Thursday 26 May 2005

Cullen still attacking judiciary

Our new Attorney-General seems as ignorant about the independence of the courts as the last. Michael Cullen -- yes, him again -- was telling judges yesterday that Parliament is supreme. Chief Justice Sian Elias had properly taken issue with that notion last year; chief historian Michael Cullen still disagrees. Herald story here.

Delivering a speech to the Legal Research Foundation Cullen restates his objection to judicial activism, but shows his confusion when he equates judicial activism with judicial independence, and demonstrates too that he knows little about how such judicial activism became so common.

When Geoffrey Palmer was having legislation drafted back in the eighties, his intention with the law being drafted was to ensure 'flexibility.' Whereas in the past good law would be clear and unambiguous, and consequently what was legal and illegal known for sure in advance, Jellyfish Geoffrey wanted instead to make the language of legislation vague, ambiguous and unclear -- all the better for it to be flexible, you see. Palmer purposely put vague undefined terms into legislation in the expectation that the courts themselves would explain what the hell the law meant by means of the cases in front of them.

Not so good for the people whose cases are in front of the courts, but who don't know what the law actually allows in advance.

Concepts such as 'kaitiakitanga' from the RMA are still awaiting 'clarification,' as are the 'principles of the Treaty' clause which infests nearly everything written since the State-Owned Enterprises Act of 1986.  Until they are clarified, law that contains phrases such as these are just so much dangerous mush, with no-one knowing precisely what is and isn't legally permitted.

This is idiocy, and Cullen has his erstwhile parliamentary colleague to blame for it. He certainly shouldn't be blaming the judiciary who have to ask themselves when dealing with such vague law 'what was in the mind of the parliamentarians when they write this.'  The answer is in most cases: Nothing.


Anonymous said...

Cullen is right in saying that Parliament is supreme - Charles I would be evidence of that. You're right about flexible law though - it is a tyrant's dream!

Lewis Holden said...

Anon - I think you mean Charles I is evidence that there is no devine right of Kings... Charles most certainly wouldn't want the body (i.e. Parliament) he waged war against to be supreme.

Rick said...

To the extent that supremecy is the rule of man Anon is right because he is saying that the STORY (not the opinion!) of Chuckers The 1st settles the issue. And it does, for our times. Who chopped off whose head? QED.

But if you, and Cullander, would remember your Cicero and Locke you would dump the question of "which man" with the whole 'rule of man' doctrine which has long been supplanted by the 'rule of law'.

Not irreversibly supplanted it would seem, because if I remember our new Interpretation Act correctly even *hansard* is a valad tool of statute interpretation now! Sick stuff.

Thankyou Jellyfish Geoffrey for taking us back to the politics of decapitation.

nb When guys like Palmer and Douglas write a book they play for keeps!

Lewis Holden said...

Well yes, the outcome of the Civil War did decide the fate of the devine right of kings...