New Zealand Law Society - Our most significant legislator

Our most significant legislator

Our most significant legislator

Sir Geoffrey Palmer is a household name in the legal profession in Aotearoa New Zealand. LawTalk speaks exclusively to Sir Geoffrey about some of his greatest achievements, the New Zealand ‘sandbox’ and the ease to which we have made constitutional and legal change, and some of the warning signs and opportunities we have ahead of us in our journey.

Few other people have shaped our legal and constitutional order more so than Sir Geoffrey Palmer. His public contribution spanning over six decades has led to some of the most important and significant changes to our democracy in our nation’s history. Whether it is his New Zealand Bill of Rights Act 1990 (BORA) which codified rights, or setting up the royal commission into the electoral system, or his world-leading work towards what became the Resource Management Act 1993, Sir Geoffrey’s touch across all of these have undoubtedly shaped and defined many generations of Aotearoa New Zealand.

Born in Nelson, Sir Geoffrey Palmer KC was admitted as a solicitor in 1965 and to the bar in 1966, and practiced in Wellington with O’Flynn and Christie before taking up a British Commonwealth Fellowship to the University of Chicago where he graduated JD cum laude in 1967. He was a law professor in the United States and New Zealand for some years before entering politics as the MP for Christchurch Central in 1979. In Parliament he held the offices of Attorney-General, Minister of Justice, Leader of the House, Deputy Prime Minister and Prime Minister.

Sir Geoffrey Palmer Sir Geoffrey Palmer

In 1994 he became a Foundation Partner of Chen & Palmer Public Law Specialists where he remained until 2005 when he was appointed President of the Law Commission, a position he occupied until 2010. During that period he also chaired the Legislation Advisory Committee. He has appeared extensively in the superior courts including the Privy Council.

LawTalk spoke to Sir Geoffrey Palmer about all things New Zealand, and received some interesting insights into how our country has come to be and where it is going.

“I think New Zealand is a curious country in many ways,” begins Sir Geoffrey.

“It is so remote from the rest of the world and peopled entirely by immigrants. Indigenous Māori were here first, undisturbed for some centuries, and then followed by Captain Cook… of course, it was not for a long time – till 1840 – that the British decided they were interested in having settlements in New Zealand… it was a difficult transition.”

It is a “mixed story” since then when it comes to our relatively streamlined ability to shape and reshape our constitutional and legal frameworks, says Sir Geoffrey.

“I think that we had so much social cohesion for much of the 20th century that government was pretty easy to conduct and didn’t require much infrastructure. That has changed. It is a highly diverse society now with considerable ranges of wealth that didn’t use to be the case, and different views about what policy should be and actually a very small parliament with very few checks and balances and an unwritten constitution.

“However, we have a more highly developed sense of our own identity, of what we stand for and what our values are than we had at the end of the Second World War. Much more.”

In 2016, Sir Geoffrey Palmer and Andrew Butler proposed and published a written, codified constitution for Aotearoa New Zealand. Since then the authors have travelled the country, discussing with the public the nature of New Zealand’s identity and where the country is headed. After considering their conversations and formal submission, a second book – with its revised proposal for a codified constitution – is the product of a year in development.

However, he is concerned about how his advocacy for a codified constitution has become misconstrued as support for a United States-style constitution.

“I do not believe the United States at the moment is a successful democracy,” says Sir Geoffrey.

“The whole US constitution is so difficult to amend – it hasn’t gotten there by itself. So is Australia’s – the Australian constitution is frozen in time as well and has been difficult to amend.

“So New Zealand has advantages over both those countries by being able to adjust to change.”

As Sir Geoffrey points out, our ‘sandbox’ system has had benefits even more recently with Covid-19.

“We are going through something of an emergency at the moment – we have had Covid-19. Covid-19 has been one of the biggest challenges to our system of government that has ever been entertained. And we’ve done it in peace time, but it has been war time conditions we have been operating under. The way in which politics operates has been totally changed.”

“People really think that Covid-19 is over – it isn’t. It has disrupted our lives, it has disrupted the government, it has caused more law to be made on this subject more quickly than any other thing that we have ever done – and we were the fastest law makers in the West.

“We are in a difficult bind right now. If dissatisfaction rises, you have a trend toward autocracy, a belief towards populism, and a whole lot of conspiracy theorists causing people to go down rabbit holes that they never emerge from.”

Does he think Covid-19 has harmed our democratic systems?

People really think that Covid-19 is over – it isn’t. It has disrupted our lives, it has disrupted the government, it has caused more law to be made on this subject more quickly than any other thing that we have ever done

“I don’t think we have repaired our democratic systems enough. I think you have to change the way governments deal with people. You need a much heavier programme of citizen engagement. The various things that have been done overseas – like the abortion issue in Ireland through citizens assemblies – is a much richer way than dealing with select committees.

“The select committee system has not worked well recently because the whole system is overloaded with work and it can’t get through it. That leads to a whole lot of difficulties about not thinking things through and not getting things right. We always thought we could handle all this but I am not sure that over the long term we can be confident that our machinery is adequate.”

Was the way we handled Covid-19 appropriate from a legal and constitutional perspective?

“I think we handled Covid-19 very well. What went wrong with it has been that it has not gone away. That is not something the government can control. People think the government can do anything – they can’t.

“All the systems of checks and balances we have – the representative government system – worked well. The regulations review committee – a very important hand break on delegated legislation – functioned extremely well over the Covid-19 period and did a terrific amount of work. The Bill of Rights Act 1990 was very active. People challenged the government’s activities under the BORA. They had limited success because people don’t understand it is not an absolute.

“The courts did well with the Bill of Rights. People weren’t happy because they weren’t winning. But I am afraid that is the nature of litigation. There is a fundamental misunderstanding amongst the non-legal public that it protects rights absolutely. It does not. It was never designed to do so. And in fact parliament can overrule it. There’s been a very important change just recently with the Taylor case, which said the court can make declarations of inconsistency with the BORA. Parliament has arrived at the conclusion that that can be done, so there is now a chink in the armour of parliamentary sovereignty insofar as that when rights have been abridged unreasonably that parliament will have to address that.”

“There is a deficit in our understanding of our own democracy.”

Supreme Court NZLS-2013-06-10-3 Exterior view of the Supreme Court in Wellington

Most New Zealanders indeed take little interest in our constitutional or legal structures. Fewer than fifty per cent of New Zealanders vote at local elections and fewer would understand the ins and outs of our system of government. Sir Geoffrey has a warning about that lack of understanding and New Zealand’s milquetoast or bored attitude towards our constitutional and legal frameworks, “if you think like that, you’ll lose your democracy.

“If people lack confidence or knowledge of our institutions, then they will die. Institutional trust is an essential element of any successful democracy. In New Zealand, we used to have enormous political parties through mass memberships. We don’t have that now. The emboldenment [sic] of people in democratic discourse is less than it was due to distractions and I sort of feel we are losing a grip on things from the point of view of how our government should be conducted and whether it’s up-to-date with our aspirations.”

“I think the political parties themselves need to be reformed. If you look at the Royal Commission’s report in 1986, the recommendations that were not followed were those that involved having some greater scrutiny on how political parties function.

“The difficulty is you can have an institution but the life falls out of it. When you had 250,000+ New Zealanders as members of political parties, that meant something. It means less now. The institutions of the government don’t keep pace with the changes in the population. I couldn’t believe it when I went to parliament when I first became an MP in 1979, how as antiquated the procedures were and how little they reflected the reality out there and how lacking in diversity the Parliament was.

“One of the difficulties has been political parties have to raise funds and the fundraising has become very problematic. That has been obvious for years and it needs to be reformed. You cannot have the big money bags running the system. A system of state funding would be much better.”

“There is a very small group of members of parliament whose job it is to hold the Government to account. I really think the most important thing you could do to make immediate change to improve the situation would be to have 150 members of parliament to have enough backbenchers.

“If you look at what’s going on in the Conservative Party Leadership election in the United Kingdom, there’s an enormous debate going on within the Party about who should lead it. It’s been in the open to a large extent. In New Zealand, our system is byzantine in its complexity and to keep sort of control of all the details of it is a tremendously difficult time.”

National and Labour were both against proportional representation, but they lost because people felt they hadn’t been sufficiently accountable. I am so pleased that the referendum carried

Following the Labour Party’s victory in the 1984 election, the aforementioned Royal Commission on the Electoral System was duly established in early 1985.

Its report, completed in December 1986, was surprisingly radical. It recommended New Zealand adopt the German-style MMP system, in which each elector would get two votes, one for an electorate MP and one for a party. The size of Parliament would increase to 120 MPs: half would be elected in single-member constituencies (as before); the other half would be selected from party lists so that in general each party’s share of all 120 seats corresponded to its share of the overall vote.

Few of Labour’s leaders welcomed the Commission’s recommendations, however, and the government tried to sideline the issue. Although National’s leadership also disliked the idea of MMP, they saw an opportunity to embarrass the government over its failure to respond to the Commission’s proposals. The Fourth Labour Government was heavily defeated in the 1990 election, but its National successor was soon under fire for breaking election promises. Confidence and trust in politicians and Parliament plunged to new depths. Polls showed that politicians ranked alongside used-car salespeople as the least-respected occupational group in the country.

Both governments adopted few of the recommendations from the Royal Commission’s report. But Sir Geoffrey doesn’t regret not moving faster to implement more of the recommendations. “I couldn’t – there were only thirteen members of the Labour Party caucus that supported it!

“National and Labour were both against proportional representation, but they lost because people felt they hadn’t been sufficiently accountable. I am so pleased that the referendum carried.

“Political decision-makers don’t like obstacles to their own freedom of action. A triennial general election doesn’t really solve very much – it can’t. You have a multitude of parties making a multitude of promises, most of which cannot be implemented because they don’t have the numbers.

“The New Zealand system – admirable as it is – has more weaknesses than those in charge will admit.”

We have what Sir Geoffrey suggests is a ‘racing’ version of the Westminster system of parliamentary democracy.

“We have a small parliament, no upper house, no formal checks and balances. When you go to Westminster you see the House of Lords, they have a whole lot of life peers with real expertise. They really do add something to the quality of the debates even if they don’t prevail. Because the backbenchers in the UK are larger than the ministry, they sometimes win – here they do not, and that is not always a good thing. There’s a sort of problem of scale here.

“A small country has some advantages but also has some disadvantages. That is, a lack of expertise in many areas. We need a number of international experts to help us, but we don’t expect MPs to be experts. But much of the expertise is corralled in the public service and that is not accessible by the public. The public service has become less publicly-oriented and more ministerial-oriented in recent years than it used to be.

“There is no substitute for a properly thought through policy based on proper statistical evidence and research… there has been a tendency in recent years for cabinet papers to be written without options. The main job of the cabinet is to choose between the options. That has gone into the background in recent years and I would like to see a return to that.

“This tendency is lamentable. The essence of Westminster government is to have choices to choose from, properly defined and thought through. There are very few problems that only have one solution. If the machinery of government can’t work properly with providing choice, then it isn’t going to provide good decisions.

“The way you make decisions is of infinite importance. Take Covid-19 for example – the whole cabinet system had to be re-engineered over Covid-19. It did mean the Cabinet was able to make decisive decisions with proper advice and make decisions quickly.”

The way our parliament functions – particularly when it comes to debate – has changed over time. Whereas politicians in times past would have more license to speak freely, at more length and in more depth, nowadays almost always members of parliament speak from prepared notes delivered by their research units to stick to the party line.

“It is regrettable,” says Sir Geoffrey.

“A lot of the debates in parliament have sometimes become quite superficial, quite hurried and not indepth. We ought to be doing better than that.

“You have to be able to ensure that the decision makers are answerable to the House of Representatives that has sufficient independent members in it, that sufficient questions are asked and not Dorothy Dixers. In a small parliament with a weak opposition, you aren’t going to do very well. Our parliament is the thing that probably needs to be reformed.

“I was on the Operation Burnham inquiry which was an important and interesting assignment. But what we found was that the Foreign Affairs Committee were having hearings on all the things that were going on in Afghanistan but they were not known to the public and remained with the members of parliament. I am not sure that should have been the case even though there were a lot of delicate issues involved there. A lot of what they were doing in the parliament was holding the Defence Force to account in very explicit terms.”

Possibly the piece of legislation Sir Geoffrey is most well known for – the New Zealand Bill of Rights Act 1990 – is one of the most controversial. One criticism often lobbed at the Bill of Rights is that it lacks teeth, in part due to sections four through six which in a circular, roundabout way vest more power in the actions parliament has taken over protecting rights absolutely.

One of the difficulties has been political parties have to raise funds and the fundraising has become very problematic... You cannot have the big money bags running the system

“It was designed to be superior law, binding on the whole system. It took five years to go through the various political development. It was such a novel idea at the time. The New Zealand Law Society opposed it which hardly demonstrated any forward vision. The difficulty was that in order to get anything through, I had to trim it. I still say that on many of the difficulties we have faced and still face, they would have been easier to face if it had been entrenched law. It doesn’t give unlimited power to judges – they are extremely careful.”

Is it the courts fault we haven’t seen much movement in the rights space?

“The Bill of Rights is part of New Zealand law. You have to therefore interpret it, and it took years for the judges to come to terms with declarations of inconsistency… the courts have to get on with it. The parliament now has a coherent way with dealing with declarations of inconsistency which is quite well thought through.

“We are making progress but it has been terribly slow.”

Is it right the Attorney-General continues to perform the function of providing section 7 notices on legislation before the House of Representatives?

“The Attorney is a unique constitutional being. The Attorney is a guardian of the constitution and a guardian of the rule of law. I always thought it was good for the Attorney being in cabinet because you can stop stupid things being done. And you had to!

“I don’t think enough energy has been given to the writing of the reports. Many of them have been written in the Ministry of Justice and I have various questions about that. I think it would be better to have a group who was writing them that developed expertise that didn’t have any other jobs to do.”

And what about the future?

Since its inception in 1990, there have been some calls for further political, social, economic, cultural and environmental rights to be included in the BORA. However, Sir Geoffrey is cautious that any right within the BORA is justiciable.

“Not all human rights are justiciable. Someone asked me the other day whether there should be a right to food. I don’t think that is justiciable – are you going to sue McDonalds because they didn’t give you a hamburger and you were hungry? I don’t think so.

“You have to be sensible about it. The prime thing is parliament. The courts are there to interpret the law, that’s very important, but I would still entrench the Bill of Rights. And I think that might happen eventually. But you require political commitment and that is quite difficult to secure.”

Coat of arms

The Resource Management Act 1993 (RMA), although passed after the end of the Fourth Labour Government, were born from Sir Geoffrey’s work first as Minister for the Environment.

“I think that the way in which the RMA was treated within the system of government after it was enacted was pretty poor. The main elements that weren’t used that could have been used by central government to produce environmental regulation and to do various other things they didn’t do. To a large extent the RMA was passed and left to moulder.

“To some extent, the way in which central government dealt with the RMA is typical of law making generally when you have ambitious programmes. Ambitious programmes require a more hands-on approach. Hands-on means public service, analysis, reports and ministers making decisions. That’s why some of these things don’t work well. I hope the successor works better, but I am convinced the successor statute when it is passed will deal with some of the problems the natural environment is facing which are urgent.”

The State Owned Enterprises Act 1986 is important for many reasons, but the inclusion of the recognition of principles of Te Tiriti o Waitangi has perhaps been its most important or controversial. We started by asking Sir Geoffrey whether it was regrettable that the principles were so oblique in their reference.

“Yes. I think government was getting nervous of the Treaty.”

In 1989, there was a cabinet paper that went to cabinet that outlined what those principles were. But Sir Geoffrey actually wanted more than that. “I wanted both the Treaty itself in both languages in the Bill of Rights entrenched.”

Significant landmark cases and litigations around these principles have ensued. “I think New Zealand is sort of devoted to incremental solutions to everything and doesn’t really look too much at the big picture. In a strange sort of a way, the way the Treaty conversation has developed over time has been a good thing because there is more acceptance of it than there has been.”

Has this been good for Māori that they have had to go to court to argue what they know to be the principles?

“I think that the important thing to understand is that the courts have deferred to the Waitangi Tribunal findings… I think that for instance the water issue is still something that Māori could go to court over. The time is ticking for the Government on these issues, and there has been a lot of activity on them. Chris Finlayson KC has done a lot of good work on this and it needs to be recognised.”

Is there space to still entrench the Treaty?

“I do think these issues are so big, so important and so difficult that there needs to be something like a royal commission on how it should be approached. What you can’t do is get support for that as things stand because everyone says the most important things are the cost of living, the inflation, and health. We don’t ever look at the things that drive this, but we should.

New Zealand’s sense of community is the most important thing. We have to have a coherent sense of our own self, what we stand for. It’s that that will enable us to bind ourselves together and be successful

“The problem with the Treaty is that there has been no proper constitutional consideration of what its role is in the body politik. It is half-in, half-out of the law.

“You need to have a profound national conversation about what its application should be in contemporary New Zealand.”

Sir Geoffrey has seen much change over his lifetime. The last forty years has seen drastic political, social, economic, and cultural and environmental change.

So what does the next forty look like?

“The next forty years is a time of complexity. Policy problems of such complexity that you need different techniques for handling them, and there is going to be a lot of international strife. There is big power competition going on. New Zealand has to be very careful not to get caught up in that.

“What I worry about is politics has become such a difficult lifestyle now that people are not attracted to it. How many lawyers want to become politicians when they look at the financial sacrifices they have to make? The problem is if you don’t do something for your country, it won’t flourish.

“New Zealand’s sense of community is the most important thing. We have to have a coherent sense of our own self, what we stand for. It’s that that will enable us to bind ourselves together and be successful.”

There is no doubt that Sir Geoffrey’s legacy will impact New Zealand’s self, what we stand for and how we operate for many more years to come.

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