Excerpted with permission from a speech last weekend to a Young Labour event. The former PM offers recommendations on how to improve law-making, Parliament and the public’s right to influence policy.
You probably know that our system contains three main elements: the Parliament; the Executive and the Judiciary.
- The Parliament or legislature must approve all laws, expenditures and rates of taxation.
- The Executive is Cabinet and the Public Service. Cabinet is linked to the Parliament since Cabinet ministers must be Members of Parliament. The Executive conducts the government.
- The Judiciary is made up of the Judges who interpret the law and make the legal decisions on how it applies on crime, punishment and civil disputes
The separation of powers between these three institutions provides a very important protection for people. And the rule of law makes up a critically important element in any democracy.
The Cabinet is the major decision-making body. It sets the priorities – it proposes legislation, taxation and policies to Parliament. It is accountable to the House of Representatives and to the electorate every three years.
In our system, the Executive is too big and too powerful. It dominates the Parliament too easily and there are not enough checks and balances in the New Zealand system. New Zealand is an executive paradise, not a democratic paradise.
There are 123 MPs in the present Parliament and 30 of them are in the Executive. That is 24.1 percent of the whole House. Given that the Executive is accountable to Parliament that seems too many ministers – a cabinet of 20 ministers should be sufficient. Cabinet ministers are all paid more than ordinary MPs.
Political parties
Political parties have an important role to perform in governance.
They select candidates to represent their party in elections.
They raise funds to support the party.
They help get out the vote.
They decide the policies upon which the party will campaign at election time.
As young people who have joined a political party, you have all taken a positive step.
I want to encourage you to be active in discussing policies that will improve governance in Aotearoa New Zealand and ensure that changes take place.
In many parts of the world political parties are corrupt. The global movement Transparency International reports on the basis of its surveys that political parties are the most corrupt institutions internationally.
Many political parties, even in Europe, are widely regarded in this way. It would be prudent in New Zealand to take steps to ensure such charges cannot be made here.
Since 1956 New Zealand has had six reserved provisions in the Electoral Act that can only be altered by a 75 percent majority in Parliament or a simple majority in referendum of the voters. The most important of which are the Representation Commission that settles electoral boundaries and the tolerances allowed, and the method of voting including the secret ballot. These provisions make make gerrymandering the boundaries of electorates for political advantage impossible.
In New Zealand, there are serious gaps in the law when it comes to regulating political parties. One expert says our “disclosure regime was so riddled with loopholes as to operate on a virtually voluntary basis; any donor who wished to keep her or his identity secret could do so easily and completely legally.”
The rules are easy to evade. Limits on election expenses imposed by the law have defects as well. Yet those who decide on the content of the law are the MPs who have more direct interest in the issue than in almost every other matter they legislate on.
Transparency is urgently needed here. The law should require political parties to publicly report their membership numbers periodically so that the public can know how extensive their support is. It would also be transparent to require parties to report publicly on their finances, and these should be available for public inspection. Who donates to them and how much should be publicly reported annually. There is a strong case for changing the law so limits are placed on expenditure throughout the electoral cycle.
If remedial measures are not taken soon, it is likely that the financial elites with plenty of money will donate to political parties to secure the policies they want. That is how it works in the United States now. And it has begun to happen here.
The United States has made a radical change in recent years relating to campaign financing that threatens democracy. The 2010 decision of the Supreme Court of the United States Citizens United v Federal Election Commission is anchored in the idea that freedom of expression must be protected. It has been interpreted to allow corporations and wealthy individuals to spend unlimited amounts of money on election campaigns.
That is not the way to have a healthy democracy.
Civics
Long experience in public life in various positions has convinced me that New Zealanders lack knowledge about:
- how government works
- how policy is made
- how it is administered; and
- what weight is given to the views of people before decisions are made.
In a democracy this is dangerous. People do not know their rights, and they do not know how to defend them.
They do not know enough to participate effectively in the political system. Some of this failure lies in the education system.
Despite the fact that we now teach New Zealand history in the schools more adequately than in the past, there has been a long standing resistance to teaching civics because it means talking about politics.
In 2022, I co-authored a book with my grand-daughter Gwen Palmer Steeds, who was then a student at Victoria University and now a student at Oxford University, doing a degree on the sociology of the internet. The book published by Te Herenga Waka University Press is Democracy in Aotearoa New Zealand a Survival Guide.
It is written in simple language and goes through the basics, including articulating the perspective of young people. I urge you all to read it. Democracy is important. And it is fragile.
Democracy
Democracy itself, despite its protean quality, is under challenge in various parts of the world and has been for some years.
Rot and decay can easily set in and have done so in several countries. Even in democratic countries to which New Zealand has looked traditionally, namely the United Kingdom and the United States, commitment to robust democracy is starting to unravel.
Ample literature charts the crisis in which contemporary democracies now find themselves. A tendency toward authoritarianism is clearly discernible. Dissatisfaction has risen sharply since 2005. Meanwhile democracy is in retreat with the number of democracies declining.
A 2020 report produced by the Centre for the Future of Democracy at the University of Cambridge concluded: “We found that dissatisfaction with democracy has risen over time, and is reaching an all-time global high, in particular in developed democracies.”
It is important that New Zealand pays attention to the state of its democracy to There seems to be quite a widespread view that New Zealand is in a state of decline. Factors contributing to this include:
- the Covid-19 pandemic
- loss of faith and trust in government institutions
- the decline of democracies world-wide
- polarisation of political opinion & populism
- conspiracy theories based on fake news
- disinformation, lies and distribution through social media
- disaffection with government decisions and a feeling of being disconnected from government
- a trend to extreme policies that are not widely supported
- a sense in people that their quality of life is deteriorating and not enough is being done to halt the decline
- international tensions, conflicts and a break-down of the rules based on the system of international law and the authority of the United Nations.
Democracy is a complicated form of government.
No two democracies are the same. New Zealand has a particular form of democracy.
New Zealand does not have a direct democracy in which all people decide upon all policy decisions.
That is impractical and unrealistic.
We have a representative democracy.
We have general elections every three years.
A government is formed that has the confidence of the House of Representatives.
Those Cabinet ministers remain the government until the next general election, unless they lose the confidence of the House earlier.
In practice this means the people are not in charge, the MPs are.
How that works out in the New Zealand Parliament means that the public are often left out and the pressure groups have more influence than the public on some issues.
The existing system is looking tired and contains inadequate instruments to ensure public accountability.
Changes are needed.
Two useful ones would be:
1. Change the law to allow 16 year olds, to vote in all elections parliamentary and local. They have a great stake in decisions that affect their future and it would get them into the habit of following public affairs;
2. Change the law to allow for four-year parliamentary terms that would improve the quality of legislation as discussed in this paper by ensuring it is not so hurried as it is at present.
The New Zealand democracy is not producing governments that follow majority public opinion on important issues.
One is entitled to ask what happened to the common good that used to be the touchstone for policy issues.
Accountability occurs in various ways. For example, each minister has a responsibility to the House of Representatives by debate, parliamentary questions, and Select Committee examination of legislation and expenditure.
General elections are also an important element in accountability as they can result in wholesale change of the principal decision-makers.
But three-yearly elections are not proving an effective way of ensuring accountability for the myriad of policy decisions made by governments. This short election cycle exacerbates the tendency to ignore problems that will not germinate until after the expiration of three years. And so the present crowds out the future. Public opinion polling seems to increase this tendency.
New Zealand has political constitution with the result there is a great deal of adversarial politics in decision-making and too little to good governance.
The Proposed Fast-track Bill
For the past 45 years various governments have made repeated efforts to improve New Zealand’s resource management legislation, but these efforts have not succeeded.
The Fast-track Approvals Bill 2024 is the latest attempt, and it looks likely to end up being a Fast Track to nowhere unless drastic changes are made.
It would enable a fast-track decision-making process for infrastructure and development projects that are considered to have significant regional or national benefits.
And it removes a multitude of environmental safeguards including the environment court for fast-track projects.
To access the fast-track approvals process, project proponents need to apply to the joint ministers. A project would then be referred to an expert panel to assess the project and make a recommendation to the relevant ministers, who would then determine whether the approvals should be granted or declined. The Environment Court has been largely been written out of the process.
The environment is absent from the purpose of the legislation and the Minister for the Environment has little role to play, although for some projects the Minister of Conservation will be involved.
A troika of three ministers – the ministers of infrastructure, regional development and transport – make most of the decisions jointly. The range of projects that can be approved is wide and applies to a long list of statutes, many of which have deep environmental consequences, such as mining, the marine environment, the seabed, fishing, rivers, and some archaeological sites.
The whole programme up-ends the usual procedural protections of separating powers to protect important values within the system of government. Ministerial diktat is not democracy.
Ministers like to control things, but they are not omnipotent. They can cause law to be passed through Parliament, but they are not in charge of its interpretation; the courts are. This essential separation of powers is part of New Zealand’s fundamental democratic constitutional framework.
In New Zealand, law can be passed very quickly and often without proper scrutiny or examination. This is because the Executive, headed by Cabinet, is so dominant in the New Zealand system and the House of Representatives comparatively so weak. As I said, the system lacks sufficient checks and balances.
The number of submissions to the Select Committee on this Fast-track Bill has been enormous. The Committee planned to hear 1,100 submitters at 22 meetings over a period of six weeks. The hearings will involve a combination of the Committee meeting in full and breaking into two subcommittees.
The Select Committee received about 27,000 submissions. It is unlikely to be able to hear all those who wish to be heard.
The difficulty facing the Select Committee in carrying out adequate scrutiny is challenging in the extreme. It is likely to prove to be impossible to produce workable and coherent legislation that is acceptable. The basic constitutional rule in New Zealand is that the Executive is responsible to the Parliament and in this instance the weight of the accountability falls upon this Select Committee.
Surely the Government will be obliged to retreat from its draconian proposals. But will it retreat far enough?
The Prime Minister in our constitutional system is the ultimate guardian of the values of constitutional propriety. He needs to call for restraint here and search for some solid middle ground. Greater efforts must be made to develop inter-party consensus and secure a balanced approach. New Zealand’s environment is too valuable a resource to be put at risk in this way.
The fast-track legislation is an affront to New Zealand’s democratic checks and balances to ensure that governments do not abuse their power.
The whole process surrounding it is flawed and unacceptable. This is not the way the New Zealand political culture has functioned traditionally.
There is a better way.
Designing the law
Existing methods of designing legislation and passing it through Parliament need to be overhauled from first principles.
The methods by which the policy becomes law should be completely revised. Essentially we are still using a model that began in the 1860s and, while it has changed somewhat since, it is a process that takes part largely in secret within the Executive government and becomes public when introduced by a Minister in the House of Representatives for scrutiny and public submission. This is not a transparent process. It needs to be made transparent.
A Bill must be carefully designed by the Executive and drafted by Parliamentary Counsel. It is impossible to know how policy proposals will work out unless the they are professionally drafted.in a Bill. Then the Bill should be published and tabled in Parliament, but it should not go through the legislative process in Parliament until there has been a full opportunity for public submissions on it.
The submissions should then be analysed by the Clerk’s Office and the results published before a revised Bill is introduced, as agreed by Cabinet after taking into account the public submissions. Then the Bill should be introduced to travel through a Select Committee process and two more readings.
Such a process would ensure more enduring law and the public consultation would show where the weaknesses are.
I found as President of the Law Commission that systematic consultation with the public can assist greatly in designing acceptable proposals; alcohol law was the best example. The Law Commission’s methods of doing research on the reference topic, publishing an issues paper and taking submissions is greatly superior to anything done within the executive government.
All major legislative proposals should be dealt with in that way.
Enduring law requires bipartisan agreement. The New Zealand pattern of junking enormous law and expensive efforts to repair the law must stop. Do it once in a publicly developed and phased programme over the life of several parliaments and do it right. New Zealand has been wasting big sums of money and strenuous efforts by officials in developing ambitious schemes, but there is never an acceptable level of agreement in the Parliament to make the law enduring.
The MPs need to do better.
Reform of Parliament
The way we do politics in this country needs to change. Our central democratic institution, Parliament, needs to adopt more modern methods of the digital age to engage better with the public.
Since the litany of problems that have occurred recently, a sense of uncertainty and worry has taken hold. These threaten the nation’s sense of social cohesion, people’s confidence in the institutions of government and the ways in which government engages with the people.
The cumulative pressures upon the systems of government recently have been considerable and have challenged the capacity of both central government and local governments to make policies and deliver them in a timely fashion. Too many issues have needed urgent attention, and the system has become overloaded.
The vast extent of the New Zealand government and its various agencies mean that MPs are overworked and barely scratch the surface of important issues on some occasions.
Yet the New Zealand House of Representatives sits far less than the House of Commons in England.
The new emphasis must be on improved scrutiny and less executive power. That would make the system more responsive to majority public opinion and produce more acceptable outcomes.
A start has been made to do scrutiny better this very month ,although the first Scrutiny Week seemed more party political oriented than conducting real scrutiny into policy weaknesses.
In New Zealand there are too many ministers and not enough MPs to do the scrutiny work. There needs to be more MPs.
To enhance scrutiny of government Bills by select committees, the proposed new procedure should be adopted for major pieces of legislation subject to public consultation. Hearings of evidence on major policy measures should be conducted in the Legislative Council Chamber in Parliament and televised. More MPs should be these major Select Committees.
That way, public views would be properly aired after the systematic consultation that preceded it, before a Bill was introduced for action by the legislative process.
In this way, the public would be more influential on policy decisions and act as a barrier to pressure group activity. The people will have real policy influence.
Citizen Engagement
Another element to reform Parliament would to introduce modern models of citizen engagement that allow the House to connect effectively with public opinion on specific issues.
Ireland and Iceland have pioneered effective models for accomplishing this. It has the advantage of increasing the legitimacy of parliamentary deliberations and allowing it to plumb opinion more precisely.
There also needs to be greater transparency and more openness of official information.
Official Information & Transparency
A famous American judge, Louis Brandeis, once said, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants, electric light the most efficient policeman.”
That is why we have an Official Information Act and have done so since 1982. New Zealand was an early adopter of freedom of access to government information.
While it was a positive contribution to transparency, there are serious problems with it now and reluctance by ministers of both main parties to do anything significant about it. And the application of the Act to some centres of public power is lacking.
Various reports have been produced over the years proposing changes, but very few have been made. Two studies by the Law Commission with recommendations for change have been published, but they have not been acted upon. The second Law Commission report in 2012 made 137 recommendations. It recommended that the Act cover the Parliamentary Counsel Office, the Office of the Clerk of the House, the Parliamentary Service and the Speaker. These recommendations were all rejected.
Since then there have been occasional efforts by ministers to suggest they will take up the issue again, but nothing has happened of any significance. The inevitable conclusion is that ministers do not like the Act, and they give little priority to changing it. The issue needs to be taken seriously or trust will be further eroded in a system that purports to be open but in practice contains blemishes and weaknesses.
A new Act should be drafted, and a new independent information authority should be set up to restructure the administration of the Act, with the aim of improving transparency. The Authority should have the power to decide upon disputes about release, and those decisions should be binding, which means dealing with such disputes is not an appropriate role for the Ombudsman. A whole new Act will enable the original aims of the reform to be achieved. Successive governments have resisted efforts to improve the Act. Yet a strengthened Act would increase protection against corruption and questionable decision-making.
One other point. There should be a public register of lobbyists in the interests of transparency, and the prevention of corruption.
Conclusion
These techniques offer the possibility of increasing public participation in decision-making and in democracy. Some of this has occurred in New Zealand at the local government levels but so far Parliament itself has not considered such techniques. There is a full scholarly literature on how to do this and how to further advance the idea of deliberative democracy. The New Zealand Parliament should consider these methods and explore their application here.
As one of the world’s oldest and most successful democracies, New Zealand should be careful to reinforce its faith in democracy and ensure that our democracy continues to be robust and inclusive.
I hope you agree. And I hope you will continue to fight the good fight.
A fascinating speech by Sir Geoffrey. He argues that in the New Zealand government,
1. The Executive is too big and powerful, with too many Ministers, out of proportion to the size of Parliament;
2. Parliament is too small, with too few MPs to provide proper scrutiny of the Executive;
3. The disclosure regime for funding political parties and for lobbyists is too weak;
4. Pressure groups have more influence than the public on some issues;
5. There is too much adversarial politics and too little good governance aimed at serving ‘the public good.’
He recommends that
1. The Executive should be smaller and Parliament larger, with four year terms of office;
2. Bills should be professionally drafted and properly scrutinised by the public before being put to Parliament;
3. Bi-partisan agreement should be sought on matters of national importance for enduring laws;
4. The Official Information Act should also apply to the Parliamentary service, with an official register of lobbyists; and
5. Contemporary models of citizen engagement should be introduced (as in Ireland and Iceland.)
Out of curiosity, I looked at governance in Finland, which consistently tops the global ‘happiness index’ for its citizens. It seems to bear out Sir Geoffrey’s points.
Finland has 5.5 million people, compared with New Zealand’s 5.1 million. For roughly the same size of population:
Finland has 19 ministers in charge of 12 ministries, and 200 MPs, with four year terms of office.
New Zealand has 28 ministers in charge of 32 government agencies, and 123 MPs, with three year terms of office.
Compared with New Zealand, then, Finland has a significantly smaller executive, with almost three times fewer government ministries / departments; and a much larger Parliament, serving roughly the same number of citizens.
Out of interest, the Ministries in Finland are the Prime Minister’s Office, Ministry for Foreign Affairs, Ministry of Justice, Ministry of the Interior, Ministry of Defence, Ministry of Finance, Ministry of Education and Culture, Ministry of Agriculture and Forestry, Ministry of Transport and Communications, Ministry of Employment and the Economy, Ministry of Social Affairs and Health and the Ministry of the Environment.
Sounds pretty sensible to me.
In Finland, Ministers may not be MPs, and may not represent any political party. Elections are based on proportional representation for multi-member districts, with four-year terms of office. Clearly Sir Geoffrey is right, and there are many different models for a healthy democracy.
I agree that New Zealand’s democracy is increasingly dysfunctional, and urgent changes are needed. Politicians seem unlikely to constrain their own powers and privileges, however. Time for a citizen’s assembly on ‘The Future of Democracy in New Zealand’??
‘I agree that New Zealand’s democracy is increasingly dysfunctional, and urgent changes are needed. Politicians seem unlikely to constrain their own powers and privileges, however. Time for a citizen’s assembly on ‘The Future of Democracy in New Zealand’??’
What is clear is that there are now some highly regarded citizens making calls for change. How is a citizen’s assembly set up?
There are two areas that Sir Geoffrey has not touched on that may well improve the process. The first is a second house. Effectively, NZ borders on an elected dictatorship whenever there is an absolute majority in the House. A second house adds a democratic check on the power of the executive. The other issue we could well consider is a “Corruption and Crime commission” after the Australian model and with similar powers to investigate and charge civil servants including sitting MP’s. The idea that NZ has escaped corruption is a myth. It is estimated that each year about $1.35 billion from the proceeds of fraud and illegal drugs is laundered through everyday New Zealand businesses, according to justice.govt.nz. That does not happen without NZ’ders being involved.
“A second house adds a democratic check on the power of the executive.”
—
Surely worth thinking about.
Sir Geoffrey has made some excellent points. Too much power is now in the hands of a few with too little scrutiny of legislation through limited transparency of process and public engagement. I am aware of select committee’s in the past making the opportunity to make submissions so tight it was impossible for organisations to present properly consulted and considered comment. Often submissions appear to be viewed in a very binary way of support or otherwise, with little consideration of potential useful content.
While many get frustrated by slow processes, fast tracking bills and operational decisions, without wide engagement, historically produces flawed outcomes.
I do wonder if increasing the voting threshold for bills to 55 to 60% that the need to get cross-party support will shift the very partisan culture we have to one where electorate MPs especially would be encouraged to consult their electorates more and vote on the actual merits of the bill.
Great layman intro, but you forgot to explain how the line is drawn between Ministers inside Cabinet and Ministers outside cabinet. Is that just the PMs call?
Labour struggled to manage the portfolios with their Cabinet talent. Are we sure going from 30 to just 20, and leaving a whole lot of Government backbenchers not doing much, is the best idea?
“Despite the fact that we now teach New Zealand history in the schools more adequately than in the past” – this is highly debated, and the Coalition are planning changes to correct the biased teaching of history in our schools.
“disinformation, lies and distribution through social media” fails to mention the mis/dis/malinformation that has come out of Government. Commentators keep wanting to turn a blind eye to this.
Sir Geoffrey raises some good points, but his two listed changes below are bizarre. Neither of them relate to the issues he’s raised, and neither will resolve them either.
“1. Change the law to allow 16 year olds, to vote in all elections parliamentary and local. They have a great stake in decisions that affect their future and it would get them into the habit of following public affairs;
2. Change the law to allow for four-year parliamentary terms that would improve the quality of legislation as discussed in this paper by ensuring it is not so hurried as it is at present.”
The biggest issue we have is that MMP allows smaller parties power beyond their popularity, including the ability to Crown the runners up as the winners.
Then there is the arbitrary 5% threshold.
He is right that select-committees are basically just rubber stampers. The Water Services Entity Bill had 99.0% of written submissions (85,584) oppose it, yet the Government of the day still let it through.
Given that 14 year olds will now be able to be arrested without a warrant (!) – they absolutely need to be able to vote when they turn 16.
Agree. Also as a past political candidate the most engaged meetings and the most informed questions came from senior secondary school students.
1. 16 year old brains aren’t mature enough to make smart political decisions, Kathleen.
2. Their world experience is also far too narrow to grasp the issues facing the country.
3. 80% of Kiwis don’t want the voting age lowered. https://thefacts.nz/all/voting-age/
So, countries such as Austria, Argentina, Brazil and Ecuador (and others) all have it wrong… Even Estonia, to which the present PM suggested we should aspire, has 16 as voting age in some local elections, as does Germany. In Hungary it is 16 if the person is married, for some reason, and in Slovenia, if the person is employed. In Greece it is 17. None of those countries seem to have suffered any great disasters as a result. Our own country, arguably, is in worse shape in a number of ways.
Fantastic article. I know of no one, irrespective of political persuasion, who isn’t alarmed by the speed and apparent single-mindedness of the new government. If this is New Zealand democracy then something is wrong.
Sir Geoffrey’s wisdom, knowledge of Parliament, and the executive are worth heeding.
It seems that ACT and NZ First did not get many votes in the election but to enable National to be in Power, they were both needed to be part of a ‘coalition’, why have they both ended up having the loudest voices? And can someone please explain the role of Crown Law???
Whatever our politics, whatever party we support we would be remiss to not listen to such a seasoned and experienced, as well as academically qualified, person as Geoffrey Palmer. Especially given the extremists in the current government who seem to have the power and who flip and flop on a whim that they perceive will buy votes.
Much more stability is needed in government, as we now lurch heavily to the right in a rough sea (- it is a bit like a rough Cook Strait crossing on the old ferries that they refuse to upgrade, in spite of all advice, simply because the course they are navigating is based on some spurious belief rather than factual study.)
More of them? @#$% No!
A leaf from business excellence:
Use small teams of people with the right skills, empowered to the lowest possible level.
Small, well funded groups of professional managers for each area of central government working within broad high level mandates set by the people and firmed at a constitutional level. More long term. Less short term. And definitely less short term popular politics.
At local level provide ring fenced proportion of taxation to empowered local government as happens overseas.
The people need to focus on what high level mandate, governance objectives we want – embodied in a constitituion and leave professional managers and a well funded capable public service to execute most of it.