Founding documents of Aotearoa New Zealand: there's more than one.
Focus on the 1688 Bill of Rights
First, in case you didn’t get around to reading my full 5,000 word essay in The Political Quarterly journal, a brief edited version has appeared on the Political Quarterly substack.
The 1688 Bill of Rights
It’s been moving to see submissions to the select committee on the Principles of the Treaty of Waitangi Bill. Submissions I’ve seen – for and against the Bill – basically accept that the Treaty is a founding constitutional document.
The Treaty of Waitangi, however, is not the only founding document in NZ’s constitutional history.
After all, the Treaty mentions neither an assembly of representatives nor free elections. It’s not accurate to say that Parliament wouldn’t exist if it weren’t for the Treaty, as it is possible to have kawanatanga (government) without a parliament, and indeed New Zealand had none until 1854.
So how did New Zealand get the institution that’s hearing those public submissions – the House of Representatives that passes laws and forms governments?
A General Assembly, including the House of Representatives, was authorised by the New Zealand Constitution Act 1852 (UK). That law’s been superseded, however, by the Constitution Act 1986 which says, “There shall continue to be a House of Representatives for New Zealand”. Parliaments begin and end, but the House always exists. (Technically, though, the House could pass a bill abolishing itself, with only the Governor-General, or the King, there to prevent it becoming an Act by refusing Royal Assent.)
The 1688 Bill of Rights, to go further back in time, is one of the founding documents of the Westminster parliamentary system, and it’s still recognised in New Zealand law.
In 1688, the Catholic King James II was deposed, to be replaced by a Protestant Dutchman, William Prince of Orange. William was married off to James’s daughter, Mary, and William and Mary reigned jointly as constitutional (rather than absolute) monarchs. Limits to their powers were set out in a Bill of Rights.
Some clauses of the 1688 Bill of Rights are still relevant, for example:
“That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.” (That is, parliaments would be the supreme law-making bodies.)
“That Election of Members of Parlyament ought to be free.” (Self-explanatory.)
“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” (The courts would not interfere in parliaments, and so the legislative and judicial powers were separated.)
“Freedom of speech and debates” in parliament is a key principle of “parliamentary privilege”. It prevents defamation actions against MPs. In New Zealand, it’s now encoded in the Parliamentary Privilege Act 2014, which reaffirms and interprets the 1688 Bill of Rights. It defines and clarifies the meaning of “proceedings in parliament”.
When parliament passed that 2014 legislation, no one, as far as I know, complained that the 1688 Bill of Rights was being “rewritten”.
No one protested about a founding constitutional document being reinterpreted by parliament. Who even noticed?
But members of the public who’ve made submissions concerning the Treaty Principles Bill may feel reassured that their evidence and their presentations to the select committee are covered as “proceedings of parliament” and hence they’re protected from the courts by parliamentary privilege.
In 1688, the Lords and the Commons “assembled in a full and free Representative of this [English] Nation” and declared that they were “Vindicating and Asserting their auntient Rights and Liberties”. It remains to be seen how the New Zealand Parliament will “vindicate and assert the ancient rights and liberties” that existed prior to its establishment in Aotearoa – and existed indeed before 1688.
All the same, readers may have noticed this recent remark by foreign minister Winston Peters:
“But as for what someone says in the Cook Islands Parliament, I have no intention of breaching the Bill of Rights 1688 by challenging that.”
He wasn’t just being clever. He was showing respect for the freedom of speech and debates in parliaments that was asserted more than three centuries ago. Parliamentary privilege is a longstanding protection against autocratic government, meddling judges and corporate bullies. The 1688 Bill of Rights is a founding constitutional document.
William III and Mary II
The current Realm of New Zealand remains in a colonial relationship to Britain and its government is based on British statutes, such as the Bill of Rights and the Act of Succession as well as Hobson's declaration of sovereignty. The Realm mimics British institutions of government and incorporates British common law. As far as that goes, the Treaty of Waitangi need not exist. Strictly speaking it is not a founding document, yet alone the founding document, of the Realm of New Zealand. However there is a popular feeling that it should be, a great majority of New Zealanders accept it as such, and therefore New Zealand governments and judiciary are no longer able to dismiss it as a "simple nullity". The Realm is walking a fine line between the die hard colonialist position and a potentially revolutionary nationalism which has coalesced around certain interpretations of the Treaty of Waitangi. If the nationalist side becomes dominant, then the Bill of Rights, the Act of Succession and other "founding documents" of the Realm will become redundant, to be superseded by Te Whakaputanga and/or Te Tiriti. However the latter two documents will not be adequate to establish a new constitutional basis for the nation and at the point where the Realm of New Zealand ceases to exist as a British colonial entity, the nation state of Aotearoa will have to fashion for itself a formal written constitution to serve as its basic law. The relationship between te Whakaputanga and a constitution of Aotearoa will parallel the relationship between the US Declaration of Independence of 1776 and its 1787 Constitution.
In short, the idea of what constitutes a "founding document" depends entirely on one's perspective and allegiance. Despite what the constitutional lawyers might tell them, most New Zealanders do not regard the Magna Carta, the Bill of Rights, or the Act of Succession as their founding documents. A minority on the nationalist side stake their claim on Te Whakaputanga, and a great mass in the middle settle on the Treaty of Waitangi. It is messy situation lacking legal rigour, but over the next few decades a clear picture will emerge out of the confusion of views. In the end our idea of what deserves to be called "the founding document" of Aotearoa will be based not so much on what happened to us in the past as on where we want to be going in the future.
Thanks Grant. Really good to be reminded of this. It strikes me that the enduring nature of 1688 and the Treaty, reflect that both were a response to the impact of civil conflict and disruption. It is unlikely that those Rangatira who signed the Treaty with the British, would have done so if it had not been for the devastating effects of the inter-iwi wars in the previous 30 years - it was a step to an enduring framework to manage British settlement. In 1688 James walking away from the throne for his son-in-law William of Orange, in no small part reflected the terror and dislocation of the English Civil Wars of the 1640s, Military government of the 1650s (and probably that James father - King Charles 1 - was executed). For both the Treaty and 1688 there was an acute understanding that constitutional arrangements matter and when you toss these aside bad stuff can happen. Perhaps this is a factor in why both of these documents have endured and still have resonance today (and why we should be careful with antics that might push these aside for political gain).