Strong constitutions, Andrew Sharp

Constitutional Conversations: Geoffrey Palmer Talks to Kim Hill on National Radio 1994-2001
Geoffrey Palmer
Victoria University Press, $39.95,
ISBN 086473445X

On the Left: Essays on Socialism in New Zealand
ed Pat Moloney and Kerry Taylor
University of Otago Press, $39.95,
ISBN 1877276197

Sir Geoffrey Palmer – or just Geoffrey, as he is mostly called here – knows more about the constitution of New Zealand than any other human being. Or if that is not quite true, he is certainly the most committed and effective commentator on it that our country has ever seen. In his time as a cabinet minister and Prime Minister he saw through a number of important reforms, not least the Bill of Rights Act. Since then he has continued to speak on the constitution both as a professional public lawyer and as a commentator devoted to the public good. This is abundantly evident in Constitutional Conversations.

The book is a selection of 83 broadcasts from a larger corpus (1992-2002) he made mostly with Kim Hill, host of the National Radio show Nine to Noon. “Conversations” is really an inapt title since Ms Hill and the other hosts mostly sit back and listen, having announced the prearranged topic. But this could scarcely be otherwise. Sir Geoffrey’s purpose is clear, and clearly stated, by him:

The broadcasts were designed so that people could better appreciate how the New Zealand government works, how the constitutional system is structured, how the courts function, how Parliament operates and how the executive government makes decisions.

 

From time to time Sir Geoffrey rather belittles himself, aware as he always is of the appalling lack of interest New Zealanders take in such matters, of how he cannot rely on much prior knowledge in his listeners, and therefore of how pedantic he must inevitably sound to many. “Sir Geoffrey: Here we are indulging ourselves in a discussion interesting to you and me, but who is listening and would this ever be put on commercial radio – this discussion?  Probably not.” Unfortunately, rather too often his host eggs him on in his deference to anti-intellectualism and ignorance; but in the last analysis he is prepared to press on.

Sir Geoffrey: There is a lengthy, learned and elegant debate between these two judges in this decision as to who has the right approach. Kim Hill: It would be quicker if they just threw chairs at each other. Sir Geoffrey: It is really very interesting. Let me just read you what Justice Thomas says. He says that Justice Keith has not got it right…

 

Thus he persists in the face of Ms Hill’s irony.

Sir Geoffrey also always makes things clear: “R Vincent: What does jurisprudence mean?  Sir Geoffrey: Jurisprudence is the philosophy of law” etc. He covers all the most important constitutional controversies from 1994 to 2001: the terms of tenure for judges, the Treaty, the workings of MMP, the proper role of list MPs, select committees of parliament, cabinet responsibility, the conventions governing who rules (and how) after an election but before the next parliament etc.

He shows the constitutional importance of what other commentators have seen merely as issues in party politics or sectional interest: a cabinet minister’s duty to defend cabinet decisions, the Resource Management Act, parliament’s role in treaty-making, the contentious Wellington constitutional conference of April 2000 etc. He celebrates achievements in legal writing, opinion, practice and jurisprudence, and in constitutionally sound government and reform: Sir John Salmond, Goff Whitlam, and the reformed Human Rights administration are particularly commended by him.

Sir Geoffrey advocates the rule of law – a law that bridles government, makes it as open as possible and as little subject to arbitrary whim or simple power-seeking manoeuvre as possible. He is therefore horrified at the Machiavellianism of the “brilliant” Michael Laws – at the cynicism Mr Laws displays as to the motives and the too-dextrous proceedings of politicians.

Sir Geoffrey also advocates the recognition of the human rights of all citizens, where “human rights” are those enshrined in a great number of United Nations instruments. Some of what he says is as ancient as the first English constitutionalists. The 14th century Justice, Lord Bracton, speaks approvingly of “bridling kings”. Some of what he says is new and rather unEnglish, in particular his powerful advocacy of human rights and his more muted but evident desire for a written constitution and a republic.

His is a powerful and methodical mind, somewhat narrowly legalistic and rather too artfully balanced to be entirely credible; but he is doubtless driven by deeper passions and reasons than he expresses. He deserves the gratitude of us all for his efforts to engender debate on our constitution, and on constitutionalism as a way of conducting politics. He will be unlikely to get it, given our addiction to the froth and bubble of our more demotic and less technical party politics. It is very unjust, and an indictment of our political culture and system of education.

I move on to my next book by saying that Victoria University Press should have done its proofreading better. The University of Otago does a much better job of On the Left. This must have been harder too, because of the variety of individual styles and formats encountered in a collection of nine essays and two interviews, written and conducted by academics.

It is equally hard to say in a brief compass anything usefully systematic yet nuanced about the collection. I will have to be crude. The editors interestingly point out that our publicly shared perception of the nature and incidence of left-wing thinking and activity in New Zealand has largely been formed by professional historians, most impressively by Sir Keith Sinclair. (It has been otherwise in the world. Understandings of the Left have come from churches, the state, political parties, trade unions, political activists, universities at large, or from a free-floating political intelligentsia.) These historians fixed the Left in a stadial scheme of national progress up to a time of crisis beginning in the 1970s.

Political history has been seen as a series of stages: a colonial prelude, giving way to the experimental and progressive legislation of the Liberal Government in the 1890s; the alliance of middle and working classes secured by the Liberals briefly called into question by militant socialists between 1908 and 1914, but reaffirmed by the election of the first Labour Government in 1935; New Zealand reaching maturity as a nation and a welfare state in the 1960s.

In this scenario, the Left – state socialists, Wobblies, Red Feds, and varieties of communists and socialists, not to mention utopians – is marginalised. It may have contributed to the growth and flourishing of the welfare state and mainstream political ideas. That is its only importance. Otherwise it is irrelevant or a nuisance or a seditious danger to the state – and was treated in all these ways by the police from 1912-51, as Graeme Dunstall shows.

On the Left sets out to “bring the left back in”. It succeeds well enough as far as nine essays and two interviews, preceded by an intelligently unifying introduction, can. The interview with Erik Olsen is particularly interesting as a self-conscious reflection on the limits of the mainstream historical view. Other articles seek a remedy mainly, but not only, by concentrating without apology on their chosen topics: the Knights of Labour (Robert Weir), Reeves and State Socialism (Pat Moloney), Syndicalist “Counterpublics” and the Industrial Workers of the World (Fran Shor), “Billy Banjo” (Len Richardson), the Communist Party and Maori 1921-51 (Kerry Taylor).

But a stadial history that marginalises the Left is not the only legacy the historians have left us. The other is a general unwillingness to engage seriously with left-wing ideas, the reasons for which have been mostly to do with the intellectual temperaments of those attracted in New Zealand to “history” as an academic discipline. In practice this has meant – as is amply demonstrated by the interviews with Gay Simpkin and articles on the New Left (Toby Boroman) and Organising the Unemployed (Cybele Locke) – that left-wing practice since the 1970s has had to reinvent itself in something of an intellectual vacuum as to what to think and do on the left.

The guiding ideas of the Left (except elements of Maori ones) have been imported; and competing programmes and understandings have had to be hammered out in the confrontation of those ideas (Marxist, New Left, Anarchist and Feminist) with the more ordinary understandings and interests of the participants in protest and radical reform. It also means that when the historians gathered in the volume write of the Left, they do not always succeed in conveying the meanings of the categorisations of ideas and programmes they inherit – Moloney and Lyman Tower Sargent being the most honourable exceptions.

More importantly, their arguments are generally framed in terms set by historians rather than activists, though this is less so the nearer to 2002 they approach. Whatever one thinks of the virtue – or necessity – of historians writing of the past in terms of the interests of their own times, it is certainly necessary to translate understandings of the more remote past to the present, and to show why what interests the historian ought to interest his or her contemporary reader.

It is not only Sir Geoffrey who has problems in communication set by the ignorance of his audience; so do historians. What resonance, for instance, will “syndicalism” have with the modern reader, or even “guild” or “industrial” union? And who now knows about the difference between a Maoist and a Stalinist? Contemporary New Zealand historians could learn much from Sir Geoffrey’s continuous attention to clear definition.

Every one of the pieces in On the Left is worth reading and richly informative; but the best to read are Moloney’s (which is a model of clarity and argumentative impetus) and Richardson’s (which tells a seemingly simple, jargon-free tale, the way a good historian ought to). Where Sir Geoffrey’s book mentions individuals only sparingly, On the Left is full of them. It is pleasing to note that both books have excellent indexes, each fulfilling their markedly different functions: the one full of conceptions, the other of men and women.

 

Andrew Sharp is a Professor of Political Studies at the University of Auckland, working on Maori constitutional issues and an edition of the writings of the socialist, Bruce Jesson.

 

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Posted in History, Non-fiction, Politics & Law and Review
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