Otago Law Review
In 1979, Geoffrey Palmer, then teaching law at Victoria University of Wellington, published the first edition of his guide to New Zealand’s constitutional order, Unbridled Power? An Interpretation of New Zealand’s Constitution and Government.
A quarter of a century has passed, and the fourth edition of this by-now seminal work has appeared. Much has changed in the interim. The original author rose through the ranks of the 4th Labour Government to serve as Prime Minister, attained a knighthood (although he modestly remains plain “Geoffrey” on the cover), and is now a partner in a specialist public law firm. Meanwhile, New Zealand has moved through significant economic, social and political changes; with an often bewildering mix of privatisation, deregulation, electoral reform, state sector reform, progressive social legislation, and re-energised Maori claims reshaping virtually every aspect of the nation’s communal life. Given the background of these personal and public changes, it is obvious that the book which first appeared in 1979 will be a very different beast to the current version. And these developments in the text can provide us with some interesting insights into the wider transformation of New Zealand’s constitutional framework.
The most obvious alteration occurred with the publication of the tome’s third edition in 1997. At that time Matthew Palmer – the present Dean of Law at Victoria University of Wellington – joined his father as an author; while the amended title chosen by this new authorial combination, Bridled Power: New Zealand’s Constitution and Government, reflected their opinion of the changes wrought by the introduction of the MMP voting system in 1996, along with other reform measures. However, the development between the book’s covers over the last twenty-five years has been no less marked than the alterations indicated on its front matter. For one thing, the total number of pages has more than doubled from 185 in 1979, to 412 in this latest edition. This increase in content is not the result of authorial hoarding – the piling of new words on top of those found in the previous editions – but rather reflects the emergence of entire new fields of public law study. So, for instance, this latest edition contains chapters on “Public Finance”, “Avenues for Complaint”, “The New Zealand Bill of Rights Act 1990”, “The Treaty of Waitangi”, and “International Law”; all subjects that did not exist (or, at least, were not thought worthy of receiving sustained attention) in 1979. We can also see how the field of study has moved on by considering what has disappeared from this book: while the question “a second house of parliament?” was considered important enough to deserve a stand-alone chapter in 1979, the topic does not even rate a mention in the index of the 2004 edition.
Similarly, the material common to both editions has both been reordered and reassessed since 1979, again reflecting changes that have occurred in that time, as well as the authors’ stance on these developments. Whereas the second chapter in the first edition discussed “the queen and the governor general” (indicating a rather traditional approach to the importance of the role played by the Sovereign in New Zealand’s constitutional order), the second chapter in 2004 addresses “Elections”, followed by “Forming and Ending Governments” (thereby acknowledging the democratic choice of representatives as being the foundational event for New Zealand’s constitutional order). The present edition’s chapter on “The Monarchy”, when it does appear in chapter four, is qualified by the loaded question “When Will New Zealand Become a Republic?” Back in 1979, this issue was more guardedly introduced under the subheading “monarchy or republic?” Equally, the discussion of the legislative process in 1979 came in a chapter titled “the fastest law in the west”, followed by a chapter on “more fast law – regulations”. By 2004, these chapters bear the neutral titles of “Legislation”, and “Regulations and Red Tape”. Furthermore, the explicit 1979 subheading “too much law” becomes, in 2004, the more ambivalent “too much law?”
All of the above demonstrates that in many ways the 2004 edition has become a different book to its original predecessor in both its approach and its content, for the simple reason that the base material it deals with has been transformed in the interim. (I note in passing that many of these changes had their genesis in proposals found in the pages of the 1979 edition, and shepherded into existence by Sir Geoffrey during his service in the Fourth Labour Government.) What remains constant, however, is the book’s commitment to covering the nation’s constitutional structures in a way that mixes the academic with the day-to-day. The chapter on “What Happens in Parliament”, for example, includes an overview of the functions and roles of that institution and its constitutive parts (such as select committees), as well as specific examples of dialogue from parliamentary questions and answers that demonstrate how this aspect of Parliament’s activities works in practice. In a similar fashion, the chapter on “Public Finance” uses the concrete case of the Justice Ministry’s 2003-2004 budget appropriation to illustrate its general discussion on controls on government agency funding.
Other chapters contain a myriad of other examples. The point is that the authors provide not only a comprehensive overview of how New Zealand’s government operates in theory, but back this coverage up with relevant examples drawn from the actual practices of public actors. However, the book has a second purpose beyond the descriptive – that of constitutional advocacy. At its most ambitious, this advocacy takes the form of “(A Possible) Constitution Act of New Zealand”, contained in an appendix to the book. On a more modest level, the authors make a number of individual suggestions as to the shape future developments should take. Most of their recommendations reflect what may be described as a “liberal-legalist orthodoxy”. So, the authors recommend that “the constitutional significance of the Treaty of Waitangi needs to be debated and understood for what it is, rather than used as a codeword in the politics of fear”
(p 348); and call upon the government to take “a leadership role in encouraging or funding a responsible and constructive debate on these issues” (p 348). Retaining MMP is supported because “the new system is essentially more democratic that the old one” (p 376); having “led to more debate, more consensus, and more national dialogue about government policies before they are enacted”
(p 377). The authors’ attitude towards the New Zealand Bill of Rights Act 1990 (NZBORA) is not whether it “is a beneficial constitutional reform, but whether it goes far enough” (p 332), with “conservative” opponents of greater judicial oversight of Parliament accused of “some questionable assumptions about how the Legislature operates in New Zealand” (p 331).
Readers may take or leave this authorial opinion without diminishing the value of it being presented. (For the record, I sympathise with the authors’ stance on the Treaty, agree with their analysis of MMP, and oppose their suggestion that the NZBORA should be in any way entrenched as higher law.) The inclusion of the authors’ own views complements their description of New Zealand’s constitutional ordering as it serves to remind the reader that this is a field in flux; or, to borrow the jargon of the All Black’s ill-fated 2003 World Cup campaign, it is all about “the journey”. And as with all works of academic argument, it is not necessarily important that a reader agrees with all the views as presented, but instead whether the manner in which the claim is framed forces the reader to think more deeply about his or her own stance on the issues. In accomplishing this end, the book is a success.
In the past 25 years, Bridled Power has both mapped New Zealand’s changing constitutional terrain, and served as a blueprint for efforts to landscape that topography. During this period it has established itself as a valuable handbook for those seeking insight into both the formal legal rules governing the relationships between New Zealand’s constitutional actors, as well as the political practices that add flesh to the bare bones of the law. This fourth edition carries on that legacy admirably. It looks certain to remain an essential aid to students of New Zealand’s political and constitutional law, at whatever level of study they may be engaged.
Andrew Geddis, Senior Lecturer, Faculty of Law, University of Otago.