Written by Nicholas (or Nick) Holden
Prime Minister, King’s Counsel, Professor. These are all titles that Sir Geoffrey Palmer has held over his career. Yet, even these titles do not fully capture the enormity of his impact, achievement and influence over his public life. Born on the 21st of April 1942, Geoffrey Palmer attended Nelson College before graduating with a BA/LLB from Victoria University of Wellington in 1964 and 1965, respectively. He then went on to gain a Juris Doctor from the University of Chicago Law School in 1967. To date, Geoffrey’s diverse career has traversed legal academia, politics and legal advocacy. Throughout this time, he has spearheaded some of New Zealand’s (NZ) most major legal, constitutional and policy developments. Despite his legacy, his contributions remain under-recognised by the general public. In turn, I will examine some of Geoffrey’s major contributions to the legal, policy and constitutional canon of NZ.
New Zealand Bill of Rights Act 1990
Arguably, Geoffrey’s most well known and most significant contribution is the instrumental role he played in the enactment of the New Zealand Bill of Rights Act 1990 (NZBORA). The enactment of the NZBORA was, and remains, a cornerstone in New Zealand’s legal framework as it gave statutory recognition to fundamental rights, and provided a means of holding the government to account for breaches of these rights. The NZBORA is no doubt one of the most important and consequential developments in NZ’s legal and constitutional history (Manatū Taonga – Ministry for Culture and Heritage, 2024).
Geoffrey played a vital role in the entire legislative process (Rishworth, 2012). It was Geoffrey who, in 1985, introduced the proposal for a Bill of Rights in White Paper form (Rishworth, 2012). For context, ‘white papers’ are documents that contain policy proposals formulated by Ministers (McGee, 2017). Geoffrey’s personal views regarding human rights and NZ’s constitutional arrangements were certainly made clear by his proposals in the White Paper. The White Paper was met with much criticism as it contained a number of controversial features, including (Rishworth, 2012):
- The NZBORA being supreme law, meaning that Courts would be able to invalidate legislation that was inconsistent with it. Effectively, this would have been a total upheaval of the traditional relationship between Parliament and the Judiciary.
- The NZBORA being entrenched. This would have meant that the approval of 75% of the House would have been needed to amend or repeal the NZBORA.
- The incorporation of the Treaty of Waitangi, thereby making the Treaty supreme law.
Whilst all of these features were swiftly scrapped due to Select Committee scepticism, the inclusion of such bold features in an already progressive proposal reflects who Geoffrey is, a man with a desire to ease the plight of everyday New Zealanders, particularly in the context of their relationship with the government. Although, it should be noted, some argue Geoffrey did not go far enough given his decision to exclude economic, social and cultural rights from the White Paper (Opie, 2012).
Since its enactment, the NZBORA has been the subject of high stakes litigation on numerous occasions and, as a consequence, has played a vital role over the last 35 years in protecting the fundamental rights of all New Zealanders (Connell, 2010).
Changes to the Electoral System
Public unease regarding the First Past the Post (FPP) electoral system intensified in the late 1970s and early 1980s (Roberts, 2012). In 1984, Geoffrey, who was then the Deputy Prime Minister, listened to these concerns and established a Royal Commission on the Electoral System to examine the issues with the FPP system. The recommendations of the Royal Commission were “surprisingly radical” (Manatū Taonga – Ministry for Culture and Heritage, 2018). Effectively, the Royal Commission recommended that the Mixed-Member Proportional (MMP) system as we know it today be adopted (Manatū Taonga – Ministry for Culture and Heritage, 2018). From his writing on the matter, it is also clear that Geoffrey is a proponent of proportional representation electoral systems (Palmer, 1979).
Although it was a later referendum that resulted in the formal adoption of the MMP system, Geoffrey Palmer’s role in this fundamental democratic change was significant. It could very well be that the shift to MMP would not have been made until much later (or at all) if it was not for Geoffrey’s Royal Commission catalysing the process.
Environmentalism
A lesser known passion of Geoffrey’s is the environment and environmental protection. From 1987 to 1990, Geoffrey served as the Minister for the Environment, but his legacy and interest in environmental protection has transcended his time in politics. He has taught courses on climate change law and published research recommending large changes to international environmental law, aiming to improve the speed at which the law develops to better reflect the environmental realities of the day (Victoria University of Wellington, 2022). The quality and strength of his environmental advocacy was acknowledged through his induction as a member of the coveted Global 500 Roll of Honour by the United Nations Environment Programme (Victoria University of Wellington, 2022).
Advocacy for a Written Constitution
In his life after politics, Geoffrey has become a vocal proponent of New Zealand adopting a written constitution and doing away with the incumbent unwritten constitution. Written constitutions are single unified documents that guide and regulate the relationship between the government and society (KeyDifferences.com, n.d.). Generally, written constitutions are supreme in nature, as in the United States (US). This is unlike unwritten constitutions, characterised not by one single unified document, but instead a range of laws and rules from a vast array of sources which govern interactions between the general public and government (KeyDifferences.com, n.d.).
It is clear that during Geoffrey’s tenure in the US working as a legal academic, the American constitutional arrangements made an impression. Throughout his vast and detailed writings on this topic, there is one constant concern – it being too easy for the government to abuse power under the current unwritten system, to the detriment of society. This concern about government overreach has been at the heart of much of his work, most clearly in relation to the enactment of the NZBORA. Whilst some of the recommendations Geoffrey has made in his proposed constitutions are purportedly ‘radical’ (Wilkinson, 2016), his desire to improve the state of New Zealand’s constitutional arrangements must be commended, regardless of what you think of his proposals.
Legacy
Sir Geoffrey Palmer’s legacy is one of immense legal and constitutional innovation. He was and still is driven by a desire to help everyday New Zealanders navigate their plights and lead better lives without unlawful government overreach. At the age of 83, Geoffrey is not done yet. He is an Honorary Fellow at the Victoria University of Wellington Law School, where he regularly publishes and teaches. Additionally, he has recently published a new book titled The Futures of Democracy, Law and Government. With fuel still left in the tank, it will be interesting to see what wisdom Geoffrey has yet to impart, particularly in the context of legal academia.
References
Connell, C. (2010). Evolving role of the courts: Constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (Master’s thesis). Te Herenga Waka—Victoria University of Wellington. https://openaccess.wgtn.ac.nz/articles/thesis/Evolving_Role_of_the_Courts_Constitutional_Review_of_Legislation_under_the_New_Zealand_
Bill_of_Rights_Act_1990/16972348/1
KeyDifferences.com. (n.d.). Difference between written and unwritten constitution. https://keydifferences.com/difference-between-written-and-unwritten-constitution.html
Manatū Taonga – Ministry for Culture and Heritage. (2018). The Royal Commission. New Zealand History. https://nzhistory.govt.nz/politics/fpp-to-mmp/royal-commission
Manatū Taonga – Ministry for Culture and Heritage. (2024). Political and constitutional timeline. New Zealand History. https://nzhistory.govt.nz/politics/milestones
McGee, D. (2017). Parliamentary practice in New Zealand (4th ed., Chapter 37). New Zealand Parliament. https://www.parliament.nz/mi/visit-and-learn/how-parliament-works/parliamentary-practice-in-new-zealand/chapter-37-papers/
Opie, J. (2012). A case for including economic, social and cultural rights in the New Zealand Bill of Rights Act 1990. Victoria University of Wellington Law Review, 43(3), 471–516. https://doi.org/10.26686/vuwlr.v43i3.5031
Palmer, G. (1985). A Bill of Rights for New Zealand: A white paper presented to the House of Representatives by leave by the Hon. Geoffrey Palmer, Minister of Justice. Government Printer.
Palmer, G. W. R. (1979). Unbridled power? An interpretation of New Zealand’s constitution and government. Oxford University Press.
Roberts, N. S. (2012). Electoral systems – The call for electoral reform. Te Ara – The Encyclopedia of New Zealand. https://www.teara.govt.nz/en/electoral-systems/page-4
Rishworth, P. (2012). Human rights – Legal protection for human rights. Te Ara – The Encyclopedia of New Zealand. https://www.teara.govt.nz/en/cartoon/34473/bill-of-rights-proposal-1985
Victoria University of Wellington. (2022). Sir Geoffrey Palmer: Constitutional reformer determined to make a difference. https://www.wgtn.ac.nz/news/2022/12/sir-geoffrey-palmer
Wilkinson, B. (2016). No need for a constitution. The New Zealand Initiative. https://www.nzinitiative.org.nz/reports-and-media/opinion/no-need-for-a-constitution/
