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Constitutional Change - Are We Forgetting NZ?


Michael Kirby*

In January 1999, New Zealanders woke to reports that their Justice Minister, Sir Douglas Graham, had predicted that New Zealand and Australia would come together in some kind of union. Asked if New Zealand would become part of Australia, he said: "I think that's a possibility in the next 10 years". Needless to say, these remarks plunged New Zealanders into a furious debate about their partly loved trans-Tasman cousins.

The New Zealand Herald observed archly that the constitutional debate about a republican Australia and about the Preamble to the Australian Constitution, had proceeded without "any real thought being given to the provision in the existing Preamble for acceptance [of] New Zealand as a new Australian State".

On its annexation by Britain, New Zealand became briefly a dependency of New South Wales. However in May 1841, it was proclaimed a separate Crown colony. The separateness has continued every since.

In 1900 the New Zealand Parliament decided to set up a Commission to investigate New Zealand's relationship with the impending new Australian Commonwealth. The Commission rejected federation. New Zealand stayed out of the Commonwealth. This was despite the provisions in the Constitution which envisaged it as one of the founding states.

It is pointless, as Australians approach the centenary of federation to question what might have been if the attitudes on both sides of the Tasman had been more generous and forthcoming a hundred years ago. The century since 1900 has proceeded without political union between Australia and New Zealand. Each nation became a Dominion of the Crown and eventually an independent nation. The soldiers of each nation fought together at Gallipoli in 1915 and later in other wars. Each nation did battle on the sporting field, with inordinate rivalry sometimes reaching frenzied heights. The kind of passions, in fact, that you only get between siblings in the one family. It has remained a unique relationship, with unique privileges between the citizens of each country. Not quite common nationhood but in some ways quite similar.

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Into these rather placid and comfortable familiarities a number of events began to occur in the last quarter of the present century which make it necessary for both Australia and New Zealand to reconsider their relationships and to reflect upon where it is likely that time will take them. The changes include the realignment of the trading relationships of both nations. With the disappearance of the protected British market, eventually each country looked to each other. The consequence of their doing so was the Closer Economic Relations Agreement (CER), a lasting political achievement of Doug Anthony and Sir Robert Muldoon.

The realignment of Britain with its European trading partners heralded other shifts in international trade including regional groupings and the huge growth in the size of the East Asian economies, with a long-term trajectory of enormous potential for the economies and societies of Australia and New Zealand.

A third development involved the search in Australia and New Zealand for their respective national identities as each country approaches the new millennium. A further important change concerned the growing consciousness of the indigenous population about their rights both under national and international law. The Maori, with their special treaty promises given on behalf of Queen Victoria, have achieved more by way of legal rights than most indigenous peoples. Australia could certainly benefit from a closer acquaintance with this New Zealand story.

In 1983, following the achievement of the CER Treaty, I was invited to give an address at the University of Auckland. I was asked to speculate on where CER "was taking us". Was it possible that it was taking us towards federation? My speech attracted the wrath of Sir Robert Muldoon, Prime Minister of New Zealand at the time. But when we both appeared on Radio Pacific, and I promised him bronze statues of himself throughout the new Australasian federation, he seemed to soften his objections. CER has undoubtedly set in train economic and legal steps, the impact of which we are still feeling and the ultimate directions of which we cannot yet be sure.

Part of the dramatic institutional revolution that has occurred in the aftermath of CER had its origins even before that treaty. I refer to the meetings of Ministers from Australia and New Zealand which have, in turn, stimulated regular meetings of officials from both countries, including the judges. But where are these developments now taking the Trans-Tasman nations?

In Europe, out of trade came first the Treaty of Rome, the European Common Market, the European Community and now the European Union. Although the F word (federation) cannot be uttered, and most especially in the United Kingdom, those who look at developments in that continent cannot really deny that a federal system of sorts is gradually emerging. If this kind of close and intensifying association can be achieved between nations of Europe 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?

At the beginning of this century, Australia and New Zealand, together with Argentina, held the top places in the world for GDP per capita and for estimates of standard of living and quality of life. Argentina has fallen away. Australia and New Zealand have been overtaken by many other nations. We must therefore ask what our distinct societies have to offer to each other and the world. This is what we can offer: 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. Our universities and research. 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 our links. Where will they lead? Is the direction a political and formal one or something different?

Years ago, like many Australians and New Zealanders before and since, I travelled down the Dardenelles to Gallipoli. I was standing so easily on the windy promontory which the ANZAC soldiers in 1915, far from home, struggled valiantly, and ultimately unsuccessfully, to capture in the war against Prussian militarism. They were fighting for a now faded Empire on which the sun has at last set. The Empire may have receded to the pages of history. But the goal of liberal democracy for all humanity remains as true today as it was then. Now it is allied with the struggle for human rights for every man, woman and child wherever they may be in the world. To that struggle Australians and New Zealanders, being specially privileged, have special contributions to make.

Is it too much to hope that out of CER will emerge a new movement and new institutions to replace those inherited from the British? A Council of Australasia for example? Is it impossible to dream of a common trans-Tasman 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. If the Europeans can do this why can't we?

The centenary of Gallipoli will be upon us in 2015 more quickly than we think. The fundamental question is where our relationship will be in that year and where it will be pointed in the new century we are about to enter. In the words of the New Zealand Prime Minister Jenny Shipley, "[w]ith CER getting to a more mature phase how could we expand what is now a 19.5 million market into something larger?". From market to some kind of union? Only we, the citizens of New Zealand and Australia, can answer those questions. But answer them we must.


The Hon Justice Michael Kirby AC CMG


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