Zealand Bill of Rights Act 1990; and the Human Rights Act 1993.

Although not generally enforceable by court proceeding, the Treaty of Waitangi may also be called constitutional because it has moral force no less potent than Magna Carta; while its precise status continues to be debated, the importance of its values is indisputable.

Unlike virtually every other free state, we have no fundamental constitutional measure that permits the courts to strike down a statute which infringes it. Furthermore, much of the really vital constitutional law here and elsewhere is to be found not in any document, but in the tenets of the judge-made common law and in the conventions that, as well as laws, regulate the conduct of Crown officials. The former includes the principle of legality - fundamental rights are presumed unaffected by legislation unless Parliament has squarely confronted what it is doing and the politicians have accepted the political risk; the rules of the criminal law - no one is guilty of a crime without knowledge of the facts that make it criminal, the Crown must prove its case beyond reasonable doubt; the principle that the dignity of the individual is paramount; the presumption that New Zealand law conforms with international law.

These and many more are constitutional standards which are regularly applied both by the courts and Government officials. No New Zealand Government or Parliament would dream of such infringement as imposing martial law, defying a judgment of the courts, or repealing Habeas Corpus.

It may indeed be argued that these constitutional standards transcend in ultimate significance what could be compelled by constitutional law; while in point of form Hitler's race decrees were law, their infringement of fundamental standards of morality provided a focus for his and their ultimate destruction. (There is a problem of ready public access to these standards, which are nowhere drawn together in a single readily accessible form. The Legislation Advisory Committee is formulating Guidelines on Process and Content of Legislation. It would not be difficult to increase public awareness of the principles by establishing a website containing them; Parliamentary Counsel Office is in the course of doing so with our statutes.)

The acid question is how better laws can improve life for our children and our successors. New Zealanders are mostly law-abiding; we have free elections; no systemic corruption; some recognition of Maori and other minority values. Would a written constitution help?

A written constitution gives no guarantee of quality of life. States with such measures have experienced bloodshed over indigenous issues for which there is no recent New Zealand comparison. By contrast with recent examples elsewhere, our judges are insulated from party politics; our politicians accept responsibility for an ultimately reasonable form and content of statutes, since our judges cannot tidy any legislated mess.

There are, however, real difficulties and even deficiencies in our constitutional system. We have introduced a brief three-year electoral term to promote political accountability. We have adopted MMP to limit political power. The former constrains the length of time for which politicians can plan effectively. The latter dilutes the ability of any administration to force policy through the House. Each has its virtues. But a consequence of both is a short pendulum: much effort and goodwill is required for New Zealand to plan for the long term.

Even more fundamental are the tensions surrounding the Treaty of Waitangi; the absence of any adequate system for reform of our law; and the overlapping problem of lack of knowledge of and participation in the law reform process by the ordinary citizen whose law it is.

There is a responsible argument that a written constitution would have an educative and normative effect that would help to deal with such deficiencies, as well as providing a backstop against any breach of convention. (It is noteworthy, for example, that since the New Zealand Bill of Rights Act 1990, which on one view formally did little more than bring some of the existing standards together in one place, Parliament has considered new legislation against its precepts, the courts have been more willing to require better performance of governmental conduct and the Government has complied.)

Against that, there is the difficulty of identifying which values to include in the written constitution and the shifting of some authority from elected representatives to appointed judges, with its potential tendency to politicise the courts. Those disadvantages can be overstated; New Zealand is almost alone in treating them as crucial. The form of constitutional legislation, though significant, is however less important than the actual operation of constitutional standards; even though the former can influence the latter.

My present view, on balance, is that in our small community we can advance without shifting to a written constitution. That view would alter if we are unable without change to deal with the present deficiencies and their effects. It should be possible to avoid that course.

In respect of the treaty the proponents of extreme views may seem to be talking past one another: some appear to say that the word treaty should be expunged from the lexicon; others that democracy is inadequate to deal with Maori concerns and should be overridden.

Democracy is fundamental to optimal development of every individual. But due recognition of distinctiveness of cultural values is also essential. Where they collide, reconciliation must be achieved, ideally by agreement and failing that either politically or by the courts. Tocqueville's tyranny of the majority expresses the problem with the former. But it can and should be met, by concerted effort to take a wider and wiser view of what democracy means than we have yet achieved.

The point is related to the lack of any adequate system for reform of our law; and the problem of inadequate knowledge of, and participation in, the law reform process by the ordinary citizen whose law it is supposed to be. Each of these is under consideration by the Law Commission and by others with responsibility for law reform.

The recent report of our economic slide since 1960 from third to 25th in the world was as sobering as the address of the Governor-General on Waitangi Day (www.gov-gen.govt.nz) was visionary. Together they brought home the need not only for a world-class system of education and training, but to respect differences, recognising that they complement each other and allow us to work together.

Instead of engaging in local luffing matches, disputing with one another and permitting the rest of the international fleet to sail ahead, we must take advantage of the close co-operation that is possible in this small, remote community. We can and should be better coordinated and organised than our larger and, therefore, clumsier competitors.

The French motto speaks of liberte, egalite, fraternite. While a simple translation of the last would create its own misapprehension as to the position of more than half our society, the thought of all of us as brothers and sisters within a single national family may better capture the true relationship between the races than partnership which, despite its newer senses, retains the commercial flavour which can divide rather than unite.

We increasingly recognise that in education, wise and visionary leadership plus community support can bring to disadvantaged youngsters self-worth and optimism, replacing the sense of exclusion and despondency that leads to crime.

So also in law we can improve society if all of us, both those professionally involved in its making, administering and reform (within a written constitution or outside it) and, as well, the public, join in contributing ideas as to how New Zealand's legal system can give better effect to the fundamental values we share.

* Justice David Baragwanath is a High Court judge and president of the Law Commission.

Herald Online feature: Common core values

We invite to you to contribute to the debate on core values. E-mail dialogue@herald.co.nz.