ARTICLE
Aversive constitutionalism in the
Westminster world: The genesis of the
New Zealand Bill of Rights Act (1990)
David Erdos*
This article provides a new explanation of the genesis and nature of the New Zealand
Bill of Rights Act of 1990. The existing literature generally sees the adoption of bills
of rights as an effort to entrench the policy preferences of electorally endangered political
constituencies; the New Zealand case has been offered as a prime example of this
dynamic. This article demonstrates that the facts of the case do not fit the dominant
model. A new “aversive” perspective on the constitutionalization of rights in established
democracies is presented, which focuses on three key factors in determining outcomes:
the reaction of political elites to prior negative political experiences, structures that
allow constitutional entrepreneurs to function, and background cultural factors.
During the course of 1990, the New Zealand Parliament debated and passed into
law the New Zealand Bill of Rights Act (NZBOR)1 setting out a broad set of justiciable rights standards. This article attempts to explain the sociopolitical genesis
of this act and, more broadly, examines New Zealand’s changing attitude toward
the bill-of-rights model over time. The article poses the following three questions: Why, in marked contrast to most other Western democracies, was a bill of
rights not part of the New Zealand legal code until 1990? Why was such an act
passed at this juncture? Why did the reforms not go further and encompass into
a fully constitutionalized bill of rights as was originally proposed?
The recent growth of bill-of-rights projects in a number of established
democracies, including not only New Zealand but also Canada (1982), Israel
(1992), and the United Kingdom (1998), has given rise to a growing literature
seeking to explain this phenomenon. This literature has pivoted on the puzzle
of why incumbent elites should agree to passage of an instrument that, by
empowering the judicial branch, reduces their own power and discretion.
* ESRC postdoctoral fellow, Department of Politics, University of York, England. I would like to thank many
individuals who have aided me in my analysis of the material in this article including, in particular, Keith
Whittington, Lisa Hilbink, Steven Levine, and Matthew Palmer. In addition, I thank and acknowledge support
provided by the NZ–UK Link Foundation, ESRC (PTA-026-27-1514) and Victoria University of Wellington. Any
errors, of course, remain my own. Email: [email protected]
1
New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 109, hereinafter NZBOR.
© The Author 2007. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
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The dominant explanation argues that bills of rights are promoted by electorally endangered politicians and interests, seeking to entrench their preferences
as a defense against majoritarian electoral threats. Within this electoral threat
paradigm two rival understandings have emerged. According to the “knowledge class thesis” (KCT), bills of rights are promoted by and arranged to benefit
the interests of the “cultural left,” including, most particularly, civil libertarians and those who espouse social equality.2 In contrast, Ran Hirschl’s “hegemonic preservation thesis” (HPT) argues that conservative and, in particular,
neoliberal economic interests have promoted bills of rights in order to constitutionalize their particular preferences.3 Moreover, within the HPT literature,
the New Zealand case has been put forward as a prime example of such a
dynamic.4
It is argued in this article that the New Zealand example does not fit this
dominant paradigm. In particular, the HPT posits a locus of social support for
bill-of-rights institutionalization that, in many respects, is the direct converse
to that observed empirically in the case of NZBOR. In contrast, the empirical
evidence fits much better with the KCT in this regard. However, four key problems remain. First, the KCT cannot account for the precise timing or trigger
that led to the passage of NZBOR. Second, the KCT cannot explain why NZBOR
placed a distinct emphasis on so-called “procedural” as opposed to “substantive” rights protections.5 Third, the KCT cannot explain why, in New Zealand,
much more opposition and distrust greeted the idea of a fully constitutional bill
of rights than in other established democracies (although the extent of this
opposition and distrust was important in shaping the final unentrenched and
interpretative form of NZBOR). Fourth, the minority entrenchment perspective
of the KCT has some difficulty explaining the fate of NZBOR subsequent to its
enactment.6
This article puts forward a solution to these problems by arguing that the
NZBOR project had its origins not in a dynamic involving electoral fears
but, rather, in the Labour elites’ “aversive” reaction to negative political
experiences under what was perceived as the dictatorial and authoritarian
ministry of the National Party’s Robert Muldoon (1975–1984). These
2
F.L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION
2000).
3
RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS
(Harvard Univ. Press 2004).
4
AND
AND THE
COURT PARTY (Broadview Press
CONSEQUENCES
OF THE
NEW CONSTITUTIONALISM
Id.
5
See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (Harvard Univ. Press 1980);
and Kenneth Keith, A Bill of Rights for New Zealand? Judicial Review versus Democracy, 11 NEW
ZEALAND U. L. REV. 307 (1984).
6
See MORTON & KNOPFF, supra note 2.
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Aversive constitutionalism in the Westminster world
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experiences produced a new outlook in favor of greater checks and balances,
which, given the highly streamlined nature of the New Zealand political system at that time, could be exploited successfully by the strategically placed
leadership of Geoffrey Palmer. Second, it shows that the final shape of NZBOR
was substantially influenced by the conception of parliamentary democracy
peculiar to New Zealand. The ideological centrality of such a conception
ensured that the original proposal for a fully constitutional enactment was
greeted with extensive wariness and incomprehension by both the legal elite
and the general public. This pushed reformers toward the more limited statutory and interpretative model finally enacted as NZBOR in 1990. The strength
of this particular conception of democracy reflected, in large part, the historical
core of Westminster legal and political norms inherited from Britain, combined
with the country’s relative isolation from new transnational forces encouraging a more formalized approach to human rights matters.
After providing relevant background on both the New Zealand case and the
electoral threat paradigm, the article examines the empirical and theoretical
validity of, first, the HPT and, second, the KCT. Building on this analysis, a new
perspective is advanced, focusing on how Labour’s aversive reaction to prior
negative political experiences, the constitutional entrepreneurship of Geoffrey
Palmer, and background political culture, operated to determine the timing
and nature of the NZBOR enactment. The conclusion concentrates on the
broader theoretical and empirical relevance of the new perspectives proposed
herein, including their potential application to the United Kingdom and
Australia.
1. Background to the New Zealand situation
The first substantial public demands for a New Zealand bill of rights emerged in
the aftermath of the abolition, in 1951, of the Parliament’s rather ineffective
upper house, the Legislative Council, by the right-of-center National government. This change led to fears concerning the centralization of power and the
dangers of unwise or ill-considered legislation. As a result, demands emerged
for greater checks and balances within New Zealand’s Constitution, including
the possibility of a bill of rights. In 1957 a right-of-center organization, the
Constitutional Society for the Promotion of Economic Freedom and Justice,
was founded to further these demands, resulting in proposals for an entrenched
constitution, including a bill of rights.7 While rejecting the radical demands of
the Constitutional Society, the National Party nonetheless responded to these
new fears by committing itself in its 1960 general election manifesto to passage of a statutory bill of rights along the lines of the Canadian Bill of Rights
7
Suggested Constitution for New Zealand (Constitutional Society 1961), reprinted in READINGS
NEW ZEALAND GOVERNMENT (L. Cleveland & A.D. Robinson eds., Reed Education 1972).
IN
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1960 (CBOR).8 While National was successfully reelected in 1960, it was not
until 1963 that a watered-down version of the Canadian act was introduced
in Parliament.9 Moreover, the National Party abandoned this legislation the
following year after various consultations indicated little public, civil society,
or legal support for such an initiative.10 Throughout the rest of the 1960s
and the 1970s, both the National and Labour parties—the two dominant
political groupings in New Zealand—remained opposed to a bill of rights.
In 1981, however, bipartisan opposition to a bill of rights was shaken when
the Labour Party’s general election manifesto committed the party to passing a
bill of rights based on the International Covenant on Civil and Political Rights,
which New Zealand had ratified in 1978.11 Labour lost the 1981 general election. However, by the time of the 1984 general election, which Labour won,
the party’s “Open Government” policy included a commitment to a fully constitutional (that is to say, entrenched and supreme) bill of rights incorporating
both fundamental civil and political rights and the provisions of the Treaty of
Waitangi (1840).12
In April 1985 the new Labour government published a white paper and
draft bill of rights that focused on guaranteeing a number of rights found in the
covenant, together with a proposal to recognize and affirm the rights of the
Ma– ori people under the Treaty of Waitangi. Broadly following the framework
of the Canadian Charter of Rights and Freedoms,13 these rights were subject to
“such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.”14
8
Canadian Bill of Rights 1960, R. S. C., 1985, app. III (1985) (Can).
9
336 N.Z. PARL. DEB. (1963) Col. 1181–1198.
10
N.Z. PARLIAMENT, CONSTITUTIONAL REFORM COMMITTEE, EVIDENCE PRESENTED TO THE CONSTITUTIONAL REFORM
COMMITTEE, 1964, ON THE NEW ZEALAND BILL OF RIGHTS (Government Printer 1965).
11
Paul Rishworth, The Birth and Rebirth of the Bill of Rights, in RIGHTS AND FREEDOMS: THE NEW ZEALAND
BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993 11 (Grant Hunscroft & Paul Rishworth
eds., Brookers’ Legal Information 1995).
12
GEOFFREY PALMER, UNBRIDLED POWER: AN INTERPRETATION OF NEW ZEALAND’S CONSTITUTION AND GOVERNMENT
282–283 (Oxford Univ. Press, 1987). The Treaty of Waitangi was signed in 1840 by both a representative of the British Crown and over 500 chiefs of the indigenous Ma– ori population. The treaty
provided for British sovereignty over New Zealand and guaranteed the Ma– ori a number of rights.
13
Constitution Act, 1982, pt. 1, as Schedule B to the Canada Act, 1982, ch. 11 (U.K.) (Canadian
Charter of Rights and Freedoms).
14
N. Z. GOVERNMENT, DEPARTMENT OF JUSTICE, A BILL OF RIGHTS FOR NEW ZEALAND 11 (Government Printer
1985). It should be noted that aboriginal and treaty rights in the Constitution Act (Can) (1982)
are formally outside both the Charter and its limitation clause. On the other hand, however, the
clause is tightly framed so as to protect only “existing” aboriginal and treaty rights. See Constitution Act, 1982 pt. 2 (Rights of the Aboriginal Peoples of Canada) § 35.
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For its proponents, response to the white paper was highly disappointing.
Not only did the opposition National Party quickly voice its strong concerns
about the initiative but the oral and written submissions gathered in 1985 and
1986 by the traveling Justice and Law Reform Committee of the New Zealand
Parliament mirrored this disquiet. Of the relevant briefs submitted, 241 (or 73
percent) were totally opposed to the initiative while only 91 (27 percent)
expressed broad support.15 Though less vocally opposed, the general public
was also not enthusiastic. Thus, a poll conducted during the general election of
1987 found that only 52 percent of Labour voters supported the bill-of-rights
proposal while 58 percent of National voters were opposed. In addition, polls
taken during both the 1984 and 1987 general elections found that a bill of
rights was not identified by a statistically significant number of respondents as
an issue of particular importance to them personally.16
Shortly after Labour’s successful reelection in 1987, Minister of Justice
Geoffrey Palmer signaled that the government might scrap its original proposal
and introduce a bill of rights as an ordinary statute instead.17 In 1988 the Final
Report of the Justice and Law Reform Committee rejected the 1985 white paper
proposals but (by a majority) endorsed a statutory enactment designed to have
a merely “interpretative,” rather than “trumping,” effect in relation to other
law. The wording of the proposed bill broadly followed the white paper draft.
However, the clauses relating to the Treaty of Waitangi were deleted, and it
was tentatively suggested that some social and economic rights “could” be
included. Finally, a system of political as well as judicial monitoring of the bill
was proposed, including the establishment of a select committee to monitor
compliance and a requirement that the attorney general certify the compatibility or otherwise of new legislation with the rights set out in the bill of rights.
Opposition National Party members dissented from this majority report and
opposed any moves toward a bill of rights.18
The government adopted the broad thrust of the committee’s proposals.
Some specific recommendations, however, such as setting up a dedicated
review committee and the possible inclusion of social and economic rights,
were not adopted. On October 10, 1989, the government put forth a statutory
15
N.Z. GOVERNMENT, DEPARTMENT OF JUSTICE, WHITE PAPER ON A BILL OF RIGHTS: REPORT OF THE DEPARTMENT
OF JUSTICE 4 (Government Printer 1987).
16
Stephen Levine, Bills of Rights in Parliamentary Settings: New Zealand and Israeli Experience, 44
PARLIAMENTARY AFF. 337, 342 (1991).
17
Rishworth, supra note 11, at 20. It seems this new approach resulted from a meeting of the parliamentary Labour Party caucus held on Dec. 2, 1987, to specifically address the matter. See Memo
from Palmer to Caucus Justice Committee (Mar. 22, 1988), in Bill of Rights papers, Archives New
Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG-7-4-3, Box 14, Part 23
(1985-1988).
18
N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, FINAL REPORT OF THE JUSTICE AND LAW REFORM
COMMITTEE ON A WHITE PAPER ON A BILL OF RIGHTS FOR NEW ZEALAND (Government Printer 1988).
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and interpretative bill of rights in Parliament and referred this again to the
Justice and Law Reform Committee. The committee’s new public consultation
(albeit conducted on a much smaller scale) indicated far more support for a
limited bill of rights than a fully constitutional one. While almost as many submissions (22) voiced opposition to the proposals as voiced support (23), an even
larger proportion (25) made constructive amendments regarding the drafting
of the bill.19 Also, as Paul Rishworth notes, “[a] number of those in opposition
had failed to understand the significance of the ordinary statute status of the
proposed enactment; their opposition was based on what an entrenched bill of
rights might do and was discounted.”20 On July 17, 1990, the bill was reported
back to Parliament together with some amendments that led to its further
weakening.21 In August of 1990, this bill passed through Parliament on a strict
party vote (National still being opposed) becoming law as the New Zealand Bill
of Rights Act (1990) (NZBOR). Shortly afterward, the Labour government
fell from power and National formed a new government. Despite its previous
opposition, the National party did not move to repeal the legislation.
2. Electoral threat paradigm
The electoral threat paradigm argues that decisions to empower the judiciary
through passage of a bill of rights result from politicians and interests under
threat in majoritarian institutions attempting to entrench their substantive
policy commitments against this threat. As Mark Graber and others have
noted, this paradigm recently has come to dominate the scholarly literature.22
Nevertheless, the paradigm has also been marked by significant disagreements.
In particular, two mutually inconsistent theories—HPT and KCT—have found
a home within it.
According to the hegemonic preservation thesis,23 bill-of-rights projects are
developed by conservative and, especially, neoliberal politicians in response to
growing electoral challenge from “peripheral minority groups.”24 It argues
that such actors and the interests they represent push through a bill of rights
that, while ostensibly protecting those rights broadly acknowledged to be
19
N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, SUBMISSIONS ON THE NEW ZEALAND BILL OF RIGHTS
BILL: AS RECEIVED BY THE JUSTICE AND LAW REFORM SELECT COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF NEW
ZEALAND, 1989–90 (Parliamentary Library, Wellington, Boxes 1990/29 & 1990/30).
20
Rishworth, supra note 11, at 21.
21
In particular, a specific provision was added stating that the legal effect of “other enactments”
were not affected by the passage of NZBOR (See New Zealand Bill of Rights Act 1990, 1990 S.N.Z.
No. 82 § 4).
22
Mark A. Graber, Constructing Judicial Review, 8 ANN. REV. POL. SCI. 425 (2005).
23
Ran Hirschl, The Political Origins of Judicial Empowerment through the Constitutionalization of
Rights: Lessons from Four Constitutional Revolutions, 25 L. & SOC. INQUIRY 91 (2000).
24
Id. at 138.
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“fundamental,” actually entrench conservative and, in particular, capitalist,
free-enterprise values. Such entrenchment is achieved both directly, through
the specific provisions of the bill, and indirectly, through the fact that, according to the HPT, the courts can be expected to rule in accordance with “hegemonic ideological and cultural propensities.”25 Finally, the HPT suggests that, in
order to secure the passage of a bill of rights, it is also necessary that hegemonic
political forces gain the support of the legal elite and, most especially, members
of the senior judiciary. This support is generally forthcoming since, it is argued,
legal elites benefit directly from the institution of bills of rights. For example,
members of a supreme court will correctly see that such reforms entail an
enhancement of their “political influence and international profiles.”26
In contrast to the HPT, the knowledge class thesis27 argues that bill-of-rights
projects are developed by politicians and interests representing the cultural left
or “knowledge class.”28 Specifically, this class is defined as including those who
wish to consolidate power at the center of the state (“unifiers”), civil libertarians, and social equality proponents. More generally, it is composed of “social
engineers” and “postmaterialists.”29 Drawing largely on the postmaterialization literature,30 the KCT argues that, in advanced industrialized democracies,
such groups are endowed with (a) growing political strength, (b) continued
minority electoral position, and (c) disproportionate legal resources (for example, skilled lawyers and a largely sympathetic judiciary). As a result, the theory
posits, such groups find it both possible and in their interest to move the resolution of rights conflicts into the courts via passage of a bill of rights.
3. Hegemonic preservation thesis and New Zealand
The New Zealand case has been explicitly cited as providing clear evidence of
the more general validity of the HPT.31 According to these writings, NZBOR
was promoted by politicians, representing conservative neoliberal elites,
who had the goal of securing their policy preferences in the face of an increasing threat within majoritarian institutions.32 It is argued, further, that
25
Id.
26
Ran Hirschl, The Struggle for Hegemony, 36 STAN. J. INT’L L. 73, 86 (2000).
27
MORTON & KNOPFF, supra note 2; ROBERT H. BORK, COERCING VIRTUE: THE WORLDWIDE RULE
(Vintage Canada 2002).
OF JUDGES
28
BORK, id. at 9 & 6.
29
MORTON & KNOPFF, supra note 2, at 31.
30
RONALD INGLEHART, CULTURE SHIFT IN ADVANCED INDUSTRIAL SOCIETIES (Princeton Univ. Press 1990).
31
See HIRSCHL, supra notes 3, at 24–27, 83–89; Hirschl, supra note 23, at 130–134; and Hirschl,
supra note 26, at 107–111.
32
See, e.g., Ran Hirschl, The Political Origins of the New Constitutionalism, 11 IND. J. GLOBAL LEGAL
STUD. 71, 104 (2004).
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“peripheral minority groups”33 in New Zealand were growing in strength
within such institutions and provided the core opposition to the initiative. As
this section will demonstrate, none of these claims finds much empirical validation. Neoliberal and other conservative interests did not support NZBOR
and neither did the enactment aim to protect their preferences. In contrast,
with the notable exception of most Ma– ori, peripheral minorities were disproportionately attracted to the value of this instrument. In addition, problems associated with the timing of the political decisions that resulted in
NZBOR, as well as logical problems relating to NZBOR’s legal effect, will also
be noted.
3.1. Ostensible supporters and their agenda
Central to the HPT’s perspective are the twin claims that NZBOR was driven,
first, by the strong support of neoliberal economic actors at the organizational
level and, second, by an explicitly neoliberal economic agenda at the level of
ideology. As Hirschl states:
The driving force behind the 1990 constitutionalization of rights in New
Zealand was provided by a coalition of economic actors who were pushing for neoliberal economic reforms.34
It is true that NZBOR emerged from a Labour administration (1984–1990)
that, while coming from a left-of-center tradition, had in significant measure
abandoned this for the pursuit of significant market-based economic reforms.
Nevertheless, the mere existence of this correlation does not provide evidence
of the causation the HPT requires. Labour’s economic policy and its bill-ofrights policy emerged as a result of pressures from very different constituencies
within the party. While the bill of rights was strongly associated with Geoffrey
Palmer and his political associates, economic policy, in contrast, was developed by Finance Minister Roger Douglas and Associate Minister of Finance
Richard Prebble. Palmer was not strongly associated with either individual
and publicly criticized their agenda early on.35 Moreover, by the time NZBOR
was passed in August 1990, both Douglas and Prebble had left or been removed
from the Labour government.36 Even more important, from the beginning of
the bill-of-rights process, Palmer stressed that economic rights and, in particular, neoliberal rights were not within the purview of the proposed enactment.
Indeed, he specifically emphasized to his officials that there should be “[n]o
33
Hirschl, supra note 23, at 138.
34
Hirschl, supra note 26, at 83.
35
Government Moving Too Fast Says Mr. Palmer, NEW ZEALAND HERALD, Apr. 22, 1985. For similar
later remarks see GEOFFREY PALMER, NEW ZEALAND’S CONSTITUTION IN CRISIS: REFORMING OUR POLITICAL SYSTEM 179 (John McIndoe 1992).
36
KEITH SINCLAIR, A HISTORY OF NEW ZEALAND 342 (Penguin NZ 2000).
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reference to economic matters, taxation [or] property rights,”37 and he rejected
pressure from within the bureaucracy and elsewhere for such inclusions
during the policy’s genesis.38
As a result, and seemingly contrary to Hirschl’s assertion,39 a right to
property was deliberately omitted as was an explicit right to voluntary unionism.40 Especially coming in the wake of legislation, then being introduced,
that provided for a trade union closed shop, these exclusions ensured that
NZBOR was vociferously attacked by neoliberals. Thus, during the original
1985–86 consultation on NZBOR, 18 percent of the submissions opposing
the proposal cited the lack of protection of private property and/or voluntary
unionism rights. In contrast, none of the submissions received in support
cited any supposed neoliberal benefit from the measure.41 Throughout the
subsequent debate, pressure for the inclusion of such rights continued.42 All
such calls were firmly resisted. In 1988, when the Justice and Law Reform
Committee tentatively suggested that an unentrenched bill of rights might
include a range of social and economic rights, including both “right-wing”
rights, such as the right to private property, and “left-wing” rights, such as
rights to health care and an adequate standard of living, this suggestion was
also rejected. Especially given the wide nature of rights proposed and the
37
Memorandum to Department of Justice and Professor Keith from Minister of Justice (Feb. 24,
1985). The memorandum later prepared for the cabinet similarly emphasized the deliberate exclusion of economic rights ([Draft] Memorandum for Cabinet [on] the Bill of Rights from Office
of the Minister of Justice (prepared Mar. 1, 1985)). Both held in Bill of Rights papers, Archives
New Zealand, Agency ABVP, Series 7410, Record LEG 7-1-3, Box 10, Part 7 (1985–86).
38
Some of the initial possible drafts of the bill of rights prepared by the bureaucracy and
held within the bill-of-rights papers at Archives New Zealand did include protection of the rights
to private property. On Geoffrey Palmer’s advice, however, these provisions were deleted.
Moreover, despite subsequent pressure from at least one prominent lawyer to reinclude
property rights, such siren calls were rejected. See Memorandum from David Williams on Draft
Bill of Rights (stating support for inclusion of rights to private property) in Bill of Rights
Papers, Archives New Zealand, Agency ABVP, Series 7410, Record LEG 7-1-3, Box 10, Part 6
(1985–86).
39
Hirschl, supra note 26, at 88.
40
In contrast, National’s abortive draft bill of rights of the early 1960s had given a place to key
private property rights. See CONSTITUTIONAL REFORM COMMITTEE, supra note 10.
41
N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, SUBMISSIONS ON “A BILL OF RIGHTS FOR NEW ZEALAND:
A WHITE PAPER” (Parliamentary Library, Wellington, Boxes 1988/41–44).
42
Property ownership as a basic right, NEW ZEALAND TIMES, Jul. 7, 1985 (Op-ed by Richard Manning,
Professor of Economics, University of Canterbury urging entrenchment of a right to private property); Kiwi Forum Submission on a Bill of Rights, OTAGO DAILY TIMES, Nov. 28, 1985 (reporting on
Dunedin Kiwi Forum’s concern that the enactment failed to protect private property but was
“heavy” in its protection of “drug pushers” from search and seizure); In favour of a Bill of Rights, THE
PRESS, Oct. 18, 1989 (Op-ed by Christchurch lawyer John Fogarty urging inter alia inclusion of a
right to private property in Bill of Rights).
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failure of the enactment to attract constant support from any particular quarter,43 these exclusions should be seen as resulting not from alleged neoliberal
bias (as has been asserted)44 but, rather, from a desire to leave both right- and
left-wing economic values outside the purview of a legalized (or quasi-legalized) process.45 Finally, it should be noted that the “explicitly neoliberal leadership of the post-Muldoon National Party” did not back any aspect of the
bill-of-rights initiative (as has also been asserted)46 but, instead, developed an
early and increasing criticism of it right up to its final passage in August of
1990.47
According to the HPT model, the second group that must necessarily favor
the creation of a bill of rights is the “professional legal elite.”48 It is certainly
true that some individuals within this elite supported the NZBOR initiative,
including, most particularly, Sir Robin Cooke, president of New Zealand’s then
highest indigenous court, the Court of Appeal.49 Nevertheless, a far larger
43
Indeed, Richard Northey, the key instigator behind the suggestion, has noted that when the
matter came to be finally debated by the parliamentary Labour Party it faced the clear majority
opposition of both “right” and “left” of the caucus. The decision to exclude was taken quite specifically by the whole caucus. Interview with Richard Northey (Nov. 3, 2006). Indeed, archival material shows that a draft including these rights (in a not directly justiciable fashion) had been
produced within the Department of Justice. See Draft No. 4 (24th July 1989) in Bill of Rights records,
Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 13,
Part 19 (1989–90).
44
Hirschl, supra note 26, at 88.
45
In this context it should be noted that, fearing the birth of a U.S. Lochner-style free enterprise jurisprudence in New Zealand, a number of the most strenuous opponents of the idea of judicially
enforceable economic and social rights came from the “left” and “center” not “right” of politics. See
submissions of New Zealand Democratic Party (Submission 409) and left-wing civil liberties lawyer Tim McBride (Submission 23) to the original 1985 White Paper parliamentary enquiry (JUSTICE
AND LAW REFORM COMMITTEE, supra note 41).
46
Hirschl, supra note 23, at 133.
47
At the beginning of the process at least one prominent National MP (Rt. Hon. Doug Graham)
was willing to give “in principle” support to the idea of a bill of rights despite a clearly negative reaction from the opposition as a whole. See Storm Clouds Gathering Over Bill of Rights, NEW ZEALAND
HERALD, Jan. 16, 1984 (citing opposition of National’s Leader Jim McLay but support of Graham for
a Bill of Rights); Mr Bolger Attacks Draft Bill, THE PRESS, Apr. 8, 1985 (citing Deputy Opposition
Leader Jim Bolger’s general attack on the bill including its failure to protect the right not to associate in a trade union); and Economic and Social Rights Not Recognized in Draft Bill, NEW ZEALAND
HERALD, Apr. 12, 1985 (remarks by George Gair, National Party’s spokesperson on Labour and
Industrial Relations opposing NZBOR on neoliberal basis). By 1990, opposition from National was
overwhelming. No National MPs supported passage of NZBOR at Third Reading and even Doug
Graham spoke against it. See 510 N.Z. PARL. DEB. (1990) Col. 3760–3773.
48
49
Hirschl, supra note 26, at 105.
Interview with Sir Robin Cooke, in GARRY STURGESS & PHILIP CHUBB, JUDGING
POLITICS IN THE WORLD’S LEADING COURT 376 (Butterworths 1988).
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number voiced their opposition fearing the drawing of the judiciary into political controversy and the consequent politicization of the law. Thus, major judicial figures, such as Sir Clifford Richmond, president of the Court of Appeal
between 1976 and 1981, early on voiced their concerns regarding the original
constitutional proposals.50 Similarly, the leaders of the New Zealand Law
Society (the central body of the nation’s legal profession) offered trenchant
criticism of the 1985 white paper proposals, sometimes in extremely colorful
language. One of its vice presidents described it as amounting to “legisla[tion]
by bumper sticker”51 and reflecting the “monstrously anti-democratic assumption that the ordinary New Zealand voter cannot be trusted to know what is
good for him.”52 The formal submission made by the Law Society to the Justice
and Law Reform Select Committee was similarly dismissive:
The Society has formed the clear view that the proposals in the white
paper should not proceed. The paper could, in fact, be described as a onesided and tendentious document53
Finally, in at least some published work, HPT proponents have also put forward the idea that social as well as economic conservatives were part of the
coalition pushing for and hoping to gain from NZBOR. Thus, for example, in
his 2004 book, Hirschl, after recounting various ways the power of so-called
peripheral minorities had been increasing, states that these developments
“threatened social conservatives and increased the threat to established interests. The push toward judicial empowerment followed.”54 Contrary to Hirschl’s
50
Rights Bill has “Dangers,” NEW ZEALAND HERALD, Apr. 8, 1985.
51
Cited in Rishworth, supra note 11, at 19.
52
A Bill of Rights? THE DOMINION, Apr. 28, 1986.
53
JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 140). When the whole profession
was polled it indicated a much more ambivalent (and, thus, more positive) attitude to the whole
initiative. See Few lawyers support Bill of Rights as drafted, 248 LAWTALK: NEWSLETTER OF THE NEW
ZEALAND LAW SOCIETY 1 (Sept. 24, 1986) (citing roughly even support/opposition toward principle
of a bill of rights from those replying). This suggests, at the very least, that opposition to the
bill-of-rights model was as much an “elite” as an ordinary “mass” phenomenon. Partly as a result
of the findings of this poll, during the 1989–90 consultations on a more limited statutory bill of
rights, the Law Society adopted a much more neutral attitude (JUSTICE AND LAW REFORM COMMITTEE,
supra note 19 (Submission 49)).
54
See Hirschl, supra note 3 at 87. For similar comments, see Hirschl, supra note 3, at 132. These
arguments appear in some tension with another argument, offered by Hirschl especially in relation
to other cases such as Israel, Egypt, and Turkey, that secularists have been key supporters of the
constitutionalization of rights, while religious fundamentalists have been opposed. See Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, 82 TEX. L. REV.
1818 (2004). However, at least as Hirschl presents the matter, in these other three cases a central
dynamic fueling support relates to the declining interest in the secularist agenda at the popular
level. In contrast, it is fundamentalist religious groups that have generally been regarded as a
somewhat weak and declining political influence in the New Zealand case.
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imputation, empirical evidence overwhelmingly demonstrates that social conservatives—those interested in shoring up societal norms defined in a traditional (or even reactionary) way—were the most vehement opponents of the
“judicial empowerment” represented by the passage of NZBOR. Thus, Christian
conservatives saw the bill’s protections relating, for example, to freedom of religion, its failure to acknowledge the “supremacy of God,” and its failure to provide any clear protection for the human fetus as a fundamental attack on the
status quo, namely, what they saw as the common law Christian foundation of
the New Zealand state. Over half of the submissions received opposing the original white paper proposals during the consultation of 1985–86 specifically
cited one or more of these concerns, and, for the large majority, it appears that
these concerns were the predominant reason for their opposition. In contrast,
almost none of the submissions received in support of the proposals showed
any sympathy with this social agenda.55 Another group of social conservatives
who opposed NZBOR were nationalist New Zealanders interested in defending
the nation’s sovereignty, identity, and culture against new outside influences.
These individuals noted that NZBOR was based on an international treaty (the
ICCPR) and, therefore, saw it as imposing an alien and even perhaps communistic ideology in the name of the international community and/or the United
Nations.56 Around 18 percent of submissions received against the bill of rights
proposals in 1985–86 cited threats to national sovereignty and/or communist
linkage as a reason for their opposition. In contrast, no submissions were
received arguing that the enactment would provide any protections of national
sovereignty.57
3.2. Ostensible opponents and their agenda
According to the HPT, the opposition to bills of rights comes from peripheral
minorities, which, in theory, should be experiencing growing strength in
majoritarian political institutions. Such groups include those linked to “environmentalism, disarmament, multiculturalism, non-mainstream sexual preferences, regional and religious separatism.”58 It is true that in New Zealand
during the relevant period some of these groups were exhibiting a “growing
55
JUSTICE AND LAW REFORM COMMITTEE, supra note 41.
56
GEOFFREY PALMER & MATTHEW PALMER, BRIDLED POWER? NEW ZEALAND GOVERNMENT UNDER MMP 270
(Oxford Univ. Press, 1997).
57
58
JUSTICE AND LAW REFORM COMMITTEE, supra note 41.
Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH. L. REV. 415, 433 (2000). It should be noted that, while
not directly addressing the political origins of bills of rights, Hirschl has, in some subsequent writing, acknowledged that a number of these groups may have benefited in at least some respects
from judicial rights provisions. See, e.g., Hirschl, Constitutionalism, Judicial Review, and Progressive
Change: A Rejoinder to McCain and Fleming, 84 TEX. L. REV. 471, 495 (2005).
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presence … in majoritarian policymaking arenas,”59 as demonstrated, for
example, by the adoption of a strong non-nuclear defense policy,60 decriminalization of homosexual activity,61 and legislative reform providing for more ethnically diverse immigration.62 However, it must be noted that, to a significant
extent, the empowerment of these groups was the result of the election of the
Labour Party—the same body of people who legislated for NZBOR. Just as significantly, with the exception of Ma– ori, the empirical record indicates that these
same groups tended to provide important (although not overwhelming) support for the NZBOR initiative. Thus, the Ma– ori aside, during the original consultation regarding the government’s 1985–1986 white paper proposals, 65
percent of the relevant submissions from advocates for those traditionally facing “non-economic”63 disadvantage were supportive of the initiative (n=13).64
In contrast, the global figure of support from all submissions received was a
mere 27 percent (n=334).65
Ma– ori constituted the main exception to this (somewhat muted) support for
NZBOR from the so-called peripheral minority groups. Ma– ori involvement in
the debate focused not on the general rights to be included but rather on the
suggestion that the bill should include a clause recognizing and affirming
rights guaranteed to them under the Treaty of Waitangi (1840). There can be
little doubt that the government’s proposals were designed to appeal to the
increasingly salient Ma– ori community, which had long been demanding that
its special rights under the treaty be honored and ratified by the Crown. Given
59
Hirschl, supra note 26, at 83.
60
MARGARET WILSON, LABOUR IN GOVERNMENT: 1984–1987 55–67 (Allen & Unwin in assoc. with Port
Nicholson Press 1987).
61
Homosexual Reform Act 1986, 1986 S.N.Z. No. 33. Significantly, this enactment also provided
for an equal age of consent.
62
Immigration Act 1987, 1987 S.N.Z. No. 74.
63
Those representing groups discriminated against in a primarily economic fashion seem largely
to have ignored the bill-of-rights initiative. This probably reflects the fact that the instrument deliberately sought to avoid codifying economic rights either of a left- or right-wing variety. Nevertheless, it should be noted that NZ’s primary trade union body, the Federation of Labour, did pass
a resolution at its annual conference in 1984 supporting the principal of a bill of rights. See INTERNATIONAL COMMISSION OF JURISTS (NEW ZEALAND SECTION), TRANSCRIPT OF SEMINAR HELD ON BILL OF RIGHTS ON
19TH MAY 1986 40 (International Commission of Jurists (New Zealand Section) 1986). Certainly,
therefore, it is incorrect to argue that core opposition to NZBOR came from “leftist opponents of
privatization” (Hirschl, supra note 26, at 89).
Those representing both (non-Ma– ori) ethnic and religious minorities and the physically and/or
mentally disabled were almost universally supportive. In contrast, feminist groups were clearly
split with four submissions received in opposition and only two in favor (one of these being from an
internal Labour Party women’s group) (JUSTICE AND LAW REFORM COMMITTEE, supra note 41).
64
65
DEPARTMENT OF JUSTICE, REPORT OF THE DEPARTMENT OF JUSTICE ON A WHITE PAPER ON A BILL OF RIGHTS FOR
NEW ZEALAND, printed as Appendix 2 in N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, INTERIM
REPORT (I (8A)), Appendix to the Journals of the House of Representatives (1986–87).
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the other reforms of the fourth Labour government, such as the empowerment
in 1985 of the quasi-judicial Waitangi Tribunal to examine Crown breaches of
the treaty dating back to 1840,66 this is certainly how the policy was perceived
in European (or Pakeha) New Zealand.67 Nevertheless, as the HPT perspective
stresses,68 the Ma– ori community generally (although far from universally)69
came out against the inclusion of a specific clause affirming its rights under
Waitangi. In particular, a consensus of opposition was clearly forthcoming at
a special hui (or Ma– ori meeting) specifically held to discuss the issue at Tutahi
Tonu Marae in Auckland on August 14, 1985.70 The main stumbling block for
Ma– ori appears to have been that to include the treaty within any enactment
mainly dealing with other matters would demean its mana, or status, and tapu,
or sacred nature.71 Other significant concerns were that New Zealand judges
could not be trusted to interpret the treaty in a way that Ma– ori would wish;
that the general “reasonable limitations” clause could be applied, to their detriment; and that the provisions would be subject to change through the amendment process.72 Faced with such opposition, the Justice and Law Reform
Committee recommended in its 1988 Final Report that the clause be dropped.
The majority (that is, the Labour members) seemed particularly motivated by
the reasoning that, because an argument among Ma– ori had developed regarding the Treaty’s tapu nature and the possibility of repeal, it was untenable to
66
Treaty of Waitangi Amendment Act 1985, 1985 S.N.Z. No. 148.
67
Some eighteen submissions were received in 1985/86 from Pakeha New Zealanders arguing that
such a clause would lead to racist laws that disadvantaged non-Ma– ori (JUSTICE AND LAW REFORM COMMITTEE, supra note 41). Mainstream legal opinion also seemed opposed to the idea of including the
treaty. In a survey of Law Society members carried out in 1986, 57 percent opposed including the
treaty in a bill of rights while only 24 percent were supportive. See Findings from Tactical Marketing in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196,
Record LEG 7-3-1, Box 13, Part 20 (1985–88).
68
Hirschl, supra note 26, at 89.
Notable Ma– ori supporters of the Treaty of Waitangi clause included Judge Eddie Durie, chief
justice of the Ma– ori Land Court and chair of the Waitangi Tribunal. Judge Durie stated that the
clause was “of crucial importance to Maoridom because it creates new rights previously denied”
(INTERNATIONAL COMMISSION OF JURISTS, supra note 63, at 59).
69
70
JEROME B. ELKIND & ANTHONY SHAW, STANDARD FOR JUSTICE: A CRITICAL COMMENTARY ON THE PROPOSED BILL
RIGHTS FOR NEW ZEALAND 42 (Oxford Univ. Press N.Z. 1986). Similarly all four submissions received from Ma– ori organizations in the 1985–1986 submission process were opposed (JUSTICE AND
LAW REFORM COMMITTEE, supra note 41).
OF
71
“The Department of Maori Affairs does not favour incorporation of the Treaty into a Bill of
Rights. The Treaty can only be handled in such a way as befits its Tapu nature. The proposed bill is
not the appropriate mechanism by which this can be achieved.” [Late] [s]ubmission by Department of Maori Affairs to Justice & Law Reform Committee [on 1985 White Paper] (1988), Archives
New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-13, Box 14, Part 23
(1985–88).
72
JANE KELSEY, A QUESTION OF HONOUR? LABOUR AND THE TREATY 54 (Allen & Unwin 1990).
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place a treaty clause within what would now be a completely unentrenched
bill. According to the committee, such inclusion “might suggest that it [the
treaty] is no more than an ordinary statute.”73
Ma– ori distrust of the Treaty of Waitangi clause was clearly significant and
deserves close examination. Nevertheless, it is unclear whether it, or its effect
on the NZBOR outcome, provides much evidence in favor of the HPT. First, a
powerful argument can be put forward that the Ma– ori underestimated the
clause’s benefits due to a failure to appreciate that the treaty, at that time, had
no formal status in New Zealand law; that the clause would give it some (perhaps imperfect) status; and that New Zealand judges were not perhaps as
opposed to the Ma– ori agenda as might be thought.74 Second, a key claim of the
HPT is that it is the hegemonic groups that determine the timing, nature, and
extent of any such constitutional reform.75 However, here it appears that a significant aspect of NZBOR was deleted due to the opposition of a nonhegemonic
group. Finally, it should be noted that once the clause was deleted, Ma– ori played
little further role in the debate that led to NZBOR (1990). Continued opposition
came principally not from Ma– ori activists but, rather, from right-wing forces
associated with the New Zealand National Party.
4. Timing and nature of NZBOR
Some final problems with the HPT in relation to New Zealand relate less to the
argument regarding the social constituencies supporting or opposing NZBOR
and more to the overall shape or logic of the thesis. As already mentioned, the
HPT suggests that the political support for a bill of rights should emerge when
those holding so-called hegemonic political power are in the process of losing
this power to various less powerful groups. Faced with the possibility of decisions being made in majoritarian institutions that are contrary to their interests, such hegemons opt to entrench these interests via a bill of rights
interpretable by the Courts. However, although it is true that NZBOR was
enacted just before the New Zealand Labour Party was ejected from power, the
crucial political decisions relating to its genesis occurred much earlier. For
example, as previously noted, the Labour Party became committed to a bill of
73
JUSTICE AND LAW REFORM COMMITTEE, supra note 18, at 4.
74
In fact, following the inclusion of a reference to the “principles of the Treaty of Waitangi” in the
State-Owned Enterprises Act 1986, 1986 S.N.Z. No. 124, the New Zealand Court of Appeal issued
a path-breaking “pro-Ma– ori” decision setting out a “partnership” understanding of the treaty,
which many Ma– ori had been advocating. New Zealand Maori Council v Attorney-General, 1 NZLR
641 (1987). Incidentally, this decision appears to have increased support among some Ma– ori for
recognition of the treaty in the bill of rights. Thus, in the 1989–90 consultation a number of Ma– ori
submissions were received advocating some form of inclusion. See JUSTICE AND LAW REFORM COMMIT–
TEE, supra note 18. However, consensus within Maoridom was still not forthcoming and, in any
case, by this time the chance to influence debate had probably been lost.
75
Hirschl, supra note 26, at 102.
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rights not in 1990 but during the early 1980s, when it was looking forward to
the prospect of incumbent power not its imminent loss. The HPT cannot elucidate this crucial development despite its clear importance to the story of
NZBOR’s beginnings.76 Second, another logical problem with applying the
HPT to New Zealand is that, rather than clearly locking in various preferences
against a future majority, NZBOR is actually completely unentrenched. In
other words, NZBOR can be repealed by a simple majority vote of the unicameral New Zealand Parliament. Especially before the move to a proportional representation electoral system in 1996, the enactment neither provided, then,
nor can provide, now, the sort of entrenched protection for specific interests
that the HPT implies. In any case, even if one acknowledges the possible difficulties of repealing an enactment called a “Bill of Rights,” it is remains unclear
why—if a political coalition with different preferences to those encapsulated in
this instrument were truly on the verge of claiming power in New Zealand
prior to its passage—NZBOR has, over fifteen years later, yet to be either
repealed or even restricted in its remit through amendment. In fact, no political
party that has gained seats in the New Zealand Parliament since 1990 has
even proposed repeal. These facts sit uncomfortably with the HPT’s outlook
and appear inexplicable within its logic.
5. Knowledge class thesis and New Zealand
Clearly, the HPT is unable to explicate or even correlate with the contours of
the New Zealand situation. This being so, it is appropriate to examine the case
in relation to another key theory: the knowledge class thesis (KCT). Also operating within the electoral threat paradigm, the KCT has developed its own
understanding of what social interests support and benefit from bill-of-rights
institutionalization, an understanding very different from the HPT’s. Rather
than stressing the role of neoliberals, the KCT argues that bills of rights are
promoted by the cultural left or “knowledge class,” purportedly composed of
those wishing to consolidate power at the center of the state, civil libertarians,
and supporters of social equality; this class includes, more generally, social
engineers and postmaterialists. In what follows, I argue that this perspective
provides a more plausible elucidation of which social interests were disproportionately supportive of NZBOR; why such interests displayed increased political strength during this period; and, finally, I will look at some of the fundamental
purposes NZBOR was designed to promote. Nevertheless, key problems remain.
76
Similarly some of the more general statements that Hirschl makes regarding voter dealignment
during the 1980s are at least open to some question. Thus, it is important to note that the New
Zealand Party did not “quickly become the third political party in New Zealand.” Hirschl, supra
note 26, at 85. In fact, it effectively only fought one general election (in 1984) and never won a
single electoral seat. Similarly, it is important to note that despite the founding of Mana Motuhake
in 1980, it also never won a single seat and in 1991 decided to disband as separate force via merger with three other left-wing parties in the Alliance party.
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In particular, the theory has difficulty explaining the precise timing of the initiative, its special concern for procedural rather than substantive rights, why
there was a comparatively extensive societal wariness and distrust of the original proposals for a fully constitutional bill of rights, and the fate of NZBOR following its passage.
5.1. Strengths
A major strength of the KCT, in relation to the New Zealand context, is that,
with the exception of the category “unifiers” (which has little meaning in a
unitary state such as New Zealand), the theory locates quite accurately those
social interests that provided an important measure of support for NZBOR.
As previously noted, about 65 percent of the relevant submissions from nonMa– ori social equality groups to the original 1985–1986 consultation responded positively to the first white paper proposals. This compared with a
global figure of only 27 percent. Furthermore, it is also the case that various
organizations and individuals pursuing a broader human rights or civil liberties agenda also endorsed the central thrust of the 1985 proposals, including
the quasi-governmental Human Rights Commission,77 Amnesty International
in New Zealand,78 and some prominent civil liberty activists such as Tim
McBride,79 Dr. Jerome Elkind, and Anthony Shaw.80 Second, the KCT prediction that, as a result of postmaterialization processes, such groupings—and
especially the social equality groups—had become increasingly prominent
is one that finds significant support in both general social theory81 and
New Zealand historiography.82 Third, it is clear that, as the KCT suggests,
NZBOR was to a certain extent drafted with an eye to aiding these various
interests. Thus, it provided new rights defending against discrimination
for certain social equality interests and new civil liberties protections relating,
for example, to cruel treatment, unreasonable search and seizure, and the
rights of persons arrested or detained. In contrast, economic and social rights
of either a left-wing or right-wing variety were deliberately excluded.
77
N.Z. HUMAN RIGHTS COMMISSION, A GUIDE TO THE PROPOSED BILL OF RIGHTS IN QUESTION AND ANSWER FORM
(New Zealand Human Rights Commission 1986)
78
JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 135).
79
JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 243). McBride had been a longtime
civil liberties activist and member of the New Zealand Council for Civil Liberties. His support for the
1985 white paper proposals represented a departure from his previous opposition to a bill of rights.
Tim McBride, Do We Need a Bill of Rights in IMPROVING NEW ZEALAND’S DEMOCRACY 97, 105 (J. Stephen
Hoadley ed., New Foundation for Peace Studies 1979).
80
JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 186); ELKIND & SHAW, supra note 70.
81
INGLEHART, supra note 30.
82
JAMES BELICH, PARADISE REFORGED: A HISTORY OF NEW ZEALANDERS FROM THE 1880S TO THE YEAR 2000 509
(Penguin 2001).
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5.2. Remaining puzzles
Despite these important matches between the facts of the New Zealand case
and the KCT, there are at least four problems associated with this model. First,
the KCT does not provide a full explanation of the trigger for or process of adoption of NZBOR. Certainly, the growing power of civil liberty and social equality
groupings, as a result of developing postmaterialism factors, does represent an
important background element. Nevertheless, as Inglehart has stressed, the
postmaterialism thesis posits only gradual change mainly resulting from intergenerational replacement.83 Conversely, the change in the official attitude of
the Labour Party came about quite suddenly in the early 1980s. Moreover,
rather than relating only to intergenerational change, this period saw a
number of important policy leaders, such as Tim McBride, Geoffrey Palmer,84
and Kenneth Keith,85 alter their personal attitudes toward a bill of rights.
Second, the KCT does not help to explain why only a particular set of rights,
as favored by civil and political rights proponents, found full elucidation in
NZBOR. In contrast to their Canadian counterparts, the NZBOR framers, from
the beginning, emphasized the protection of the procedural rights of New
Zealanders relating both to democratic processes (for example, freedom of
speech, association, and the right to vote) and to judicial processes (for example, right to counsel).86 On the other hand, those rights seen as more substantive were downgraded. For example, rather than providing an open-textured
provision stipulating equality before the law, only a close-textured and narrower nondiscrimination provision was included.87 Of course, whether one
can logically divide rights—and if so, how—into those which are procedural
and those which are substantive remains subject to a great deal of controversy.88 The important point for political analysis, however, is that the framers
83
Id. at 3.
84
Geoffrey Palmer, A Bill of Rights for New Zealand, in ESSAYS ON HUMAN RIGHTS (K. J. Keith ed., Victoria Univ. Press 1968) (opposing idea of bill of rights for New Zealand); and PALMER, supra note 12
(supporting looking at enacting a bill of rights).
85
Sir Kenneth Keith, then a law professor at Victoria University of Wellington and key adviser to
Sir Geoffrey Palmer in the 1980s, had opposed the idea of a bill of rights during the 1960s debate
(CONSTITUTIONAL REFORM COMMITTEE, supra note 10, at 33–34). However, in 1978 he indicated a
change of attitude. See K. J. Keith, A Lawyer Looks at Parliament, in THE REFORM OF PARLIAMENT: PAPERS
PRESENTED IN MEMORY OF DR. ALAN ROBINSON 40 (Sir John Marshall ed., New Zealand Institute of Public
Administration 1978).
86
See DEPARTMENT OF JUSTICE, supra note 14, at 28; and Keith, supra note 5, at 312.
87
See DEPARTMENT OF JUSTICE, supra 14, at 86. At the time of final enactment, the protections with
regard to freedom from discrimination remained in the form of a closed list. NZBOR, 1990 S.N.Z.
No. 109 §10. Later, in 1993 the range of characteristics contained within this list were expanded
but remained closed. See Human Rights Act 1993, 1993 S.N.Z. No. 82.
88
See generally ELY, supra note 5; Keith, supra note 5; and Lawrence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories 89 YALE L. J. 1063 (1980).
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of NZBOR attempted to do just that and then prioritized those they considered
procedural.
Third, the KCT cannot account for the fact that, in New Zealand, there was
substantial opposition to (and an even greater degree of apathy and cynicism
toward) the idea of a constitutional bill of rights, even among social equality
proponents, civil libertarians, and the legal community. It has already been
noted that such opposition was voiced by some feminist and Ma– ori groupings
as well as by the New Zealand Law Society. Turning to the civil liberty community, it is even more noteworthy that the major civil liberties body, the
New Zealand Council for Civil Liberties, also came out strongly against the
1985 bill-of-rights proposal, especially given the prominence of due process
protections in the draft.89 Such opposition ensured that, in marked contrast
to the debate leading to the passage of the Charter of Rights in Canada in
1982, the original constitutional bill-of-rights agenda lacked the overwhelming support of any social constituency. This fact proved crucially important
in watering down the proposal into the exclusively interpretative, statutory
bill of rights that NZBOR became. Thus, the divergence of opinion in the civil
liberty and social equality groups in Canada and New Zealand is extremely
important yet appears largely inexplicable within the parameters of the
KCT.
Fourth and finally, the power-and-interest–focused nature of the KCT sits
somewhat uneasily with the fate of NZBOR following its enactment. If, as the
KCT suggests, NZBOR was simply passed at the behest and for the benefit of
discrete interest groups, which lacked majority support for their preferences,
then it would seem likely that a subsequent parliamentary majority would
repeal this unentrenched legislation. However, as previously noted, no political party elected to the New Zealand Parliament has ever adopted such a policy
of repeal.
6. Aversive constitutionalism in a Westminster setting:
An alternative look at NZBOR
Although the KCT sheds some important light on the bill-of-rights debate in
New Zealand, it falls short in relation to a number of key issues. In particular,
it fails to explain adequately either the timing of the initiative or its distinct
focus on procedural rights or the relatively strong civil society and public opposition to the original, fully constitutional model. In relation to the issue of timing, the HPT correctly focuses on the central puzzle of why incumbent elites
should wish to give up power through a bill of rights, and it attempts to provide
a clear explanation for this. Nevertheless, as demonstrated, the kind of cause it
proposes is not plausible.
89
JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 22).
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An alternative political rationale and impetus for what became NZBOR is
rooted in the “trigger” or “focusing event” concept found within the public
policy literature.90 I argue that the general, perhaps predictable wariness of
incumbent politicians with regard to a bill of rights was mitigated by the Labour
elites’ negative political experiences under the previous and apparently authoritarian government of Robert Muldoon (1975–1984). Thus, it was less the
threat of losing its hegemonic position than the memory of its own recent experience in the minority that pushed Labour to rethink its support for inherited
constitutional forms. This negative experience produced within Labour a new
aversive mind-set in favor of reform, particularly in the area of procedural
rights. Aided by New Zealand’s (then) unencumbered political system, this
collective attitude was exploited by the strategic political leadership of
Geoffrey Palmer.
Finally, the nature of this change in attitude was influenced by the sheer
dominance of a parliamentary conception of democracy specific to New
Zealand. The ideological centrality of such a conception among the New
Zealand legal community, civil society, and the general public reflected, in
particular, the strength of inherited British legal mores and practices combined with the country’s relative isolation from new transnational forces
encouraging a more formal approach to human rights matters. The power of
this conception of parliamentary democracy ensured that the entrenched
and supreme bill-of-rights model originally proposed in 1985 would meet
with widespread caution and distrust. This response had certain crucial
effects in (a) slowing down and almost derailing the process leading to a bill
of rights, and (b) driving the political actors who favored such a bill toward
the compromise of an unentrenched and interpretative (rather than trumping) model.
6.1. NZBOR, Muldoon, and aversive constitutionalism
A close analysis of the historical record demonstrates that the main environmental trigger leading the Labour elite to commit itself to passage of a
bill of rights related not to electoral threat but, rather, to the highly negative experience of ostensibly unbridled power under the rule of National
Party’s Robert Muldoon (1975–1984). Three aspects of this experience
were important.
First, though perhaps least importantly Labour was long out of power
during this period as a result of losing three consecutive general elections in
1975, 1978, and 1981.91 The fact that in 1978 and 1981 these elections were
90
JOHN W. KINGDOM, AGENDAS, ALTERNATIVES AND PUBLIC POLICIES 197 (Longman, 2003).
91
It should be noted that this was by no means the first or longest period of substantial nonincumbency for Labour. In fact, National dominated the political scene in New Zealand throughout the
second half of the twentieth century leading to three long periods when Labour was out of power:
(a) 1949–1957; (b) 1960–1972; (c) 1975–1984.
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lost to the National Party even when Labour gained more electoral votes only
encouraged the feeling within the party that something was fundamentally
wrong with constitutional arrangements in New Zealand.92
Second, many actions of the Muldoon administration were perceived as
dangerously violative of the traditional checks and balances of New Zealand’s
Constitution, especially in the areas of procedure or due process. A number of
such actions may be noted. It was felt, for example, that the decision by
Muldoon to combine the roles of prime minister and minister of finance concentrated power in one person more than was constitutionally acceptable even
within the Westminster system.93 Also, the attempt by Muldoon in 1978 to
suspend the government’s statutory superannuation scheme by issuing a
statement to employees in advance of legislation was widely seen as an attack
on the rule of law.94 Muldoon’s decision in 1982 to overturn immediately a
court judgment on its water-rights application relating to the government’s
dam project on the river Clyde95 was also seen by many as an attack on the rule
of law and the fundamental separation of powers.96 In addition, his 1977 nomination of Sir Keith Holyoake, a hitherto partisan politician, as New Zealand’s
new governor-general was similarly seen as an attack on traditional checks
and balances.97 Finally, and more generally, the sudden implementation of
various draconian policies by the Muldoon government was increasingly seen
as an abuse of the separation of powers, especially since these changes were
made under general statutes giving wide-ranging regulatory powers to the
executive to rule without direct recourse to Parliament. Wage and price freezes,
92
In 1978 Labour won 40.4 percent of the vote to National’s 39.8 percent. However, National
won more seats by a substantial margin (54.35 percent to 44.57 percent). In 1981, National
again won (slightly) more seats than Labour (51.09 percent to 46.09 percent) while gaining fewer
votes (38.78 percent to 39.01 percent) (PALMER, supra note 12, at 243). The policy that most directly flowed from these “injustices” was a commitment by Labour to establish a Royal Commission on Electoral Reform (which, in part, paved the way for the adoption of proportional
representation for parliamentary elections in 1996). More generally, such debate helped loosen
Labour’s hitherto conservative stance on constitutional matters.
93
Interview with Jonathan Hunt (Jun. 21, 2005). See also PALMER, supra note 12.
94
In fact, in the Fitzgerald case the High Court found that such action had indeed amounted to an
illegal executive suspension of the law contrary to the bill of rights (UK) 1 Will. & Mar., sess. 2, c. 2
(1688)—an “imperial” statute that remained in force in New Zealand. See Fitzgerald v. Muldoon 2
NZLR 615 (1976).
95
Clutha Development (Clyde Dam) Empowering Act 1982, 1982 S.N.Z. No. 20.
96
Rishworth, supra note 11, at 10.
97
Thus, for example, Palmer strongly criticized this decision stating that “[t]he ultimate referee,
when the chips are down, should not belong to one of the teams playing the game.” See PALMER,
supra note 84, at 21. Sir Keith Holyoake had been a former National Party prime minister and was
a member of the Muldoon cabinet up until a few months prior to his nomination.
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professional fee freezes, and rent freezes were all implemented using such
powers.98
Third, and just as important, the bombastic and combative style of Robert
Muldoon was itself alienating, even frightening. As James Belich comments,
Muldoon had a capacity to “generate real fear and hatred in his opponents
both within and without his own party.”99 According to Belich, this capacity
was rooted in
[a] certain mad-dog quality in Muldoon, including an inability to distinguish the significant from the trivial. He wasted his time writing insulting answers to insulting letters, and sending threatening telegrams to
university lecturers who criticized him in their courses. He lashed out
at protesters (on one occasion literally), parliamentary opponents and
American presidents with the same vigor and disregard of consequences.
New Zealand’s totalitarianism, which was beginning to crumble anyway,
has never been of the kind that allowed the Leader to send opponents to
gulags or have them shot. But Muldoon could and would destroy your
career if you crossed him, as promising politicians Colin Moyle, Brian
Talboys and Jim McLay discovered to their cost.100
The negative experience with this looming, uncontained exercise of power
led to a new temper within New Zealand public debate that was supportive of
reforms encompassing additional checks and balances, which could envisage
such possibilities as the passage of a bill of rights. Thus, Geoffrey Palmer, in the
first edition of his book Unbridled Power? states:
In the years since Mr R. D. Muldoon became prime minister, interest in
the way New Zealand is governed has quickened. It may not be too much
to say the permanent contribution of the first Muldoon administration in
the history of New Zealand has been to demonstrate the need for constitutional change.101
These experiences had a distinct impact on the thinking of the Labour opposition in Parliament. These were the politicians who found themselves bearing
98
Rishworth, supra note 11, at 11. Such powers were mainly contained within the Economic Stabilization Act 1948, 1948 S.N.Z. No. 38. Clearly, it can be argued that concern over such powers
not only reflected the draconian and sudden nature of their use during this period but also an increasing feeling that the country’s method of economic planning was unsustainable. It is plausible
to argue that this growing perception may have marginally helped the selling of the idea of a bill of
rights during this period. This is the kernel of truth in the HPT’s analysis.
99
BELICH, supra note 82, at 396.
100
Id. For an analysis of the fate of these politicians and the role Muldoon played in their downfall,
see BARRY GUSTAFSON, HIS WAY: A BIOGRAPHY OF ROBERT MULDOON (Auckland Univ. Press 2000).
101
PALMER, supra note 56, at Preface.
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the brunt of Muldoon’s heavy-handed and authoritarian style on a daily basis.
It was in this context, therefore, that Labour adopted a bill of rights as a policy
option in 1981 and then developed and strengthened that policy in time for the
1984 general election. As Jonathan Hunt, longtime Labour MP and current
high commissioner of New Zealand to the U.K., commented:
I think [Labour’s adoption of the bill of rights as policy was] because of the
effect of the then Prime Minister Muldoon between 1975 and 1984 who
was both Prime Minister and Minister of Finance or Treasurer. I thought
there was far too much power aggregated in one person’s hands. He did
do some things that I thought weren’t in the best interests of the country
like expelling journalists from press conferences and I think there had
to be a change. I thought there had to be some restrictions on what the
Executive could do.102
6.2. Constitutional entrepreneurship and the role of Geoffrey Palmer
Conceivably, this aversive trigger event might not have resulted in the enactment of NZBOR had it not been for the strategic presence of Geoffrey Palmer.
Palmer, a former law professor at Victoria University of Wellington, was elected
as Labour MP for Christchurch Central at a by-election on August 18, 1979.
Partly as a result of the experience with the Muldoon administration,103 Palmer
had abandoned an earlier distrust of constitutional reform104 to become, by the
1980s, a committed constitutional reformer dedicated to passage of a bill of
rights.105 Once elected, he began to speak out in support for such a policy and,
by being elected as secretary of the Policy Council of the Labour Party, he
played a crucial role in ensuring Labour adopted it. As he comments:
When I came into Parliament in 1979 I wrote Unbridled Power which
came out at exactly the same time. The arguments [for a bill of rights]
were rehearsed in that. Most of the arguments made for constitutional
reform in that were poured into the Labour Party policy for the 1981
election in a policy called the “Open Government” policy. And I had
campaigned around the Labour Party for them and I had a book which
102
Interview with Jonathan Hunt, supra note 93.
103
The importance of the Muldoon factor is well brought out in the following quote from a speech
Palmer gave in 1984: “We can no longer be confident that our fundamental rights will be protected within our system of Government. [Ten] years ago I shared that confidence when I myself
argued against the adoption of a Bill of Rights in New Zealand. However, times have changed.
Since then we have seen inroads made into our traditional rights and freedoms through the abuse
of Executive power.” Address to Public Meeting organized by Canterbury Council on Civil Liberties,
Sept. 28, 1984 in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 9, Part 1 (1984).
104
PALMER, supra note 84.
105
PALMER, supra note 12 and PALMER, supra note 84.
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justified them and I was Secretary of the Policy Council which helped
quite a lot. So that was the background.106
If Palmer’s role in developing a clear policy favoring a bill of rights was
important prior to 1984, then his impact, subsequently, may be considered
truly “decisive.”107 Once the fourth Labour government came to power in
1984, Palmer was appointed deputy prime minister, attorney general, and
minister of justice. The last of these positions gave him direct responsibility for
Labour’s bill-of-rights policy, and the following year he arranged for the publication of an ambitious (in retrospect, probably too ambitious) white paper
developing the case for a fully constitutional bill of rights. As already noted, the
civil society and the public’s responses to these proposals were far from enthusiastic. Given this, and especially after Labour won a second general election
victory in 1987, it would be expected that the government would have quietly
dropped the plan for a bill of rights. Indeed, it appears that many within the
fourth Labour government might have been happy to do so. Palmer himself
noted that there was no great “enthusiasm” for the bill-of-rights policy either
among members of the Labour government or among Labour backbenchers.108
However, Palmer’s own personal commitment and his continued strategic
position as deputy prime minister and minister of justice ensured that the policy moved forward, albeit at a very slow pace and in a watered-down, statutory
form. Moreover, when elevated to the position of prime minister in 1989, he
specifically retained responsibility for the bill-of-rights brief in order to ensure
that no attempt was made to drop the policy quietly.109 Finally, Palmer was
able to use his newfound position of primus inter pares to steer the bill-of-rights
legislation through Parliament and ensure that NZBOR became law before the
end of the parliamentary session in 1990. Throughout this endeavor, and
despite his own preference for more parliamentary checks and balances,
Palmer was clearly aided by the very efficient, unicameral, and (then) firstpast-the-post nature of the New Zealand government.
6.3. Explaining the shape of reform: A Westminster culture approach
As noted, progress toward a bill of rights in New Zealand derived some background support from social equality and civil liberty constituencies.
Nevertheless, the negative response of many New Zealanders, including key
members of the legal elite, and the general apathy of most to the original 1985
106
Interview with Sir Geoffrey Palmer (Nov. 16, 2004). In fact, it would appear that Labour’s
comprehensive Open Government policy did not fully emerge until the 1984 general election, although a more limited commitment to a bill of rights was included in the 1981 General Election
Manifesto.
107
Levine, supra note 16, at 351.
108
PALMER, supra note 35, at 58 & 52.
109
Id. at 58.
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white paper proposals also demonstrated the continued presence during this
period of strong negative pressures against a fully constitutional bill of rights.
These pressures played a major role both in delaying implementation of
Labour’s bill of rights and in reshaping it into the statutory and interpretative
enactment that NZBOR became. This section argues that a political culture
approach helps to explain both this delay and why—in contrast to the model of
a bill of rights assumed by both the HPT and the KCT—the enactment came to
take this more limited form in New Zealand.
As already noted, the most vociferous opposition to the white paper proposals of 1985 came from social conservatives. Nevertheless, it is important to
remember that, in significant contrast to the debates in Canada on the Charter
proposals, distrust and even outright opposition in New Zealand extended
well beyond this constituency, encompassing even a significant number of the
civil liberty and social equality groupings. Moreover, it was the widespread
nature of this opposition that proved most important in ensuring that the
original proposals could not proceed. Indeed, the opposition of the New
Zealand Law Society alone has been described as “perhaps the most significant in ringing the death knell of the White Paper proposal.”110 These obstacles, and the concomitant delay, entailed the need for a new draft and a new
process of consultation and inquiry. It was primarily this state of affairs, rather
than any dynamic rooted in hegemonic preservation, that explains why the
enactment was passed in 1990 and not in 1986, as originally proposed.111
More importantly, for the long-term future of the New Zealand polity, this
wariness pushed supporters of the bill of rights toward proposing a statutory
and interpretative version of the law.
At the root of this widespread distrust of a fully constitutional bill of rights
was certainly not any agreement on particular policy perspectives such as that
which united the social conservative opposition. Rather, these contributions to
the debate revealed a common commitment to a conception of democracy that
placed its trust in the discrete decisions of a democratically elected Parliament
to resolve all political disputes fairly. The submission of the Women’s Electoral
Lobby (WEL) of Wellington to the Justice and Law Reform Committee’s 1985–
86 consultation process provides a perfect illustration of such an attitude and
why it opposed the original bill-of-rights initiative:
The whole concept of a Bill of Rights with the final arbiters being the
Judges and not an elected body of Representatives is itself a matter of
concern. An elected body of Representatives can be dismissed after three
110
111
Rishworth, supra note 11, at 19.
Minutes of Officials Committee on Constitutional Reform, First Meeting (Dec. 11, 1984) (reporting that the target date for enactment was 1986) in Bill of Rights Papers, Archives New Zealand,
Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 10, Part 4 (1984-86).
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years… . Their views are known, and on public record, if we don’t like
their views we can dismiss them after three years. That is democracy.112
The highly negative attitude taken by the New Zealand Law Society and key
individuals within the judicial and legal elite similarly reflected a cultural commitment to a parliamentary conception of democracy.
The prevalence of this view of democracy in New Zealand, across many different social groups, relates to the ideological centrality of Westminster political culture in New Zealand. The dominance of this outlook was the result, in
turn, of both positive and negative factors. In a positive sense, it reflected New
Zealand’s long and continued historical association with British legal and
political norms and practices. In the nineteenth century the New Zealand state
had been founded with institutions modeled on the Westminster example and
throughout this and next century the country had continued to be strongly
associated (both intellectually and practically) with British-based practices.
Indeed, it is noteworthy that until passage of the Supreme Court Act (2003),
New Zealand’s highest court remained the Privy Council in London. In a negative sense, New Zealand had also remained relatively isolated from postwar
transnational forces and a more formalized approach to human rights matters.
Thus, although associated with UN initiatives, such the International Covenant
on Civil and Political Rights, New Zealand did not—and, in fact, had not had
the opportunity to—involve itself in the far more potent regional systems of
rights protections that were established in the wake of the Universal Declaration
on Human Rights (1948). This contrasts with Britain’s own involvement in
the European Convention on Human Rights system that came to have an
important impact on legal, civil society, and public attitudes in that country
toward the bill of rights issue.113 Until the 1980s, it could be argued that New
Zealand exhibited at least as strong an attachment to certain core Westminster
norms as Britain itself. It was this attachment that slowed and almost derailed
the process of reform and ensured that reformers were only able to pass NZBOR
in a limited statutory and interpretative form, thus leaving Parliament with
ultimate and preeminent decision-making powers.
112
113
JUSTICE AND LAW REFORM COMMITTEE, supra note 42 (Submission 350W).
In 1989, just prior to the enactment of NZBOR and in a clearly related move, the New Zealand
Government did accede to an optional protocol giving those subject to New Zealand jurisdiction a
right to appeal to the Human Rights Committee if, having exhausted their domestic remedies, they
still felt their covenant rights had been violated. See PALMER & PALMER, supra note 56, at 271. Despite
this important development, however, international oversight of human rights norms in New Zealand remains much weaker than in the U.K. In particular, in contrast to European Court of Human
Rights, the UN Human Rights Committee is not a Court and can issue no judgments that are binding even in international law.
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7. Conclusion
The major goal of this article has been to provide an alternative and supplement to the shortcomings of the HPT and KCT through a new “aversive” explanation for the drive to create bills of rights in established democracies. It has
been argued that, although the HPT is correct to search for an elite political
cause behind the timing of the NZBOR initiative, its proposed solution is
implausible. In contrast, I have argued that the trigger for NZBOR, and much
of the impetus behind it, originated not with an electoral threat but in an aversive response by Labour elites to the painful political experiences under the previous and apparently authoritarian administration of Robert Muldoon.
The trigger created by an aversive dynamic and the cultural explanations
suggested here help, it seems, to elucidate the institutionalization of bills of
rights in a number of other countries. Thus, the precipitating occasion for the
U.K.’s Human Rights Act in 1998 mirrored that of NZBOR in 1990, in certain
key respects. Here, too, a Labour Party adopted a bill-of-rights policy, at least in
part, as an aversive response to the experience of a long period out of power
under a government perceived to be overreaching and authoritarian—the
Thatcher administration. Strong leadership for the adoption of such a policy
from a strategically placed individual—John Smith—also proved important.
By way of contrast, the absence of such political triggers during crucial periods
of Australian history may go a long way in explaining why no national bill-ofrights creation has taken place there.