Which Sort of People? Liberal versus Populist Democracy.

With The Stroke Of A Pen: Populism, especially right-wing populism, invests all the power of an electoral/parliamentary majority in a single political leader because it no longer trusts the bona fides of the sprawling political class among whom power is traditionally dispersed. Populism eschews traditional politics, because, among populists, traditional politics is perceived as the problem – not the solution.

SIR GEOFFREY PALMER is worried about democracy. In his Newsroom website post of 27 January 2025 he asserts that “the future of democracy across the world now seems to be in question.” Following a year of important electoral contests across the world, culminating in Donald Trump’s emphatic recapture of the United States presidency on 5 November 2024, Palmer’s assertion is, on its face, a curious one.

Ordinary citizens around the world celebrated – and continue to celebrate – Trump’s victory, interpreting it as a political, economic, and cultural triumph for men and women like themselves: the poorly housed, poorly paid, poorly educated, and poorly treated people of the planet. In their eyes, at least, 2024 ended on a high democratic note, and 2025 has begun with their billionaire champion making it plain, through scores of Executive Orders, that his “promises made, promises kept” commitment was more than Election Night rhetoric.

Palmer’s personal and political distaste for Trump emerges unmistakably in his post. Certainly, the list of the 47th US President’s faults and flaws is a long one. It is, however, difficult to see how Trump could have succeeded without them. A candidate who conformed to the accepted rules of the political game, and comported himself as a reasonable and responsible member of the political class, would never have placed himself at the head of an angry populist revolt.

Trump’s faults and flaws, his dishonesty and bombast, signalled to those whose votes he was soliciting that although he was richer than they were, he wasn’t better than they were. For Palmer, such ethical insouciance is an affront to what the former prime minister and law professor is pleased to call “liberal democracy”.

Liberal democrats (not to be confused with liberal Democrats!) do not expect those elected to represent the people, to be representative of the people. If that was the case, then elections would not be needed to fill the legislature. One-hundred-and-twenty citizens could simply be chosen at random – like jurors – to make the nation’s laws. Except, without the guidance and discipline imposed by political parties, such a random collection of citizens – most of them strangers to higher education – would, according to liberal democrats, be wholly unequal to the challenges of governing a modern state.

To fill the House of Representatives with MPs capable of dealing with the complexities of contemporary government a properly functioning party system is deemed to be essential. Without one, the task of identifying those with the qualifications and temperament necessary to keep the economic and social system functioning smoothly would be much more difficult. By acculturating their members to the generally agreed principles and processes of good governance[1], liberal-democratic political parties are able to reduce dramatically the chances of the ‘wrong sort of people’ finding themselves in a position to write the nation’s laws.

Unsurprisingly, liberal democracy produces Members of Parliament who are, in large measure, temperamentally and ideologically interchangeable. The overwhelming majority of MPs adhere to the conventional economic wisdom, limiting policy differences between the dominant political parties to matters of emphasis and degree – mostly by avoiding any policy requiring fundamental changes to the status quo.

There are political moments, however, when, as Palmer knows well, conventional economic wisdom is stood on its head and fundamental changes are deemed unavoidable. In 1984, as Prime Minister David Lange’s deputy, Palmer played a crucial role in ensuring that the Labour Party’s sudden abandonment of the Keynesian economic policies that had guided its own, and the National Party’s, management of New Zealand’s economy since the end of the Second World War, was accepted and endorsed by Labour’s parliamentary caucus.

That the impetus for the policy revolution known as “Rogernomics” came from the Reserve Bank and Treasury, and had been stoutly resisted for many years by the National Party Prime Minister, Rob Muldoon, who had just been voted out of office, undoubtedly made Palmer’s job easier. This is simply the way the world is going, he reassured his colleagues, and there is no viable alternative. National’s conversion to the new economic wisdom took a little longer, but by 1990 all but a handful of members of the House of Representatives were singing obediently from the same neoliberal song-sheet.

Liberal democracy, while hostile to popular political pressures bubbling-up from below, will countenance all kinds of fundamental changes without demur – providing they are initiated from above, and can count on the active support of the business community and the mainstream news media. Palmer’s hostility towards Trump, and his obvious fear of Trumpism, stems from his conviction that the fundamental changes Trump is promoting are the wrong sort of changes, and that they are being pursued on behalf of the wrong sort of people.

This is the crux of the matter: that liberal democracy, far from enacting the will of the people, is dedicated instead to enacting the will of the right sort of people. The populist impulse, which Trump embodies, arises when the wrong sort of people are finally convinced that their urgent concerns and fundamental interests form no part of the liberal-democratic agenda – and never will.

This is why successful populist politicians, like Trump, care so little about the rules of the political game. It is why they are so willing to break them. With every lie, with every affront to the ‘proper’ way of conducting politics, the populist leader proves to his supporters that he is one of them, not one of “them” – the despised “elites”.

Populism, especially right-wing populism, invests all the power of an electoral/parliamentary majority in a single political leader because it no longer trusts the bona fides of the sprawling political class among whom power is traditionally dispersed. Populism eschews traditional politics, because, among populists, traditional politics is perceived as the problem – not the solution.

A populist political party does not exist to facilitate the smooth functioning of the system, or to manage carefully the inevitable debates concerning the system’s character and purpose, it exists solely to execute the will of its leader. Only the leader has divined and won the people’s will and confidence. Only the leader can be trusted to give them what they want – which is, usually, to blow the system up. Accordingly, in a populist party, the supreme virtue is loyalty. Without loyalty, unity is unachievable. Without unity, the leader lacks the strength to blow anything up, and traditional politics reasserts itself.

Liberal democrats hostility towards the populist form of democracy arises from their visceral fear of any determined majority that has achieved even a small measure of self-awareness. They are terrified that, like the cyborg in The Terminator, a politically mobilised majority can’t be bargained with, or reasoned with; that it doesn’t feel pity, or remorse, or fear; and that it absolutely will not stop – until the system has been purged of its poisons and, to borrow the Trumpists’ favourite tagline, made great again.

Such a majority will, indeed, act tyrannically. If it behaves in any other way, its goals are unlikely to be achieved. In fine Hobbesian style, the successful populist movement seeks to infuse its collective strength into the sinews of an irresistible political Leviathan, point him in the direction of its foes – and let him go to work.

Obviously, it’s a great deal safer to be behind him than in front of him.


[1] The use of the word governance – as opposed to “government” – by liberal democrats is deliberate. It denotes not decisive power, but rational administrative process. Governance is what happens when the possibility of radical – i.e. system-threatening – change has been taken off the table.

This essay was originally posted on The Democracy Project website on Thursday, 30 January 2025.

Wooing The Masses – A Green Fairy Tale?

Downloading The Deplorables: What Chloe Swarbrick is proposing to her Green comrades is a mass movement, but mass movements are driven by the interests of dominant majorities, not elites, and certainly not by the agendas of ethnic and sexual minorities. Working-class people, poorly-educated people, heterosexual people, Pakeha people: these are the New Zealanders the Greens will be required to accept on their own terms – which are most unlikely to line up with their elitist, anti-democratic, identity-driven political ideology.

CHLOE SWARBRICK has embarked on a brave, but almost certainly doomed, political experiment. She has set out to build a mass movement on the foundations of a political party that rejects majoritarian decision-making, and which, by elevating the particular above the universal, makes the social solidarity that fuels mass action impossibly difficult to achieve. If the transformational movement Swarbrick is hoping to build is ever to eventuate, then she will have to fundamentally remake her party.

Perhaps the best way to illustrate the difficulty of the task Swarbrick has set herself is to reverse-engineer the salutary fate of the Auckland chapter of School Strike 4 Climate. This was the organisation, composed mainly of conscientized middle-class secondary-school students, widely credited with mobilising upwards of 50,000 young Aucklanders for the struggle against global warming back in 2019.

Central to the success of School Strike 4 Climate was its correct assumption that mass support for their cause already existed among those aged 15-20 years, and that to mobilise that support all they needed to do was organise a time and place for them to demonstrate it. The leadership of School Strike 4 Climate was largely self-selected, but the organs of organisation they conjured into existence were open to all. The kids who produced one of the largest political demonstrations in Auckland’s history did not ask permission before proceeding. Instead, they took the advice of the Nike Corporation and Greta Thunberg – and just did it.

And what a price they paid for having the temerity to organise a successful political event without first proving themselves fit “allies” for the victims of white supremacy, colonial subordination and heteronormative oppression. In the months and years that followed School Strike 4 Climate’s 2019 success, its organisers and participants were systematically “re-educated” to the point where their casual exercise of white privilege “persuaded” them to disband their organisation and withdraw into silence. In a statement released in June 2021, Auckland School Strike 4 Climate, declared itself to be “a racist organisation”. Henceforth, the fight against global warming would be led by their systemically victimised comrades.

But, if School Strike 4 Climate’s fate was to start huge and be made small, Swarbrick’s problem is how to take an organisation whose political mechanisms are designed to keep it small, and make it huge.

The Greens insistence on consensus-based decision-making, or, failing that, requiring the support of 75 percent of those responsible for making decisions, is driven by a profoundly elitist approach to politics. Those who framed the constitutional arrangements of the Green Party of Aotearoa were mistrustful of majorities and the political behaviour best suited to generating them. They did not want demagogues, they wanted philosopher kings and queens – men and women whose demonstrable wisdom counted for more than their ability to sway a conference of delegates. Investing these wise elders, and their tight circle of supporters, with veto powers was considered preferable to allowing 51 percent of Greens to overrule the preferences of the remaining 49 percent.

The problem with this constitutional structure is that it not only empowers those gathered around the revered philosopher king and/or queen, but also every other minority with the political smarts to throw a spanner in the decision-making works until its own agenda items are ticked-off. Constitutionally and politically, the Greens could hardly be better suited to advancing the cause of “Identity Politics” which, almost by definition, is hostile to the claims of dominant majorities. So much so that any Green politician demonstrating an ability to enthuse, galvanise, and (most alarmingly) mobilise large numbers of people is bound to attract the suspicion, even the outright enmity, of those whose interests would be compromised by an influx of members advancing policies believed to represent the greatest good for the greatest number.

In her speech to the Greens’ AGM in Christchurch (27-28 July 2024) Swarbrick challenged her audience with what, in the context of Green politics, is a deeply subversive question:

“What would it mean to build the biggest Green movement that the world has ever seen? For me, that’s not just about more seats in Parliament. It’s actually not even just about holding the Government benches. It’s about a country of citizens equipped with the understanding and the time and the resources to actively participate in our democracy. To hold those who make decisions on their behalf accountable. Even and especially if that’s us. It’s tens of thousands more Green Party members – people choosing to wear their hearts and values on their sleeves, organising and practising those values to win transformative change. From our neighbourhood corners to the very fabric of our state, in record numbers. Those people can and must come from all kinds of different backgrounds and walks of life.”

What Swarbrick is proposing here is a very big tent indeed – one stretching sufficient canvass to cover the sort of numbers needed to transform societies, and rescue planets. But such a big tent – “the biggest Green movement that the world has ever seen” – could not possibly endure for more than a few months under the present Green constitution.

What Swarbrick is demanding of her Green comrades is a mass movement, and mass movements are driven by the interests of dominant majorities, not elites, and certainly not by the agendas of ethnic and sexual minorities hostile to people who “come from all kinds of different backgrounds and walks of life” – most of them radically at odds with their own. Working-class people, poorly-educated people, heterosexual people, Pakeha people: people the Greens will have to accept on their own terms – and whom they must on no account attempt to convert to their elitist, anti-democratic, identity politics.

It is unclear whether or not even Swarbrick grasps this central reality of mass, or, as most commentators prefer to call it these days, “populist” politics. Buried in her challenge to the Green AGM is a perplexing reference to “a country of citizens equipped with the understanding and the time and the resources to actively participate in our democracy”. Nowhere does Swarbrick explain how such a country could possibly come into being prior to the revolutionary changes she is seeking. Only after the revolution is it possible to envisage citizens with “the understanding and the time” to make eco-socialism work.

Could it be that the only people Swarbrick is capable of envisioning as co-participants in the construction of a better world are people exactly like herself? Does she not understand that those in possession of the resources needed to participate meaningfully in the processes of self-government will always, this side of the revolution, be those with the most to lose by its arrival. Doesn’t she “get” that those with the most to gain from revolutionary change are unlikely to evince the placidity and equanimity of philosopher kings and queens? Their willingness to join the fight for change will be born of anger and despair, and the certainty that they have bugger-all left to lose. You don’t tell these sorts of people what they should be looking for – you give them what they want.

This essay was originally posted on The Democracy Project substack page on Monday, 29 July 2024.

Intransigent Minorities.

No Compromise! The price of not keeping faith with the voters can be high. The Coalition Government would be wise to learn from the Left’s more recent mistakes. The most obvious of which is its truly bizarre belief that intransigent minorities will not be electorally punished for spitting in the face of the majority.

WHEN THE UNITED KINGDOM next goes to the polls, the Scottish National Party (SNP) will struggle to retain office. Currently, the Labour Party has a better-than-even chance of reclaiming its crown as Scotland’s electoral darling. After 17 years as the dominant force in Scottish politics, the SNP is running neck-and-neck with Labour. The reason: it allowed itself to get seriously out of step with Scotland’s voters.

The Scots are a well-educated and progressive people, but they drew the line at backing a premier, and a party, that saw nothing wrong with incarcerating a convicted rapist in Cornton Vale women’s prison on the grounds that she had subsequently self-identified as a woman.

Though the Premier, Nicola Sturgeon, responding to public outrage, removed the rapist, Isla Bryson, from Cornton Vale, the damage was done. According to The Guardian, Sturgeon’s predecessor (and political mentor) Alex Salmond accused her of “throwing away” the hope of Scottish independence (the SNP’s raison d’être) for the sake of controversial gender recognition reforms.

Things went from bad to worse for the SNP when, following Sturgeon’s resignation, she and her husband became the focus of a police investigation, and the SNP membership opted to reject the socially conservative candidate for Premier, Kate Forbes, in favour of the woke Humza Yousaf.

One instance of challenging the voters’ values might be forgiven – but two? It may, or may not, be relevant that the SNP’s fall from grace occurred while it was in coalition with the Scottish Greens.

Why allow a party currently polling at around 2-3 percent push you into backing reforms that most voters do not support? Why risk incurring the wrath of the electorate by allowing the perception to grow that the tail is wagging the dog? These questions are not restricted to the Scottish situation. There are people here in New Zealand asking very similar questions in relation to Act’s Treaty Principles Bill.

Not the least of these inquirers is Dame Anne Salmond who, in an uncharacteristically tetchy post for the Newsroom website, observes: “The process surrounding the Treaty Principles bill is a farce. With 8.6 percent of the vote at the last election, Act has no democratic mandate to advance a referendum on Te Tiriti.”

A perplexing observation which, on its face, suggests that even to “advance” the idea of a referendum (to resolve an otherwise irresolvable public issue) a political party must first secure 50 percent +1 of the Party Vote.

As National Party gadfly, Liam Hehir, observed on X (formerly Twitter) :

“Does Dame Anne Salmond have self-awareness enough to realise she is arguing against MMP and in favour of FPP? Is there an acknowledgement that you can’t construct a system where the Greens and TPM are allowed to ‘distort’ things but NZF and ACT are not?”

We shall come back to Hehir’s question presently. But, before we do, the pithy response of lawyer, and all round go-to guy on electoral matters, Graeme Edgeler, to Dame Anne’s commentary is worth citing:

“It seems like Anne Salmond is proposing a 15% threshold for MMP?”

Why 15 percent? Because, ever since the introduction of MMP 28 years ago, no minor party has ever secured more than 13.35 percent of the Party Vote (NZ First in 1996.) Hence Hehir’s quip about Dame Anne calling for the reintroduction of the First-Past-The-Post electoral system.

But, a return to the old system would not resolve the problem that lies at the heart of Dame Anne’s rather intemperate post. This, stripped of all its distracting rhetoric, boils down to one, key, question: how does one prevent the wrong sort of people, by which, presumably, Dame Anne means “right-wing” sort of people, from gaining access to the most important platform in the land – the House of Representatives?

The answer, as Hehir points out in his tweet, is that you can’t – not without abandoning democracy altogether. If left-wing voters, and Dames, are willing to accept the right of a party receiving 11.6 percent of the Party Vote, let alone one attracting just 3.08 percent, to materially shape the policy agenda of a Labour-led coalition government, then they must also accept the reality of Act and NZ First shaping the policy agenda of Christopher Luxon’s National Party-led coalition.

The problem is: “abandoning democracy” is exactly what a growing proportion of what passes for the Left in 2024 wants to do. Only by getting rid of democracy’s open-ended promises can the “correct” ideas be assured of winning through. Hence, the woke majority of the SNP’s membership’s refusal to acknowledge that the gender recognition reforms that they and the Scottish Greens were advancing would only end up sending a majority of Scottish voters in the direction of less radical electoral alternatives.

We see the same ideological intransigence at work within the American Left. The radical wing of the Democratic Party simply refuses to accept that a clear majority of Americans have grown alarmed and dismayed at the number of migrants making their way into the United States. No matter how damaging their opposition to closing the US-Mexican border might be to the Democratic Party’s electoral fortunes: no matter how many voters the Left’s uncompromising zealotry is driving into the wide-open arms of Donald Trump; their ideologically-driven position is correct – and must prevail.

That same unshakable conviction that they are right, and must prevail, is especially evident in the New Zealand Left’s insistence that the Treaty principles identified by Te Iwi Māori, the Waitangi Tribunal, the Judiciary, the Public Service and Academia are the only ones that count. That a majority of the population might feel uncomfortable with the current, “official”, interpretation of Te Tiriti simply does not signify. Under no circumstances can the ill-informed views of poorly-educated (deplorable?) New Zealanders be permitted to decide the issue.

Hence, the demands from left-wing (and even some right-wing) political commentators for Luxon and the National Party to put their feet down and insist that the Treaty Principles Bill not proceed. Presumably, they are of the view that Act’s David Seymour, and NZ First’s Winston Peters, lack the grit to challenge Luxon. Such people are guilty of, to paraphrase J.R.R. Tolkien, weighing all things to a nicety in the scales of their own malice. They forget that the Right, no less than the “Left”, can, at need, be impressively intransigent.

The opponents of the Treaty Principles Bill are also guilty of forgetting just how adroit a parliamentarian Seymour has already proved himself to be. His End of Life Choice legislation – the ultimate success of which few predicted at the time of the bill’s introduction – is now the law of the land.

Nor should it be assumed that it is only Act’s 8.6 percent of the electorate that are committed to seeing his bill proceed all the way to a referendum. In Saturday’s (27/1/24) edition of the NZ Herald a group calling itself “Democracy Action” inserted a full-page advertisement headed “We Stand With You”, which urged Luxon, Peters and Seymour to be steadfast in the defence of both their electoral mandate and the democratic process. Formed by Aucklanders Lee and Susan Short, Democracy Action has long had the official interpretation of Te Tiriti o Waitangi in its sights. The wealthy couple insist they are not alone.

Nicola Sturgeon and the SDP discovered, to their cost, just how high the price of not keeping faith with one’s voters can be. The Coalition Government would be wise to learn from the Left’s mistakes. The most obvious of which is its truly bizarre belief that intransigent minorities will not be electorally punished for spitting in the face of the majority.

This essay was originally posted on the Interest.co.nz website on Monday, 29 January 2024.

Majority Overruled.

The All-Too-Visible Hand: Most people are surprised to learn how recently this idea: that the greatest say rightly belongs to the greatest number; took root in human societies. While it is most unlikely that nomadic bands of hunter-gatherers would’ve followed a course of action to which most of its members were opposed, for most of the last 10,000 years the preferences of the majority haven’t amounted to a hill of skulls. Indeed, it is possible to argue that civilisation and oppression go hand-in-hand.

MAJORITY RULES. We simply take it for granted that what the most want, the most get. Whether it be the evening’s choice of Netflix viewing, or the allocation of parliamentary seats, the will of the majority prevails.

The alternative to majority rule – minority rule – is dismissed out of hand. The idea of a small number of people determining the future of a much greater number of people is simply unacceptable. Democracy, in its essence, is all about the numbers: who has them; and who does not.

Most people are surprised to learn how recently this idea: that the greatest say rightly belongs to the greatest number; took root in human societies. While it is most unlikely that nomadic bands of hunter-gatherers would’ve followed a course of action to which most of its members were opposed, for most of the last 10,000 years the preferences of the majority haven’t amounted to a hill of skulls. Indeed, it is possible to argue that civilisation and oppression go hand-in-hand.

Even the shining example of Ancient Athens – the supposed birthplace of Democracy – was predicated on the political exclusion of women and slaves. Only about a third of the great city-state’s adult population were actually permitted to participate in its government. The man who could convince slightly more than half of Athens’ active citizenry to adopt his policies had a fair chance of seeing them enacted. In order to prevail, however, he only needed to sway roughly one-sixth of Athens’ population. Not really a majority. Not really a democracy.

It was, however, a great improvement on the chiefly, monarchical, and imperial political systems that prevailed across most of our planet for all but three of the past one hundred centuries. While it is true that chiefs felt obliged to give heed to the tribe’s most fearless warriors and its best hunters; and that Kings and Emperors could not afford to ignore the wishes of their most powerful nobles; the idea that humble farmers and craftsmen had as much right to a say in things as the Lord in his manor and his heavily-armed knights, would have struck the latter as both ridiculous and dangerous.

In this belief, political rulers have always been strongly supported by their religious counterparts. God (or the Gods) had a strange way of replicating in the sphere of the spirit the same pyramidal hierarchies that characterised the material realm.

The road to destruction, it seems, is broad enough to accommodate the overwhelming majority of humankind. “Straight is the gate, and narrow the way that leadeth unto life,” said Jesus, “and few there be that find it.” Certainly, the overwhelming majority of the cast of the very scary Book of Revelation end up in the fiery lake. It would seem that Heaven, like the very best country clubs, takes some getting into.

And yet, all those despised masses, all those damned sinners, remained unwaveringly receptive to the idea that they, too, had a role to play in the drama of human existence. That the Majority is neither to be despised nor damned.

Perhaps the greatest burden in that struggle to play a role and have a say fell upon the shoulders of women. For those who hold up half the sky constitute the most enduring majority of them all. Indeed, as Athens proved, if women have no say, then you do not have a Democracy. In the words of that indefatigable Suffragette, Emmeline Pankhurst:

“We have to free half of the human race, the women, so that they can help to free the other half.”

In an era when it is common to hear “leftists” dismiss Democracy contemptuously as “the tyranny of the majority”: and where it is impossible to avoid the conclusion that the Majority, far from being, by democratic convention, always in the right; is, in the eyes of many of today’s fanatically self-righteous politicians, always in the wrong; then we would do well to dwell upon Emmeline’s words.

For although “bigot” may have replaced the word “sinner”, and “redneck” the word “serf”, it remains an inescapable truth that if the goal is to free the human race, then all of the human race – male, female, black, white, gay and straight – must be freed.

Knowing what freedom is, determining what freedom does, and receiving its blessings in proportion to their numbers.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 7 January 2022.

Democracy versus The Majority

Those Ain't The Torches Of Liberty, Springfield! But is it even possible to argue for democracy against the will of the people? What if the majority just isn't that keen on liberty and justice for all?

IT’S EVERYWHERE: coming at you, confusingly, from both the Right and the Left. The former express their views emphatically, as fact: “Nobody gives a damn about the GCSB – or Andrea Vance. It’s a media beat-up!” The Liberal-Left convey their scepticism in question form: “Does the public really care about all this state surveillance and freedom of the press stuff? I mean, seriously? If they did, then surely National would be suffering in the polls? And they’re not.”

 

How should we respond to these responses? How does one argue against the expansion of the state’s surveillance powers, and the violation of a journalist’s privacy, when the reaction of the overwhelming majority of the population is either bland indifference, or (even more alarmingly) active support for the Government’s position?

 

Is it even possible to argue for democracy against the will of the people?

 

It’s a question of particular relevance to New Zealanders because, historically-speaking, we have never, as a people, been particularly interested in either recognising or upholding the civil and political rights of minorities. Majoritarianism is the strongest of our political traditions. Indeed, the idea that the shape and purposes of society can only be legitimately determined by a majority of its population has been the driving force behind the evolution of New Zealand’s informal constitution.

 

It is worth elaborating on this point a little.

 

Many, if not most, New Zealanders either do not know (or have forgotten) that their country once had two houses of Parliament. There was the House of Representatives, elected by universal suffrage, and the Legislative Council, whose members were appointed for seven years by the Governor-General on the advice of his ministers (i.e. by the government of the day). The “upper” chamber had the power to amend, review and delay legislation sent up to it from the House of Representatives. Its acknowledged purpose was to act as a check upon the majority derived and driven demands of the “lower” house.

 

The lower house did not care to be “checked”. In 1950, just three years short of its centenary, The Legislative Council was abolished by the First National Government.

 

Nothing now stands between the House of Representatives (and the governments drawn from its members) and the individual citizen. In New Zealand, a parliamentary majority cannot be gainsaid by anyone or anything. Lacking the “supreme law” of a written constitution, the legislative acts of Parliament cannot be challenged in the courts or struck down as “unconstitutional” by judicial fiat. About the only force capable of staying the hand of a government in possession of a solid parliamentary majority is the force of public opinion – and, even then, there are limits.

 

New Zealand parliamentarians – along with just about every other legislator in the world – are driven by one great desire: to be re-elected. This renders them particularly sensitive to shifts in public opinion – especially those shifts strong enough to make people change their electoral allegiances.

 

Think about the “anti-smacking bill”. The passage of this bill was sufficiently resented by Labour’s core voters to cause a significant number of them to either transfer their support to another party, or abstain. Labour’s failure to understand the mood of its supporters thus contributed materially to its 2008 defeat. National, by contrast, was confident that although a majority of its supporters (and, indeed, of all electors) were opposed to the anti-smacking legislation, they were not opposed enough to vote for National’s enemies.

 

And this is where I believe New Zealand public opinion currently stands in relation to the GCSB Amendment Bill, and the apparent, state-sanctioned, invasion of journalists Andrea Vance’s and Jon Stephenson’s professional and personal privacy.

 

If directly challenged on these issues, I suspect most Kiwis will come out unequivocally for the protection of their own personal privacy and, rather less enthusiastically, for the freedom of the press. What they remain to be convinced of, however, is that the GCSB Amendment Bill constitutes a serious threat, either to themselves or people like them.

 

So, a few political activists will have their “metadata” analysed and their e-mails intercepted. So what? It’s probably prudent to keep a watchful eye on such people. And, as for the rights of journalists? Well, for these exploiters of personal grief and political misadventure, the public has only one question: “How does it feel?”

 

Labour and the Greens have come out swinging on behalf of the public’s right to privacy and the freedom of the press because their MPs know that the people who vote for them care passionately about such things and expect them to take a strong stand in their defence.

 

National MPs, by contrast, are quietly confident that the Centre-Left’s concerns are minority concerns. Mr Key’s majority support is not about to abandon his government for left-wing activists, or journalists. At least, not any time soon.

 

This essay was originally published in The Press of Tuesday, 6 August 2013.

The People's Song

Every Man A King: Richard "King Dick" Seddon, New Zealand's longest serving prime-minister, set in place the notion that the will of the New Zealand people must trump all else. In this, the informal constitution of New Zealand, Parliament has always been the nation's highest court. For most Kiwis the power of the majority is supreme and indivisible: it answers to no one. 

IT’S ONE OF the most extraordinary sounds you’ll ever hear: the sound of the legal profession singing in unison. The Government’s urgent attempts to stuff the Supreme-Court-created hole in Police surveillance powers with legislative Polyfilla has got the legal fraternity on its hind legs, bellowing like a baited bear.

The principle at stake, cries that doyen of be-wigged boffins everywhere, Sir Geoffrey Palmer, is nothing less than “The Rule of Law” itself. Governments which – retrospectively –overturn the judgements of their highest courts, this former law professor and Prime Minister warned the select committee examining the legislation, are in danger of being mistaken for tyrants.

The judicial arm of the state must be capable of restraining the executive arm when it transgresses the boundaries set by the legislative arm – say the experts – or no citizen is safe.

Except that most of these citizens aren’t big fans of the classical liberal notion of the separation of powers. In the eyes of most New Zealanders, the State is ruled by only one body – “Parliament” (by which they mean the House of Representatives). The “executive arm” of the State (Cabinet) and the “judicial arm” (all courts up to and including the Supreme Court) are there to give effect to Parliament’s will.

In any legal arm-wrestling contest, nobody beats the people’s elected representatives. Parliament is New Zealand’s Supreme Court.

Of course, this is not the official view of New Zealand’s constitution, which cleaves loyally to the separation of powers doctrine. But, there is a very big difference in this country between constitutional theory and constitutional practice.

Uniquely, among the inheritor states of the British Empire, New Zealand possesses no written constitution; no entrenched Bill of Rights; no Supreme Court with powers to strike down “unconstitutional” legislation; and no “upper” house to scrutinise and/or delay the legislation of a “lower” house.

Kiwis aren’t very keen on terms like “upper” and “lower” – especially when “lower” is applied to the parliamentary chamber most beholden to the people. Nor are they attracted to the idea that a bunch of unelected lawyers, dressed in antiquated wigs and gowns, should be able to strike down or gainsay the intentions of the men and women chosen by the people to govern the country.

What the overwhelming majority of Kiwis do affirm, however, is the idea that “majority rules”. It’s a disarmingly simple constitutional principle: the person, or persons, in command of a majority of seats in the House of Representatives get to run the country.

Stated bluntly, “majority rules” means that the “executive arm” of the State is not a co-equal, but a sub-set, of the “legislative arm”, and remains effective only for so long as it enjoys the legislature’s confidence.

It’s the same with the judiciary. Being nominated and appointed by agents ultimately dependent on the confidence of the House of Representatives, judges should not consider themselves the co-equals of Members of Parliament  – but their servants.

Parliament’s reaction to the Supreme Court’s decision in Crown & Hamed provides an excellent demonstration of “majority rules” in action.

John Key is Prime Minister because the last general election gave his own (and a sufficient number of like-minded parties) a majority of seats in the House of Representatives. An important part of the mandate National and its allies received from the voters involved taking a hard-line on law and order issues. Mr Key’s interpretation of the Supreme Court’s decision on Police surveillance powers was that it placed intolerable obstacles in the way of his government carrying out the people’s mandate. Accordingly, his Attorney-General introduced legislation effectively overturning the Supreme Court’s decision.

At the time of writing it’s unclear if Mr Key will be able to persuade a majority of the House of Representatives to vote for his legislation. If he fails, then the Supreme Court’s decision will stand.

But, let’s be very clear. It will stand because a majority of the people’s representatives could not be convinced that the Government’s bill accurately reflected its electoral mandate on law enforcement. Indeed, a victory for the “Noes” will indicate that, on the matter of the unrestricted video surveillance of suspects, the people’s representatives are asking both the Courts and the Police to take their fellow citizens’ right to be protected from “unreasonable search and seizure” a great deal more seriously.

Like any good legal counsel, the Supreme Court may then be said to have provided the people’s representatives with sound and useful advice on a matter important to the good governance of the nation, and they will have acted accordingly.

But, if the Government does manage to muster the majority it needs, Parliament will have reached an altogether different conclusion. That, in order to secure the conviction of serious wrong-doers, the powers of the Police must be strengthened.

Either way, the people’s song will have triumphed.

This essay was originally published in The Press of Tuesday, 4 October 2011.