The Constitution of New Zealand: A Contextual Analysis

Matthew SR Palmer and Dean R Knight

Hart Publishing, Oxford, 2022 (ISBN9781849469036)

Reviewed by Mihiata Pirini, law lecturer at University of Otago.

Kōrerorero - Discussion

In The Constitution of New Zealand: A Contextual Analysis Justice Matthew SR Palmer and Associate Professor Dean R Knight provide a detailed and engaging account of the constitution of Aotearoa New Zealand. Across 12 chapters, they provide a high-level overview of the main features of our constitution, while also providing insights and specific examples to capture the reader, whether a student, constitutional scholar, or someone looking for a general introduction.

The book is part of a series by Hart Publishing covering constitutional systems of the world. The books are designed to appeal to the novice seeking “a road map” while also providing deeper analysis of the constitution in question. That goal is neatly achieved by Palmer J and Knight, who provide a well-structured description of the key features of the New Zealand constitution, while adding interest by approaching the task through the lens of “constitutional realism”. Constitutional realism delves beneath the “formal legal robes” of our constitution by focusing on how public power is exercised in reality, and in doing so seeks to engage with the substance of our constitution, not just its form. Justice Palmer has written about and applied this approach in his past scholarship, and it is used here to shed light on the perplexing and idiosyncratic features of how we govern ourselves. For example, the book explains, in clear terms, the puzzling paradox between our constant emphasis on the omnipotence of Parliament, and the reality that this power is not exercised to its fullest extent in practice. The authors use creative metaphors to help enliven the text: the common law is a pointillist painting whose shape emerges over time and at a distance. The Treaty is like Ruapehu – a dominant presence, somewhat unpredictable in impact, but here to stay. These qualities, plus the book’s accessible length, distinguish it from other general texts on New Zealand’s constitution.

Chapters 1 and 2 set the scene. Chapter 1 sketches our “constitutional culture” by identifying prevailing cultural attitudes towards the exercise of public power in New Zealand: egalitarianism, faith in authority, fairness, and pragmatism. Importantly, the authors caveat their analysis, making clear that definitions of culture are necessarily generalised and informed by one’s perspective. They also nod to the important work on Māori constitutional culture by scholars such as Carwyn Jones and Māmari Stephens. The book is written during the Covid pandemic and possibly before the Wellington-based protests against Covid laws; it does not deal with the effect of the pandemic on growing distrust in government. It would be interesting to hear the authors’ reflections on these developments and their potential impact on our constitutional culture. Chapter 2 provides an account of the emergence of Aotearoa New Zealand, including the signing of te Tiriti|the Treaty and He Whakaputanga, which will provide important context to international readers.

Chapters 3 to 7 provide an account of our system of governance, structured around the three branches of government. Chapter 4 is a standalone chapter on the concept of democratic government, sketching out what aspects of our constitution justify us describing ourselves as a democracy. Chapter 5 on the Executive gives worthy attention to the role and duties of the public service in the constitution, perhaps reflecting the fact that one of the authors is a former public servant. Chapter 6 deals with Parliament and the concept of, and limits on, legislative supremacy. Collectively, these chapters give a practical, accessible explanation of the chain of accountability that underpins our constitution and connects the electorate, the House of Representatives, the Executive, and Cabinet. Chapter 7 covers the judiciary and contains a concise and up-to-date summary of tikanga as a form of law, gesturing towards the constitutional significance of Takamore v Clarke and ongoing developments represented by cases like Trans-Tasman Resources v Taranaki-Whanganui Conservation Board. Chapter 8 deals with mechanisms designed to ensure accountability and transparency in the exercise of public power, such as the Ombudsman, the Official Information Act and administrative tribunals.

Chapter 9 addresses human rights, taking as its general theme the way in which accountability for exercises of public power can be ratcheted up where human rights are involved. Chapter 10 is devoted to the Treaty of Waitangi, and discussed further below. Chapter 11 is an insightful positioning of our constitution on a larger spectrum encompassing local, national, and global governance. It informs the reader of the contemporary dominance of national governance within current constitutional settings, while hinting at the potential for a growing influence at the local and global levels, for which our constitution will need to account. The position of Māori at local governance level is briefly outlined. Reference is made to increasing global pressures; climate change is not explicitly mentioned but will no doubt be in readers’ minds. The book concludes with chapter 12, in which the authors consider possible constitutional futures. Here, the authors reinforce the importance of their assessment of constitutional culture, because they suggest that reforms that cut against the grain of that culture are more likely to fail, while reforms that are consistent with it are more likely to endure. We are most likely, the authors conclude, to see ongoing pragmatic tinkering, suggesting the power of a dominant cultural attitude of making iterative changes, as and when perceived necessary.

This journal’s audience may be particularly interested in the book’s treatment of the Treaty of Waitangi in chapter 10. Both authors have written on Treaty-related issues in the past, with Palmer J in particular having produced substantial scholarship in this area. In this text, analysis of the Treaty focuses mainly on how it demonstrates the “constitutional dialogue” between different holders of public power, and the way public power can be influenced by political, social and legal pressure that takes the Treaty as its focus. There is a fascinating account of Cabinet’s evolving view of the Treaty throughout the 1970s, gleaned from two particular Cabinet papers. The authors’ decision to place the Treaty in its own chapter is important, sending a message of its singular status within our constitution. A necessary consequence is that the Treaty analysis is somewhat siloed out from other related themes, but the authors seek to overcome this by way of a summary, describing how Treaty interests manifest in each aspect of the constitution covered by the book.

As noted, the book strikes a balance between providing an accessible roadmap for the novice, and an analytical account that will engage those who already know the outlines of our constitution. Some may find that the balance is struck slightly more in favour of the former, meaning that intriguing ideas cannot always be explored in great detail. I was interested, for example, in the brief reference to accountability mechanisms that facilitate learning, by encouraging government actors to be “continuously reflexive and to focus on delivering community wellbeing”. But this reflects the aims of the broader series of which the book forms part, and ought not to detract from recognition of the depth and breadth of material addressed within a reasonably short text. The work’s accessible but comprehensive approach also makes it an excellent reference and teaching resource; many of its examples will help me teach first-year law students about our constitution.

Justice Palmer and Dean Knight’s work is an important resource that will generate, and reinforce, awareness of and engagement with our unique constitution. Complex concepts such as “the rule of law” and “the Crown” are explained in a straightforward and clear manner but without losing a sense of their complexity; this makes the book relevant to those who are completely new to these constitutional concepts and equally to those who would benefit from thinking about them in a different way. The book will, and should, find a large audience.

Author: Mihiata Pirini

View all posts by Mihiata Pirini