Cullen Michael: Address to Her Excellency the Governor-General 
Cullen Michael: Address to Her Excellency the Governor-General 
[Volume:617;Page:13191] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I begin by congratulating you Mr Speaker because you have sat in this Parliament for exactly one-quarter of its entire history and despite what has been said so far it is almost impossible to think of this Parliament without your presence. I welcome also the presence of many former colleagues. It is good to see people like George Gair Bob Tizard Koro Wetere and others here. It almost makes me feel young again to see them in the House. 
The occasion of the 150th anniversary of our own institution much changed as it is from its form and nature in 1854 gives us a chance to dwell upon the role and functions of the New Zealand Parliament. The body of men that assembled in Auckland on 24 May 1854 was of course not the sovereign legislature of an independent nation. It was a representative assembly that despite the 1852 New Zealand Constitution Act had somewhat uncertain powers and roles. Equally of course it was not terribly representative even at that. Apart from the obvious absence of women in either its selection or its membership it was a colonial settlers’ Parliament. Not a single member was Maori nor had Maori played any role in more than tiny numbers at best in its choice. In fact not a single member was born in New Zealand and this was at a time when Maori were still far more numerous than non-Maori in New Zealand. 
Some of these things took a long time to change. From the perspective of the matter that I want to dwell on today the significant point is that it took many decades for this Parliament to evolve into the sovereign body of a fully independent nation. Formally indeed that process was not complete until the adoption of the Statute of Westminster in 1947—some 16 years after the UK Parliament had passed it—although in practice the New Zealand Parliament had held that position for a good time before that. Thus it would now seem to be settled doctrine that New Zealand is a sovereign State in which sovereignty is exercised by Parliament as the supreme maker of law the highest expression of the will of the governed and the body to which the Government of the day is accountable. 
There is an increasing tendency to challenge the exercise of this sovereignty. This comes not just from some radical Maori who argue that sovereignty has never been legally acquired in New Zealand; it also comes from within the heart of New Zealand’s judiciary. Our own Chief Justice has put it in three key statements. Firstly we have assumed the application of the doctrine of parliamentary sovereignty in New Zealand—why is not clear. Secondly whether there are limits to the lawmaking power of the New Zealand Parliament has not been authoritatively determined which raises the interesting question of who has the authority to determine that. Thirdly an untrammelled freedom of Parliament does not exist. 
There is interesting academic literature that can be used to back such a view—by no means all of it recent or of a radical bias—but it is not a view that I accept. In my view we are approaching the point where Parliament may need to be more assertive in defence of its own sovereignty not just for its own sake but also for the sake of good order and government. In our tradition the courts are not free to make new law. It is fundamental to our constitution that lawmakers are chosen by the electorate and accountable to the electorate for their decisions. MPs are accountable and that accountability is often exercised in a fairly brutal and harsh fashion at elections. Being a member—like many of my colleagues in the fourth Labour Government—of the Vietnam War protest generation I used to sometimes think that perhaps we should have marched down Lambton Quay after the 1990 election yelling “Hell no we won’t go!” but it would have had absolutely no effect on the outcome of the election. 
Judges are not accountable; they are in fact independent and that is essential to their role in society. Independence and accountability are two things that cannot be easily mixed. We need the judges’ impartial rulings on what the law says and how it applies in individual cases but if they then begin to express views on what the law should be or on what it says they enter dangerous territory. It is dangerous not only for the case at hand but also because it means that the public begins to perceive the judiciary as politicised—even more so when decisions run counter to the original intent of the law or regard statutes as not much more than imprecise guides to action. If as a nation we want to go down that track we may have to consider the broader issues of an entrenched higher law a clearer separation of powers in the constitution and other constitutional issues. Our experience so far with the New Zealand Bill of Rights Act would scarcely encourage enthusiasm for such a move. 
Perhaps we will engage in that debate in due course. I personally hope not but my concern at this point is that we do not have a creeping process of eroding the sovereignty of Parliament to make laws a process that is not discussed openly not voted for by the people of New Zealand and not assented to by Parliament. A half-pie Americanisation of our judicial system would serve no one in the long term even though it might seem attractive to particular groups of litigants in the short term. I certainly hope we do not continue down that track. In a democratic society politicians may be and are dismissed. Their work may be undone as a result of the popular will. Judges on the other hand are all but undismissible and certainly not for the views that they hold or the judgments that they arrive at or for cleaning up after the consequences of their own decisions. That last ironically remains the role of Parliament which however unwillingly we are forced to carry out from time to time. 
When the Supreme Court was set up the usual culprits in terms of the opponents of this Government worked themselves into a righteous lather at the thought of a Supreme Court that apparently was to be dominated by radical Marxist lesbian activists. Both potential candidates no doubt got very excited! The truth of course has been somewhat different. Governments of whatever stripe do not favour judicial activism. They almost inevitably favour a strict constructivist approach because it involves far fewer political or fiscal risks. Activism does not always challenge parliamentary sovereignty but it often does. And in New Zealand fundamental questions have been raised about that sovereignty. It is almost as if there is an emerging view that sovereignty is to be shared between Parliament and the judiciary with Parliament being the junior and less-informed partner. That is so because where Parliament’s sovereignty is questioned it is usually accompanied by the assertion or implication that it is the courts that have the final say as to the rules. 
The point I make in response is not merely that this is a trend for which there is no democratic mandate and which has never been part of the political discourse in New Zealand but that it cannot exist as a one-sided development. It will inevitably lead to the politicisation of the process of judicial appointments and of the judiciary itself—something to be avoided. As I said at least we need to pause before going further down that track. And I and I suspect a good many of my colleagues across a wide range of political parties will stand in the middle of that track defending our constitutional basis and an institution that has served us well as a people.