The 25th Amendment to the United States Constitution, adopted in 1967, regarding sudden vacancies in the office of President and Vice President also includes a complex procedure whereby the President can be removed from office in the event of incapacity, infirmity or other impairment rendering them incapable of carrying out their duties.

 

It has been used six times since, twice to fill a vacancy in the office of Vice President, and four times at the behest of Presidents undergoing a short-term medical incapacitation and standing aside temporarily in favour of the Vice President, or, in the case of President Reagan, recovering from an assassination attempt. There are unconfirmed reports that senior figures in the Democratic Party were considering last week whether the 25th Amendment could be invoked to remove President Biden from office, on the grounds of incapacity, if he did not decide to stand down as a candidate for re-election.

 

No similar provisions exist in New Zealand. Both the law and the Cabinet Manual are silent on how to deal with the situation of a Prime Minister who, for whatever reason, becomes incapable of performing their duties, and who will not stand aside. The underlying assumption is that in such situations, which are extremely rare, common sense and good judgement will prevail and that the person will come to the “right” decision and stand down.

 

However, there have been situations that have tested that touching assessment to its limits.

 

When Sir Joseph Ward returned for his second stint as Prime Minister in 1928, he was already a frail and sick man.  (During that year’s election campaign, he had famously promised to borrow £70,000,000 – about $4.3 billion in today’s values – over one year to boost the economy, instead of £7,000,000 over ten years as his notes had suggested.) By the end of 1929 he was too unwell to attend Parliament on a regular basis, and from early 1930 to even attend Cabinet meetings. He retreated to the Blue Baths health spa in Rotorua, determined to continue as Prime Minister, even though he had long lost the capability to do so. Eventually, he was persuaded by his colleagues to stand down, which he did so reluctantly at the end of May 1930, dying just a few weeks later.

During 1939, Prime Minister Savage became significantly unwell with cancer. By the end of the year, as Savage deteriorated, the effective running of the government was in the hands of Deputy Prime Minister Peter Fraser and the Minister of Finance, Walter Nash. At the same time, the government chose to actively conceal the Prime Minister’s deteriorating health from the public.

 

This led Labour rebel John A Lee to publish in late 1939 his extraordinary pamphlet “Psycho-Pathology in Politics” about how a country’s fate could be “affected by physical illness in a statesman causing mental unbalance and ill health”.  In a none-too veiled reference to the Prime Minister, he wrote “Like a child who will only play if he gets his own way, he stays in the sick room as a way of escape from problems” while “sick sycophants pour flattery upon him.”

 

In early 1940 Ministers were continuing to insist Savage was in full control of the government and making a speedy recovery from a recent operation, even though he was clearly dying. A harrowing message from him to the Labour Party conference in late March that “for about two years my life has been a lying hell” because Lee had been trying to destroy him “with all the venom and lying innuendo of the political sewer” secured Lee’s expulsion from the Party. Savage’s death just two days later, and the public outpourings of grief that followed, cemented his political canonisation.

 

During 1974, Prime Minister Kirk suffered substantial periods of illness, often necessitating his prolonged absence from the public scene, and culminating in his death in August that year. There was no suggestion that he was suffering the level of impairment of Ward or Savage during their decline, but the way in which the seriousness of the Prime Minister’s condition was downplayed to the public, especially in an era of far more open and frequent media attention, bore similarities to those earlier situations.

 

In both the Ward and Savage cases the operation of government was significantly detrimentally affected by their respective determination to carry on in the face of terminal illness. To make matters worse, Ward’s decline occurred against the backdrop of the mounting effect of the Great Depression, and Savage’s infirmity coincided with the early months of World War II. Had there been incapacity provisions in place at the time, they would have surely been applied to ensure both leaders stood aside.

 

Kirk’s case is a little different. There were periods during his absences when his deputy Hugh Watt was formally designated Acting Prime Minister in recognition of Kirk’s incapacity. However, it was always on the assumption that the Prime Minister’s absences were temporary and that he would be returning to full duties at a future point.

 

While these situations are rare, they can occur. When they do, as the Ward and Savage examples show, it is often too late and too difficult for those around the impaired leader to act, especially if that leader resists. There were signs of the potential impasse that can create in the lead-up to President Biden’s decision to stand aside, but ultimately common sense and good judgement prevailed.

 

We may not always be that lucky in New Zealand. The Cabinet Manual merely notes that “A change of Prime Minister may occur because the incumbent Prime Minister resigns, or as a result of the retirement, incapacity, or death of the incumbent Prime Minister”. However, it contains no provisions, akin to those in the United States’s 25^th Amendment, for the removal of a Prime Minister who becomes incapacitated. It may be time to remedy this omission.

When it established Health New Zealand, or Te Whatu Ora as it was then known, in July 2022 the previous government took an enormous risk that ultimately failed. It gambled that, although its planned reforms of the public health sector would take years to fully implement effectively, it would be able to demonstrate enough progress by the time of the 2023 election to satisfy voters that the reforms were broadly a step in the right direction and worth persevering with.

It proved unable to do so, and the state of the health system, with all its attendant symptoms of long waiting lists, medical and nursing staff shortages, overworked general practitioners, and run-down facilities provided fertile ground for then Opposition parties to till. They did so effectively, adding in the commitment to fund a new range of cancer drugs to cement the impression that National and its allies could manage the health system better than Labour was.

But, in its enthusiasm to appear much better than Labour, National has ended up building up expectations of its capacity to deliver that exceed its capability to do so, just the same way Labour did.

The fiasco over the new cancer drugs funding was the first example. Most people believed that this year’s Budget was going to include the announcement of that funding, and National did little to dispel that belief before the Budget. The public outrage that followed when these drugs were not funded in the Budget was substantial and a deep blow to the government’s credibility. Its subsequent announcement of a $604 million package over the next four years to fund around 54 new cancer drugs goes well beyond the pre-election commitment which has provided some solace and reassurance to affected patients and families. But it does not soften the blow to the government’s credibility caused by the initial pre-election commitment and subsequent Budget under-delivery.

It is a similar story with Health New Zealand (Te Whatu Ora). Before the election, National’s promise was of an urgent major shake-up, including clearer directions and purpose for the public health service, and the abolition of the Māori Health Authority (Te Aka Whai Ora). But nearly eight months into the life of this government, little of substance has happened. Health New Zealand has been shorn of its Māori name and the Māori Health Authority abolished, but otherwise, the overall direction of the health reforms remains as uncertain as ever.

Health New Zealand has become dysfunctional. Most of its board have either resigned or indicated they do not want to carry on. Currently, only two Board members remain in place, a situation Associate Health Minister David Seymour has admitted is “quite chaotic.” Beyond that confusion at the top, critical shortages remain in many key areas. Nurses are still fleeing to Australia in search of better pay and conditions, and the crisis in general practice is growing, with some practices on the brink of closure altogether. Like its predecessor, the government seems bereft of immediate answers or solutions to these problems. And patients are becoming more disillusioned, given National’s commitment last year to sort out Labour’s health reforms mess.

Only in the medicines area is there a glimmer of light. As the Minister responsible for PHARMAC, Seymour has boosted its budget by $1.7 billion over the next four years, in addition to the cancer funding referred to earlier. He has made his clear his expectation that while PHARMAC should continue to be politically independent in the purchase of medicines, its basic function must remain “procuring medicine for people who need it, to the best of its abilities.” And he has appointed former Deputy Prime Minister Paula Bennet as chair of PHARMAC to oversee its work.

Nevertheless, the jury remains out on how effective these changes will be and whether the explicit commitment to medicines being procured based on need will mean equality of access to appropriate medicines for all patients, regardless of ethnicity or other factors. In the short term, the only difference many patients will have noticed is that from the start of July they have been paying a part-charge for their prescriptions again.

For the remainder of the health changes, the clock is ticking for the government. To avoid falling into the trap which ultimately sunk Labour’s credibility on health, the government has about twelve months from now to demonstrate some tangible results. The smooth-talking and reassuring Dr Reti we saw before the election, but who has largely disappeared from the public view since he became Minister of Health, needs to become much more visible as the leader of change. He needs to be spelling out reasonable short, medium and long-term goals for the public health service and then publicly holding Health New Zealand accountable for meeting them.  He must step-up from the quiet, almost backroom approach he has adopted so far, and make both his aspirations and expectations for the health sector clear.

Otherwise, many health professionals, from surgeons to specialists, general practitioners to nurses, and new graduates, will continue to vote with their feet and go elsewhere.

And the disillusionment and frustration of patients, so evident under the last government, will become even greater under this one. 

 

The curious case of ex Green MP Darleen Tana raises interesting questions beyond her immediate political future. 

 

Whether she leaves Parliament or stays, her fate is largely settled - her (brief) political career is over. If she goes, she at least has the opportunity of a fresh start, far away from politics. But should she decide to stay, she faces two years of ostracism and scorn from all sides of the House, and limited opportunities to participate in the House's proceedings, in either the Debating Chamber or select committees.

 

Moreover, because of the government's comfortable majority she will be even more politically irrelevant than Alamein Kōpū was in the late 1990s. (Her vote was important then on some issues and was secured when needed through a periodic cup of tea with the then Prime Minister.) Tana would not enjoy such feting, and would face a lonely political life, idling away time, until put out of her misery at the next election. 

 

While there remains murkiness about many aspects of the Tana case, one certainty that has been established in its wake has been the utter ineffectiveness and pointlessness of the Electoral Integrity Act, the so-called Waka Jumping law. The first Electoral Integrity Act was passed by Labour in 2001 with the support of New Zealand First. It expired in 2005 and was not renewed. During its life, two MPs (Labour’s Dame Tāriana Turia and ACT’s Donna Awatere-Huata) potentially triggered its provisions by resigning from their parties. Turia subsequently resigned her seat but was re-elected in the by-election that followed for the new Māori Party. The ACT Party sought to invoke the Electoral Integrity Act against Awatere-Huata, but the process proved far from straightforward. There was a protracted legal battle, lasting around ten months, before the Supreme Court finally rule that Awatere-Huata could be removed from Parliament.

 

A second Electoral Integrity Act was passed in 2018, again by Labour at the insistence of New Zealand First. Since then, five MPs (Jami-Lee Ross from National, Gaurav Sharma and Meka Whaitiri from Labour, Elizabeth Kerekere and now Darleen Tana from the Greens) have left their parties. But so far, the Act has not been applied in any of these cases. Significantly, none of the defecting MPs survived beyond the Parliament in which they defected. 

 

All of which renders the Electoral Integrity Act utterly pointless. It was only ever promoted by New Zealand First as utu from Winston Peters against those who deserted the Party in 1998 when the first National/New Zealand First coalition collapsed. It had no other redeeming feature. The only time it has been applied in either of its incarnations led to complex and drawn-out legal proceedings. It is simply a nonsense and a waste of time that a principled government would repeal forthwith. Excepting Turia who fought a by-election and went on to serve until 2014, none of the other MPs who left their parties while Waka Jumping legislation was in place were re-elected. Properly, the public, not Electoral Integrity legislation, decided their fate. 

 

But for coalition reasons, National will continue its tiptoe on eggshells approach to dealing with New Zealand First on this issue, so the legislation will remain, gathering more dust, disrepute and irrelevance on the shelf.

 

If what has happened previously is any guide, another area where the Tana case is unlikely to lead to change is the level of public support for the Green Party. In May 2023, when Dr Elizabeth Kerekere acrimoniously split from the Greens, raising many questions about candidate selection processes and internal management systems, the Greens average level of opinion poll support stood at 8.7%. At election time, a few months later, the Greens polled 11.6% of the party vote. That steady rise in support has continued so far in 2024, the Golriz Ghahraman, Julie Anne Genter and Darleen Tana controversies that have arisen in recent months, notwithstanding. Last month, the Greens were averaging just under 13% support in the opinion polls, and one poll earlier this month reported their support as high as 14.5%.

 

Nevertheless, as all the incidents from Kerekere’s departure onwards suggest, something is seriously awry with the way the Greens manage differences and problems that emerge within their Parliamentary team. There seems to be a disconnect between the overt empathy and support the Greens show for every passing social bandwagon, and the way they treat dysfunction within their own team. In that regard, the Greens would be making a serious mistake if they assume, as they appear to have done so far, that rising levels of public support mean keeping their own house in order is a secondary consideration.

 

The Greens have always sanctimoniously described themselves as a “party of principle”, thereby inherently different from every other party. But those “principles” are now coming home to roost. Do they take the expedient course of applying the Electoral Integrity Act to oust Tana from Parliament, despite their long-standing opposition to Waka Jumping laws? Or do they hold fast to their self-proclaimed principles, and let Tana thumb her nose at them, Parliament, and the public, by continuing for the foreseeable future to draw a Parliamentary salary and allowances just for being there?

 

The Greens moral high horse has become a much more uncomfortable ride.

 

There are likely to be slim pickings for Opposition parties over most of the next three months for reasons that have little to do with politics. And there may not be all that much they can do about it because the reasons are beyond their control.

Opposition parties generally have their greatest impact when Parliament is sitting. The debating chamber becomes their forum. They can trip Ministers up at Question Time, delay or frustrate the passage of government legislation, and more easily attract the attention of the Parliamentary Press Gallery on the issues they are concerned about.

When Parliament is not sitting, it becomes that much harder for Opposition parties to have much impact on the news cycle. They are often reduced to being not much more than spectators during that time, as the government gets on with its business, without having to worry too much about the day-to-day scrutiny of Parliament. In that regard, given the ongoing momentum of government, and the inevitable media attention that attracts, Parliament is a much more important platform for Opposition parties to hold the government to account, than it ever is for the government of the day. Without the forum Parliament provides, it is significantly more difficult for the Opposition to get its message across than it is for the government. 

Currently, Parliament is in recess until 23 July, to coincide with the upcoming school holidays. But the business of government will carry on unabated, with Cabinet and its committees continuing to meet, and Ministers making announcements each week. Some select committees will also be meeting during the recess, but others will not be, further limiting the opportunities for Opposition parties. There is nothing unusual in this. It is the normal ebb and flow of Parliamentary life, and a further reminder of the dominance a government enjoys, given it largely sets the timetable.

This year, however, there are a couple of unusual external factors that have the potential to disrupt the news cycle over the next three months, again to the Opposition’s detriment, even when Parliament is sitting. The first is the Olympic Games, being held in Paris between 26 July and 11 August. They coincide almost directly with the next couple of Parliamentary sitting weeks from 23 July until 8 August. Given New Zealanders’ love of sport, the Games are likely to dominate news cycles over that period, especially if New Zealand competitors are doing well.

Parliament resumes on 20 August, but the media opportunities available to the Opposition then could be short-lived. In America, the Democrats will be holding their election-year convention in Chicago from 19 to 22 August. The extraordinary international interest that election is arousing because of its increasingly bizarre nature means it will dominate news cycles, here and elsewhere, during that time. More so, if the current questions around President Biden’s suitability to continue as a candidate remained unresolved by then.

And then comes the 37^th America’s Cup and New Zealand’s defence of the “Auld Mug”, which gets underway in Valencia on 22 August. While the Cup will have lost much of its allure to New Zealanders because of the decision to shift the defence away from the Hauraki Gulf, the preliminary Louis Vuitton Cup regatta during August and September is still likely to attract considerable attention. Parliament will be sitting for much of that time, providing limited opportunities for the Opposition, before going into recess at the end of September.

However, its resumption for a two-week sitting period from 15 to 24 October will coincide directly with the America’s Cup finals, involving Team New Zealand, due to be sailed from 15 to 27 October. It is a more than reasonable assumption that, earlier disgruntlement over the shifting of the Cup venue notwithstanding, many New Zealanders’ focus during that time will be on what is happening in Valencia, rather than what is going on in Parliament’s debating chamber in Wellington. And once the America’s Cup is over, it will be the Labour weekend holiday and a Parliamentary recess until 5 November. But that is also the day of the United States Presidential election, the outcome of which is likely to dominate the news for at least the rest of that week.

This unusual confluence of events over the next few months occurs purely by chance. It is not the result of some clever manipulation of circumstances by the government, even though it may be a coincidental beneficiary. But it will make it even more challenging for Opposition parties. They are already facing criticism for failing to make sufficient impact against a government that cannot seem to stop itself from presenting opportunities for them.

Opposition parties might therefore be forgiven for looking ahead to 2025 – a year without the plethora of distracting international events of 2024. But if the commentators are right and the economy starts to improve, with interest rates and inflation falling, it might be just as challenging a year for them, although for different reasons.

All of which confirms that in politics there is never a good time to be in Opposition.