Cullen Michael: Business of Select Committees — Appointments 
Cullen Michael: Business of Select Committees — Appointments 
[Volume:622;Page:18005] 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I move  
That a committee be established to undertake a review of New Zealand’s existing constitutional arrangements by identifying and describing: 
New Zealand’s constitutional development since 1840 
the key elements in New Zealand’s constitutional structure and the relationships between those elements 
the sources of New Zealand’s constitution 
the processes other countries have followed in undertaking a range of constitutional reforms and 
the processes which it would be appropriate for New Zealand to follow if significant constitutional reforms were considered in the future; 
the committee to consist of seven members to be nominated by parties to the Speaker as follows: New Zealand Labour 4 Green Party 1 ACT New Zealand 1 and United Future 1. 
In speaking to the motion I say first of all that I regret the fact that by leave even though obviously the Government parties are not going to oppose it New Zealand First and National removed themselves from the select committee and indeed therefore from the ability to participate in the committee should they change their mind at any point in the future. It seems to me in looking at the terms of reference that they are both very broad and encompassing and do not bias in the least the nature of the conclusions to be arrived at by the select committee. It is a very open process that is being proposed within this motion. 
It would not come as a surprise to most members in this House even to those who know me at all reasonably well that I am a constitutional conservative—that is I am a constitutional monarchist. I believe very firmly in the supremacy of Parliament I reject the notion that the will of Parliament can be overruled by outside bodies I believe in accountability to the democratic electorate at large and I believe in the rule of law. But it is clear that over a long period of time we have come to the stage where a large number of questions have been raised about the nature of New Zealand’s constitution: how it works what it means how we have got to where we are what the various documents mean within that constitution and should we wish to change those—and this committee does not deal with the issue of whether we wish to change them—what the processes will be for considering any changes that might be suggested. In some countries such as Australia that issue of the process of change has been quite a difficult one. 
New Zealand is traditionally regarded as having an unwritten constitution. It is therefore similar to the United Kingdom and one of I think only three countries it is now claimed that have unwritten constitutions. I am one of those who do not feel that that is some great disadvantage. There are any number of distinctly non-democratic States around the world that have extremely democratically written constitutions that are significantly disobeyed with great frequency. In fact I have pointed out on many occasions that those countries that have a long and largely continuous history of democracy in the world are almost universally constitutional monarchies. The United States is actually the one great exception to that rule but of course it chose to elect a monarch in its constitution. The United States president is an elected monarch and mirrors in his powers the powers assumed to be the powers of the King as they ought to have been in the 18th century as opposed to the powers that the Americans thought George III was improperly exercising. In a sense what one has in the United States is a kind of elected constitutional monarchy and as we now largely seem to have Bushes one after the other it may potentially become an actual kind of constitutional monarchy as well with the election being a kind of confirmation process around the succession. [ 
Interruption 
] That is right. If George is going can Jeb be far behind? That is the question now being asked about the States in the short to medium term future. 
The notion that our constitution is unwritten is actually a bit of a nonsense. There is not a thing called the “constitution” but we have a Constitution Act an Electoral Act and a whole range of other Acts. What is significant about those Acts is that they are not subject to interpretation that overrides the will of Parliament. In other words there is not a supreme law called the New Zealand constitution against which other New Zealand statutes have to be measured in terms of their constitutionality. For those brought up in the 1960s who think that is a wonderful liberal idea that will lead to the progress of human kind as a benign Supreme Court overrides nasty right-wing laws I simply invite them to consider first of all the fact that progressive income tax was ruled out by the Supreme Court in the early 1930s and in more recent times the US Supreme Court has not shown itself as the vanguard of the democratic left—indeed it is rather distinctly not moving in that direction in more recent times. As we are perhaps beginning to learn in New Zealand the inclinations of supreme courts depend very much on the views of those who are appointed to them rather than necessarily some broad all-encompassing view of life. 
So we have many constitutional documents that are written which have arisen in a large number of different ways. I think it is very important that we investigate them. It is often said that the Treaty of Waitangi is the founding document of the New Zealand constitution but that is a theory that does not have much historical weight. It is something that has been asserted as a doctrine in the latter part of the 20th century; the notion that it was the founding document of the New Zealand constitution would have seemed a totally bizarre notion to most people in the 19th century. However that it is now a constitutional document of some sort is an unchallengeable assertion within the New Zealand context. But what the meaning of that is and how that relates to other things is of course open to a huge variety of debate and part of the select committee process will enable that debate to occur within an open and democratic framework—which again is why I regret the fact that the main Opposition party the National Party is not participating. The ACT party is quite right to have seen the fact that the committee can be the potential for exploring a whole range of issues which can be properly explored in that way. 
By no means is the committee there to assume a certain outcome. It is not there to assume that we will turn ourselves into a republic although one occasionally hears the faint tinkling of those outside who are lining themselves up for the prospect of becoming New Zealand’s first elected president. There may even be one or two people inside the House who are suffering from the delusion that they might fill that role at some point within the not too foreseeable future. Certainly even though I am a monarchist I sometimes think that perhaps we might want to consider that issue when the reign of the current monarch comes to an end—not that there is anything personal about that because the whole thing about being a constitutional monarchist is that one puts aside one’s views about the particular nature of the person who might be the monarch at the time. 
The issue of process has been a very important one. The Australian development was around a very formal and quite difficult process but it broke down on the very simple matter of how the president was to be chosen. Had there been consensus around that the Australians would probably now have a republic at this point in time. There was clearly a majority for being a republic but not for any of the particular versions of how to choose a president. 
This is a process that we should undertake quite slowly and carefully not rushing it. As I said I do not object to the leave sought by National and New Zealand First. If at any point either party wishes to become part of the process as they see it working and not being what they fear I am very happy to make parliamentary time available for a motion to enable membership to be added. The Government has indicated that Government members will support the election of the Hon Peter Dunne as the chairperson of the committee. Ironically by withdrawing from membership National and New Zealand First have now ensured that Labour will have a majority on the select committee. Mr Dunne is known for his careful thinking for not rushing to conclusions and for listening fairly to all points of view and I think he is an excellent person to be considered for the chair of the committee. I might say that amongst my own colleagues there has been almost a huge rush of volunteers to be members of the committee. I have to say to those who have volunteered so far that I have the faint suspicion that those who volunteered the fastest may be the least qualified to serve and perhaps the more reluctant might be the more appropriate to serve on a very careful process around a constitutional committee of this sort.