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Letter To New Zealand Bar Association

Letter To New Zealand Bar Association

Robert Dobson QC


New Zealand Bar Association

PO Box 5339


Dear Robert

Concern about Government or the Judiciary?

I am glad that the Bar Association upholds the conventions that protect the independence of the judiciary, and respect for the courts. I accept that your members will be concerned by a challenge to the propriety of the Chief Justice's involvement in the Court of Appeal decision on the seabed and foreshore case. I commend the Bar Association in particular for the thoughtful submissions it made on the Supreme Court Bill, some of which touched on the matters I believe are the real issues in dispute.

If only the Attorney General and the Cabinet had your respect for our constitutional conventions, and the principles that uphold the rule of law, there would have been no need for any Member of Parliament to raise the questions I have raised.

Despite the description of my challenge as "stinging criticism" in the press I do not agree that it breached the convention. My concern is about the court's decision and the Government's failure to challenge the Chief Justice's involvement, given her public pre-appointment advocacy in the area. It has been assumed that I attacked Dame Elias perhaps because there is unavoidable implied personal criticism in an argument that a judge should not have sat on a case. I believe that I have remained within the boundaries of the convention. Nevertheless, in case that appears to be sophistry or evasion I have no objection to arguing the matter on the assumption that the challenge has crossed the blurry line.

If that is the case the convention needs refinement. It cannot prevent an MP from raising a concern that goes to the heart of the reason for the convention in the first place, the proper role of the courts and the boundaries of political involvement by judges and vice versa.

I would be glad to have the Association's advice on:

1. Whether, as a matter of law, or prudent convention the Chief Justice should have sat on the case given her history of advocacy and campaigning in the area?

2. Who can or should form a view on that if the Association or its members will not, and how should they comment if (for political reasons) the Crown appears to have failed to protect its own interests in impartial adjudication or even wants a biased court?

3. How to debate the Government's conduct of a case and failure to challenge the participation of a judge with known clear prior alignment with the other side, without explaining the grounds of challenge open to the Government (thereby perhaps implying criticism of a judge)?

4. How a Member of Parliament should debate the test for bias adopted in New Zealand against the higher standard applied by the House of Lords, if all real examples would be out of bounds because they may imply criticism of the judges concerned.

5. How an MP should challenge the Government effectively for loading the courts with political and policy decisions, if criticism of concrete and practical case examples is inevitably also seen as criticism of the policy orientation and preferences of the judges?

6. How to convey the importance of the philosophical or political orientation of judicial appointees under a new order in which they are charged with "developing an indigenous law", if the apparent practical consequences of the judges' ideology cannot be raised and connected to that orientation?

7. How people will understand the temptation to politicians to stack the court if the most striking demonstration of the results of judges choosing to be activist and make law instead of applying it, cannot be explored because of a muzzling convention that pretends the decision can be separated from the policy orientation of those who make the decision?

Neither Parliament nor the courts make good law in abstract. It takes concrete practical application to real facts to test and illustrate ideas for most people, and to develop sound rules. Hypothetical questions and arguments don't work. Nor can elected representatives ensure the lay public understand the importance of a principle that seems abstract or academic, if concrete examples are taboo.

When the Courts are given, or take on, the law making task of politicians, the reason for their immunity from political criticism goes. That is deplorable. But even worse is allowing a Government to place intensely political issues out of reach of political challenge. That happened with the so-called "principles of the Treaty of Waitangi" in the State Owned Enterprises Act. I will not be silenced when I see the same process occurring again. Sending the task of defining customary property rights to the Maori Land Court may get the Government out of its seabed and foreshore hole but only by putting the judges in it.

I accept that this debate threatens comity between the courts and legislature. But that is just one of the principles at stake. What would you think of complaints against the person shouting for help against homies vandalising cars in the street, that he had breached the rules against excessive noise in a suburb after 11pm? We face constitutional vandals. Focus on them and not the people sounding the alarm.

If you have members interested in knowing more about some serious questions that lie behind this debate, I attach a copy of my recent newsletter "Unfranked", and a copy of my hasty release on your media statement.

Yours sincerely

Stephen Franks MP

ACT New Zealand

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