In a recent Newsroom article Sir Geoffrey Palmer launched an attack on the Coalition Government. Constitutional Law Expert David Round responds…
After some years of restful silence, that redoubtable old constitutional law warhorse Sir Geoffrey Palmer has again entered the lists. Unsurprisingly, he is unhappy about the actions of the present government. Our democracy is being weakened, he believes, at a time when it should be being strengthened. Instead, policies are being forced through which threaten our sense of social cohesion. Some, at least, of the government’s controversial policies are ‘unfit for purpose, legally suspect, contrary to the public interest and inappropriate’. There are a few value judgments there, of course. ‘Democracy around the world is under challenge’ he neighs. The quality of many democracies is deteriorating, and ‘people’s trust in the institutions of government is decaying’. And on several occasions he throws out his regular old suggestion that in order to avoid these dreadful catastrophes we should adopt his old favourite thing, a written constitution.
Even a blind chicken occasionally finds a grain of corn, and I actually agree with him that Parliament would benefit from having more members to form a wider pool of talent. That is nothing to do with the present government, of course. I am also cautious of the possible dangers of the new fast tracking legislation. Sir Geoffrey, though, seems strangely unaware of the insane complexities and delays and preposterous expenses of the present Resource Management Act system, which is often little more than a gigantic racket and can easily descend into outright corruption. (The latest news is that there has been an agreement for Meridian and Genesis Energy to pay Ngai Tahu, the Department of Conservation ‘and others’ over $180 million in return for them not objecting to applications to renew resource consents for electricity generation from Waitaki River waters. Those payments, of course, ultimately come out of our power bills.)
Nevertheless, I am seriously worried about Sir Geoffrey. At the very least, his memory is obviously not what it was. Sir Geoffrey was a member of the 1984 to 1990 Labour government, with Roger Douglas as its chief reforming luminary, which ~ rightly or wrongly ~ foisted Rogernomics on a completely unsuspecting nation and tore New Zealand thoroughly apart. Sir Geoffrey is now complaining that the current government’s ‘present agenda was not part of the policy offered to the electorate’ before the election. As a simple matter of fact, that is complete nonsense. New Zealand voters had a pretty good idea of the general direction of any National-ACT-New Zealand First government. There seems little doubt but that most of the country continues to be pretty happy with that direction. But even if it was unhappy, Sir Geoffrey himself helped to set the precedent. If New Zealand had known, before the 1984 election, what Labour had in store for it after the election, Mr Muldoon would have been returned with his biggest majority ever, and the wider nation might never have heard of Sir Geoffrey.
Roger Douglas was also a great believer in rushing plenty of changes through at the same time so as to keep ones opponents off balance! New Zealand has for many year been notorious ~ in Sir Geoffrey’s eyes, anyway ~ for what he has called ‘the fastest law in the West’. Sadly or not, there is nothing new in this government’s haste. With Parliamentary terms of only three years, indeed, no time can be wasted in clearing the decks. There is certainly plenty to clear. If not by repeal, how would Sir Geoffrey suggest the new government go about it?
I cannot recall Sir Geoffrey speaking out when Jacinda Ardern’s government behaved unconstitutionally. Labour concealed the He Puapua report even from its own government coalition partner and revealed that racist agenda to the electors only after the 2020 election. There was absolutely no electoral mandate for it. Labour concealed it, in fact, precisely because it knew that the policy would cost them votes. So much for democracy. And what of Labour’s Covid vaccine actions, which involved censorship, threats and bullying and lock downs? New Zealanders were imprisoned in their own homes, lost significant parts of their livelihoods; lost their jobs, indeed, if they refused to consent to allegedly voluntary vaccinations. Objectors to these totalitarian methods were publicly branded as hysterical conspiracy theorists and reviled by Ministers of the Crown as ‘rivers of filth’. New Zealanders overseas could not return to their own country. The New Zealand Bill of Rights Act ~ Sir Geoffrey’s very own baby! ~ was breached over and over again, and the courts have even found some of those government decrees to be legally unfounded. Where was Sir Geoffrey then?
When Sir Geoffrey speaks of the Treaty of Waitangi, however, he moves from hypocrisy into downright nonsense. In the past ~ some forty years ago ~ he was often sensible on the Treaty. He was not always, it must be said ~ when in the Cabinet he was responsible for inserting the fatal section 9 in the State-Owned Enterprises Act 1986, and according to his then Cabinet colleague Richard Prebble, he assured the Cabinet that section 9 was mere meaningless lip-service which would have no practical consequences. But he was often sensible. He perceived that debates about the meaning of the Treaty were ‘essentially political’, and that some of the scholarship around the Treaty was highly suspect, ‘fuelled by political motivation rather than detached analysis.’ And that was forty years ago, when there was a lot less nonsense about than there is now.
But now he appears to have swallowed the whole Maori radical programme hook line and sinker. He laments the end of the nonsensical and racist ‘partnership’ and finds nothing self-serving or suspicious in the Waitangi Tribunal’s recent discovery that Treaty principles require… the continuation of Labour’s racist gravy train! And then he starts to fret about the possible loss of social cohesion! New Zealand now is at a very dangerous time. Now is about our last chance to turn the tide against the divisive racism which fanatics in the Labour Party have long been pushing, and which cowards in the National Party have for far too long been tolerating. If we do not turn the tide back now we are goners as a nation.
Somewhat ominously, however, Sir Geoffrey opines that the government’s attempts to reverse Labour’s Treaty policies will be ‘futile’. This is, he says, because the Treaty of Waitangi is valid at international law ~ which is the opposite of the truth ~ and also because the Treaty could be a binding contract ~ a piece of nonsense I have never heard before. But in any case, Parliament, under our constitution, is supreme, and can legislate as it pleases. So why did Sir Geoffrey say that such legislation would be ‘futile’? Could it possibly be that he favours a judicial coup d’etat, whereby our increasingly woke and politically progressive judges take it upon themselves to declare that they, not Parliament, are in charge of deciding what is and is not law in this country, and that the Treaty nonsense will continue? The judges are very clearly heading in that direction. Some of their decisions, on a variety of matters ~ the foreshore and seabed and the three strikes law are perhaps the most prominent ~ already evince a strong desire to ignore the wishes of the people’s lawfully elected representatives. Dame Sian Elias, our previous Chief Justice, maintained that she was entitled to refuse legal recognition to Acts of Parliament which clashed with her own pretty radical interpretation of Treaty ‘principles’. Justice Glazebrook, judge of the Supreme Court, has said publicly that the Rule of Law (which is of course a Good Thing which she, as a judge, is bound to support) will not be fully established in New Zealand until the ‘process of decolonisation’ ( which she defines to include Maori sovereignty) is complete! She and her fellow Supreme Court judges have just ‘discovered’ that Maori tikanga is part of our basic underlying law. From next year all law students will have to undergo compulsory indoctrination in tikanga….
Such a judicial seizure of power would indeed be an outrageous unconstitutional usurpation of power ~ but either the possibility has (remarkably) never occurred to Sir Geoffrey, or else that particular unconstitutional usurpation would be one he would be quite happy with. Perhaps he could tell us which.
Were our country to be unfortunate enough, however, to be saddled with Sir Geoffrey’s written constitution, such judicial politicking would be inevitable. Any written constitution. for a start, would have to mention the Treaty of Waitangi somewhere, and we can be absolutely certain that judges who have already announced their commitment to a radical ‘decolonisation’ of New Zealand would leap in boots and all to discover fundamental Treaty principles which would affect much more of our lives.
With characteristic insensitivity, Sir Geoffrey fails to see that right now is precisely the wrong time for us to adopt a new constitution. Just think for a moment about the very bitter arguments which would immediately break out over every clause. We no longer trust each other ~ or the people in charge. As Sir Geoffrey, quite rightly says, we are losing our social cohesion. Why then would he expect that we would we agree on a constitution, and an agreed vision for our country’s future? Great constitutional documents generally arise only when a nation is united in some great struggle, not when it is already torn by faction.
Written constitutions appeal to bossy people like Sir Geoffrey because the purpose of a written constitution is always to establish some fundamental principles which would be beyond the reach of politicians. Inevitably, any new constitution of ours would make some reference to the basic principles on which our state is founded; the Treaty, without a doubt, and who knows what else. Diversity? Equality? Equity and Inclusivity? Community….Safety! Any number of wonderful buzzwords. But everything in that constitution will then be interpreted by Sir Geoffrey’s fine friends the judges, highly paid woke lawyers who evidently believe they know better what is for us than we do ourselves, and who, as lawyers, have the undoubted skill of twisting any words to mean whatever they want. Cardinal Richelieu once said ‘Give me six lines written by the most honourable person alive, and I will find enough in them to send him to the gallows’. Any decent lawyer has the same skill. Our highest court will occupy the same position as the United States Supreme Court, for long a court of politicians, of the left or the right, but holding the ultimate say on the validity of any legislation, regardless of the desires of the people and their lawfully–elected representatives.
(The United States constitution, for example, says nothing whatever about abortion, which for two centuries had been a matter for individual states. That did not stop the judges, in 1973, from taking a provision here, a provision there, giving them a little stretching, a little massage….and hey presto! There is a constitutional right to abortion! Or to any other fashionable idea our judges fancy….)
There is a great arrogance here. News that there is a decline of trust in our institutions has finally made its way through Sir Geoffrey’s learned skull. But somehow, he thinks that this decline has only begun since the last election; and that the answer to it is to ignore the popular will and follow the very same policies that the electorate rejected at the election. So perhaps governments should break election promises, then? After all, Sir Geoffrey also believes that some of the current government’s policies are fuelled by nothing more than ‘intolerance and indignation’, and that obviously is no proper basis for good laws….
Hillary Clinton summarised Sir Geoffrey’s feelings in one word. Those people stupid enough not to vote for her were the ‘deplorables’. In select committees and in the grounds of Parliament the members of the last government made it quite clear that they share that contempt for ordinary citizens; which they share, indeed, with the whole political class across the West.
People are not stupid. If they are losing trust in our political institutions ~ and they are ~ it is not because of the evil machinations of the current government ~ which might actually do something to stop the rot, although probably not enough ~ and it is not because of some sinister right wing plot. People are losing trust in our institutions because those institutions no longer deserve our trust. Our judges are increasingly pathetic and disgraceful. Our news media, when not pushing shallow mindless trash, are liars and censors. Our academics are woke indoctrinators. Oppressive overpaid bureaucrats appear to live in another world. We are increasingly ruled by parasites who perform little if any useful function. They form the lenocracy ~ the ever-increasing class of ‘experts’, consultants, managers, managers of managers, whose job it is to tell us what to do, and clip the ticket whenever we try to do anything. They are Sir Geoffrey’s people, and he would like them, not us, to be in charge.
David Round, a sixth generation South Islander and member of the Executive of the Federated Mountain Clubs, is an author, a constitutional and Treaty expert, and a former law lecturer at the University of Canterbury.
This piece was first published at NZCPR