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Judges Must Stop Rewriting The Law


7 November 2001 For immediate release


Judges Must Stop Rewriting The Law

"Instances of the Judiciary overriding Parliament and effectively creating new law must stop. The DvC case, which comes before the Court of Appeal tomorrow 8 November, is a prime example of this kind of dangerous trend amongst the Judiciary", says Darryl Ward, spokesperson for FARE.

"Judges are meant to interpret the law, not rewrite it. In the case of DvC a Judge has effectively rewritten the Child Support Act, in a way that ensures a father with shared parenting pays far more maintenance to his ex-wife than the maximum amount laid down in the Child Support Act.

"This rewriting of the law by Judges is known as 'judicial activism'. It is an undemocratic process, which seems to most often occur in family law.

"The manner in which the DvC case overrides the Child Support Act is surprising. The Child Support Act is based on the liable parent being assessed on their 'capacity to pay', with a limit or cap on the amount to be paid. The DvC case ignores this and makes the assessment on the cost of supporting the children. This is how child maintenance was assessed before the Child Support Act was introduced in 1991. The ability of a single Judge to rewrite the law in this way means the law is on a crazy path, flip flopping from one unpredictable extreme to another. Above all, it seems to have provided the Judge with a way to increase the father's liability above the cap set in the Child Support Act.

"This process of using the Judiciary to rewrite the law also removes the chance for ordinary citizens to hold accountable the politicians who created the law. A strange and evil collusion now effectively exists between the politicians and the Judiciary. The Child Support Act has special clauses in it that are very vague, and the politicians leave the Judges to say what they actually mean in practical terms. People who then claim they have been unfairly treated have tried to complain to the politicians, but the politicians say they cannot interfere in the courts. The Judges say if you don't like the judgement you can appeal to a higher court, but this is likely to cost tens or hundreds of thousands of dollars. That means most citizens are left in a 'Catch 22' position, unable to get accountability from the politicians who passed the law or from the Judges who come up with what are effectively crazy law changes like the DvC case.

"The making of law is the job of our elected Parliament. If the rules are to be suddenly changed, as with the DvC case, this is only acceptable if it is done by elected politicians who can be held accountable through the ballot box. Judges must interpret the law, not radically change it. The Court of Appeal must not uphold DvC, or it will further undermine the declining credibility of the Courts in New Zealand," concluded Ward.


Inquires - Darryl Ward 025 230 1667

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