Canadianity for a less-radical junior Dominion

NEW ZEALAND ... DID NOT EVEN CREATE ITS OWN SUPREME COURT UNTIL 2004. — COSH

Iused to write from time to time about how strange it is that we Canadians don’t pay more attention to politics in Australia, our nearest sibling as a historic Dominion of the British crown. But this has changed a bit in the last few years. Editors have learned that Australia’s rough-and-tumble party politics and leadership “spills” make terrific entertainment. Canadian election reformers praying for proportional representation have given Oz more attention as a teaching example. Australia gets more column-inches, or at least koala GIFs, than it once did.

But, of course, the real joke here is on New Zealand. It’s the Dominion too easily forgotten for someone like me to remember to point out how forgotten it is.

What’s interesting about this is that, over the past 40 years or so, New Zealand has probably exercised a more significant political influence on Canada than Australia ever did. New Zealand’s 1980s neoliberal revolution, led by Finance Minister Roger Douglas, helped teach politicians everywhere ( and especially in Alberta) tactics for deregulating, privatizing, lowering marginal tax rates, and generally blowing the dust off of planned economies.

New Zealand is an interesting object of study because its constitutional path from colonial status to independent statehood has been so unlike ours. When you look at the old Dominions, which include the lost lambs Ireland and South Africa and the devoured Newfoundland, I suppose nobody’s history is quite the same as anyone else’s. New Zealand never adopted a written constitution, as we did. Instead, it took the side road that Prime Minister Diefenbaker was trying to pave in the 1950s, adopting a Bill of Rights as an ordinary statute in 1990 but preserving the absolute supremacy of its parliament as a core principle.

The Kiwis have continued down that road. On Monday ( it will be Tuesday in NZ, or later, by the time you read this) the cabinet of new New ... er, the cabinet of recently elected New Zealand Prime Minister Jacinda Ardern announced that it is going to put some teeth in the NZ Bill of Rights. Very small, dull teeth, mind you. Suitable only for nibbling.

We live in a country that has adapted to very powerful appellate courts, ones armed with an extensive written Charter of Rights, over a pretty short period of time. New Zealand, by contrast, did not even create its own Supreme Court until 2004. Up until that moment, the country’s highest judicial authority was still the U.K.’s Judicial Committee of the Privy Council. ( The JCPC lost that status for Canada in 1949.)

What’s more, there are lawyers in New Zealand who still think creating a domestic Supreme Court was a mis- take. Attorneys who came out on the wrong end of early Supreme Court decisions in NZ pined publicly for the predictability and respectability of the JCPC. They complained of the inherent difficulty of finding six Solomonlike judicial geniuses in a country of five million souls, and they griped that the government had not even chosen the six people who might be able to fake genius most convincingly.

In 2013 New Zealand appointed a Constitutional Advisory Panel to hold a “conversation” with the public on possible reforms to the New Zealand constitution — which is still much as ours was before 1982: a precious, cherished ragbag of accepted principles, bedrock English statutes like Magna Carta, British statutes that founded the New Zealand state, and other local landmarks such as the 1840 Treaty of Waitangi between the Indigenous Màori and the Crown. Our own “constitution,” of course, still includes all the old furniture which pertains to us. We just added a supreme basic law, a capital- C Constitution, with strict amending rules.

The Constitutional Advisory Panel mulled over giving New Zealand’s Supreme Court the right to strike down statutes that are incompatible with the Bill of Rights. And it also glanced at what its report calls the “Canadian model”: let the courts zap laws, but leave the legislature theoretically supreme by allowing it to invoke a “notwithstanding clause.” But even this was widely deemed too radical for New Zealand. On the other hand, some New Zealanders have probably noticed that our notwithstanding clause does not get much of a workout.

New Zealand’s senior courts, lacking the foundat i on of near- unanimous public esteem that Canada’s enjoy, have been slow to accept the idea that they can even make a “declaration of inconsistency” with the Bill of Rights in any particular case. The Ardern government’s proposed new rule, approved “in principle” by the cabinet, will explicitly allow the courts to make such declarations. ( This permission will be granted in the Bill of Rights itself.)

If and when courts do find a law unconstitutional, New Zealand’s parliament will be “required to respond.” But the courts will not be able to unilaterally strike down or annul a law, and the “response” of the country’s parliament to a declaration of inconsistency can presumably be a Post- It note with “Get bent, ya robewearing freaks” written on it.

The practical question is whether the lawmakers will ever have the guts. Canada’s experience with the notwithstanding clause suggests that parliaments are pretty comfortable giving away sovereignty when there is an accompanying opportunity to redistribute political blame.