Reform

A Memoir

Geoffrey Palmer

• Publisher: Victoria University Press
• Year: 2014
• ISBN:
  9780864739605
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Biographies
• Index: Politics & International Relations

Politician and law professor Geoffrey Palmer recounts the events and forces that shaped him in this memoir, as well as his many adventures in reforming a wide range of institutions, laws, and policies. Reform has been a recurring theme throughout Geoffrey Palmer's life, not only during his career in politics and as a Prime Minister, but also as a law professor and law practitioner. He speaks of his early life and family background and the eventful lives of his pioneering ancestors. He examines the intellectual influences on his thinking, particularly the nature of his education both in New Zealand and the United States, and chronicles his life according to the issues: accident compensation, the Constitution, the Bill of Rights, the Law Commission, liquor law, Maori issues, parliamentary reform, the Resource Management Act, law and order, prisons, and local government reform. Meticulously detailed and engagingly written, Reform is essential reading for anyone interested in New Zealand legal and political history.

1

SETTING THE SCENE

The purpose of this chapter is to try to explain why I decided to write a memoir. There is a presumption involved in writing such a book that the author has something worthwhile to say in which other people will be interested. I am far from confident that this is the case. I wrote the book because it is interesting to me, and in one sense I have been writing it all my life. What I want to do in this work is to make intelligible to myself, and perhaps to others, the times I lived through and the things that seemed important to me. The book records my intellectual history, with some attempt to isolate the influences upon it. Most of my published papers and chapters in books are available to read online through the Social Science Research Network (ssrn.com) and can be searched for on that site under my name.

The book is a memoir, not a work of scholarship. I have tried to make the contents accessible to the general reader. Nevertheless, after a certain amount of experimentation, I have decided that some references are necessary and that the best way to present them is by having footnotes on the same page, following the conventions of legal scholarship. If footnotes are used exhaustively they become oppressive to the reader, and I decided to be spare with them, but in some chapters, where the argumentation is more analytical, I have used footnotes more liberally.

The demands of the memoir genre are minimal. That is just as well, because this book changes gear on several occasions. As I have progressed through the writing I have found that issues with which I dealt years ago are not over; they are never over and they repeat ever onward. In policy there are no final victories, any more than there are in politics. I realised in the later chapters that I was laying down agendas for reform all over again and writing essays on why they should be taken up. So I provide a gentle warning to all policy wonks, a species dangerously near extinction in New Zealand, ‘It ain’t over till it’s over’, as the famous American baseball player Yogi Berra said, to which it might be added, ‘and even then it ain’t over’.

Although I had a political career and became Prime Minister without wanting to be, politics is not the most important part of my life. In fact I have also had almost equally long periods as an academic lawyer and a practising lawyer. In all three activities I have done more or less the same thing: I have tried to reform things, to change how things were and to make them better. Often this is a futile hope. There is also a touch of arrogance about it. Who am I to think that the world should be changed? Reform becomes a habit, even a way of life.

When I left school it was my ambition to be a lawyer in Nelson, and it was a goal I never achieved. Two things prevented it. The first was that after I finished university in New Zealand, I won a scholarship to study overseas in 1966; and the second was that shortly after my return to New Zealand in 1968 I became involved in the move to reform New Zealand’s tort law that led to the New Zealand White Paper on Accident Compensation in 1969 and eventually to the Accident Compensation scheme. My involvement resulted from a serendipitous meeting with Mr Justice Woodhouse when I was studying at the University of Chicago and he was visiting with his Royal Commission to consult with professors there. The Judge has been a dominant feature of my professional life ever since and became my guide and mentor. Later, he summoned me from the University of Virginia where I was teaching in 1973 to go to Australia to work on reform of accident compensation law there. Neither before nor since have I seen anything quite as exciting as the Whitlam administration in Australia up close.

After experiencing the intricacies of law reform in New Zealand and providing much advice to members of the Whitlam government, I became convinced that it was better to be a minister than a minister’s adviser. That way, my advice could not be rejected. So it was by remorseless forces that I was led into politics. Had I known what a long and painful march it is to become a minister and how precarious life is at the top of politics, I wonder if I would have embarked upon it. Being a lawyer is a much more comfortable life. In that role one can be a privileged observer and adviser, but the downside of that for me is that one can never be a person who decides things and changes them.

There is a further point. Had I not come back to this part of the world in 1973 I very likely would have wanted to stay within the American legal academy. Teaching in an American law school is as close to an aristocratic lifestyle as can be lived in these times. It is exceedingly well paid, so as to compete with the remuneration of lawyers outside the university. The teaching load is six hours a week. The pressure to produce published research is high, but one can write about what one chooses. For three months of the year a law professor in the United States can travel, practise law, or do anything else he or she wishes. The dean supplies research assistants, and money for research is relatively easy to come by. I found it an exciting and almost intoxicating environment. I renewed my connections with it when I left politics and it was as exciting as ever, even though the United States itself seems currently to be in a crisis of confidence about itself and to have descended into a style of toxic politics that makes it impossible to find, let alone implement, the public interest. The New Zealand legal academy is worthy and workmanlike, but it does not soar with ideas in the way that the United States, with its two hundred law schools, does. The irony is that the ideas generated in the United States can hardly ever be implemented by legislation, whereas in New Zealand we can legislate relatively easily but do not devote enough resources to researching what it is we ought to be doing or how we should go about doing it.

Being a member of Parliament is, among other things, a superb and rich education in the social landscape and human qualities of one’s country. No one else secures the picture of New Zealand society that MPs have. They must mix with it at every level and in so many ways. They know about its workplaces and its prisons, its schools and the plight of the poor, its triumphs and its tragedies: they see it all. The pressures of democracy reflect in the unending stream of constituency work, which shows where the shoe of government policy pinches upon the lives of people.

The life of a minister of the Crown is very different. Cabinet is the cockpit of government; the power is substantial, but so are the pressures. For a person like me, a constitutional lawyer, to be in these processes was a subject of endless fascination, and that interest remains. As a minister in command of many of the legal reins of power – Attorney-General, Minister of Justice, Leader of the House and Deputy Prime Minister – there was much to be achieved and many reforms were undertaken: the Bill of Rights, the Law Commission, the Constitution Act, changing the place of the Treaty of Waitangi and many others. In my view becoming Prime Minister actually reduced the power I had and forced me to concentrate on other things. Being Minister for the Environment was an experience that turned me into an ardent environmentalist with a long-term interest in the law relating to international environmental problems, upon which I have published extensively in the United States and in which I still teach a course at the Victoria University of Wellington Law Faculty.

In 1994 Mai Chen and I began New Zealand’s first law firm specialising in public law. It was an enterprise built on an intellectual vision that we had developed while teaching public law at Victoria University. It filled an unmet legal need in New Zealand, and it flourished. It was an exhilarating experience to pioneer a new legal approach in New Zealand, although the approach was built on United States jurisprudence and practices. The firm was so successful that it brought other aspects of life to a halt and consumed all the time we had. We achieved many spectacular things, including significant dollops of law reform. But in the end I yearned for the wider vistas of public policy in the public sector and became president of the Law Commission in 2005. Having created that body when Minister of Justice, I thought I knew how to run it and I was given a free hand by the Clark government to do so. Reforming the alcohol law was a highlight, but there were many other areas of great interest such as war pensions, privacy and sedition. We even became immersed in the great smacking debate and many other aspects of the criminal law that have sadly become such a social battleground in New Zealand.

When I was approached to chair the United Nations Inquiry on the Gaza Flotilla, my mentor Sir Owen Woodhouse advised against it. But I took up the opportunity because I thought it was important to try and bring some soothing balm to the Middle East. It was a fascinating experience and the most difficult of my career. I have had a role in a number of international disputes that New Zealand has been engaged with: as an ad hoc Judge in the Nuclear Tests Case that New Zealand resumed at the International Court of Justice in 1995, in the ANZUS dispute with the United States over the Fourth Labour Government’s anti-nuclear policy, with the Rainbow Warrior affair, and in efforts I made to try to bring peace at the International Whaling Commission, where I was New Zealand’s commissioner for eight years.

Since leaving the Law Commission I have practised law as a silk in Harbour Chambers and taught at the Victoria University law school as a Distinguished Fellow. I am also part of the Centre for Public Law. My most recent reform adventure has been chairing a panel upon the reform of local government in the Greater Wellington area.

All these adventures are chronicled in this book. Many of them occurred long ago. Some are quite recent. But through all of them I am intent upon drawing a consistent thread of reform.

Reform is a controversial topic. Much political and public discourse revolves around whether things should be changed, and if so, how. For some, reform is a road to ruin.¹ Things are bad enough and anything that is done is likely to make them worse. For others, reform is a beacon of hope for a better life. Many reforms for which disaster is confidently predicted turn out to be the new and accepted orthodoxy. The abolition of slavery, the introduction of the secret ballot in parliamentary elections, and the outlawing of spring-guns and mantraps in England in 1861 are just a few of the changes for which doom and perdition were predicted but that are now accepted, at least in most countries.

Section 202(1) of the Crimes Act 1961 enacted what had been the law in New Zealand for many years before that:

Every one is liable to imprisonment for a term not exceeding 5 years who, with intent to injure, or with reckless disregard for the safety of others, sets or places or causes to be set or placed any trap or device that is likely to injure any person.

Imagine my surprise when I arrived in the state of Iowa as a young man teaching the law of torts at the University of Iowa and became engaged in a controversy in which it was argued that spring-guns and mantraps were efficient law-enforcement devices and should be permitted. They were not prohibited by the criminal law of the state. I found that idea repugnant and an affront to what Sonny Ramphal has called ‘inseparable humanity’.² I said so in a law review article that gained a certain degree of attention in the United States.³

The clash of values involved in this controversy is the type of issue that has always made me curious and desirous of further inquiry. The march towards civilisation is long and arduous, and it involves in the end an absence of violence and a state of peace and good order. Many countries are not as fortunate as New Zealand, where we live for the most part in a state of quiescence and quiet enjoyment of our beautiful country. I have been endlessly fascinated by the ways in which society makes its decisions and how they turn out, and I have been incredibly lucky to be involved in many wonderful legal and policy reform adventures.

When I started to write, I set out to trace the intellectual influences that have guided my thinking and shaped quite a few outcomes. We are all the products of our genes and our environment, and I became interested in finding out why my great-grandparents came to New Zealand and what sort of life they had here. I was able to discover a lot of information and much of it was very surprising to me; it is possible others will find it of interest too. In the course of this discovery I was also aware that the law played a major role in colonial New Zealand and that the courts were the most visible and effective sign of governance.

While this is not an academic work, it does set up the context in which ideas drive actions. This is the reason why the book stresses and tries to analyse the education I was fortunate to enjoy and the reading that influenced my thinking. At the beginning the study of political philosophy was a bigger influence upon me than the law itself. The pervasive effects of ideas as the mainspring of social action seem to me to be dominant even in a country as pragmatic and anti-intellectual as New Zealand. Law can be narrow and pedantic if you let it be. I feel sorry for the lawyers who never see, or if they do see never appreciate, the wider vistas of policy that lie behind the law, beckoning like sentinels. Law, politics and policy are all bound up in one indissoluble union, or so it seems to me.

I have never seen law in the way most lawyers see it and I have never understood politics in the way most of its practitioners think of it. As an MP, as a lawyer, as a law professor and as president of the Law Commission I have always marched to the beat of the same drum. How can we change things to make them better? That is why this memoir is named ‘Reform’. How to make a better society and a better world are issues at the heart of what government is about. Sometimes it seems that we are less interested in those issues in New Zealand than we used to be. The civic values inculcated into me by my education were tolerance, freedom and fairness. I believe in them still and their expression in the liberal democratic state.

Of course, not all change is the result of conscious reform efforts. Much of it takes place as society evolves, technological innovations occur, social attitudes change, disast...

Table of contents

• Cover Page
• Title Page
• Copyright
• 1. Setting the Scene
• 2. In Search of My Great-Grandparents
• 3. A Nelson Education
• 4. A Place of Light, Liberty and Learning
• 5. A Legal Apprenticeship
• 6. Chicago and OE
• 7. In the Groves of Academe
• 8. Big Change, Exciting Adventures: Accident Compensation
• 9. Bitten by the Bug: Going into Politics
• 10. The Glittering Prize of a Safe Seat
• 11. The Duty of an Opposition is to Oppose
• 12. First Law Officer of the Crown
• 13. Prisons, Courts and Justice
• 14. New Zealand’s Unique and Odd Constitution Needs Change
• 15. All Power is a Trust: Reforming Parliament
• 16. Māori, the Treaty and the Constitution
• 17. Going Green
• 18. The Fine Art of Diplomacy
• 19. The Anti-Nuclear Policy: New Zealand Makes Waves
• 20. In the Cockpit of Government
• 21. The Power of Free Speech
• 22. Public Law: A New Legal Cookbook
• 23. The Law Commission: A Royal Commission in Continuous Session
• 24. Reforming Alcohol Law: Too Much Liquor in Our Lives
• 25. The International Whaling Commission – Diplomatic Agony
• 26. The Gaza Flotilla Inquiry: Keep Calm and Carry On
• 27. Local Government Reform: There is no Sound so Sweet as the Squeak of the Parish Pump
• 28. Reform, Governance and the Future
• 29. Some Lighter Moments
• 30. Epilogue
• Acknowledgements
• Abbreviations
• Index