The Constitution and David Minogue

5 Pages Posted: 20 Dec 2012 Last revised: 22 Feb 2015

See all articles by Sir Geoffrey Palmer QC

Sir Geoffrey Palmer QC

Victoria University of Wellington - Faculty of Law

Date Written: 1976

Abstract

Mr. Michael Minogue MP has been trying to secure some basic understanding of how our system of Parliamentary democracy really works. In short, he concludes that the system does not function according to the principles upon which it is based. This is not a new revelation. In one sense Mr. Minogue is building on foundations laid by the Chief Justice in Fitzgerald v Muldoon. That decision made government by Prime Ministerial press release impossible. What the case told us was that the traditional balance of power in a formal sense between the legislature, the Executive and the judiciary will be preserved. Mr. Minogue is content with the traditional and formal division of powers. What he says amounts to a plea for putting some substance into the traditional forms. He would redress the balance against the executive by allowing citizens and MPs much greater access to information than they enjoy under existing laws.

Minogue seems to be suggesting that debates in Parliament would actually change members’ minds. Members would put forward their genuine views rather than their party’s policy. It sounds a little like the sort of legislature where no whips exist and no party discipline either. In practice the quality of legislation would be worse, almost certainly, than it is now. Some intermediate position between party discipline and a free-for-all may exist but the aim should be greater accountability to the public by the executive.

The Minogue argument overlooks the importance of the mass of publically available information. Members of Parliament in New Zealand suffer from information overload. Much of the information needed by MPs to question the domination of the executive lies in sources already available to them. The most obvious way to cut down the work load and allow Members time to absorb information available to them would be to increase the numbers.

The unrivalled simplicity of our unicameral Parliament has not been accompanied by a heightened sense of restraint in the single chamber. Instead we take full advantage of the opportunity we have to legislate quicker than anywhere else in the Western world. We pass far too much legislation and pass it far too quickly. One of the most fearful instruments of executive domination flows from the regulation making power of the executive. For sheer speed, lack of warning, absence of consultation and debate nothing beats regulations. New Zealand does very little to protect itself from an excess of power in regulations.

Mr. Minogue prefers to revitalise and reform Parliament. The task should not be regarded as impossible, but if Parliament does not prove equal to the task we shall have to investigate again the judiciary and the possibility of handing the Judges new weapons, such as a Bill of Rights with judicial review. Should Mr Minogue’s crusade succeed, it will result in improved legislation prepared in a more deliberative manner.

Keywords: Constitution, New Zealand, constitutional law, law reform

JEL Classification: K19

Suggested Citation

Palmer QC, Sir Geoffrey, The Constitution and David Minogue (1976). New Zealand Law Journal 481, 1976; Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 14. Available at SSRN: https://ssrn.com/abstract=2192285

Sir Geoffrey Palmer QC (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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