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Howard's End: Law Drafting Mistakes & Haden Brown

High Court Justice, Peter Salmon has publicly admitted that he made a mistake when he sentenced Haden Brown because he did not use the minimum non-parole provisions under the new Sentencing Act. Can we be surprised when some legislation coming from Parliament can be huge and badly drafted? Maree Howard writes.

Justice Peter Salmon is to be praised for his public admission because he appears to be one of those judges which the community now demands and needs; - a judge who recognises that he does not cease to be a human being when he went on to the bench.

After all, those who don't make mistakes, don't do any work.

For a judge, finding the right answer would often seem to be the least difficult problem. Having the courage to assert that answer and stand firm in the face of constant winds of protest and criticism is often much more difficult - particularly when there are constraints on them in their constitutional role and propriety in what they can say.

Justice Salmon has certainly recognised that the time is right for judges in New Zealand to be more user-friendly. His position, however, is not new - the winds for change within the judiciary are blowing at gale force across the world.

In some countries the courts are even posting the sentencing remarks of judges on their websites. In South Australia, for example, the sentencing remarks of judges have been posted on the Internet since February this year and there have been 32,000 hits since then.

The media in some countries has also taken some of the responsibility to educate the public about the work of the courts and justice system with the UK Timesonline carrying court cases, articles and law reports. Similarly, in Australia.

Another real problem in New Zealand is the quality and quantity of new legislation coming out of our Parliament which the judges must interpret.

There are two factors.
1. Justice is not synonymous with law - an unjust law is still the law (and there are too many of those unjust laws on our law books) and;
2. Parliament is sovereign and judges must obey the laws coming from it even though a law might say, for example, that all redheaded people had to be scalped, or all homosexuals banished, or that all blue-eyed baby's had to be killed.

It would be inconceivable that our Parliament would enact such laws but then, who knows what might happen in the distant future. Where would the judges stand then?

I'm not convinced that the politicians always understand what they are passing as law - hence the later need for huge amounts of amendments.

Judges often say they are looking for the intention of Parliament when they adjudicate on cases but that does not seem to be quite accurate. It seems to me that judges are seeking not what Parliament meant, but the true meaning of what they said.

The result is that judges stand as mediators between government and the people seeking to ensure that any statutory powers claimed by public officials are properly authorised and that the people can safely rely on the relevant wording in formulating their plans and deciding on the scope of their liberties.

The acceptance of the rule of law as a fundamental principle requires that the people, before committing themselves to a course of action, should be able to know in advance what the legal consequences might be which flow from it.

Any rules which require distortion to achieve a reasonable interpretation will infringe principle 6 of the rule of law - i.e. the rules are sufficiently stable for people to be guided by the knowledge and content of the rules.

And this brings us to another seemingly unique New Zealand problem - the volume of laws and their length.

If the law is addressed to the people at large - and it is - then how is it reasonably possible for people to be guided by their knowledge and content of the law to obey it if many statutes today can be more than 400 sections long?

Add to that the sub-sections, the clauses, the sub-clauses and the schedules and you can be looking at more than 1,000 pieces of law which you must understand and obey, just in one statute. Is this why the courts are clogged?

Is it any wonder the judges can sometimes get it wrong - let alone the people?

Let's change that system and let's start today - because with the volume of law which you must now obey, some day, some time, some how, you will likely be a user of the justice system and in front of a judge.


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