Tuesday, 20 September 2011

Key Government overturning Supreme Court, and principles of good law [update 2]

The Key Government seems to have learned nothing from the many mistakes of the Clark Government.  Instead of avoiding them, it is repeating them. Virtually all of them.

Perhaps the two highest profile judicial mistakes of the Clark Government’s last term, with the biggest consequence for the Government itself, was (first) its overturning of the Appeal Court’s decision allowing iwi to take cases in common law arguing for their ownership of specific parts of foreshore and seabed, and (second) its passing of retrospective legislation covering its arse over the pledge card.

The Clark Government’s first intervention didn’t just overturn the judiciaries’ independence, one of the bulwarks of Objective Law, it politicised a decision that would have been far better taken through the courts in common law—without all the screaming and shouting, and the resignations of ministers and formation of new parties. (Wooh, talk about unintended consequences!)

Its second intervention, passing retrospective legislation to protect itself from the consequences of its own law-breaking, overturned yet another bulwark of Objective Law: the principle that, to be objective, law must be known in advance.

In every regard, the law must be adapted to its essential goal: predictability. "[M]en must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it."

A bad habit of changing law retrospectively, just because it doesn’t suit the government, is hardly the mark of good predictable law.

But does this National-led Government learn? No way. It’s just announced it plans to pass law overturning the Supreme Court decision disallowing the Supreme Court’s decision in the case of the police surveillance of the Urerewa 18 17 15 4.  At a stroke, overturning virtually all the principles of good Objective Law–and all because the government wrote bad law in the first place.

Maori Party MP Te Ururoa Flavell is absolutely right.

"It appears that what the National Government will ask us to do, is to suspend the law temporarily - to condone the unlawful act by the Police; and then to add fuel to the fire by introducing legislation to make the 'unlawful' lawful. What sort of justice system do we have if the upholder of the law is allowed to break the law and get away with it?”

Fair question? It’s certainly not one that’s worthy of respect.

UPDATE 1: Speaking of Objective Law  and the separate arms of government being independent, I just heard the Prime Minister tell Leighton Smith “I’m not going to allow these people to walk free.” With the clear implication he will change whatever law  is necessary to do that.

There was a time in  history when the superiority was realised of “a government of laws, not men.” Feel free to write whatever opinion you like about whether this still exists.

UPDATE 2: Dim Post on John Boy’s Bureaucratic Capture:

“John Key isn’t an intellectual … [which]  makes him vulnerable to mistakes like this decision to retrospectively validate illegal activity undertaken by the New Zealand police. The bureaucrats embarrassed by the Supreme Court’s finding that the police acted illegally can argue that it would be awfully practical and convenient for the state to pass legislation dumping the Supreme Court’s interpretation of the law, and the Prime Minister doesn’t have the intellectual clarity to say, ‘Hold on a minute. That violates almost every principle my own party is supposed to stand for!’”


  1. Unfortunately, in the area of law that the government grants its departments full police state powers of snooping and coercion, tax, retrospective law is becoming more and more common.

    And yes, the politicians should not interfering with judicial decisions, however, the main activist against classical liberalism in NZ is our judiciarya, especially our new (disastrous) Supreme Court - quote:

    ... Cullen’s stupidity has led to a huge cost in terms of money lost that could have been used in the productive enterprise, as well as lives destroyed by stress and, possibly, soon, hardship as this negligent policy continues to be played out in our courts, where it is set to get real ugly with an IRD having the full powers of Big Brother and a compliant judiciary that see their task as dismantling classical liberalism, this last evidenced by the classical liberal tax ethic of the 1936 House of Lords Westminster rule being completely overthrown by our courts over the last decade, with IRD having won every single case that mattered against the taxpayer. Judicial activism, fostered by Gramsci in our education system over recent generations, is now purely, and incredibly, set on sanctioning the right of the omniscient State to intrude unhindered on the individual’s privacy, property, and freedom. Our judges have only succeeded in traveling from the glorious hope of 1776, back in time to 1984, all with the best of caring intentions, of course.

  2. Sorry about the grammar in that second paragraph.

  3. Liberty for Shore20 Sep 2011, 15:18:00

    "I am not going to allow these people to allow these people to walk free" spoken like a true dictator.
    Jumped up fascist prick!
    Who will be next?

  4. We must also consider that maybe he knows what these guys were really up to and that they should not walk free regardless....

  5. Good post. Key's comment to Leighton Smith is a shocker, and if it is a specific reference to the Urewera 18 (or any other trial), then surely it will result in a mistrial? As any jury has just been told by the PM that the accused are guilty, and he is going to get them locked up (ie not free).

    Or will Key overturn the Supreme Court again and unilaterally rule out a jury trial again?

    Tragically, many Kiwis don't seem to grasp that it's not about whether they like Tame Iti or not - it's about whether the NZ Police have to follow the very laws they are supposed to uphold.

    And about whether we want Police with the power to spy in our living room, or on our computer, or track our cars. Based on their flimsy reasoning in the Urewera case, it doesn't take much to get the Police steamed up, and taping all and sundry...

    I hope all ACT party members are making it clear to their MPs that this Key bodge-it law must be voted against? If they vote against, and Greens, Mana and Maori party are already opposed, that leaves only the vacillating Labour - if enough of their party squeal, Key's law may evaporate.

    @ James - let them walk free regardless of what? Regardless of the law? Of whether they have been *proven* to have committed crimes? Are you John Key's speechwriter?

    Mad Marxist.

  6. It's stupid that illegally-obtained evidence can't be used, anyway; presumably the reasoning is to avoid planted evidence, but if there's no reason to believe it's been faked it should be usable. The person or group who obtained it should then be prosecuted for their breach of law.

  7. Greg,

    So what you are saying:

    If someone is tortured into a confession, we should accept the confession, and only then prosecute the police for torture?

    Of course you will say you are only talking about filmed footage(though that is not obvious from your wording), but it is the first step down a slippery slope. We either protect ALL rights or none at all.

  8. @GReg: "It's stupid that illegally-obtained evidence can't be used, anyway; presumably the reasoning is to avoid planted evidence..."

    Um, no.

    "The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."

    Entick v Carrington [1765] EWHC KB J98

    Quoted at http://www.imperatorfish.com/2011/09/john-armstrongs-constitutional-niceties.html

  9. Perhaps everyone should cast their minds back say, ummmmmmm 3 years or so.

    Back then various people (ie: me!) were suggesting that once elected the National/Association of Communist Travellers govt would start engaging in Stalinist policies.

    Those people (ie: me!) suggested you vote Libertarianz to avoid this sort of nonsense and be 'true to yourself'

    You ignored the warnings.

    You looked down at a ballot paper which had the Libertarianz on it.

    You chose to tick the National/Association of Communist Travellers box, rather than Libertarianz.

    Can you therefore please explain to me why you are posting here with your knickers in a twist?

    "We told you so". Very Simple. We were right, you were wrong.

    You voted for these people and so should be pleased.

    Your posthumous (!) rantings make me want to vomit in its pathetic hypocrisy....

  10. Oh and by the way, please do not try to make out you voted Libz in 2008 (2005,1999,1996)...oh please *vomit*

    You ticked the Association of Communist Travellers box on your ballot paper...(oh come on, at least tell the truth *wink*)... thought you were a clever dick smarty pants by doing so, bored your family and friends silly by mentioning the fact ad nauseum - and found out the hard way what you had been played for a c**t....and we all know what happens to c**ts *wink* ha ha! (I have no experience of that personally, but, ummmmm from what I have heard)

  11. Elijah, you're a disgrace to the Libz. Fuck off. BTW, keep away from young children of Libz members as you are someone who obsessed with talking about child molesters.

  12. Just for the record, Elijah is not a disgrace to the Libz because he does not speak for the Libz. Please do not confuse his support for Libz with Libz support of him.

  13. If someone is tortured into a confession, we should accept the confession, and only then prosecute the police for torture?

    A confession under torture is no confession; that's no different from any other mocked-up evidence. But if you (or a cop) break into someone's house and find the weapon they used to commit a murder, why should the fact that you broke the law to find it exclude it as evidence against him? That's just nuts.

    "The great end, for which men entered into society, was to secure their property. ... If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."

    Can't find too much to disagree with there, but how's it relevant to my assertion? It only says the police (or whoever's at fault) should be prosecuted for the illegal filming, not that the evidence should be buried.

  14. @Greg: "Can't find too much to disagree with there, but how's it relevant to my assertion?"

    The point being that it is a sound and long-established legal principle, practised these days more in the breach than the observance, that individuals may do whatever they like UNLESS prohibited by law, whereas the agents of governments may do ONLY what is authorised by law, and nothing else.

    It's true that many government behemoths (IRD, councils, Gerry Brownlee) have been given law allowing them to do whatever the hell they like, but so far the police are (mostly) not among them.

    Not yet, anyway.

    Thank goodness.

  15. agents of governments may do ONLY what is authorised by law, and nothing else.

    Hence the government agent(s) responsible should be prosecuted...how does that relate to burying the evidence?


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