29 November 2011

Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?


After Saturday's election, it looks like we're now heading down a well-tread path as we settle our Executive arrangements.

Leaders from support parties – ACT, United, Māori Party – will be awarded ministerial positions outside Cabinet as part of confidence and supply arrangements.  The Greens might also be able to secure some policy initiatives on a case-by-case basis, recorded in some form of memorandum of understanding.

But I wonder whether one particular party needs to think outside the box a little more?

The Māori Party finds itself in a fragile position.  It knows that "being at the table" enables it to secure outcomes for its people.  But it is also punished for unpopular decisions of the government, even if it takes positions against them.

This is the "unity--distinctiveness dilemma" that Boston and Bullock talk about (Boston and Bullock, "Experiments in Executive Government Under MMP in New Zealand: Contrasting Approaches to Multiparty Governance" (2009) 7 New Zealand Journal of Public and International Law 39).

It strikes me that the Māori Party might think about Executive arrangements which leave more light between it (as a support party) and National (as the lead party in government).

Ministerial positions, even outside Cabinet, still emphasize unity, over distinctiveness.

But what are its other options?

Traditional Westminster-style Executive positions, such as Parliamentary Under-Secretaries, seem in-apt (see http://cabinetmanual.cabinetoffice.govt.nz/2.45) So too with (the non-Executive positions of) Parliamentary Private Secretaries (http://cabinetmanual.cabinetoffice.govt.nz/2.49).

And the Greens-style memorandum of understanding seems to favour distinctiveness too much (see http://media.nzherald.co.nz/webcontent/document/pdf/National%20and%20Green's%20agreement.pdf)

One of the other options is the cooperation agreement agreed between the Greens and Labour in 2005 (see http://www.beehive.govt.nz/sites/all/files/Green.pdf).  This saw the Greens taking a lead role on policy development on particular issues, recognition as Government spokespeople on those issues, and collective responsibility in respect of agreed positions reached in those areas, etc.  Provision was also made for other on-going relationship matters like briefings, information provision, etc.  (We has some robust discussions in public law classes about whether or not this meant the Greens were "in government" or not.)  

I wonder if something closer to this type of arrangement – tweaked a little – would suit the Māori Party better?

This type of cooperation agreement could be modified to also include a commitment on confidence and supply (I presume National will want to get some sort of comfort on this, although it may not prove necessary) and greater provision for administrative support.

The other important thing is the look and feel of the arrangements.  The existing Westminster terminology seems clunky.  The terminology of the Greens arrangements is probably too understated – lacking in mana and gravitas.

One option might be for the Māori Party to tailor something to capture the essence of any relationship better.  Perhaps through the use of Te Reo. Something like (based on my crude translation) Tohunga Kaitohutohu (Expert Advisor). No doubt those within Māoridom will be able to suggest a more suitable term.  But the use of Te Reo might allow them to better convey the nature of the arrangements to its consistency.

At the end of the day, managing the unity--distinctiveness dilemma is the key to coalition management nowadays.

The great thing about our customary constitution is it is capable of evolving.  We've seen the Executive arrangements evolve a lot under MMP.  Twenty years ago, who would have thought about having Ministers outside Cabinet from support parties? Or having selective collective Cabinet Responsibility? (See generally http://www.laws179.co.nz/2011/02/revolution-of-collective-responsibility.html.)

Perhaps it's time for it to evolve even further.  Just a thought.

1 comment:

MozGoBoom said...

I do like the idea conceptually, despite being unhappy with the practical politics likely to result. Coming up with something less awful than "political agreement for exchanging confidence votes for policy" is well overdue. And perhaps even a te reo neologism would be useful, rather than using existing terms. It's not as though te reo is any less prone to new compound words than english is. And a lot of them are widely used, so public acceptance of the concept is there.

One advantage of this is that it might also make Act/Conservative heads explode. Giving priority to te reo in any situation seems to excite a certain type of right-winger, and having the National Party do so as a formal agreement would no doubt set them off.

In Oz the political linguists seem to struggle with the relationship between the ALP, Greens and independents in federal parliament because the term "coalition" has been largely appropriated by the Liberal/ National/ Liberal National Party (LNP) triad. No good news on that front though, there's just a lot of convoluted description and tabloid headlining.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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