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The Letter - Monday 29 March 2004

The Letter Monday 29 March 2004

It’s A By-Election

Nick Smith has told his colleagues he won’t submit to a Duynhoven-type humiliating privileges committee hearing. He wants to clear his name. Two High Court judges have in effect accused him of lying under oath when they did not accept the MP’s version of a telephone conversation. After Nick Smith had been convicted but not sentenced, the Nelson MP gave a passionate defence of his actions and made a stinging attack on the Family Court- its secrecy, issuing ex parte orders that can deprive a parent of access to their child, and then taking years to decide custody. The speech was totally contrary to standing orders as no MP may comment on a case in front of the court. No MP, including the Speaker, took any action to stop Nick Smith from speaking. Every political party has no doubt that the public in a by-election will say the judges have got it wrong.

Breach Of Privilege

The seat of any MP convicted of a crime, where the penalty potentially is more than two years imprisonment, is automatically vacant. Contempt of court does carry a potential sentence of two years imprisonment and some legal academics say contempt is a crime. The Speaker has said he will take no action until the issue is referred to him. The judges could, by getting the registrar to write and inform the Speaker of the conviction, but so far there is no letter. It is open to any MP to refer the matter to the Speaker as a potential breach of privilege but no party wants to be seen as triggering a by-election. What the Speaker won’t do is give an assurance to Nick Smith that he’s safe without the matter being considered by the privileges committee.

Wilson Compromised

It is the Attorney General, Margaret Wilson’s function to defend the judiciary. Wilson cannot do so as two weeks ago she refused to criticize the PM after her accusation of bias of a Maori Land Court judge (clearly contempt of court). After Labour promoted legislation to allow Harry Duynhoven to remain in Parliament, it would be hypocrisy for Wilson to institute any action.

Matt Who?

The government needs someone who has no party to write the by-election triggering letter. Answer: Matt (milk and cuddles for prisoners) Robson who is in parliament solely because Jim Anderton won a seat. Despite the fact that if any member of the privileges committee writes a privileges letter he is disqualified from the committee, Robson’s excuse is he is Chair of the Privileges Committee.

Judicial Adventurism

New Zealand judges are part of a worldwide judicial adventurism movement. Their view is judges are to protect society from the barbaric views of the public. Judges claim common law is judge-made and they are therefore entitled to make more judge-made law. But common law took over 700 years to develop. Judges are making revolutionary law that would never be passed by any democratic parliament. The country's chief judge, Dame Sian Elias, is an advocate of judicial activism. At a judges’ conference, she is on record as saying courts may be influenced in their decisions not just by international treaties the country has ratified, but by treaties NZ has not ratified. This is truly revolutionary - an unelected judge, claiming the right to declare as law, treaties that had been drawn up by unelected unaccountable diplomats, and never ratified by any elected government.

It Is Retrospective Law

Even MPs with no legal training realise that retrospective lawmaking is wrong. Parliament passes very little retrospective law -mainly in taxation (which, let’s face it, is theft). The Marlborough foreshore court case was retrospective lawmaking by the court. The government, parliament and the public had all assumed the Ninety Mile case was the law. Parliament passed no fewer than three acts of Parliament which all assume the seabed was Crown owned. The executive signed international treaties extending New Zealand's territorial seabed, again assuming Crown ownership.

The Fear

There is now real fear as to what our unelected judges will do next. The Privy Council was always a check on the adventurism of the judges. From Margaret Wilson's Supreme Court there is no appeal.

Aussie Property Bubble

This week’s Economist has an editorial on Australia's economy. The magazine points out Australia's current-account deficit has swollen to 6% of GDP, even bigger than America's. Consumer spending has outpaced incomes. Australia has a negative savings rate. Households have been on a borrowing binge with debt rising more than twice as fast as in the US. Much of the borrowing has been to buy homes. The magazine says there is a property bubble about to burst. Thought: much of the editorial applies to this country.

Letter To The Letter

“After living in New Zealand for a couple of years I had gotten used to having to state my ‘race’ every time I fill in one form or another but was shocked to find that even my local soccer club wanted my five year old to declare his ‘racial’ origins when he was registering for the under sixes. Why on earth do they want to know that sort of thing? The little chap is neither European, Maori, Asian, nor Pacific Islander but instead mixed in origins and I had never in my own mind thought of him as belonging to any ‘race’ at all. I understand that bureaucrats in Wellington have reasons to classify everyone but why a soccer club, and why five year olds?”


The results of last week’s poll show that Letter readers want a 39-cent tax rate cut now. In a big poll less than 1% voted to delay the tax cut. We will send the result to both Dr Cullen and Dr Brash. This week - “Should Nick Smith resign and force a by election to clear his name? to give your view. We will send the answer to Nick.

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