Sir Geoffrey Palmer, former Prime Minister and legal specialist, and Sir Kenneth Keith, former judge and international law specialist, at the Victoria University law school. Photo / Mark Mitchell
Sir Geoffrey Palmer and Sir Kenneth Keith could be called many things: erudite, distinguished, agitators, reformists, a two-person House of Lords, or perhaps the Statler and Waldorf of New Zealand law.
Unlike the old men in the balcony of the Muppets, they are not usually grumpy. Well, not Keith.
Palmer, aged 82, is a little louder and more forceful about problems and solutions – as you might expect of a former Prime Minister.
Keith, at 87, is less well known to the public and a little more reflective of issues, as befits a former judge of the Supreme Court and the International Court of Justice.
The pair have both just had books published and are decidedly chipper before their interview in the Socrates Room of the Victoria University of Wellington law school, which is housed in the Old Wooden Building across the road from the Beehive.
Watching on from a distant corner is Lady Jocelyn Keith, “my constant companion”, says Keith, who first met her in standard five at school in Howick.
Palmer grew up in Nelson and studied law at Victoria University, where Keith was his lecturer. They are old friends. They were made professors of law at Victoria on the same day in 1974.
On the floor below, they both have offices that they go to most days, researching, drawing up submissions to Parliament, writing articles or books, drinking coffee and discussing the issues of the day.
Their publisher, Te Herenga Waka University Press, is throwing a party for them tonight, at which both books are being launched by Chief Justice Dame Helen Winkelmann.
“Ken is a lawyer’s lawyer,” says Palmer. “He has read everything, and he remembers it all, and he reads more widely in the law than most lawyers do.
“If the lawyers would do what he said, they’d do far better. He’s always quoting stuff from literature that is outside the law that has some application. And there’s a lot in this book about that.”
Keith describes Palmer in the 1960s as “a very good pupil”.
“We’ve had a long connection ever since ... We do disagree with some things.”
He agrees that Palmer is more focused on solutions and is more impatient than him and that Keith is more focused on ideas.
“That is true. Geoffrey keeps writing more and more books.”
Palmer: “I went into politics to change things, and I didn’t get my agenda finished, so I’m trying to finish it still.”
Their full CVs could take up the whole article.
But briefly, Sir Kenneth Keith is the fourth most senior member of the Order of New Zealand, behind Dame Kiri Te Kanawa, Jim Bolger and Sir Lloyd Geering.
He was appointed directly from academia to the Court of Appeal, which is rarely done, and then was an original member of “the Supremes” – the Supreme Court judges.
He helped to shape the Official Information Act and the Bill of Rights Act, was a member of the Royal Commission on Electoral Law that led to MMP, and was appointed by Palmer to become president of the Law Commission.
He wrote the introduction to the Cabinet Manual in 1990 and updated it in 2008, 2017 and 2023.
He specialises in international law and is the only New Zealander to have been elected to the International Court of Justice (2006 – 2015), the international court of the United Nations.
“He is a highly respected and highly influential international lawyer at an international level,” said Palmer. “Most New Zealanders have no understanding of what that involves because it is such an arcane area, but the fact is it is a distinction of enormous importance to this country.”
Former Chief Justice Dame Sian Elias, a former colleague of Sir Kenneth’s on the Supreme Court, says in the foreword to his book, Without Fear or Favour, that the range of roles he has undertaken “allows him to see the whole”.
“It makes him impossible to pigeonhole. It gives him independence in thought that is rare and valuable, especially at a time when contests over law and the roles played in law-making enterprise seem particularly rancorous.”
Palmer, already a distinguished academic when he was elected to Parliament in 1979, drove through many of the law reforms Keith was involved in as well as reforms to the Waitangi Tribunal and developing the Resource Management Act. He was Deputy Prime Minister to David Lange, Attorney-General, Minister of Justice and Environment Minister.
Since retiring from politics in 1990, Palmer has served as president of the Law Commission, on the International Whaling Commission, on a UN panel inquiring into an Israeli raid on a flotilla off Gaza, and run a commission of inquiry into the New Zealand Defence Force’s (NZDF) Operation Burnham in Afghanistan. He was an ad hoc member appointed to the International Court of Justice for the 1995 case New Zealand took against French nuclear testing.
Keith and Palmer have had a special interest in the Treaty of Waitangi and write about it in their books.
Palmer was responsible for the concept of “the principles” of the Treaty of Waitangi being written into law, about which he has no regrets.
He never imagined that it would lead to a move by Act to redefine the principles, attract 300,000 submissions to Parliament on a bill that will not pass and result in the largest demonstration he has ever seen in New Zealand.
“You should not approach those issues in that way,” he said. “Political confrontation and polarisation is destructive of the cohesive nature of New Zealand society.
“You can’t do everything all at once. Politics is the art of the possible at the time, but you’re on a journey, and the journey should not turn around on itself and go backwards.”
He said MMP had been distorted a bit compared with the way it had been practised up until the last election.
“Now you get coalition agreements with policy in them [that] haven’t had a lot of approval from the electorate but small parties making promises that they can get into a coalition agreement.”
He is one of the few people who advocate for an expansion of Parliament on the grounds that the relatively small size of the current Parliament makes it “an executive paradise” – meaning the Cabinet can bulldoze just about anything through.
He does not always get his way: a provision recognising and affirming the rights of Māori under the Treaty of Waitangi was written into the draft Bill of Rights Act that they designed, but eventually removed because of Māori concern that they did not want the Treaty subject to the whims of Parliament.
Another provision promoted by Palmer in the 1980s, allowing the courts to strike down legislation inconsistent with the Bill of Rights Act, was proposed but also eventually rejected.
Keith rejects the suggestion that there are no limits on parliamentary power in New Zealand and, what’s more, suggests that the Treaty of Waitangi could impose limits on Parliament.
“Could there ever be a statute forbidding the use of te reo Māori, for example?” he says in his book.
He rejects the orthodox suggestion – which sits on the Ministry of Justice website – that Treaty rights can only be enforced in a court of law when a statute or an act explicitly refers to the Treaty.
He says as much in the Cabinet Manual as well when he writes that the Treaty “may indicate limits in our polity on majority decision-making”.
“The law sometimes accords a special recognition to Māori rights and interests, particularly those covered by Article 2 of the Treaty [rangatiratanga].”
In his book, Keith writes that “the constitutional status of the Treaty remains uncertain but, particularly in the case of the courts, that may be the path of wisdom”.
He elaborates in the interview: “I think it is probably very undesirable for those constitutional issues ever to get settled by courts.”
The Act of Union between England and Scotland had never been resolved either.
“That’s very wise, I think, because a court should not rule on those fundamental issues.”
Palmer agrees that it was not sensible to litigate constitutional issues in courts “but you can’t have a New Zealand that ignores the Treaty in our future”.
Palmer’s book, The Futures of Democracy, Law and Government, is in honour of him. He wrote the first chapter, but it is a collation of papers presented by others at a symposium in 2022 to mark his 80th birthday.
Among the contributors are former Health Minister David Caygill on the difficulties of making health policy, and Commissioner for the Environment Simon Upton and Emeritus Professor Jonathan Boston on climate change adaptation.
“What you’ve got to understand from contributions like that is if your universities are producing good research, the Government has to use it,” said Palmer.
But a lot of government policy did not seem to be evidence-based these days.
“It is seat-of-the-pants sort of instinctive stuff that ministers agree with, and they don’t like getting advice. If you don’t get advice in this complex environment we are in, then we’re in a whole lot of trouble.
“I really do deplore the way in which legislation is now made.”
- Without Fear or Favour, A Life in Law by Kenneth Keith, published by Te Herenga Waka University Press. RRP $70
- The Futures of Democracy, Law and Government, Contributions to a conference in honour of Sir Geoffrey Palmer, edited by Mark Hickford and Matthew SR Palmer, published by Te Herenga Waka University Press. RRP $70
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