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Professor Martin Devlin

Professor Martin Devlin

An Arrogant Affront To Democracy In New Zealand

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Those desperately reading the newspapers for something (anything) interesting over the Christmas period might have noticed an extraordinary article by constitutional lawyer and former academic, Sir Geoffrey Palmer, on Christmas Eve, in which he suggests that New Zealanders should not rely upon citizen-initiated referendums as an adjunct to our democratic process. (Actually, I prefer the Latin plural of referenda, myself). Sir Geoffrey dismisses this important element of our democratic process, stating that we (the people) are deluded (!) if we think that referenda will improve the quality of New Zealand’s democracy.

In an often contradictory and inconsistent argument, Sir Geoffrey rubbishes the Citizens Initiated Referendum Act 1983 on the grounds that (a) such processes have not worked elsewhere, (really? ask the Swiss people), (b) the Act has made no impact on public policy, (really? you mean we will see more partial asset sales in the future?), and (c) if binding, the effectiveness of government and political parties would be blunted (really? you mean the voice of the people as expressed in a referendum interferes with and blunts the effectiveness of governments and political parties?)!

Let’s imagine that the citizens of New Zealand are given the opportunity to endorse a change or changes to our present constitutional arrangements – as has recently been the case in Egypt. Would it not be expected that a referendum on such an important matter as changing the constitution would be held? Not necessarily. During the launch of the recent constitutional review the Deputy Prime Minister, Hon Bill English stated that such a decision could be taken by a broad agreement in Parliament. Why is there a reluctance to allow the people to participate in such an important matter?

In his outright rejection of referenda as an expression of the people’s will, Sir Geoffrey denies the people this opportunity, relying instead on politicians to decide for us.

With that in mind, perhaps Sir Geoffrey might care to explain why the Labour party he once led, together with their far-left colleagues, the Greens, recently chose to test the public pulse on the National government’s partial assets sales programme – and in the process, sabotaged the share price? Surely Sir Geoffrey did not consider this referendum to be useless? If we believe the pundits, the result has probably dissuaded future governments from pursuing a similar policy. In this case, even a non-binding referendum appears to have had an impact.

No, it is obvious that Sir Geoffrey sees in referenda, a powerful voice of the people which governments and politicians do not like – for this is the people talking, not the disingenuous politician who, though purportedly in office to express the will of the people, often believes that s/he is there because s/he personally deserves to be there.

Sir Geoffrey’s strategy is beginning to take shape – use the one vote system to get into office, but once there, do whatever one likes or thinks appropriate, even when there is no mandate for a particular course of action, such as the recent government/Maori party constitutional review.

Where there is a mandate for a particular course of action (such as the partial asset sales program), then this can be challenged, as Labour and the Greens have done, via a referendum.

Sir Geoffrey is all for putting the brakes on our parliamentary sovereignty, which he believes is a very dangerous and “unbridled” version of Westminster-style democracy. He lauds the introduction of the MMP system as such a brake but clearly believes even this is not sufficient, even though minority parties under MMP, such as the Maori Party, are able to exercise a political influence out of all proportion to their numbers in the population (while 14 percent of the population indicated Maori descent in the 2013 census, the Maori Party won only 1.43 percent of the party votes in the 2011 general election).

Sir Geoffrey contradicts himself badly when referring to the report of the Royal Commission on the Electoral System (1986) which, whilst cautioning against the use/mis-use of referenda, approves of their use in “major constitutional issues and others where government judges it to be appropriate”. How does he reconcile this?

Most New Zealanders I know clearly support the sovereign power of Parliament, including the power to change the constitution (by referendum, surely?). There is a very simple reason for this view which seems to escape Sir Geoffrey, in spite of his many years in politics, in the law, and in public service, and that is that most of us still believe that our simple, singular vote counts. In other words, it is the people who matter and whose wishes must be seen as paramount, not the particular political and ideological biases of self-serving, egoistic politicians. Occasionally, this needs to be determined via a referendum, as would obviously be the case when changing the constitution.

Many politicians, irrespective of party philosophies, fall into an inevitable trap, which is that they see themselves as the most important element in politics, not the people. Personal publicity is much more important than what the public might happen to think, as evidenced by recent instances of personality politics (Don’t you know who I am?). In their eyes, referenda must not be encouraged, let alone be binding upon a government, for this is the voice of the people speaking, and politicians cannot have that.

As a result of his long association with politics and the law, Sir Geoffrey’s opinions deserve at least some consideration, and one might expect governments to take some notice of what he is saying. However, the rejection by the government of his recommendations regarding the Official Information Act is indicative of the fact that he might not perhaps have the influence he might like to think he has.

Sir Geoffrey recommends a written constitution and an entrenched Bill of Rights, enabling judges, who are unelected and therefore unaccountable to the people, to enforce constitutional change through the courts, thereby preventing the government “riding roughshod” over these matters. His answer? Take the power from the people. He ignores a number of recent instances of clear judicial activism and judicial politicisation in New Zealand. If the example of the United States Supreme Court is any indication, people power will be further greatly marginalised by a written constitution. If we could only trust the judiciary to keep their fingers out of the political pie, such reservations might not be necessary, but it is obvious that in certain areas, the treaty being one, we cannot depend upon their professional and personal neutrality.

Sir Geoffrey recommends an overhaul of the public service which he believes needs revision, including curbs on the “cult of management”. But, it is well-known that many public servants tend to lean politically to the left and some are not averse to leaking sensitive information if it suits. Why then does he consider the service needs to be “strengthened”? To endorse such behaviour? To inhibit such behaviour?

And finally, Sir Geoffrey recommends parliamentary reform which accords better “protection” for Maori values and aspirations – a simple, innocuous phrase no doubt? But it is this recommendation which lies at the heart of what, in my opinion, he is ultimately aiming at. Not content with the damage he has already incurred by his SOE fiddling, he is in effect signalling (but without stating as much) a sea change in the way Maori should be represented and their influence on all legislation.

A recent (November 2013) seminar in Wellington focused on the constitution and the role of the Treaty of Waitangi within it. Most of the participants actively promoted the concept of “co-governance” of New Zealand by Maori (14%) and the rest of us (86%). This concept is based on the erroneous belief that the treaty established a “partnership” between the Crown and Maori, a view which Sir Geoffrey Palmer obviously supports, but which a number of his legal colleagues, notably Judge Anthony Willy, most certainly do not.

When taken to its extreme, this view inevitably means a joint governance arrangement for New Zealand. A precedent was established by Whatarangi Winiata (founding president of the Maori Party) and the Anglican Church in New Zealand. The church is now divided into three distinct ethnic groupings, each independent of the other.

Several local and regional authorities have appointed unelected ethnic representatives to bodies to “co-govern” such public spaces as the Hauraki Gulf, without any discussion with, or mandate from, their constituents – and certainly not via a referendum. Some local authorities have appointed unelected and unaccountable persons purely on the basis of their ethnicity, to standing committees of councils, with full voting rights, enough to tip a decision in their favour.

This “co-governance” strategy is becoming accepted as a legitimate model of bi-cultural separatism and is making serious and ominous inroads into our democratic processes. The strategy is based upon keeping any discussion or mandate from the people regarding “co-governance” at a considerable distance, often obscured under the guise of inviting submissions (unstated) to a Council’s Long Term Plan, then claiming that the public ”has been consulted”. Frankly, this is outright deception.

I would bet that if such a proposition as “co-governance” were to be openly put before the people of New Zealand, in a referendum, it would be rejected out of hand. So, in my opinion, the strategy of the Left is clear – reduce the power of the people; do not, whatever you do, allow the people to decide important issues via referenda; and rejig the process of government, judiciary and public service accordingly, to ensure the intentions of those in positions of power, not the people at large, take precedence.

Take for example, the Maori Party issuing a “warning” (November, 2013) to the Speaker and to Parliament that Maori protocol must override any parliamentary protocols in the House, whenever a powhiri takes place. As one letter to the editor pointed out, parliament is not (yet) a marae.

Sir Geoffrey’s clear view is that the people’s democratic rights need to be limited to a single vote once every three years. Matters of state are much too important to allow ordinary people an active, participatory role. And we are a democracy?