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PoliticsFebruary 5, 2018

Labour ministers are bending the branches of government to breaking point

Guest writer
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Opinion: Early moves by members of the new cabinet risk doing real damage to New Zealand’s constitutional framework, argues National MP Chris Penk.

In the opening months of the Labour-NZ First-Greens triumvirate, a very real narrative is emerging: ministers are bending the branches of government to breaking point.

By constitutional convention, respective roles played by our three branches of government are deliberately distinct. The “executive” (which is led by cabinet but includes all the civil service) basically runs the country. The “legislature”, aka parliament, passes laws defining the limits of that executive power, among other things. And the “judiciary” (our court system, more or less) applies the law, deciding each case on its individual merits in accordance with existing legal norms – without fear or favour and free from political pressure.

The doctrine demanding a separation of powers is a sacrosanct safeguard within our partly written, partly unwritten constitution. Its importance lies in preventing any one individual or group from gaining an outsized portion of power.

Taken together, constitutional safeguards have helped to keep New Zealand blessedly free of corruption in our short but proud history. Enjoying such stability and certainty is an international advantage that we should guard jealously and zealously.

All this is to explain why moves by ministers of the new government to weaken our nation’s constitutional framework pose such a major problem. These are what I would term “honourable exceptions”. The “honourable” bit is a nod to ministerial titles, with “exceptions” meaning departures from convention. So far, so good – but does the carelessness constitute conspiracy, cock up or a combination? Let’s take a look.

Stumped by bail

Andrew Little made a couple of absolutely extraordinary comments in December. First, his musings on a perceived problem with criminal bail: “I suspect it’s more about the way it’s being applied and enforced as opposed to whether there’s a problem with the law.”

Naturally, if the minister of justice and minister of courts thinks that reform of bail law is needed then he should be talking about that. But that’s the exact opposite of what Little has done here, as he’s actually asserted quite specifically that the law itself is acceptable. It’s the judges’ application of the law that’s faulty, he asserts. Constitutionally speaking, that’s about the most questionable thing he could have said. And when I say it’s questionable, the question is whether the minister’s criticism will be remembered by the bench as new bail applications are presented. And will judges act on it, if so? It’s hard to say what the answers might be but a former lawyer such as Little must surely know that that these are not questions that we should even have to ask.

Right out of line

Similarly troubling was Little’s recent criticism of the decision not to prosecute following the collapse of the Christchurch CTV Building. The minister expressed a view that it was “not right”. The police decision may or may not have been the right call (something I’m not expressing a view on either way, just to be clear) but it certainly is “not right” for any cabinet member to be thinking aloud about that. And the minister with “justice” and “courts” on his nameplate is the last one who should venture such an opinion. If new evidence comes to light later about the facts of the matter, could a decision to prosecute then be made without appearing as though it had been politically influenced? Again, it’s genuinely hard to say.

Advocating for law changes is exactly what one in Little’s position can and should do. For example, in relation to the situation above he might want to lead a discussion about introducing a corporate manslaughter offence (although to avoid any doubt, I express no view on that here either). But if he’s going to, that simply can’t be in reference to a specific and recent case just because he disagreed with that particular exercise of official judgement.

Offhand online

Later that same month the minister of broadcasting, Clare Curran tweeted what was in effect an astonishing allegation about the conduct of a police investigation. I won’t repeat the allegation (because I know how defamation law works) but suffice it to say she was implying that improper influence was exercised, on a named police officer, to make a particular operational decision. If Curran survives the 22 December episode without serious censure it will be due to an accident of timing – having taken place during the press gallery’s pre-Christmas leave period – more than anything.

Lord of the land(lords)

A final example serves to prove that no new year’s resolution can have been made by the cabinet regarding executive overreach. On 20 January it was reported by RNZ that the finance minister was looking to make an example of any landlord found to be illegally raising their rents to exploit students: “we are looking very closely at some of the examples that have been put to us today to see if they would breach [the Residential Tenancies] Act”.

Whether or not Grant Robertson likes it, he doesn’t get to decide what’s illegal in any given case. That’s what the Tenancy Tribunal and/or the courts exist to do. And if a finding is made against a particular landlord by the judiciary – in accordance with the law that Robertson’s government can seek to amend at any time – then punishment is determined by the judiciary, not Robertson, in accordance with the law. For the minister then to add a name-and-shame consequence as he’s threatening (“calling out” landlords who don’t “do a good job”, as he describes it) would surely be double jeopardy, as well as executive interference.

Ill-judged interference

So I’ve got a better suggestion for Robertson and his colleagues: trust the judges to judge (and the adjudicators of the Tenancy Tribunal to adjudicate, in the realm of rent rises) as their titles imply they can do. Ministers are not only the only ones to receive warrants from the governor-general, whether they know it or not.

If allowed to fulfil their constitutional role without interference then judges will surely “do a good job” (to borrow Mr Robertson’s slightly patronising phraseology), which happily enough will enable ministers to concentrate on doing their own.

Branches broken or bent?

In this country it’s pretty hard to hold a government to account when it bends, or even breaks, constitutional convention. That’s the thing about conventions, of course: for better and worse, they’re almost impossible to enforce. The flexibility of our constitutional arrangements is actually a real strength most of the time (whatever advocates of a comprehensive written constitution may say), so this is not a criticism but an observation.

More Reading

    That said, with few firm legal constraints in the form of “black letter law”, political accountability becomes all the more important. As Her Majesty’s Loyal Opposition, that is where we come in. And take note, ministers: we will.

    Chris Penk is the National MP for Helensville and a former lawyer.
    @christopherpenk

    This section is made possible by Simplicity, the online nonprofit KiwiSaver plan that only charges members what it costs, nothing more. Simplicity is New Zealand’s fastest growing KiwiSaver scheme, saving its 10,500 plus investors more than $3.5 million annually. Simplicity donates 15% of management revenue to charity and has no investments in tobacco, nuclear weapons or landmines. It takes two minutes to join.

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    Waka jumpers: Rod Donald and Jeanette Fitzsimons at the Green Party Campaign Launch in 2005. Photo: Dean Purcell/Getty Images
    Waka jumpers: Rod Donald and Jeanette Fitzsimons at the Green Party Campaign Launch in 2005. Photo: Dean Purcell/Getty Images

    PoliticsFebruary 5, 2018

    My old party is betraying its own proud history on the waka-jumping bill

    Guest writer
    Waka jumpers: Rod Donald and Jeanette Fitzsimons at the Green Party Campaign Launch in 2005. Photo: Dean Purcell/Getty Images
    Waka jumpers: Rod Donald and Jeanette Fitzsimons at the Green Party Campaign Launch in 2005. Photo: Dean Purcell/Getty Images

    If the Green Party leadership continues to undermine its hard-won integrity in supporting the Winston Peters driven law around disillusioned MPs, they could lose a number of their more thoughtful members and supporters, argues former Green MP Sue Bradford 

    Last week the Electoral (Integrity) Bill passed its first reading in parliament with the support of Labour, NZ First and the Green Party. If this bill becomes law, any MP who leaves their party during their three-year term will no longer be a member of parliament. In the case of an electorate MP a byelection will be called. For list MPs the next person on the party list will come through.

    What’s wrong with this, you might say?

    A lot, if you have any sense of history and of the underpinning purpose of MMP. When it was established in 1996 MMP promised much greater diversity in parliament than first past the post (FPP), a system in which, basically, a one-party dictatorship was exercised for each three-year term. Under FPP many people’s votes ended up not counting at all if their party couldn’t secure a constituency seat.

    The latest waka-jumping bill is driven by Winston Peters. Five out of 17 NZ First MPs jumped ship in the late 1990s and he fears a repeat. I’d suggest that perhaps he should look at his own management style and candidate selection processes again rather than doggedly pursuing legislative means to stop defectors.

    During the second reading of the Electoral Integrity Bill (2001), then Green Party Co-Leader Rod Donald asked why the Labour-Alliance government was depending on Winston Peters to ‘”impose the most draconian, obnoxious, anti-democratic, insulting piece of legislation ever inflicted on this parliament”.

    The 2001 bill did become law, but had a sunset clause which meant it ran out in 2005, when parliament got to debate it again. With a new balance of parties in parliament it failed this time round, after the Green Party stood firm in opposing legislation which proposed, in Rod’s words, to “stifle democracy”.

    Some 13 years later waka-jumping legislation is back on the table, once again driven up by Winston Peters, and backed by a Labour Party dependent on his party for power. The strangest thing is that this time around eight Green Party MPs have also offered up their votes in favour.

    There are always going to be occasions when sitting MPs choose to leave because they have a profound disagreement with where their party is going. One of the best examples of this was the late Jim Anderton. The party which he thought held deeply-felt, traditional Labour values became a tool of rightwing businessmen in the 1980s. He left, using his parliamentary resources to underpin the building of the New Labour Party.

    Hone Harawira did the same thing in 2011 when he left the Māori Party over its relationship with National, quickly proceeding to set up the Mana Party.

    It is very difficult in Aotearoa New Zealand to set up new political parties as recent efforts by several very rich men have demonstrated. The resources of even one sitting MP give a new organisation at least the chance of growth and survival, especially given MMP’s current 5% threshold.

    At the moment it is virtually impossible for a new party to break through from nothing to the required 5% unless there is at least one sitting MP among the ranks.

    And what about list MPs? What are their choices? For most list MPs who leave their party, winning an electorate seat is simply not an option. Unless they do a dodgy deal like ACT, small parties without a sitting MP tend to have no chance of winning an electorate.

    Apart from higher resourcing for their electorate work, in every other respect list and electorate MPs have the same rights and powers to do their job in parliament.

    Waka jumping legislation reduces the power of list MPs, deliberately relegating them to a second rate category.

    Each list MP validly represent the interests of a certain proportion of voters. For a list MP to seek a refreshed mandate they can only turn to supporters who are scattered through the country. There is no independent mechanism for doing this. The solution becomes to set up a new party and work to build a substantive voting base from that.

    Jeanette Fitzsimons and Rod Donald were Alliance MPs when they were first elected in 1996, but left the Alliance as part of the Greens’ formal withdrawal from that party. As sitting MPs they led the Greens into the 1999 election, using parliamentary resources to establish for the first time an independent Green presence in parliament.

    Now we have the disturbing sight of their successors flying in the face of their own party’s history and policy as they vote for the latest electoral “integrity” bill.

    The Greens really need to get a grip on what being part of a government coalition requires. There is a basic rule of negotiation: don’t give stuff away if you don’t need to.

    In sacrificing principle on electoral law they’re gaining no advantage at all. They’re also running a high risk of being seen as nothing but a Labour/NZ First doormat for the next three years.

    The Greens don’t have much time left in which to make it clear they are still able to carve out their own identity within a three-way government. Their bedrock 5-6% support will collapse if they simply focus on playing nothing but nice with Labour and NZF in return for a few ministerial posts and a small selection of reformist policy gains.

    In sharp contrast NZ First voted wholesale against Chloe Swarbrick’s medicinal cannabis bill this week. Winston and friends don’t give a damn about keeping their partners happy. The Greens just cave.

    If the Green Party leadership continues to reject their own proud history and hard-won integrity, they may lose a number of their more thoughtful members and supporters. With their support sitting at just above the 5% cutoff point, this is a risk they can ill afford.

    This section is made possible by Simplicity, the online nonprofit KiwiSaver plan that only charges members what it costs, nothing more. Simplicity is New Zealand’s fastest growing KiwiSaver scheme, saving its 10,500 plus investors more than $3.5 million annually. Simplicity donates 15% of management revenue to charity and has no investments in tobacco, nuclear weapons or landmines. It takes two minutes to join.

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