Democracy in NZ: Lost, Stolen or just Mislaid?

Democracy in NZ: Lost, Stolen or just Mislaid?

Rod Donald Memorial lecture, November 2010

by Jeanette Fitzsimons

It is a great honour to be invited to give the first memorial lecture in remembrance of my dear friend, colleague and political other half for ten years, Rod Donald.

I have chosen the topic of democracy because Rod was, above all, a passionate democrat. He believed in equal rights for all people, including to elect a government that would fairly represent them. Whether it was Zimbabwean poor watching their homes bulldozed by a tyrant, Asian sweatshop workers receiving a mere pittance for labouring in outrageously unsafe working conditions to make shoes and clothing for us, or NZ workers seeing their workplaces closed because of unfair competition from those sweatshops, Rod took up their case and fought for them.

Like all Greens, he understood the connection between justice for people and protection of the environment and his work also stood out on community recycling in Christchurch and stopping the logging of the West Coast old growth forests. He had for some years a trespass order against him for occupying a road bulldozed through beech forest, where with others he replanted the road with beech seedlings.

Rod argued repeatedly for improvements to our democratic system. To make the voting system fairer he argued for freedom of information, transparency of political donations, spending limits for election campaigns, STV for local elections, and of course against the FPP system which in the eighties meant that an increasingly large minority had no political representation at all.

Under MMP he argued for select committee chairs to be allocated in proportion to party strength in the House. Most of these issues are still not resolved and on some we are going backwards.

In particular we can thank him for rescuing a languishing campaign for a fairer voting system, fronting it brilliantly on TV and making the difference that saw us win that fairer system, MMP, in a referendum in 1993.

If he were with us today he would be hyper active again over the many new attacks on democracy, and I shall return to that.

Before we discuss whether we are losing democracy or having it stolen from us it is worth considering for a moment what it means and how it came to be. Scholars argue about whether its origins were in Athens in the fifth century BC, or much earlier in societies ranging from India to Mesopotamia and various tribal societies who rebelled against tyrants and came to resolve issues around the table or the camp fire.

Those arguments need not concern us - fortunately, as I make no claim to being a historian. It is clear that whether one considers Athens, Rome, Magna Carta, the English civil war, the evolution of modern democracy from the nineteenth century to now, or the 1993 debates between Rod representing the people and Peter Shirtcliffe representing the ruling trans-nationals, it has been about who exercises power and how, and it has been born of the struggle against the enslavement of the many by the few. That is equally true today.

The word democracy means "people power" where in theory the people take control of the way society is run so it may be for the greatest good of the greatest number.

According to one definition, democracy is a political system in which all the members of a society have an equal share of formal political power.

Those two statements suggest that democracy is an aspiration which no society has yet attained, but where it is possible to measure progress towards or away from an ideal.

The direct democracy of the Greek city states is no longer possible in today's mass society so democracy has come to mean an equal right to elect representatives to make decisions for us.

The starting point then must be free and fair elections where big money does not decide the outcome, where all votes count equally, where transparency of campaign contributions ensures that vested interests cannot purchase policy, and where all people are well informed and actively participate.

This leads to a parliament with the power to make laws, but real power still resides with the executive which, provided it maintains control of 50% plus one of the votes in Parliament, can do almost what it likes. NZ's system with a single house and no codified constitution is vulnerable to this so the role of the courts in reviewing the actions of ministers against the law is particularly important, even if rarely invoked. Another issue I shall come back to.

Running through the history of democracy has been the issue of just who is a member of society? In ancient Athens women and slaves were not. In early nineteenth century Britain only landowners were. Many societies are still battling to include ethnic minorities. I was living in Switzerland in 1972 when women achieved the vote for the first time in federal elections. I was astonished it had taken so long, but even more amazed that the main opposition came from some women who saw it as a threat to the stability of families.

NZ achieved universal suffrage ahead of the rest of the world so it is concerning to see proposals now to exclude people serving a prison sentence from voting. Given that under the UN Declaration of Human Rights voting is a right of citizenship, does this amount to robbing them of their citizenship?

How do we expect released prisoners to reintegrate into society and play an active part in community life if they have been defined as non-citizens and barred from participating in decisions about how we are governed?

Democracy is inseparable from human rights and the necessary conditions for a real democracy have been spelled out by the Human Rights Commission.

International human rights standards recognise that democratic rights require the protection of a range of other rights and freedoms, including the right to justice, freedom of expression, the right to peaceful assembly and freedom of association and rights relating to health, social security and education. They further provide that these rights must be enjoyed without discrimination.

Interestingly, both the UN Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Elimination of Racial Discrimination specifically provide that the State should take steps to ensure the equal representation and participation of women and of all ethnic and racial groups in political processes and institutions. This suggests that any electoral system which does not provide equal representation of all groups - ie proportionality - is in breach of its UN obligations. Those countries who have retained the Westminster system clearly do not comply. NZ currently does - and let's leave it that way.

If democracy means an equal sharing of political power, and government being run by the people for the greatest good of the greatest number, then it is clear we do not live in a democracy, we never have, and probably no such ideal state exists anywhere. But when you compare NZ with other states which also have elections - Myanmar comes to mind this week - there are degrees of democracy and we are among the most advanced.

Yet the process of becoming a democracy is never finished, and there can be many backwards steps along the way. I want to talk now about some of those backwards steps. Christchurch is a good place to start.

For several years there has been rising discontent in Canterbury about the over allocation of water from rivers and aquifers, and over deteriorating water quality. People who would never have seen themselves as activists created a new organization calling for a moratorium on new water rights until the problem was sorted. Farmers who were moving in large numbers from traditional dryland farming to irrigated dairying saw their livelihoods at risk. Councils tended to represent the farmers.

But the public saw water as a public resource and an environmental good that should not be alienated for the profits of a few. After more than one attempt the issue reached the political arena and a regional council was elected with a strong contingent of people wanting to take care of water resources for all, including for other species, for recreational fishing and for future generations.

The eventual upshot was the abolition of that properly elected council by an elected central government, by special act of parliament, with no select committee hearings and against strong opposition from parties not in the executive. While they might claim there was consultation in the process of developing the Creech report, it cannot be claimed that it was rigorous or objective.

If New Zealand had a written constitution setting out the relationship between elected regional and central government and the courts were able to uphold this constitution such a thing would not have been possible. Why were New Zealanders not marching in the streets and occupying the offices of the minister responsible? The fact that central government could get away with this is evidence that we have been at least negligent in taking care of our democracy. Yes, it was democratic theft, but we left the house unlocked.

This whole saga has a chilling effect on democracy. When eventually free elections are allowed again for a regional council in Canterbury - if in fact they ever are, and if regional councils are not abolished altogether first - will anyone be game to put their hand up on behalf of water as an environmental and public good?

Is it in fact democracy when an elected parliament passes such a law, as it is legally entitled to do, by a narrow majority after no real consultation or exploration of alternatives?

A similar approach was used on Auckland where the carefully consulted on royal commission report on a super city was thrown out and the executive's view imposed. I welcome the signs that democracy is alive and well in Auckland. The select committee was overwhelmed with submissions, the arguments were fierce, some changes were made, and finally the Government's preferred candidate to take over this super city and run it for the elite was superseded by the people's choice - from south Auckland, no less.

Back to Christchurch, and the opportunity that an emergency always gives those in power to overturn democracy at least for a while.

The Canterbury Earthquake Response and Recovery Act is remarkable in giving a minister the power to overturn any statute on the books bar five, for the purpose of recovering from the earthquake. This is not a law to preserve life or prevent further damage to property - that phase was well over. We are not in an emergency, we are recovering from an emergency and lives are not at risk.

It is about rebuilding a city which we all agree is important and will need some waivers because of the sheer scale of it. However there are two things about that bill which go far beyond what is necessary and give cause for alarm.

First, it is hard to see the relevance of most of the statutes covered to rebuilding Christchurch. The scope of the bill is outrageously wide. The explanation could be sheer laziness - the executive couldn't be bothered analysing the statute book to differentiate between what needed to be there and what didn't, was worried they might miss something, so included everything except constitutional law.

But why then exempt all the minister's decisions from judicial scrutiny? Judicial review exists to ensure that ministers do not abuse their executive powers under the law. Many laws are deliberately written to make judicial review extremely difficult. But if ever there was a need for the oversight of the courts it is with this legislation.

I am not alone in suspecting there might have been a hidden agenda to accomplish other objectives under the cloak of emergency legislation. I note that Parliament's Regulations Review Committee has rigorously analysed all of the Orders in Council passed under this Act to see if the powers are being abused. My colleague Kennedy Graham sits on that committee and has also placed an advertisement in the paper inviting people who have evidence of such abuse to contact him. It appears that so far there is no such evidence, and I welcome that.

However we are left with the question, if you have no intention of abusing special powers and seek only practical steps to ensure Christchurch is rebuilt, even if you are too lazy to work out which laws you may need an exemption from, why take the virtually unprecedented step of removing the scrutiny of the courts? Judicial review is not undertaken lightly. It costs $20,000 up front for starters, and the legal tests are high.

I think there is another agenda running here. If all our laws can be overridden so easily without harm, why do we need them at all? If the RMA can be suspended to rebuild Christchurch without harm, then the RMA is clearly just red tape, so let's get rid of the annoying parts of it altogether. Similarly, if we can do fine without the courts in this case, their mana is weakened and their role reduced overall.

The precedent effect of this legislation, and indeed of the similar legal overrides legislated for the Rugby World Cup in Auckland, may well be designed to get us used to used to legal and constitutional short cuts which may be used for worse attacks on democracy in future. We need to be very vigilant that this is not a permanent weakening of our democracy.

I could comment on numerous other instances of democratic attrition, such as the chilling effect of increased surveillance and restricted civil rights in the name of counter terrorism, and the tendency of the executive to bypass public consultation on far reaching policy decisions. But I need to move now to an issue that was very close to Rod's heart.

If democracy is about governing by the will of the people for the greatest good of the greatest number, then it also requires controlling our own economic destiny which includes ownership of our key productive assets, particularly land, and the ability of our elected representatives to make economic decisions in the future. Rod was deeply concerned that both of these have been steadily whittled away by successive governments. He would be even more concerned at the renewed attacks on them now.

There is very widespread public support for the Green position, developed by Rod, that land ownership in a small country like NZ should be restricted to citizens and residents who actually live here and contribute to our society. That is normal - overseas people and firms buying up NZ land with few restrictions come in the main from countries which would not allow us to do the same. The recent moves in response to public outcry to tighten up a little are largely window dressing and in any case will be nuked by a so-called free trade agreement which is under development. We are all deeply indebted to Jane Kelsey and international colleagues in Trade Watch organizations such as Public Citizen, for the insightful analysis in their recent book, No Ordinary Deal.

Most media comment about the Trans-Pacific Partnership Free Trade Agreement repeat the mantra about increased market access for our butter and lamb. It is deeply disappointing that this perception has not changed despite the launch of No Ordinary Deal which makes it very clear that the deal is not about trade in goods at all. It is actually the successor to the Multi-Lateral Agreement on Investments, the MAI which bit the dust in the late nineties after an unprecedented international internet campaign of shared information and protest - a campaign in which Rod and I took part.

Loss of economic democracy is not new in NZ - we have already sold assets worth $93 billion, with the process really accelerating in the last two decades. Building on that, our government is now negotiating to empower foreign corporations to make decisions about our future which in a democracy would be made by our elected representatives, after consultation with us; decisions that in a democracy would be reviewable and reversible by future public will through their elected representatives.

We have to make some assumptions about what the text contains, as the full texts of trade agreements are not made public until after they are signed. Even laws which pass through the House in a single day, like the Earthquake Act referred to before, are debated once in the House on the basis of the full text and the media get to report it. The extreme secrecy accorded to trade agreements are for Meta-law which binds future governments and overrides other domestic legislation. Even the US has made some limited attempts to inform its citizenry with a website and meetings; NZ has not.

So Kelsey and colleagues have relied on this, as well as the known trade policies of other governments principally the US; the negotiating positions of parties; and the public demands of industry lobby groups in the US and other countries. It is time our government was challenged to say whether these assumptions are true and to give assurances on the record. They need to be asked:

• will the proposed TPP give foreign corporations the right to sue the NZ government if we bring in any new laws or regulations for environmental, health, financial or worker rights reasons? If so, why?
• will we be required to change our current PHARMAC approach to pharmaceutical pricing and availability?
• will future policy on government procurement to buy local and buy sustainable be outlawed?
• will our ability to restrict or label foods produced using GE or growth hormones or pesticides be compromised?
• will we be required to downgrade our phytosanitary and quarantine requirements, such as for pig meat and chicken?
• will our ability to regulate the financial sector to prevent a repeat of the 2008 meltdown have to please the foreign owned banks?
• will we retain any ability to promote NZ indigenous culture in State owned broadcasting in the face of the entertainment juggernaut from the US?

These are not fanciful ideas. All of them have been in other trade agreements or are on the known wish lists of negotiators from some of the countries we are negotiating with. The Government must be challenged to answer these questions on the record and debate the reasons for their stand.

There are two bulwarks in a democracy against these erosions of people power. I shall argue that right now both are seriously wanting in NZ.

Theoretical definitions of democracy agree that it depends not only on the range of rights and institutions I have discussed earlier, but also on an informed and active civil society which channels public opinion and challenges power.

We have seen this occasionally in the past. It is always a mystery to me which issues generate it out of the many that could. Who would have thought that concern for civil and political rights of black Africans would have trumped rugby as a national passion in 1981? It certainly took me by surprise.

We saw civil society take power through numbers and strong argument in the 1970s debate on nuclear power and nuclear armed warships; and on genetic engineering two decades later with the demand for a royal commission and a moratorium. Both influenced public policy. This year the large advertisements opposing sale of farmland to overseas interests provoked a policy tweak from government, though as I argued earlier it is more apparent than real. A more solid backdown occurred after the thousands of submissions on the proposal to open up the most protected categories of Conservation land to mining. So democracy in NZ is not far from dead, but in some areas it is curiously asleep.

I didn't hear very much outrage about the removal of ECAN for doing the people's will and protecting Canterbury's water. Its chilling precedent effect was largely ignored in the north island.

There is so far no outcry about the TPP but with the parties meeting in Auckland on 6 December that may yet occur. There is no reason why the international networking that killed the MAI should not be even more effective now, given the much greater reach of the internet these days.

There is no public movement - yet - to oppose Solid Energy's proposals for massive lignite development in Southland which would release greenhouse gases significant on a global scale and make anything else NZ does on climate change largely irrelevant. Yet we had tens of thousands of people sign the Sign On petition asking the government to set a target to reduce greenhouse emissions by 40% by 2020, and hundreds of people actually came to the Minister's public meetings to demand that commitment.

I think what this shows is that civil society cannot participate in public policy decisions without leadership to inform them, package the information and suggest courses of action. This leadership existed for the Springbok tour, the nuclear issue, the climate change target and mining on conservation land. It does not yet exist for the TPP, the role of coal in climate change, or abolition of democratic structures. The crucial role of leadership of course imposes particular responsibilities on the leaders of movements to be reasonably accurate in the way they package that information, though I would not go so far as to demand "balance" - there will be much stronger forces from vested interests presenting the other side of the debate.

We do need to scrutinise carefully where that leadership comes from and what agenda is driving it. Sign On was initiated and run by Greenpeace, based on international science and the findings of the IPCC that only a cut of 25-40% by developed countries by 2020 could hope to arrest dangerous climate change. All the facts and the science were independently verifiable from published information. Other so called "mass" movements have not been so forthcoming.

Recent reports including a film by Australian Taki Oldham and an article in the New Yorker document how the Tea Party movement in the US, so influential in the recent elections, was led clandestinely by David and Charles Koch, who own 84% of Koch Industries. Their firm has annual revenues of US$100 billion from oil, coal, timber and chemicals. A movement born of genuine distress at the effects of the recession and fear that America was losing its international dominance was colonised by a vested interest who supplied content-free slogans like "taking America back" and "freedom" and persuaded the members that the remedy was the old neo-liberal agenda of small government, low tax and little regulation, that Obama was the enemy and that climate change was a hoax.

Oldhams' film is subtitled "How Corporate America faked a grass-roots revolution" and Monbiot has described it as "one of the biggest exercises in false consciousness the world has ever seen".

We are dependent on an alert and proactive, investigative media to let us know when such scams are mounted. There are very few such journalists in the US and they are even harder to find in NZ because hardly anyone will give them a job. With all the mainstream media in NZ owned by two transnationals with vested interests in the status quo or worse, in neo-liberal ideology, it is not surprising we find the front page of NZ's largest newspaper rarely features anything other than murders and tragic accidents. We must I guess give some credit to the Herald for a feature reporting the investigations of others into the Koch brothers' deception without which I for one wouldn't have come across the story.

But worse is coming. Proposals to legislate away the right of silence and the right of media to keep their sources confidential are before Parliament. That would make it much more dangerous for whistle blowers and some of the few public spirited information sources will just dry up. An independent, enquiring and sceptical fourth estate has always been essential to a thriving democracy and in NZ it barely exists.

So democracy in NZ is struggling. In some instances, like the abolition of ECAN it has been stolen. In others we have simply been too lazy or complacent or busy mowing the lawns and getting the lotto tickets to look after it. Genuine participation in democratic decision making is hard work. It is so much easier to vote every three years (and fewer of us even do that now) and expect the rest to take care of itself. If that continues the precedents set by the recent government actions I have cited will be used to further erode our right to participate.

Triennial elections are used by governments to justify anything they choose to do, whether they campaigned on it or not, and even if a large majority of the public oppose it. Obvious examples are the US invasion of Iraq and in NZ genetic engineering which surveys have shown are both deeply unpopular. It is simply not enough to exercise one's democratic rights once every three years and to mislay democracy the rest of the time.

Democracy is not without its critics. It is slow to respond in a crisis, governed by the lowest common denominator, vulnerable to demagogues and encourages hypocrisy in politicians. Political philosophers since Hobbes have recognised the inevitability that those who hold political office subject to the people will dissemble, over-simplify and hide their true motives. But this is not confined to democracies and is equally true of kings and tyrants.

More serious are the other criticisms: democracy has been unable to respond to the most serious threat of our age, accelerating climate change and other forms of approaching ecological collapse. It is not good at thinking beyond the boundaries and interests of the nation state and embracing the planetary interest. What use is democracy if it prevents us from acting to avert catastrophe?

Yet as Clive Hamilton points out in Requiem for a Species, it is hard to think of a political system that would respond better. If a benevolent dictator, how would such a person be chosen and how long would he or she remain benevolent? In whose interests would such a person govern?

The failure to act on the greatest threat to humanity and all other species is, on closer examination, because our system of government has not been democratic enough. Particularly in the US, but also in NZ and probably every country governments have listened to the extremely well financed industry lobby that has demanded no action. In NZ that includes farmers' organizations. Those industries do transcend the interests of the nation state, but not to further the interests of the planet or all its peoples.

I sat in the select committee in 2008 considering Labour's Emissions Trading Scheme legislation. We had an extraordinary visitation from Rio Tinto's regional head for Asia-Pacific who threatened us with dire consequences if we legislated a price on carbon for the aluminium smelter.

The language was bullying and the tone arrogant as she berated this small economic colony which had got above its station. Every other member of that committee treated her with extreme deference and forelock tugging. No-one other than me challenged or questioned, though one other member expressed regret a few weeks later that he had not. Labour's and National's versions of the ETS vied with each other to see who could give away the most free credits to major industry like the smelter.

Many surveys have shown that the popular will is to act on climate change before it is too late but industry lobbying and financing of the deniers has given governments both a reason and an excuse to delay.
A most interesting race is now on to see whether corporate controlled democratic capitalism is better or worse than state controlled corporatism in achieving a low carbon society. One has the handicap of old technology, overpopulation and underdevelopment; the other has the handicap of not even recognising the race is on. Despite its handicaps, China is moving much faster than the US which is likely to be left mired in out of date technology, a second rate economic power.

Neither is driven by the planetary interest; they merely have different views on what will advantage them economically in the future. So do we need to subordinate democracy to supra national needs? The UN and its bureaucratic lumbering institutions are not a hopeful model for leading us to safety in a world of dangerous climate change, but there is no other. If we believe the will of the people is the best defence against demagoguery and tyranny then we owe it to ourselves to ensure that the UN structures and processes are genuinely representative of the people rather than the elites in governments and corporations. That requires a status and respect for the UN that it does not currently enjoy, and recommendatory powers for the Secretary-General. Others are better qualified than me to say how that can best be done, but done it must be. George Monbiot's Age of Consent struck me as having some new ideas for democratising such international bodies which are very much worth exploring.

The next attack on democracy has been well signalled. Next year will be the first stage of what some hope will be the end of proportional representation in our Parliament. We are going to remember again how much we miss Rod, but there are others who have stepped up to leadership and I am confident he would be proud of them.

I'm sure I don't need, with this audience, to canvass the benefits MMP has brought: more women, more Maori, more ethnic minorities; a parliament that more closely resembles the society it serves. Almost every New Zealander can point to some MP they directly elected with their party vote and to whom they can go with their issues; and no party can hold absolute power in government.

It's no wonder some want to change that system. If you are a powerful lobby group you need to lobby more than just the minister, but include those pesky support parties too. You probably also feel you have to spread your campaign donations wider. The issues raised in parliamentary debate are much broader and more information is in the public arena.

This time though the enemies of MMP realise they cannot get First Past the Post back under that name. It is just too obviously unfair. So they plan to put the false cloak of democracy and proportionality on the Supplementary Member system which reduces smaller parties to a third or a quarter of the representation the people actually vote for. All voices save the two old parties would be marginalised once again.

Rod would have warned us again that MMP is still the only truly proportional system, where parties getting 10% of the people's support get 10% of the places in Parliament. He would have warned us that anything less than that is profoundly undemocratic. He would have warned us particularly to beware of SM, which pretends to be a compromise but is really FPP with a few extra members reduced almost to the status of independents even when they lead substantial parties and receive substantial votes.

Rod would have again put his life on hold, as Nicola and their daughters can testify, to work for a democratic society for all of us. He is not here to do it this time, and I'm challenging all of you to fill that gap.

At Rod's funeral just over 5 years ago we were all overwhelmed by the sheer numbers of people who turned out to honour him. A remarkable number of people said to me afterwards, "I've always been a passive supporter - didn't always vote even - but now Rod's death has made me want to get active. I wonder how many of them did?

I want to leave you with the wonderful image one person gave me, as we had listened to Rod's favourite Pink Floyd song, "Shine on you Crazy Diamond". He said, "It's as though Rod's diamond has shattered today and a little piece of it has lodged in all of us".

Today is the day to polish that little piece of diamond and let it shine on.