Increasingly, our Government is behaving like a playground bully. If Ministers will not restrain themselves from abuses of power, others need to stand up and speak out

In its editorial today, the New Zealand Herald joins Andrew Geddis in castigating the Government for a constitutional outrage – denying the family carers of people with disabilities the right to appeal against unlawful discrimination to the Human Rights Commission or the courts.

How low can you go? These are people whose family members are disabled and need care, and who seek to give it to them; and want the same support from the State as paid carers from outside the family. Denying them the legal rights to which they’re entitled is ‘a shabby piece of legislation’, as the New Zealand Herald says; and shoving it through under urgency is a disgrace.

Add to this the way in which the Government has stated in advance that it will ignore any outcome of a referendum on asset sales; its dismissal of the referendum in which more than a million New Zealanders supported a review of MMP; and the Sky City deal that tries to bind future New Zealand governments for the next 35 years, and it's obvious that democratic processes in this country are in trouble.

As Claire Browning points out on Pundit, there seems to be no internal restraint within the Government against such abuses of democratic principle.  On the contrary, there was the unedifying spectacle in the House recently of the Attorney-General, no less, mounting a highly personal attack on those who had criticised another legislative debacle. 

This was the clause in the Crown Minerals Act (also rammed through without due process) that threatens New Zealanders who protest at sea against deep sea mining with imprisonment or very heavy fines.  It has been criticised by barrister Catriona McLennan in the Dominion Post as a major blow to human rights.

Taking umbrage at a petition that pointed out that this legislation is in breach of international law as well as the Bill of Rights, Chris Finlayson mocked its supporters, including Geoffrey Palmer, a former Prime Minister and an internationally respected authority on maritime law.  The speech was embarrassing, for its lack of legal principle as well as its ad hominem politics.   

In addition, there have been the attacks on Dr Mike Joy for drawing attention to the deplorable state of many New Zealand waterways, and the cancellation of funding to the Environmental Defence Society, presumably because of their criticism of amendments to the Resource Management Act. 

Increasingly, the Government is behaving like a playground bully, taking those who don’t toe the line and pinching their lunch money or beating them up behind the bike shed (under Parliamentary privilege).

In denying legal rights to those who are looking after relatives with a disability, the Government is scraping the bottom of the ethical barrel.  Putting the boot into those people is an offence against ordinary decency, let alone democratic freedom and the New Zealand constitution. 

If there are no restraints inside this coalition government against such abuses of power, then others need to stand up and speak out, as Claire Browning and Andrew Geddis have done.  Where are the other constitutional lawyers, by the way?

Perhaps Pundit will publish an annotated list of legislative and regulatory attacks on democratic freedom in New Zealand, and keep this updated.  Call it ‘Eternal Vigilance,’ maybe?

Comments (22)

by Cushla McKinney on May 21, 2013
Cushla McKinney

Dear Dame Anne,

As a terrified and powerless onlooker, I am very grateful to you, Andrew, Claire, Keith and all the others with  public profiles and experience who are speaking out in the increasingly dictatorial and heavy handed abuses of power that are occurring.  Please keep holding them to account!  

by Eric Dutton on May 21, 2013
Eric Dutton

Martin Neimoller spoke truly.  

On the other hand Edmund Burke held that "Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion."  Indeed our representatives have served us well in depriving us, probably against the majority opinion, of the right to beat our children.  So there is a difference between democratic freedom and mob rule, and that difference will be most apparent in our treatment of minorities, and unpopular causes.

To add a perspective, do these things really compare with the  constitutional outrages committed by the Fraser, Holland or Muldoon administrations?





by Anne Salmond on May 22, 2013
Anne Salmond

You're right, Eric.  Other New Zealand governments have committed (or tried) to commit constitutional outrages.  My memories of autocratic rule by the Muldoon administration, with its ad hominem politics, put that at the top of my own personal list.  

In the late 1980s, when the Labour government tried to bring the universities under direct political control, removing the right to academic freedom, that was another radical attack on constitutional checks and balances.  Along with many of my colleagues, I was in the thick of the protests.  Labour also significantly moved the civil service towards direct ministerial control, a process that has continued unabated.

Just because previous New Zealand governments (of whatever political stripe) have attacked democratic freedom and the rights of their citizens, however, that doesn't exempt their successors from criticism.  The erosion of democratic freedom can be cumulative, made up of many attacks on particular fronts.  As Catriona McLennan argued in the Dominion Post recently, that doesn't make the process any less dangerous.

And I agree with Claire Browning that at present, attacks on democratic rights and conventions are picking up pace.  Citizens who don't stand up and speak out when that happens are culpable, along with their leaders.  As a small country with an informal constitution, we have too few checks and balances in our political system as it is.  Every attack on those we do have makes a significant difference to democratic freedom in New Zealand.


by stuart munro on May 22, 2013
stuart munro

Eric: If our representatives were possessed of the moral compass and cultivated sensibilities Edmund Burke developed in response to the Theory of Moral Sentiments there might be something in the idea of MPs overruling our choices to represent us. Oddly enough, our MPs don't go about writing essays on the sublime or reflecting on anything so as you'd notice.

Aaron Gilmore seems to typify the apogee of moral function under this government, and do you know, I think I'd prefer that his sort just fairly represented his constituents. In spite of government attempts to destroy the education system like Novopay, NZ remains a slightly more educated society than London in the 1790s. Our people are more qualified than Burke's public, and our MPs less qualified than Burke to exercise their own political judgment.

Also, before adopting Burke as a constitutional authority, you might want to read Paine's response to Reflections; it shows up more than a few inconsistencies.

by Ian MacKay on May 22, 2013
Ian MacKay

Having read widely the responses to the Act denying Legal Remedy, I am surprised by the lack of significant support for the Government actions. Puzzling that? Could it mean that there is disquiet out there even amongst the usually loud Government supporters? Is it possible that there are one or two NAT MPs who are decent people and are shamed by the Government Bullies?

Well said Anne by the way. Its important that you have identified all the parts that make up the whole pattern. Thanks.

by toad on May 22, 2013

@ Eric Dutton

To add a perspective, do these things really compare with the  constitutional outrages committed by the Fraser, Holland or Muldoon administrations?

I think this is far worse than the constitutional ourtages committed under former governments. Muldoon's attempt to govern by decree in suspending the NZ Superannuation Scheme was probably the worst before this, but at least in that instance the Courts were able to intervene and declare his actions unlawful.

The Public Health and Disability Amendment passed last week is far worse - it removes the jurisdiction of the Courts to determine the lawfulness of Government policy, and thereby allows the Government to implement policy that is clearly unlawful with no redress available to those it impacts upon.


by Robert Boyd-Bell on May 22, 2013
Robert Boyd-Bell

I am increasingly concerned that NZ is developing into a dictatorship by Cabinet, with party whips and lack of second house effectively destroying any elector responsibility between elections. We give unusual amounts of centralised power to the governing party.

by Anne Salmond on May 22, 2013
Anne Salmond

How does this happen, when we have a minority Government supported by minor parties?  Don't they have any principles, or conscience?

I thought that ACT, for example, was supposed to be dedicated to individual freedom and rights.  What a joke.  

And United Future? Whose Future, exactly?  United for what purpose?   To take away the legal rights of family carers for people with disabilities?  

How sickening.  As they say, power corrupts.




by Anne Salmond on May 22, 2013
Anne Salmond

And the Maori Party too, I see. Aue.

by Grant Michael McKenna on May 22, 2013
Grant Michael McKenna

The Government chose not to appeal the Court of Appeal ruling in the family carers case (Ministry of Health v Atkinson and Others), and accepted that the MoH’s blanket policy of not paying certain family carers for providing home and community support to their disabled family members is discriminatory, and cannot be justified under the New Zealand Bill of Rights Act 1990.

So, families will be paid. Only high care needs patients will be funded, so that the cost is limited, which amounts to discrimination against other families- and families of low care patients cannot sue on the grounds of discrimination, because the act prohibits it. The only other countries to pay families to care for their dependents are the Netherlands and Sweden. In both countries family members are paid less than non-family members. The USA's Medicaid program has a system by which family members of poor families can be recompensed in part for their expenses; Canada does something similar but doesn't have an income test [it does also cap payments though]. Most other EU states make grants through their welfare system, and the grant is not related to the expense.

Not paying every case where family provide some support makes sense, because paying everyone will cost a fortune. This is a policy decision, and the bill has explicitly stated 
that the intention is to discriminate. I believe that the reason for the urgency was to prevent any new claims being lodged. If that were the case, I would have thought a better process would have been to have a bill under urgency cutting off any new claims, and then a lengthy debated bill setting out the new system- after all, payments could be back-dated.

The best explanation for the disregard of process that I have seen was Colin James's Otago Daily Times column for 9th April 2013, where he argued that the PM's background in business rather than politics meant that results were seen as being so much more important than process that "sometimes policy workability and political saleability are sacrificed for speed and single-mindedness". If I were Labour or Greens I'd put a bill in the draw proposing to renationalise partially privatised assets and copy through the exclusion clauses, mutatis mutandis, and then perhaps the reason that we follow processes will be understood.

Given that the Māori Party came into existence precisely because the Labour Party passed the Foreshore and Seabed Act to override the Appeal Court, I expect that the decision to put the bill forward included a consideration of whether enough people would oppose it, and the realisation that there won't be. Indeed, I expect that Labour won't promise to repeal this clause next election, because the Service and Food Workers' Union is doesn't like allowing an alternative to their workers. 

Disclaimer: I'd never vote for a party which doesn't understand economics, so I am not a leftist. 

by Andrew R on May 22, 2013
Andrew R

Hello Graeme Michael McKenna

What sort of disclaimer is that?  If you dismiss leftist parties as not understanding economics (a dubious assertion in my view), are there any parties remaining who do?  Examples please.



by Michael Cole on May 22, 2013
Michael Cole

Grant Michael McKenna,

Your points are well taken. I am sure Mr Key's experiences in business, especially the rarefied atmosphere in currency trading where turnover cycles are so compressed, have something to do with the approach this government has taken to realise some of their more worrying policies. However, one person does not a government make. Not even a republic with an executive headed by a president. The prime minister's desire to achieve the government's goals rapidly should be running into headwinds within his own cabinet, a cabinet made up of quite a few career politicians.

I think the influences are somewhat more varied than you suggest. They are influences that impress upon many of the members in Parliament. The rule of law is becoming burdensome in many democracies around the world and governments are increasingly willing to abandon constitutions and supreme legislation where possible, especially in instances where the gambit of national security can be applied. Something about the redaction of the Regulatory Impact Report included in the Public Health and Disability amendment chimes with the type of privileging of information that accompanies so much national security activity.Perhaps I'm wrong. This government has been more than willing to withhold information on the basis of commercial sensitivity.


Anyway, the reasons for the current course that this government is plotting are secondary. If we are generous and accept that John Key is a political novice - that the current regime is ignorant of the constitutional limits of its powers and is unaware of its fundamental relationship with the judiciary - then we are faced with a conundrum about government by our peers and will have to grapple with a crisis relating to the resilience of our democratic institutions. These institutions would seem to be ill equipped for guiding representatives from diverse constituencies successfully and legitimately through the legislative process. Did no-one tell Mr Key that the government governs, but the judiciary rules?

Disclaimer: corporations are mandated to serve at best the medium term interests of their shareholders. Nations are mandated to serve the interests of their citizens and residents for generations. I'd never vote for a party that doesn't understand political economy.


by Grant Michael McKenna on May 22, 2013
Grant Michael McKenna

The disclaimer was in passing, but was intended to indicate that I perceive command style economics as being ineffective in delivering improving living standards and think that fact to be evident on the basis of the failure of every command style system ever tried. All three leftist parties have now adopted command style policies, so I won't ever vote for them. You are of course quiet correct; they probably do understand the economic cost of their policies- indeed, the glee shown by Green Party energy spokesperson Gareth Hughes in the "Hey Clint" shows that they do, but  regard that economic cost as worthwhile for a variety of reasons.

It is perhaps arrogant of me to put forward an attempt at examining why the government did what it did, and to expect that that attempt would be what would attract a response rather than my feeble attempt to say that I am not leftist, but: This is my disclaimer. There are many like it, but this one is mine. 

by stuart munro on May 22, 2013
stuart munro

Ah yes Grant - the Meiji restoration and the 'miracle on the Han', and the Malaysian 2020 were all command economy failures... I just wish NZ were failing forward like these economies, instead of succeeding steadily out the bottom of the OECD. New Zealand's economic problems have more to do with honest and dishonest than left and right. Dishonesty never prospers a country, though individual ratbags may get away with some of the money from time to time.

by Anne Salmond on May 23, 2013
Anne Salmond

@ Grant: I agree with your comments about command-style economies; but if you'd never vote for a Government which doesn't understand economics, what kind of economics do you mean?  The kind discussed below at a recent NASA seminar, for example?  

[Link now corrected - Ed.]


by Ian MacKay on May 23, 2013
Ian MacKay

@Grant:"I perceive command style economics as being ineffective in delivering improving living standards and think that fact to be evident on the basis of the failure of every command style system ever tried."

I have never lived under a command style economy. Clearly you have. Wonder where that was?

I know that I would not vote for a Party that was market driven at the expense of the social responsibility. And I know just the ones to not vote for.

by Ian MacKay on May 23, 2013
Ian MacKay

@ Grant "I believe that the reason for the urgency was to prevent any new claims being lodged."

Really? Are you/they saying quick pay of the current claimants with the narrowist criteria and block any other families from seeking assistance. If that is so, then it is worse than I thought. Market forces? Hells bells!

by stuart munro on May 23, 2013
stuart munro

The object is not to adopt a command economy but to understand that they can be successful in some circumstances. As a Keynesian economy can be successful in some circumstances, and, although we have yet to see empirical evidence, Friedmanite economies can probably work too, in a sufficiently scrupulous environment.

To make any particular model work a government must be painstaking in selecting which parts of the model promise good sustainable returns and socially desirable outcomes. A government that is not a blind ideologue will want a pragmatic mixed model that maximises benefits like the opportunities of free markets, the spending multipliers of Keynesian stimulus, and rewards socially constructive ends like ecological balance and sustainability.

Persons like Grant, who assert untruths like "command economies always fail" or "quantitative easing is always foolish" lose the potential of that sector of an ideal mixed economy. NZ is far enough behind it does not need further ideological handicaps of this kind.

by Jane Beezle on May 23, 2013
Jane Beezle

I watched the Parliamentary broadcast of Chris Finlayson you have linked to, and I agree that, particularly for an Attorney General, it is embarrassing.

Unfortunately it is true to form for this unpleasant man.  He is one of those people who owns a t-shirt saying "WHY AM I SURROUNDED BY IDIOTS?".

by Jane Beezle on May 23, 2013
Jane Beezle

Sorry, that was ad hominem.  But it felt good.

by Grant Michael McKenna on May 24, 2013
Grant Michael McKenna

@Dame Anne sorry, but the link you gave 404'd.
@Michael Cole- it is I think the inevitable desire of those who have power to seek yet more; Lord Acton's famous dictum on the tendency of power to corrupt is almost always true.
@Ian McKay- I have never lived in a command economy state. I base my knowledge of their failures on visits to Mozambique, Egypt and China, and on my studies. 
@Stuart Munro- The focus of the article was about the National Party led government's behaviour. I was trying to put forward an explanation as to the causes of the observed behaviours, rather than debate the Green's economic policies, and used inaccurate terms.

As it seems to have become a distracting issue let me simply say that I see the proposed NZ Power to be quintessential dirigisme, rather than the creation of a command economy as such. State direction of the economy is different in both its effects and its consequences to that of a command economy, especially because the ongoing existence of independent businesses allows market signals to be observed. [It is because of the existence of independent businesses that I would regard both the Meiji Restoration and all of Malaysia's economic plans as dirigiste rather than command economies; and as for the Koreans, given their use of both Friedrich List's ideas and the French “Commissariat général du plan” as models, they are dirigiste par excellence.]

I apologise for my hyperbolic equations of Green policies to those of North Korea, Maoist China or the former Soviet Union. I can tell the difference between state ownership and private ownership. The Greens propose to take us back to models used in Western Europe- models which played a significant role in blowing their budgets.

I apologise that I have misdirected the conversation into a debate on economics, and will attempt in future to be more precise in my terminology.

To return to our mutton: the tendency of every government is to aggrandise power to itself, and in this National and Labour are equally guilty. I would think that the only effective restraint would be a constitutional one; I myself would prefer a second house, even over a written constitution, because I feel that a written constitution, even with a justiciable bill of rights, will be circumventable by a determined political authority, but divided political power would prevent such abuse.

by stuart munro on May 24, 2013
stuart munro

An upper house might do very well, were it a grave and impartial institution. But NZ has tried it before, and it proved unstatisfactory. It might be that a more direct democratic process, perhaps exploiting the technology that allows asynchronous discussions like this could act as a brake on the creeping megalomania of governments in power.

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