The Select Committee

Reflections on an Academic Debate

I made a submission on the Regulatory Standards Bill. I supported the Bill. I had a suggestion for improvement. I stated in that submission that I wished to be heard.

I received an invitation to be “present” via Zoom at 8:35 am on Tuesday 8 July. I was able to “attend” although I was in the Pacific Ocean between Cabo San Lucas on the Baja Peninsula and Zihuatenejo-Ixtapa. Attendance was facilitated by the Internet (surprise surprise) and the use of Elon Musk’s Starlink system which gave us high speed Internet at sea.

I had five minutes. I had four points to make which I addressed in short order to allow the maximum amount of time available for questions. Much of that time was taken up with a discussion with Dr Deborah Russell who hastened to inform me that she had a PhD in political theory (it was not relevant to the discussion that I too have a PhD and there was no need to broadcast that fact. Dr Russell seemed determined to do so and thereby used the “weight of authority” to back her argument rather than the use of sweet reason.

It got to the point where it appeared to me that Dr Russell was using the tactic of filibuster so I suggested that we were not going to agree and the discussion continued with questions about my suggestion that Treaty articles 1 and 3 should receive recognition in the Bill.

And that was that. Log-off and continue cruising. Civic duty fulfilled at a distance.

Surprise, surprise. It seems that the discussion with Dr. Russell attracted the interest of the media. Was it because there was some academic disagreement, or were the media really interested in the substance of the discussion? I think that it was the former. The articles are here and here. And Chris Trotter wrote a very generous piece here.

Audrey Young in the Herald described the confrontation thus:

“It is a shame that Labour's Deborah Russell got so prickly with former judge David Harvey about political philosophy when he was presenting to the select committee this week on the Regulatory Standards Bill. She accused Harvey of patronising her. "I have a PhD in political theory, so I’m familiar with [Thomas] Hobbes," she said when he asked if she was aware of Jean-Jacques Rousseau, the German Enlightenment philosopher.

She got waylaid by whose theory on liberty was best and wasted an opportunity to quiz perhaps the only supporter of the bill who also believes reference to the Treaty of Waitangi should be included in it – at least articles one and three of the Treaty, about governance and equal application of the law.

Act's Cameron Luxton tried to draw him out further about how that would be done, but by then Harvey's five minutes were up. "I’m still recovering from my academic dispute with Dr Russell," he said.”

The nub of the discussion with Dr Marshall arose from my suggestion that every piece of legislation involves an erosion of liberty or the freedom of individuals or groups. The debate became one of the nature of liberty. My position on this is that of the classical liberal, informed by John Locke, Thomas Jefferson and John Stuart Mill – an Enlightenment position.

Dr Russell contended that in fact the Legislature may give or create freedoms but herein lies a problem. If that is so what is given are not freedoms but rather privileges. Dr. Russell’s position assumes that the State has total control over what are or are not freedoms and may dispense them or abrogate them as and when it sees fit.

My position is that the state of freedom is the starting point and not as a result of some State dispensing power. Freedom and freedom of choice or the first position. Aspects of freedom or freedom of choice may be the subject of interference by the State – hence an erosion of freedom.

Suggesting that the State may grant a freedom suggests an authoritarian approach which we experience during Covid. During that time everything was prohibited unless it was specifically allowed. The State was merciless in its abrogation of freedom and liberty and freedom of choice.

The converse and proper approach in a liberal democracy is that everything is permitted apart from that which is specifically prohibited. Once that position is considered properly it becomes clear that a legislative enactment will interfere, albeit minimally, with individual freedoms and liberty.

It seems that this aspect of the nature of freedom is misunderstood by Dr Russell. But then, she was a member of the Ardern\Hipkins government that interfered so egregiously with the liberties of citizens so that misunderstanding may be coloured by her complicity.

So had I been given the time this is the direction that I would have taken in the debate.

In the field of Greek Philosophy figures like Socrates and Plato viewed liberty as closely linked to moral and civic virtue, emphasizing reason over instinct. Aristotle saw freedom in terms of participation in the polis.

Roman Law took the concepts further and focused more on legal status—freedom as non-slavery—anchoring the idea of liberty within institutional recognition.

Many non-Western and indigenous cultures embraced communal autonomy and personal freedoms independent of centralized government.

In my submission and the debate with Dr Russell I emphasised my adherence to Enlightenment principles.

John Locke for example argued that liberty is a natural right, existing in a “state of nature” before government. His social contract theory posits that governments are formed to protect preexisting rights.

Jean-Jacques Rousseau mention of whom Dr Russell considered to be “patronising” believed in the innate freedom of man, corrupted by societal institutions, proposing collective sovereignty as a reclaiming of liberty.

Thomas Jefferson echoed Locke in asserting that rights are "endowed by their Creator," not granted by the State - “we hold these truths to be self-evident.”

There are two theories that underpin concepts surrounding the sources of liberty.

Natural Rights Theory claims liberty and freedom are inherent, universal truths derived from human existence or divine will. These rights exist regardless of state recognition.

Legal Positivism on the other hand (and to which it seems Dr Russell subscribes) holds that rights are constructs of legal systems and derive their authority from governmental institutions – the supremacy of the State.

Governments do not create liberty; they can merely acknowledge and protect it—or suppress it. Liberal democracies often enshrine freedoms in constitutions, but the existence of such rights depends on more than documentation.

Authoritarian Regimes, on the other hand, may attempt to redefine or eliminate freedoms, yet even under oppression, acts of resistance affirm the presence of liberty as an enduring human aspiration. We observed this develop during the Covid years.

From this comes the paradox of statehood. A government must wield authority to prevent coercion, yet that same authority can become coercive. The balance defines whether liberty thrives or falters.

To conclude.

Liberty and freedom are not gifts bestowed by the State; they are conditions of human existence, acknowledged or obscured by political systems. Governments can nurture or threaten them, but they cannot erase the deeply rooted impulse toward autonomy and dignity.

In this view, freedom is both an ontological condition and a sociopolitical achievement—something we are born with, and something we must constantly defend.

Given this approach I still maintain that legislation is a means by which liberty and freedom may often be eroded. Hence the need for the rigorous examination of regulatory proposals espoused by the Regulatory Standards Bill.