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I graduated in 1990, just before the student loan scheme was introduced by the Bolger National Government. It was during the last years of a virtually free tertiary education system, and a Kodak moment for New Zealand as we commemorated 150 years since the signing of the Treaty of Waitangi.

They were also halcyon days for student unions. While student politicians grappled with the challenging political question of how to increase participation in student politics, the threatening clouds of right-wing takeover and voluntary unionism were gathering force. It just didn’t occur to student politicians that no-one participated because student politics was totally irrelevant to anybody but themselves. Political onanism made conditions ripe for a full-on assault on student organisations and therefore students’ ability to mobilise.

Kind of tragic, really. Students’ faith in their associations was at an all-time low, and the tacticians of the right saw the opportunity to nobble opposition to their plans for the tertiary sector. They successfully ran a campaign to attack the foundations of student political power: the ability and resources to organise large numbers of students.

Waikato, where I was studying, quickly succumbed to voluntary unionism, with other universities following. The backers of right-wing student organisations put significant resources into the campaign and were also helped by their ability to control the language of debate – legislation still requires any referendum to poll students on support for ‘compulsory’ rather than ‘universal’ membership of their student unions.

The dramatic effect this victory had on students’ ability to mobilise should not be underestimated. Student activists faced a lack of support from their associations, and became dispirited and pessimistic. Opposition to the loans scheme was weakened by a debate about its inevitability, and whether students would be better to focus on making it as student-friendly as possible. As a result, the National Government faced little significant opposition to implementing the student loans scheme, and made few concessions to students.

It has taken an enormous amount of time to rebuild students’ ability to campaign. Over the last four or five years, I have noticed a discernible increase in both the level and the sophistication of student activism. Most universities have returned to universal union membership, and that is almost certainly a major factor. Probably also important is a sense that the Labour Government is susceptible to student pressure, coupled with strong and vocal student allies in the Greens.

Student debt is becoming a significant public issue. This is evidenced by the swarm of political parties finally gathering round the stinking log of student debt. Evidence is growing about its effects on fertility, student and graduate hardship, migration and home ownership. I am also concerned about its effects on the experience of tertiary education itself.

It appears to me that tertiary education has become increasingly vocational. The recent survey of first-year doctors suggests that career choice is strongly affected by student debt. It seems obvious that, in addition, high student fees and restricted access to allowances creates an enormous disincentive to take courses of study that don't ensure high post-graduation incomes. That must be to the detriment of tertiary institutions and to society generally.

The financial pressures on students seems to have had a negative effect of student life. The appearance of campuses today is of a place where students rush from lecture to lecture to lecture to work. Universities have a statutory role to be the critic and conscience of society, but if that role is relegated to the academics and not enhanced by the lives and activities of students themselves, we are failing.



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There is no doubt that New Zealand is undergoing a process of constitutional change. Unusually, it’s not being forged in the fires of civil war, insurrection or coup d'état, so we have the luxury of taking a more measured approach than some other nation.

Our process of constitutional change is incremental, but not without tension. Our structures and processes of decision-making are altering inexorably, the forms and institutions of the state evolving, and symbols of authority that people hold dear are under question. People have an enormous emotional investment in their relationship to the flag, our head of state and our national anthem. However, when access to resources, privilege and decision-making is threatened, tensions come to the fore.

Thus, it was no surprise to see some politicians once again turning to attack ‘activist’ and ‘hero’ judges. In a world where the sovereignty of the nation-state is becoming an increasingly tenuous concept, with the advent of multinational agreements on trade, investment, intellectual property and the like, some parliamentarians are apt to get touchy about their remaining powers.

In New Zealand, the repatriation of our final court of appeal has also inevitably highlighted tension. While the Privy Council remained our (largely theoretical) final court, inaccessible, distant and uninterested in the legal affairs of the South Pacific, tension between the Government and the courts was rare or largely unnoticed. A live Supreme Court, authoritative and assertively independent, is quite a different story.

So we have seen sharp public debate around the parameters of judicial activity and Parliament’s legislative ability. Yet, it would be mistaken to see this as a fight between judges and politicians. There are judges who strongly assert the supremacy of Parliament. There are parliamentarians, like myself, who refute it and see the judiciary as a basic protection for ordinary people against the arbitrary power of the state. What released Ahmed Zaoui from prison is not that we are a democratic country, but that we uphold the rule of law.

As Philip Joseph has said, “Majoritarian rule can be as tyrannical as any totalitarian regime, if it is not tethered to liberal ideas of tolerance, freedom and respect for human dignity.”

Those of us who dispute absolute Parliamentary supremacy do not thereby assert judicial supremacy. While the argument that judges are unelected and therefore inferior in function to politicians is absurd, it clearly is true that their functions are different and claim legitimacy from different sources. The question is not, “Who is top dog?” but, “How do we maintain a dynamic and healthy collaboration between the judicial and the political branches of government?”

Parliament enacts legislation, but it is the courts who interpret its meaning and application. And the courts have cognizance of constitutional principles that Parliament too often ignores, such as rights of access to the courts, freedom from unreasonable search and seizure, presumption of innocence, right to a fair trial, protection of personal liberty and preservation of common law rights.

The ongoing dialogue between the courts and the Government on the foreshore and seabed is illustrative. The Foreshore and Seabed Act was passed because the Government did not like a finding of the Court of Appeal that the Maori Land Court had jurisdiction to hear a case contesting ownership of some foreshore and seabed. Government ministers have since expressed concern because the Chief Judge has agreed to hear a claim asserting customary rights based on rangatiratanga and kaitiakitanga under the Foreshore and Seabed Act.

Parliament continues to assert its right to legislate and to access the courts, while judges continue to interpret and apply. Neither is a subordinate role. Yes judges are unelected, which simply means that their accountability is to the law in its fullest sense rather than to Parliament or voters.

In a colonised country such as New Zealand, with a majority settler population, the tension between votes and rights is highly-charged. The assertion that Parliament is sovereign, because the majoritarian mandate is the highest form of legitimacy, serves the interests of the Pakeha majority but does not tell the full story.

The legitimacy of the Parliamentary system in Aotearoa has its origin not in the democratic mandate, but in a genuine social contract. It was the Treaty of Waitangi, an agreement between two sovereign peoples, that provided the basis for Pakeha settlement and government in this country. Those benefits were given in return for a guarantee to (actively) protect Maori in their possessions and authority, and extend to them the rights of British citizenship.

It scarcely seems conceivable that the foundation of constitutional legitimacy in Aotearoa can act as no enforceable constraint on Parliament. Yet the one thing that the Foreshore and Seabed legislation showed most clearly was the lack of any real constitutional protection for Maori. It was a modern-day confiscation, breaching the Treaty of Waitangi, overturning common-law rights, and enacted in the face of enormous opposition and mobilisation by Maori and their Pakeha allies.

I suspect that if a more collaborative view of power was held by members of the executive towards the judiciary, Maori and the general public, a far better outcome would have been achieved. It may be that ditching our monolithic and centralised view of power is our most important constitutional goal.



Balance of Powers or Parliament trumps all?

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