English Bill: Address to Her Excellency the Governor-General 
English Bill: Address to Her Excellency the Governor-General 
[Volume:617;Page:13193] 
Hon BILL ENGLISH (National—Clutha-Southland) 
: 
 Can I also honour those who have served us before in this Parliament. A surprisingly large number of people even those of us who have had relatively brief careers here find ourselves looking around at a Parliament where there are very few members who were here for instance in 1990. I think of my intake of over 30 members of Parliament in the National Party only four remain. But the test of whether this Parliament honours that history will be whether it does meet the needs of the future and whether it does defend the historical aspects that have served it so well. The history of this Parliament has been a history of the development of our citizenship from our being subjects of the British Empire to becoming citizens of New Zealand and of our movement from a colony to becoming a nation. 
But the price of what we have gained by that process is eternal vigilance. Even as we congratulate ourselves today and even as we tell stories today of the odd things that happened in the past we have even in the term of this Parliament seen two examples of the executive attempting to fashion this institution to its means and we see attacks on things that we do not realise are important until they are attacked. The first was the party-hopping legislation. A Parliament and a political party system put a high degree of emphasis on the collective nature of political activity even for us individualists on the Opposition side of the House. Yet it is very important that a Parliament respects the individual freedom and conscience of an MP. The party-hopping legislation attacked that. It put this Parliament in the position whereby a member could represent one party in the House and lead and represent another party outside the House. Does that not sound like 1885? The point is simply that the price of the freedoms we have is eternal vigilance. The executive will always succumb to temptation. The party-hopping bill will expire in 2005 and that is a very good thing. 
The second such attack I believe was what became known as the “Duynhoven Bill”. For the first time in our parliamentary history this Parliament elected someone to the Parliament by using the executive-driven majority of the Parliament. And there is no privilege of this Parliament that is more precious than the privilege of deciding who can sit in it—nothing is more precious than that. The executive absolutely should not decide who sits in this Parliament but in the case of the “Duynhoven Bill” it did decide that. So in the light of those two recent events we should not be complacent about the self-evident truths that have been spoken about today. The foundation of this Parliament as a representative of the people needs to be constantly reinforced and protected. 
We have here an old institution in a young country and because of that this Parliament has carried more of the burden of shaping our nation and our citizenship than other Parliaments have. The matters raised by my learned colleague Dr Cullen tell of the pressures that come with that burden. We have lacked the institutions that other older countries have had to help us to deal with the difficult issues that a polity has to resolve. It is my contention that in the last 20 years Parliament has not shouldered that burden well. We face a decade now where the definition of what it means to be a citizen of New Zealand will be the overriding preoccupation of this Parliament—much as the reshaping of our economy was its overriding preoccupation in the last 15 years. Like Dr Cullen I see ahead some tension between Parliament and the judiciary. In particular as one of the senior judges has pointed out Parliament has invited the judiciary into the job of defining the role of the Treaty of Waitangi in New Zealand and in relation to that I differ with my colleague. Parliament has created the opportunity for judicial activism by not taking the responsibility that only a sovereign Parliament should take which is to define the meaning of citizenship and to define the role of the treaty. The courts have filled that gap. 
When reflecting on the level of debate and consideration of our legislation in this House I decided by way of comparison to look at Lord Cooke’s historic judgment setting out the principles of the Treaty of Waitangi. I found that compared with parliamentary debate the reasoning was weak and the judgment was partial. It took some words in a narrow context and generalised them to the broadest possible context in a way that this Parliament would certainly debate vigorously if an MP a Minister or a Prime Minister proceeded in the same way. On its own merits that judgment lacks merit but as an exercise in making our constitution it has been a failure and everything built on it has been a failure. The judiciary cannot be left to do a job that Parliament should do if only because judges are much more inclined to see our constitution as a whirring machine of perfectly balanced parts. But New Zealand if anything has a constitution that defies theory. It is grafted on to our practical experience our imperfect democracy our tolerance and our sense of fairness. 
If this Parliament is to serve its history and the people who have served in it well it should learn that because sovereignty lies here so too does the responsibility for defining our citizenship lie here. When Parliament does not take that responsibility the country suffers. The fundamental flaw at the heart of the constitutional experiment of the last 20 years has been that that debate—particularly the debate around the treaty—has been carried out by an elite without the participation let alone the consent of the people. I believe there is one explanation for that although it is not an excuse. As my colleague Mr Prebble pointed out we are virtually alone in the parliamentary world in having no deliberative body separate from this Chamber. This is a place of contest where Governments are made and where Governments fail. Despite the change to MMP and all the nice ideas that went with it this Parliament still remains a high-stakes institution. That reflects our traditional political culture which in my view will not change. To fail in this Parliament is not to get the opportunity for delay or to rethink but is simply to fail. Members do not have the benefit of a body external to this Chamber with the expertise for instance to challenge Parliament’s legislative drift on the treaty which has characterised this Parliament for the last 20 years. In other countries issues that are as important as that to members are considered in the activity of day-to-day politics but they can also be considered away from the heat of partisan contest. Other countries such as Canada have successfully done that with much more complicated constitutional challenges than New Zealand faces. 
We are not compelled to follow the way that those countries do it. An Upper House is clearly one alternative. I would suggest another odd and maybe particularly New Zealand way to do it. Despite the setting-up of the Supreme Court the Government still has the power to appoint Privy Councillors: people who have without exception served for a long time in this institution and have left it. The Government also has the power to appoint other people as Privy Councillors. We do not need and perhaps our egalitarian culture would not permit the paraphernalia of a full second Chamber. But I would suggest that as we look out over the next 20 years at the challenges we face a deliberative advisory non-political body would be of great assistance to this Parliament because members are not able to stand here today after 150 years of history to say we have fulfilled all the promise of citizenship and sovereignty in New Zealand.