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Home / New Zealand

The rule of law

Claire Trevett
By Claire Trevett
Political Editor, NZ Herald·
12 Oct, 2007 04:00 PM9 mins to read

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Sir Geoffrey Palmer's role as Law Commissioner has received some criticism from those who believe he is too close to the Government. Photo / Mark Mitchell

Sir Geoffrey Palmer's role as Law Commissioner has received some criticism from those who believe he is too close to the Government. Photo / Mark Mitchell

KEY POINTS:

Four beige volumes titled Code of Iowa sit on Sir Geoffrey Palmer's shelves and embody the world as he would like it to be.

The president of the Law Commission worked at the University of Iowa for many years, but the books' beauty, to his lawyer's eyes, is
in their simplicity.

Those four small volumes are an orderly assemblage of the entire body of law of the state of Iowa - "and you look at the print. It's double-spaced."

A fifth book - the Index to the Iowa Code - is of particular delight.

"Look at this. That's the index, and there's every topic in the world there."

It has references for everything from otters to anti-freeze.

"Any changes in state laws are taken care of by a bureau which updates and reprints the Code every two years "and I think that's wonderful. We need an index like that so people can find the law."

New Zealand's laws are such a hotch-potch they take up hundreds of books, he says.

He pulls out a Law Commission issues paper - a 133-page call for a New Zealand version of the Iowa masterpiece - and hands it over, declaring it to be "vital reading".

Making it it easier to find the law was one of Palmer's aims when he left his private public law practice at Chen Palmer in 2005 to start a five-year term as president of the Law Commission.

He says his core client is "the statute book of New Zealand". Despite the intellectual heft of the Law Commission, many of its recommendations had languished for years, victims of governments focusing on their own agendas and of indifference.

In a 2000 report Palmer wrote on the commission he singled out its "inability to develop effective working relationships with the executive government".

Palmer was the ideal man to change this job - respected as a legal mind and having the background in politics to gain the ear of Government ministers. He came in determined to increase the Law Commission's "strike rate" - the number of recommendations turned into law - up to 70 or 80 per cent, from the 50 per cent rate it had enjoyed.

Last year, he persuaded the Government to start dealing with old reports, including one on reforming the Property Law Act which had sat on the commission's shelves for 12 years.

This year he secured a deal that ensured prompt Cabinet attention to commission recommendations, and a much greater deal of collaboration with Government departments. The results of Palmer's insistence show on the legislative agenda.

Recent bills have ranged from a minor tidying up of arbitration and wills law and abolishing the law of sedition, to broad-ranging reforms of the criminal justice system, including a revamp of sentencing laws and the establishment of a sentencing council to set guidelines for sentencing.

Palmer has surrounded himself with legislative A-listers, taking law professor John Burrows as a commissioner, and persuading the Parliamentary Counsel Office's former head counsel, George Tanner to come out of retirement.

Palmer's growing influence has not gone unnoticed. He was listed at No. 10 on The Listener Power List for "his role in re-invigorating the Law Commission" and for stepping in to break the deadlock over Sue Bradford's smacking bill by drafting the amendment that won cross-party support.

But one of Palmer's strengths - the political connections that ensure he is heard - has raised eyebrows.

The number of Law Commission initiatives pouring through Parliament prompted National's justice spokesman Simon Power to ask Minister of Justice Mark Burton "who the real Minister of Justice is - himself, the Prime Minister, or Sir Geoffrey Palmer?"

Power now questions whether Palmer is "the constitutional mouthpiece of the Government" and says the commission's work on criminal law reform and the new Organised Crime Agency, including the abolition of the Serious Fraud Office, is work that should have been properly done by the Ministry of Justice.

National's shadow attorney-general, Chris Finlayson, was the first to shake Palmer's hand when he was appointed, and he also believes clean, up-to-date laws are essential.

But Finlayson's response when the Herald calls is a pointed reference to Palmer's sway on the Government - "So you're doing a profile on Sir Jesus".

"I like Sir Geoffrey," Finlayson says. "The Law Commission needed an injection of his energy. But there have been times when I think he's been too close to the ninth floor [Helen Clark] and I don't think that's necessarily good for the Law Commission.

"If he concentrates on dusting off ancient Law Commission reports and using his considerable influence and energy to get them into law, he will be performing a great service to the state. But if he crosses over into giving [Clark] strategic political advice, that's when we get stroppy."

His concern is not aimed at Palmer, but he thinks the Government feels free to use him as its "legal arm" and "I think too often Sir Geoffrey has allowed himself to be put in that position".

Palmer bridles at such suggestions, saying they are "just silly".

"It's not 'government by Law Commission'. It never has been and never will be. Its independence is statutory. It is independent to recommend without fear or favour the policy that is thought appropriate. We cannot be told by a minister what to do, and we have the power to make our own reports on any subject we like."

He created the Law Commission in 1986 to be an independent body, and it will stay that way. He attributes its recent success to timing.

"At this time in the political cycle, a Government in its third term, you've got the space in the legislative programme to deal with what I call infrastructure law reform projects - things that wouldn't get much political attention when the Government was just in office and was doing its main pledge programmes. There's a time for these things, and the time at the moment is for law reform."

He describes the work he did on the smacking bill as "pretty abnormal" for a Law Commission, but said he was summonsed by the select committee.

Recently, however, he turned down a select committee invitation to advise on the beleaguered Electoral Finance Bill because the bill had not been developed in the "Law Commission way". If it had been, there would be discussion documents and public submissions before any final report.

Palmer dismisses much of the criticism levelled against him as "politics".

"There's more to life than politics. This is about government. This is about having good government. This is about having good laws."

Palmer was the Prime Minister who never wanted the job. In his autobiography, David Lange says Palmer's "reputation was not enhanced when he became prime minister because he did not have the desire for the job and his abilities were not the ones it required. I am sorry that the burden fell on him." Palmer agrees this was a fair assessment.

"I didn't want to be Prime Minister. The sort of things I like doing are what I'm doing now and what I was doing when I was Deputy Prime Minister, Justice Minister and Attorney-General. Legislation has always been my first love."

He went into politics "because I learned, when I was advising governments when I was a law professor, that to be effective it was better to be the minister than the minister's adviser. That's what I learned, so that's why I became one."

One of Palmer's colleagues, George Tanner, says other lawyers scoff at Law Commission work - the methodical scanning of law to see where it can be simplified. He tells of a prominent judge who sneered "how boring". It takes a certain type to do the kind of work involved and everybody the Herald spoke to said Palmer was the man for the job.

Finlayson said he would have been pleased to appoint Palmer as the Law Commissioner, while Law Society president John Marshall says Palmer's intellect and passion for law reform make him "ideally suited" to chair the commission. Mai Chen, his former partner at their law practice, Chen Palmer, says "He works very hard on his relationships with people. He can be high maintenance, but I guess when you're talented and a former Prime Minister you're entitled to be."

She describes him as a "workaholic" and says his move to the Law Commission from Chen Palmer was because he wanted to slow down.

"Slow down" has a strange meaning in Palmer's world.

This week, he issued the Law Commission's programme for next year. It lists 13 new projects - ranging from the biggest, a reform of criminal procedure, through a revamp of the War Pensions Act, the Misuse of Drugs Act, down to working on fighting organised crime with the Ministry of Justice and police in the new Organised Crime Agency.

As well, he will be saving the whales, leading the New Zealand delegation to the International Whaling Commission - a role which takes him to an arena which "is a combination of law, diplomacy and politics of a sort that is pretty feisty".

He's considering stepping down from the IWC role which he has held for the past five years because it takes up too much time - at least a month a year overseas - "but it's going through a difficult period".

In 2010, Palmer will be 68 and his term at the commission will end. The Code of Iowa will have been updated and reprinted twice more, and if New Zealand looks close to getting an index like it, he might just consider slowing down further.

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