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Justice Kirby Speech - Media Summary



Wellington, New Zealand, Thursday

The growing links between the economic and legal systems of Australia and New Zealand following the Closer Economic Relations Treaty (CER) of 1983, require fresh attention to New Zealand's relationship with Australia, perhaps even a constitutional relationship at some time in the future.

This was the opinion voiced tonight in the Grand Hall of Parliament House, Wellington, New Zealand by Justice Michael Kirby of Australia . He was speaking to a large audience of New Zealand judges, lawyers, politicians and business people on the subject "Trans-Tasman Union - Was Sir Douglas Graham Right?" In January 1999, Sir Douglas Graham, New Zealand Justice Minister, predicted that New Zealand and Australia would come together in some kind of union. Justice Kirby said that, despite continuing sporting rivalry and many lost opportunities, the economic forces which CER had released were forging strong links between the trans-Tasman economies and legal systems. He suggested that the coming centenary of the ANZAC Corps in 2015 presented fundamental questions to the people of Australia and New Zealand about where their relationship would go in the coming century.


Quoting New Zealand Prime Minister, Jenny Shipley, Justice Kirby asked, as Mrs Shipley has done, whether CER would be expanded into "something larger"?

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"Is it too much to hope that our of CER will emerge a new movement and new institutions to replace those inherited from the British Empire? A Council of Australasia? Is it impossible to dream of a common court to resolve shared differences? Of a common representative body to make laws applicable to the growing areas of shared concern? Of a common currency and shared economic institutions and laws: such large ideas rarely come directly from the political process. They tend to come from economic pressure and popular sentiment".


Justice Kirby said that a number of considerations were stimulating reconsideration of the relationships between Australia and New Zealand. In the 1890s it had been seriously contemplated that New Zealand should become part of an Australian Commonwealth but this idea had fallen through. New Zealand is still referred to in the Australian Constitution as a potential partner in the federation. Nevertheless, Justice Kirby pointed to a number of developments which were occasioning fresh consideration of the constitutional relationship between Australia and New Zealand:

§ The realignment of the British trading preferences to Europe;
§ The establishment of CER and the rapid growth of bilateral trade in the first decade of CER from less than $2 billion a year to $5 billion;
§ The passage of the Mutual Recognition Acts requiring that specified trans-Tasman laws be brought into conformity;
§ The growth of institutional links including regular meetings of Ministers, officials and judges;
§ The decisions of courts upholding the common market between Australia and New Zealand.


Justice Kirby said that a number of options were open to the people of Australia and New Zealand for their future relationships. These included:

§ To remain separate, independent, sovereign states;
§ To enter into a federal union;
§ To establish a South Pacific Alliance to extend the links of CER;
§ To unite under a new international entity as was occurring in the European Union; or
§ To developer a looser institutional structure to facilitate multi-lateral trade and the further links that would come with it.

Justice Kirby expressed his opinion that it was not necessary for the deeper cooperation between Australia and New Zealand to result in a political union. But he pointed out that the developments in Europe, since the Treaty of Rome, had created strong links of allegiance and trade between countries with far fewer common features than Australia and New Zealand enjoy. He asked:

"If this kind of close and intensifying association can be achieved between nations with ancient enmities, proudly different languages, competing economic situations, different political and legal traditions and distinct heads of state, is it the very similarity of Australia and New Zealand that makes such bold achievements as between ourselves impossible or, worse still, regarded as unimportant?"


Justice Kirby pointed out that in the course of the present century Australia and New Zealand had been overtaken by many nations in terms of economic prosperity:

"Old and captive markets have gone forever. We must find new ones. The long-term opportunities of Asia and the Pacific must be tapped. We must ask what our distinct societies on the brink of a region with huge potential for the next century, have to offer. And whether we could do better to offer our contributions separately or together. What are those contributions? We share them in common. Our stable constitutional and legal arrangements. Our democratic societies. Our community of English-speaking people in a world that wants and uses our language. Our uncorrupted bureaucracies. Our relatively open markets. Our independent, neutral courts. If we are to maintain our economic position as the mainstay of our standard of living, it seems inevitable that we must reinforce and further the links. CER has initiated a movement that will not be stopped. It is a movement that goes far beyond economics".

Justice Kirby said that the ANZAC Bridge in Sydney was a new symbol of the continuing strong link between Australia and New Zealand. He suggested that the centenary of ANZAC in 2015 should be set as a goal for reconsideration of the links between the two nations:

"Australia and New Zealand are adjusting quite rapidly from being small outposts of a global empire, protected by world powers and economic preference, to multi-cultural societies in harmony with their geographical surroundings and with their outward looking economies. But we are, and on our own will always be, small fry. In the world of regional groupings, if we are to maintain our privileged place, we must show greater imagination and enterprise. And (it seems to me) we must draw closer together".

Justice Kirby emphasised that only the citizens of Australia and New Zealand could answer the questions about the future relationships of their countries. He said that Australians, in particular, could learn from New Zealand's treatment of its indigenous Maori population who were protected by the Treaty of Waitangi in a way that the Aboriginal people of Australia had not been protected in colonial times. Beyond the jokes and rivalries of sporting teams, he said, economic and legal links were being forged and it was important to consider imaginatively where those links would lead.

Justice Kirby's lecture at Parliament House, Wellington is sponsored by Rudd, Watts and Stone, a leading New Zealand law firm. For further information contact Mr Charles Chauvel of that Firm: email:


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