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Dawson, John --- "Reform: a memoir by G W R Palmer" [2013] OtaLawRw 9; (2013) 12 Otago LR 197

Last Updated: 23 April 2015

^{BOOK REVIEWS}

Reform: a Memoir

(by G W R Palmer, Victoria University Press, Wellington, 2013)

Sir Geoffrey Palmer ’s new book is a blend of autobiography, political memoir and reasoned analysis of New Zealand’s constitution and government. It is appropriately named Reform. Probably no other New Zealander – except perhaps Sir John Salmond in the early twentieth century – has made a greater contribution to reform of our law, or a greater impact on our statute book.

Palmer has had an exceptional range of legal careers. He has been a practitioner and co-founder of New Zealand’s first ‘Washington-style’ public law firm. He was deeply involved at the foundation of our accident compensation scheme. He has been an active teacher and prolific writer on the law, in both New Zealand and the USA. His book Unbridled Power (Oxford University Press, Wellington, 1979) was almost a constitutional event, greatly encouraging reforms aimed at reducing the power of the Executive government. He served as Attorney-General and Minister of Justice, appointing our judges. He presided as a Minister of the Crown over an extraordinary programme of law reform in the 1980s. He established the Law Commission and served as its President. He represented New Zealand on the International Whaling Commission and in other international forums. Virtually the only related role he has not filled is that of judge.

Above all, Palmer ’s career has been one of sustained commitment to law reform. His main plea in this book is for major law reform to be undertaken from a ‘whole-of-government’ point of view. Good law reform, he argues, considers not only the relevant social goals to be attained and the instruments to use. It also considers: the likely reception of the reforms by relevant interest groups; the likely costs and the impact on the political economy; the capacity for implementation and the possibility of bureaucratic resistance; the best empirical evidence about the likely consequences of the reforms, not simply ideology and anecdote; the public’s views on the proper functions of the state and private sectors; the impact on Māori; the experiences of other nations; and more. This is an extraordinarily complex and broad agenda that will take the law reformer far beyond the confines of any set of legal rules, and far beyond a legal education. Yet, he argues, there is no better way to do the job, and attempting to surmount these difficulties is the enduring challenge and fascination of law reform.

The book covers huge terrain, commensurate with Palmer ’s career, in his usual confident and readable style. It is well-indexed and well- structured and will constitute a major resource for historians. Quoting a few of Palmer ’s more trenchant thoughts shows something of the tone:

• “the media itself is a problem in the New Zealand democracy” (at 110);

“New Zealand television still did current affairs in those days” (at 232); “Political journalism in New Zealand resembles sports journalism, especially rugby writing” (at 711);

• “I worry very much about the rule of law in a society where legal aid is

^{being cut and many people effectively have no redress” (at 119);}

• “being an MP is the best education about one’s country it is possible to

^{have” (at 245);}

• “one does not really make friends in politics. One has colleagues and

^{opponents” (at 257);}

• “New Zealand’s constitutional moment has never arrived” (at 338);

• “the most serious challenge New Zealand faces is to avoid having a permanent underclass defined by race. I have lived in the ghetto of the South Side of Chicago and have seen what gross inequality can do to a society” (at 397);

• “we are in the course of losing our clean green image as a result of government policies, which will in my view damage the economic interests of this country deeply, as it will damage the well-being of those who live here” (at 428);

• “Setting the policy before addressing the instrument choice for its

^{implementation is fundamentally unsound” (at 702);}

• “I have to have access to a law library or I get twitchy” (at 748).

Palmer’s views on legal education

For the purposes of this book review, in a university law journal, I want to focus on the book’s relevance to law students and on Palmer ’s views on legal education.

As a whole, the book is an excellent resource for public law students. It provides a personalised account of most constitutional reforms effected in New Zealand in the last quarter of the 20th century. In doing so, it provides a chronologically-organised, insider ’s supplement to the general text on the law of New Zealand government written by Sir Geoffrey and his son, Matthew Palmer, now called Bridled Power (4th ed, Melbourne, Oxford University Press, 2004). For public law students, there are particularly useful chapters on: the role of the Attorney-General and the appointment of judges; the genesis of the New Zealand Bill of Rights Act; the reform of the electoral system; and the process through which legislation is made. In addition, there are major chapters on the policy debates that preceded passage of the accident compensation scheme and the Resource Management Act, and sustained attention is paid throughout the book to relations between civil servants and elected politicians in the process of law reform. In total, this gives the book real value as an applied treatise on the operation of New Zealand’s constitution and government.

Palmer also rightly stresses throughout the work a point vital to students: that statutes are New Zealand’s most important source of law. Palmer says he prefers the Socratic method of law teaching, used

particularly in American law schools, but thinks this is not always a suitable method for teaching law in New Zealand, due to the pre- eminence here of statutes, which are difficult to teach in this way. The Socratic method is well-adapted to teaching law from lines of cases, in his view, but not necessarily suitable for drawing students into the reading and application of legislation.

Law teachers and students love a story, and almost every case tells a story. There is usually a plot, with characters and events, and two sides to the argument, and competing principles to be drawn from prior cases, and distinctions on the facts to be made. The judge must tell us their version of the story, and resolve the controversy, in a written decision, that we can interrogate and criticise. The Socratic method is good for all this, and this is the media image of law teaching, and when it is done well, and not too aggressively, it can be great fun.

But Palmer is suggesting that this method may not teach New Zealand law students a critical skill they need – the ability to read statutes, and even whole statutes, in order to read the provisions in context. Often they will need to read Bills and newly-enacted statutes, upon which advice is often sought, about which there will be no cases or even any secondary writing at all. This is a demanding but central skill for the New Zealand lawyer, and one that students frequently resist. Probably the most difficult thing in law teaching is to get students to read legislation in depth.

The key to teaching legislation, Palmer suggests, is use of the short hypothetical problem. Students should often be presented with brief scenarios, and be asked to consider how the legislation applies. This is the kind of task New Zealand law students often perform outside lectures

– in tutorials, for instance – and teaching this skill requires at least some departure from pure Socratic methods. In this fashion, therefore, the style of New Zealand law teaching must be moulded to fit the pre-eminent source of New Zealand law – the statute. All of this, in my view, is very sound advice.

A further point Palmer makes concerns the value of teaching New Zealand students about Australian public law, whether or not they welcome it. Australia (along with the United Kingdom) is a country in which many New Zealand law graduates are likely to practise. It is one of our major trading partners and many major businesses operating in New Zealand are Australian-owned. The Australian Constitution illustrates the principles of entrenchment, limited legislative power, federalism, and the formal separation of the branches of government, all most useful for obtaining a comparative understanding of the New Zealand Constitution. Yet, ironically, most New Zealand law students probably graduate with a better understanding of the Canadian and US Constitutions than that of our nearest neighbour. Palmer argues, convincingly, that this should change.

Finally, Palmer offers one important argument about legal education in New Zealand with which I wish to disagree: he suggests that Law should become a postgraduate course of study, as in the USA. He favours this,

he says, because postgraduate law students would have more life (and more commercial) experience. They would then be better equipped to debate the policy options behind the law, and to consider the value of reform. And this would improve the university experience of both law students and law teachers.

Those certainly are potential advantages of the postgraduate approach. But I am not convinced that they necessarily outweigh certain other disadvantages of that approach. In my view, major disadvantages are: delaying for some years the start of legal study; imposing a significantly longer period of university study, on students who are often anxious to reach the workforce; the shortening of legal careers as a consequence of that delay; and the associated costs and inefficencies, especially in a country of modest wealth.

It is my impression that, at many top North American law schools today, a good proportion of students are, on entry, not only graduates but already postgraduates, in some other discipline. They then start their legal study in their mid-twenties. Can this delay really be justified? Mastering law as a discipline requires the acquisition of certain analytical skills. It is a way of thinking and a form of language, as well as saturated in values and practical and policy concerns. Is there any other way of thinking, or any other language, for which one would recommend delaying study until a person reaches their mid-twenties? One could readily make a completely opposite case: that legal study should commence at school, at 15 or 16 years of age, even though additional life experiences will still improve a person’s capacity for policy argument with age. Those experiences can be added on top of a legal education.

And what of the trajectory of the resulting legal career that may not even begin until a postgraduate law student reaches their late twenties? Palmer ’s own career, admirably described in the current book, could hardly be more lengthy or impressive. Yet he recounts his own admission to the bar at 21, following completion of a double degree. He then proceeded rapidy to conduct a range of personal injury and criminal litigation, in his twenties. By his early thirties he was an experienced lawyer advising on the formation of accident compensation legislation. There is no evidence here that he (or we) would have benefited from delaying the commencement of his legal education. On the contrary, many benefits seem to have flowed from his flying start and his lengthy legal career. Why, then, put off the start of legal study for three or four years, especially when young people are dead keen to start at 18?

In fact, Palmer ’s legal education closely resembles that of many top New Zealand law students today: starting straight from school, into a double degree, that mixes law and another discipline, over five or six years, followed by admission to the bar, some professional experience, then a year ’s postgraduate legal study in North America or the UK.

By the time they reach their fourth or fifth years of undergraduate study, top New Zealand law students seem to have an excellent grasp of the discipline. Top honours students, in their dissertations, produce work

of publishable standard, while still undergraduates. They routinely win scholarships to good foreign universities for postgraduate legal study, and they thrive in that environment. They seem to have no difficult obtaining employment in foreign capitals, if they wish, particularly in Sydney and the City of London.

None of this requires Law to be a postgraduate discipline in New Zealand, and, if it were, it might discourage our students embarking on further postgraduate legal study overseas, which would greatly disadvantage our small legal system, which gets an infusion of ideas upon their return, as Palmer ’s own stellar contribution to New Zealand fully demonstrates, on his return from postgraduate study and teaching in the USA.

On this point, therefore, I do not accept Palmer ’s argument in Reform. The book is filled with many other compelling arguments, however. It is a vast compendium of legal knowledge and acute opinion. It offers a most lucid and engaging account of an astounding legal career.

John Dawson, Faculty of Law, University of Otago.