Sunday, February 18, 2024

Damien Grant: ‘We need better judges'

Does parliament have the right to order a citizen be tortured? Rough question to begin your Sunday morning but, does it?

If you say No, why not? We live in a parliamentary democracy and the elected representatives have the power to compel conscription, force us to pay taxes and tell us what side of the road to drive. What is the limit on its authority, and what does it have to do with eggs?

In the early 1980s Mr Taylor, a Greytown poultry farmer, was delivering eggs and parliament had passed a law stipulating that members of the Poultry Board had the power to require anyone possessing eggs to answer inquiries relative to the source of production of them eggs.

Mr Taylor was asked and Mr Taylor did not answer. He was taken to court and punished accordingly. Until the case came, on appeal, before Justice Robin Cooke. Lord Cooke of Thorndon to you and me.

“I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them….The common law favours the liberty of the citizen…”

Sadly, the imposition on Mr Taylor was not so egregious that Cooke was minded to allow his appeal, but the comments were potent. This was in the days of Sir Robert Muldoon, of the excesses of executive power, of an erratic and capricious government. Cooke was saying that there was a law of the land beyond the power of parliament.

Powerful stuff. You can see why a libertarian would raise a glass to Lord Cooke. Still. It was the same Justice Cooke who stumbled across the previously unearthed a clause in the treaty that created an enduring relationship of a fiduciary nature akin to a partnership. (Māori Council vs Attorney General; for those taking notes.)

The problem with activist judges is that they rarely know where the line is. Cooke was so brilliant he was able to see what others couldn’t. Possibly, he was able to see what was never there in the first place. His discovery of a partnership in the treaty is the genesis of the current turmoil being played out at the moment; but that is another topic for another day.

The criticism that David Seymour and others have of Lord Cooke’s form of judicial activism is that is undermines parliamentary sovereignty. Where is the line? I think Cooke went too far in 1987, but he was right in 1984. You may think differently. That is the joy of debate in a liberal democratic state.

And it is onto this stage stumbles Dame Helen Winkelmann. Our current pre-eminent judicial officer and the speaker at the 2020 Robin Cooke Lecture at Victoria University where, before the assembled best legal minds in the land, Winkelmann gives a lecture on…weaving.

“This metaphor helps reveal something about case law and how it is used in the common law method. Even binding precedent does not provide a code containing all the answers. That is because the common law…is made up of values that are big enough and flexible enough to allow the law to change to meet the needs of place, people and times.”

Winkelmann seeks to free herself both from the precedents of past judicial decisions, that which provides certainty, and the right to incorporate into our laws the thread of native legal concepts; tikanga being the one gaining the most attention.

Last week we have seen the inevitable end-point of this cul-de-sac of muddled thinking. Mike Smith, a Ngapuhi elder and occasional One Tree Hill arborist took Fonterra and others to court because their carbon emissions are damaging his 91 hectares of native land.

The lower courts threw the case out on the grounds that if the case went to trial “…Mr Smith would be unable to establish a duty of care in the terms alleged and that the negligence claim is clearly untenable.”

This is a predictable decision based on the protections in the common law against nonsense litigation. And yet the Winkelmann Supreme Court went in another direction; and did so by discarding these traditions, these precedents, and adopting uncritical interpretations of tikanga.

Smith argued; “ Where the environment has suffered damage, the principle of kaitiakitanga requires steps to be taken to restore balance…” and the court listened. The trial will be allowed to proceed, and “… the trial court will need to grapple with the fact that Mr Smith purports to bring proceedings not merely as an alleged proprietor who has suffered loss, but as a kaitiaki acting on behalf of the whenua, (land) wai (water) and moana (sea)—distinct entities in their own right.”

This cannot stand. A citizen acting within the laws of the land cannot be sued by someone purporting to act on behalf of the sea. The Winkelmann court has overreached and parliament will respond.

But the real failure is the loss of mana created by the recklessness of this cohort of activist judges..........The full article is published HERE

Damien Grant is an Auckland business owner, a member of the Taxpayers’ Union and a regular opinion contributor for Stuff, writing from a libertarian perspective


Anonymous said...

A new Supreme Court is vital - ASAP

Anonymous said...

I sincerely hope parliament will respond. The legal fraternity in NZ is way out of line. Their purpose is to administer the law, not create it. Our democratically elected parliament must make the law. Unfortunately the entire NZ legal fraternity now appears to be a perfect product of indoctrination by our radical left-leaning universities. If I’m wrong, then those lawyers and judges who are not need to grow a spine and speak up for the restoration of justice. Furthermore, tikanga is a nonsense because it is unknowable by the average citizen and infinitely changeable. How can anyone follow the law if they don’t know what it is? Or is that the point? Tikanga gives judges and maori immense and undemocratic powers. Our courts will be wide open to corruption.

Anonymous said...

OUR government has "POLITICIZED" everything. Time to get rid of OUR government!!

Anonymous said...

Yes, and unfortunately our legal fraternity seem only too keen to increase the opportunity for disagreement and especially create a new avenue of law that still requires definition and what better time to do so when society is embracing CRT and is at peak woke.

Not unlike the bizarre finding of Justice Churchman over Customary Marine Title and his convoluted thinking to arrive at "shared exclusivity", the implications and impact of these findings to the taxpayer and wider populous are now ominous and our Parliament must move promptly to rein this nonsense in. Tikanga, like Utu, did not create anything akin to a civil society, so why on earth should we rekindle and embrace its adoption now?

Hazel Modisett said...

And its no wonder they think they can get away with it when pundits like you propagate their BS.
The ultimate power has ALWAYS been in the hands of the people. We are all born with certain inalienable rights & any govts attempts to remove or violate these rights are illegitimate, which is why govts worldwide try to monopolize the exercise of force by militarizing the police force & attempting to strip regular citizens of their right to bear arms & defend themselves.
If push came to shove here in NZ, it would be a very short & one sided skirmish given the fact that there are only approx. 12,500 frontline police & the rank & file of the NZDF are unlikely to bear arms against their own people.
The major weapons the authorities use against us is our own ignorance & apathy, but thats OK...we beat the Sth Africans in cricket lol...

Anonymous said...

Consider all the mass civil disobedience that was unleashed on NZ by the gangs during Covid - the convoys of gang bikers, taking over the town of Opotiki , as just two examples.
How many current Maori activists threatened violence and sedition and got away with it ?
All that was observed, and ignored, by the police and the justice system with no consequences for the perpetrators.
And what is their reaction going to be when ordinary citizens take similar actions to protect there democracy ?
Be aware Mr Luxon that day is getting closer - are you ignorant of the groundswell of anger ?

Anonymous said...

Some one is keeping the media alive and active. Is it just PJIF? If so that is in the hands of the government. If not then who? How? And why are the so empowered?

Ken S said...

"the assembled best legal minds in the land". Presumably Morgan Godfery - Senior Lecturer at Victoria University - was absent then.