‘Talk about constitutional government in New Zealand’: New Zealand’s Constitution in Hansard, 1854-2020

Abstract

New Zealand (NZ) is a constitutional iconoclast. It is one of three states without a single, written constitution, has no supreme law, and is an unitary, unicameral system in which parliamentary sovereignty is a central constitutional principle. Because NZ’s whole constitution could perhaps be changed by simple parliamentary majority, this thesis describes the history of constitutional thought, as expressed by NZ’s MPs in the 536,079,187 words of Hansard compiled between 1854 and 2020. I ask three questions of the debates: what is NZ’s constitution? What is and is not constitutional, and what sort of actions and institutional arrangements does this entail? Have these understandings changed over time, and how? To answer these questions, I created an archival “soak and poke” method using computational assistance to locate and quantitatively describe Hansard data, and to select tracts of material for qualitative, historical analysis. I find that MPs largely understand NZ’s constitution as flexible and unwritten, and favour only gradual, evolutionary changes. What they regard as constitutional or not depends on both prevailing—and often inherited British—beliefs about a proposal, and the process used to pursue it. There is a long history of debate constitutionalism that prioritises collective self-restraint, obtaining parliamentary supermajorities, consensual legislative strategies, and non-binding electoral or plebiscitary approval for constitutional change proposals. In addition, MPs prefer a form of parliamentary sovereignty that I term “House sovereignty”, i.e. that the ultimate power should rest with elected representatives. There have been challenges posed to House sovereignty by Governors, Legislative and Provincial Councillors, the judiciary, the Treaty of Waitangi, legal rights protections, and popular sovereignty measures. Yet most MPs will not tolerate any counterfoils to House sovereignty that are not of their own making, or which could unequivocally bind their future actions. The House historically justified this because of its popular basis, and MPs continue to insist that they should be the guardians of NZ’s constitution. Though many acknowledge the danger of this position, most nonetheless believe it best for politicians to decide what is constitutional, and that concentrated constitutional power is the best guarantee of responsive government, and protection for citizens.