Yes, but who let it become so? Colin James

New Zealand’s Constitution in Crisis: Reforming Our Political System
Geoffrey Palmer,
John McIndoe, $34.95

Electoral Behaviour In New Zealand
Martin Holland (ed),
Oxford University Press, $29.95

New Zealand Politics in Perspective (3rd Edition)
Hyam Gold (ed),
Longman Paul, $49.95

Sir Geoffrey Palmer is believed to be a stickler for constitutionality. But is he? Consider his account of this episode on the long march to proportional representation:

David Lange promised a referendum in the 1987 election campaign. … It was not party policy and he misread his briefing notes before a television interview. I agreed with what he said and, surprised as I was, went on television the next day and backed him up. After that it was difficult for other people to deny the intention, so they had to keep quiet. … But … [after the election] the Labour caucus refused to honour that part of his commitment.

A person in Palmer’s powerful position who cared for the integrity of the constitution in its broadest sense would surely not have allowed that deception of the voters to stand, let alone connived at it by backing Lange up.

Yet Palmer has bothered a great deal about the constitution. New Zealand’s Constitution in Crisis is the third book in a series which began in 1979. Defence of constitutionality brought him into politics. He was offended by what he calls the ‘Hobbesian’ bent of Sir Robert Muldoon, who

demonstrated what could be done with unlimited amounts of concentrated power.

This was by and large acceptable to New Zealanders, who liked their governments Hobbesian – that is, all-powerful, the better to do their bidding or, more usually, to tell them what was to be done.

Muldoon began and ended his prime ministership with blatantly unconstitutional acts: the purported suspension of the contributory superannuation scheme by press statement (transgressing the 1688 Bill of Rights) in 1975, and the refusal to devalue the shattered dollar after defeat in 1984 (transgressing the convention that outgoing Prime Ministers defer to Prime Ministers-elect). Large numbers of non-socialist liberals joined or supported the Labour Party after 1975.

Muldoon’s administration … provided a good political market for constitutional reform and the need to promote open government, Palmer writes. It is entirely fitting, therefore, that his conduct promoted a basic New Zealand constitutional reform.

Basic? This was Palmer’s rewrite of the 1852 Constitution Act to clarify the lie of power after an election before final results are declared and to put the Governor-General legally in her powerless place. But the resultant document is, on Palmer’s own admission,

rather fragmentary. Much of the detail which matters is to be found elsewhere.

So unimportant did New Zealanders consider this basic law – a phrase that in Germany, whose method of voting we seem about to adopt, signifies a real, unitary, written constitution – that only eight of them made submissions on it and, Palmer adds in parentheses,

I do not think any of my parliamentary colleagues or the public cared at all about this act, but for me it was a great excitement.

New Zealanders have long thought better of fussing about form and legality. For Palmer, despite an early stint as a political science lecturer, due process was somehow government. He suffered a due fate for that misjudgement of his fellow citizens.

Pet projects he brought into Parliament with him languished. Despite three major attempts, reform of accident compensation eluded the man who had worked with Sir Owen Woodhouse, its architect. His prized rewrite of the Crimes Act ran afoul of the normally reticent judicial bench, and died. Voting reform had to wait for Jim Bolger’s puzzling and counterproductive desperation to promise everything to everyone in 1990.

The Bill of Rights is a shadow of what Palmer intended (though it is much more substantial than his critics, including myself, thought likely, as he cogently argues in Crisis). His reforms of parliamentary procedure scratched at what was then, and still is, a stinking suppuration on the body politic.

Palmer’s greatest achievements were projects he picked up from others. He set out on an absorbing technical dean-up of the town and country planning laws and chanced on legislation of world importance – the first resource planning law that made environmental sustainability its touchstone, and arguably one of the two or three most important initiatives of the fourth Labour Government. The most important, elevation of the Treaty of Waitangi to the status of founding document of the nation and cornerstone of the constitution, was an unintended by-product of attempts to do justice by Maori grievances. The state-owned enterprises legislative framework was Palmer’s brilliant solution to an embarrassing tangle developing out of others’ attempts to ‘commercialise’ state trading activities, and the SOE model has become an exportable commodity for consultants.

Palmer’s political genius was not his almost American fixation with the legal framework of government, his desire to separate the powers in a polity in which only one, the Cabinet, counts. He proposes quixotically in Crisis to separate Cabinet from Parliament by making ministers vacate their seats (then recontest them at the next election). A colleague’s advice saved him from the even more bizarrely unworkable idea of direct prime ministerial elections that was in an early draft.

Palmer’s political genius was to combine a sort of passion with precision. He developed an enthusiasm for others’ projects. He became an environmentalist. He learned feminism. He developed a deep respect for Maori. Plunged into expenditure control by Roger Douglas, he poured energy into making the state more effective and efficient. The resultant State Sector Act was a constitutional reform of considerable significance.

But Palmer’s passion was of the intellect and theory, not of the soul or the heart. His passion was logical conviction. He then poured huge energy into process. His ability to handle prodigious amounts of detail was invaluable to almost every other minister at some time. Rogernomics came to depend on him.

Except when politics intruded. Unlike constitutions, which are about setting the rules by which the rules are made, politics is about power: applying pressure, assembling coalitions, driving wedges, prodding weak spots, stretching the rules, facing down opponents. Power is what gets things done. It is not nice, and it is often improper.

Where there was agreement on objectives, Palmer enhanced progress towards them. Where there was not, as in social policy, which was torn between Budget imperatives and 1960s Labour instincts towards equalisation, his trust in process let everyone down. He deepened the directional paralysis in 1988 by failing to do the deputy’s job of fixing either Lange or Douglas, instead trying to find a compromise that anyone but he could see instantly had no grounds. Ministers frequently complained that he was most swayed by the loudest and/ or last person to get to him. That was a fatal flaw when he took over the top job. There, as Lange demonstrated resoundingly by omission, having clear objectives is critical to success.

The book’s title states the indictment. For five years Palmer was Deputy Prime Minister and Justice Minister, the box seat for a constitutional reformer. He was Prime Minister for another year. If New Zealand’s constitution is in crisis, who let it become so? The theoretician – now safely back on the outside, where words rule, not deeds.

But with the insights of an insider. There is a lot of chronicle and autobiography in this book, including a couple of swipes at Lange and one at Helen Clark and some arrogant judgements of lesser beings (among them dumb and trivial journalists – dare I presume to continue with this review?). But this is no mere self-serving politician’s apologia, because Palmer never really became a politician. The analyst and theoretician is more evident than the actor – I recall Palmer’s excitement, as a lawyer, at the Appeal Court judgement in 1988 on the role of the treaty in the state-owned enterprises while around him his colleagues, as politicians, were blanching at the implications. That makes it a useful book: Palmer never quite lost his academic’s interest in what his Government was doing.

But it must be kept in context. if there is ‘crisis’ after the fourth Labour Government’s big constitutional changes, it is not because the constitution still needs fixing (which it does). It is because the politics are wrong, or the economics. The rules are a lot less important than the rulers.

Palmer’s book has both the virtue and the vice of straddling the popular and the scholarly. Virtue, because it is easily comprehensible to the general reader, and yet has much of archival and analytical interest to the specialists in politics and the constitution. Vice, because it will satisfy neither – the politics are too little and too antiseptic, the constitutional material is too folksy.

Martin Holland’s latest venture into compiling collections, Electoral Behaviour, by contrast, is for the specialist. Read it if you are deeply interested in the minutiae of the theory and actuality of New Zealand voting. This will be a source book for students and academic election-watchers. Among the contributors are Stephen Levine and Nigel Roberts, who now have a valuable series of single-electorate surveys spanning two decades. Generally, the book draws on the nationwide post-election surveys of 1987 and 1990 by Jack Vowles and Peter Aimer. The colonial cultural cringe in the politics departments of our universities is at last showing signs of weakening enough to hint at a New Zealand model for New Zealand electoral analysis.

Some of these names appear also in Hyam Gold’s book, New Zealand Politics in Perspective, now in its third edition. Justifiably established as a standard textbook, it is not really for the general reader, though unavoidable for undergraduate students of politics and assiduous political journalists.

Both books suffer from the vice of edited collections: uneven quality. Analysis of the role of the media, for example, is thin in both. Why do so many New Zealand academics (Palmer obviously excepted; Richard Mulgan likewise) seem to think that books, especially any to do with the period after 1984, should be like magazines, fragmented assemblages of essays? Are they too lazy, or over-worked, or timid, or lacking in broad purview, or simply confused, to write a whole book, unified in theme and presentation? Serious readers of New Zealand, unite: demand more proper books for your taxes.

 

Colin James is a freelance journalist specialising in politics. He has just published a book on the 1984-92 policy changes in New Zealand, their genesis and implications.

 

 

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