“Here there be dragons”: Using systems thinking to explore constitutional issues

Too often the constitutional dimension of a policy problem is overlooked or under-valued in a process of developing governmental responses to difficult situations. Constitutional issues can be subtle and interlinked, creating a fine balance that can be altered by even minor shifts in policy. It can be difficult to predict the long-term effects of constitutional change, and concern about those effects is likely to be subsidiary to the pragmatic concern with solving the immediately presenting problem. The constitutional response to the Canterbury earthquakes, for instance, highlighted New Zealand’s willingness to favour pragmatism and authoritarianism over some constitutional norms in the right circumstances. The Canterbury Earthquake Recovery Act 2011 did not sit as easily with New Zealand’s constitutional norms as it could have. Although now repealed, the Act remains in public sector consciousness as a precedent for future large-scale disaster recoveries.  Through a case study based on the Canterbury earthquake recovery legislation, this thesis demonstrates that it is possible to think of a constitution as a conceptual system. This means soft systems thinking approaches can be used to understand and explore constitutional issues. Such approaches have long been applied to human and social processes to better understand their structure and operation. This thesis explores whether applying those approaches to constitutional issues will create fresh insights into those issues and their effects on the broader constitution. Reflecting that systems thinking approaches may be used in busy policy shops, the thesis considers whether these approaches are analytic, quick, and inclusive (Eden et al, 2009).  The strength or weakness of a systems-based intervention depends on its fit with the situation to be analysed and with the actors undertaking the intervention (Mingers, 2000). Systems approaches are based in paradigms, which suggests that viewing issues through a range of systems lenses should generate different insights. With that in mind, this thesis triangulates the selection of systems approaches based on their fit with the problem context, and with the available resources and skills. Using that triangulated approach, Soft Systems Methodology and Soft System Dynamics (reinforced by a systems-based policy framework developed by van der Lei et al (2011)) were selected to analyse three dimensions of the Canterbury earthquake recovery legislation:   • the extent to which the Canterbury Earthquake Recovery Act 2011 created a system to ensure legitimate decision-making;   • the need for coordination or centralised control of earthquake recovery activities;   • the need for expedited law-making under the 2011 Act, and the legitimacy of its Henry VIII clause.  The systems analysis incorporates both constitutional norms and values to show how the constitution “really works”, an approach which resonates with the theory of constitutional realism (M S R Palmer, 2006a, 2006b). A systems perspective gives a real-world perspective on constitutional legitimacy and can explain otherwise counterintuitive manifestations of constitutional behaviour. It provides a plausible explanation for the self-correcting faculty apparent in the Canterbury Earthquake Recovery Act’s real world operations. There is, thus, potential for constitutional systems analysis to strengthen advice to governments and enhance public understanding.