The Rt Hon Sir Geoffrey Palmer KC’s recent book, How to Save Democracy in Aotearoa New Zealand, is a guide we should all familiarise ourselves with. Not only for its remedies, but to consider the nature of democracy’s current ailments.
In so many ways, Aotearoa New Zealand has been both conditioned and defined by its remote location. In my book, The Power of Wellbeing, I wrote about how this has left New Zealand a special place in comparative law and politics. We have proved, in many ways, to be a unique “social laboratory”, able to try new policies and techniques before others think or are brave, or silly, enough to try. This has led to what, at the time, were regarded by many as groundbreaking social policies. This includes being the first country to give women the universal right to vote, introducing a pension in 1898 (a universal, non-contributory old age pension funded directly by the government), and a developed welfare state based on compassion for those impoverished through no fault of their own.
However, that was then. More recently, we have seen the gradual dismantling of the welfare state, starting with “Rogernomics” and continuing since. Experimentation has a darker side, and Sir Geoffrey knows this better than most. As the architect behind the grand bill that evolved into our Bill of Rights, he pushed New Zealand toward a more principled, rights-respecting democracy. Regardless of how you might view his influence and the legacy he has left behind, his original goals were laudable and sprang from a simple aim: a safer, well-rounded, and more democratic country.
Sir Geoffrey remains one of our foremost thought leaders. Today, he stands by those principles. In his book, he warns of the erosion of parliamentary process and the thinning of checks and balances, proposing reforms that focus on greater wellbeing in governance.
A wellbeing lens on democratic repair
In The Power of Wellbeing, I argue that the true health of a country is not measured by GDP alone, but by general wellbeing: trust, belonging, fairness, capability, and civic engagement. As part of the Living Standards Framework published by Treasury in 2001, civic engagement and governance are one of the 12 essential wellbeing domains. Politics, however awkward or unsavoury it might make conversation, is the engine room of the democratic process. If we want to retain a robust and resilient democracy, we must invest in the places where engagement happens.
The very word “urgency” holds normative weight. To pass a bill under its strictures invokes or at least implies some degree of emergency concern. But the use of urgency to pass bills is becoming routine, even normalized. Parties on both sides of the aisle have made use of what should have been a last resort. Like any tool, if your competitors can get away with using it, you will as well.
This has only compounded deeper issues with civic engagement. Good law is carefully formulated and considered, not rushed. People trust institutions that respect the process and show their work. On the other hand, urgency can give the appearance of cutting corners and avoiding due process.
The “Shadow Docket“
Take, for example, the US Supreme Court’s “shadow docket,” which allows the Court to issue emergency orders and unsigned decisions, absent adequate or, in some cases, any real written or oral argument. Basically, these are increasingly common urgent rulings that bypass the normal deliberative process and are used for emergency applications to stay lower court rulings or grant temporary relief.
While supporters of the “shadow docket” (a term the Conservative members of the Court dislike) point out that those cases are still working their way through the system, opponents argue that these decisions typically have minimal or no reasons. This group also points out that, given the urgency under which these orders are made, the decisions are not made based on thorough analysis, as fully argued cases are. Critics also argue it allows the Court to make consequential rulings on contentious issues, like immigration, abortion, and voting rights. That is, without the accountability that comes with full opinions and reasoning, which is exposed not just to the parties but to the public as a whole.
Kellye Testy, executive director of the Association of American Law Schools and Austen Parrish, dean of the University of California, Irvine School of Law, point out that in the US, the judiciary is under increasing attack. A troubling statistic is that one-third of Federal judges have received threats over the last year. They write that the judiciary faces a growing crisis of legitimacy, driven by increasingly intense threats, political attacks, and efforts to delegitimise the judiciary generally. They call for lawyers to defend judges. While I certainly endorse that call, difficulties can arise and loyalties be tested if the judiciary itself becomes politicised, as some would say it has in the US. And, if the perception that the US Supreme Court has become overly politicised, the over-use of the shadow docket is hardly likely to engender confidence in that institution.
Which brings me back to the situation in Aotearoa New Zealand. In terms of nurturing the health of our institutions and democracy itself, for Sir Geoffrey, one of his solutions is to increase the number of MPs. He contends that with more hands and time, Parliament can deliberate in the open, explain trade-offs, and correct courses, without defensiveness. More MPs—properly supported—mean more ears in committees, more time for evidence, better reach into communities that rarely feel heard. Restoring capacity, so he argues, reduces reliance on urgency and strengthens select-committee scrutiny. Additionally, there is the opportunity to have more specialists elected, increasing the chance that expert knowledge might influence matters before they reach the select committee.
In my personal view, regardless of method, a healthy democracy listens before it decides. Civic engagement and governance need to be increased somehow, even if it doesn’t allow for more MPs. Because yes, increasing MPs has a cost. But so does bad, unconsidered, rushed law. This cost is paid in avoidable litigation, policy reversals, programme failures, and public cynicism. If we treat democracy as an expense to be minimised, we will get a cheaper and weaker democracy. The wellbeing question is not “What’s the smallest Parliament we can get away with?” but “What size and shape of Parliament best protects people’s rights and futures?”
Isolation or collaboration?
In a post-pandemic world, democracies have tended to drift toward either isolation (less government, more centralised power, anti-science, thinner scrutiny) or collaboration (shared responsibility, transparency, patient law-making). Democracy is effective collaborative rule. Collaboration requires engagement. Engagement requires responsibility—from Parliament to listen and explain, and from citizens to show up, speak up (at times loudly), and stay curious and actively engaged. If we want a democracy worthy of our best moments—women’s suffrage, independent courts staffed with our best legal minds, pragmatic reform—then we must build the capacity (both economic and social) to sustain it. That means a Parliament big enough, skilled enough, and trusted enough to do the slow, careful work that freedom requires.
The short point is that if we value wellbeing, we must invest in the institutions that make wellbeing not just achievable but viable. That means, first and foremost, our Parliament and courts.
💬I would love to hear what everyone thinks.
