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Howard’s End: Laws For Some

In the Wanganui District Court yesterday, Judge Andrew Becroft expressed concern with provisions of the previous government's Land Transport Act which he described as 'scandalous.' Let's take a hard look at all of our laws and human rights principles. John Howard writes.

In sentencing Wanganui man Phillip Tamati Patu, to a further period of driver disqualification, Judge Becroft described as scandalous, a situation arising from the Land Transport Act that compels judges to impose extended periods of disqualification on motorists convicted of disqualified driving.

Before the Act was rewritten 15 months ago judges could impose alternative community-based sentences.

"Because of a continuing omission to correct what was either oversight or omission that option was no longer available," Judge Becroft said.

"Every judge in New Zealand has pointed out the error in the Act and nothing has been done about it. Frankly, that is scandalous....," he said.

And then there's the unlicensed driver and resist arrest charges brought against former press secretary Moana Sinclair which were recently dismissed by Judge Mark Perkins. Ms Sinclair had been arrested.

Those charges were also brought under the Land Transport Act.

In that case Judge Perkins said the law was ambiguous and poorly drafted and there was conflict with separate provisions in the Act. The judge held that since her arrest was unlawful, the charge of resisting arrest also failed.

There is something seriously wrong with the human rights aspects in the Land Transport Act, but it's not confined to just that Act.

In its 1995 report to Parliament our Law Commission said, " Too much legislation is wrongly focused and fails to address the issue it is meant to; some legislation is unnecessary; much is hastily introduced with fundamental issues still to be addressed when Bills go to select-committee's; much is simply inaccessible or hard to understand; and some is not in accord with accepted constitutional principles."

When our ancestors freely consented to appropriate agreements (Treaty of Waitangi and Magna Carta) the Crown institutions had a continued legal and moral foothold to governance, provided it was operating fairly, justly and in terms of those agreements.

Magna Carta, like the Treaty of Waitangi, was not intended to be fossilised. In it the Crown guarantees in good faith, partnership and utmost trust, with plain words and plain meanings, an active protection of the individual along with fundamental rights to the fullest extent possible. Both constitutional documents are written grants of direct and admitted rights, duties and responsibilities. They are an obligation placed on the Crown.

Last night, West Coast rimu sawmiller Westco Lagan, announced that it has filed court proceedings against the government for attempting to extinguish their rights in breach of the 1986 West Coast Accord. It is to use Magna Carta and other domestic and international law in an attempt to substantiate its claim.

Part of the 1297 Magna Carta was enacted by our Parliament into New Zealand law as recently as 1988.

Westco Lagan's claim seems to be based on the principle, several centuries old, that a fair balance must be struck between the interests of the community - stopping the rimu harvest - and the rights of the individual or company to fair and adequate compensation.

The company will receive none of the money from the investment of the $92 million left from the government's $120 million West Coast package. Westco's claim says it stands to lose more than $14 million because of government's decisions yet it has not been consulted.

Most New Zealanders would accept the general principle that the government has certain "public good" rights which may not be enjoyed by the citizen. But our present laws do not sufficiently reflect the Magna Carta principle that all natural and legal persons, including the government, are equal before the law and are subject to it.

Put simply, past New Zealand government's have claimed far too many immunities which are not enjoyed by the citizen.

Most of our fundamental rights come down from Magna Carta which was intended to be the basic foundation for an honourable partnership between then state and the people. It is the fountain of the law and constitutional systems of New Zealand, indeed, of much of Western civilization itself.

In an earlier century when Stuart king's, to cloak their tyranny and oppression, invoked the doctrine of "divine right" people looked back at Magna Carta as a reminder that free people everywhere are not obliged to allow themselves to be ground into the dust.

In New Zealand, executive government's have captured a disproportionate level of power through the use of conventions, the use of urgency to bring Bills forward and subvert the select-committee and public submissions processes, their ability to use proxy votes, their voting bloc in caucus and the use of the party whipping system over their MP's.

In other words, our parliamentary democracy is not working as it should - and it hasn't done so for some years.

Until we as a nation fully understand the meaning and intent of the Treaty of Waitangi and the Magna Carta, along with other of our ancient and noble human rights statutes, we will never understand who we are, where we came from and where we are heading.

We do not need to reinvent the wheel.

Note:- Scoop readers who would like an email copy of "Magna Carta - New Zealand's Other Treaty" can email me at jhoward@minidata.co.nz

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