Ele Ludemann: Who’s running this show?

David Farrar received an email alerting him to the Solicitor General’s new guidelines for prosecutions which started:

. . . “Research over many years has consistently found that Māori are significantly overrepresented in the criminal justice system at every stage, including as victims, and we recognised at the start of the project that the discretion to prosecute may contribute to that. The Guidelines expressly reference these disproportionate impacts and assist prosecutors by providing guidance about the matters to factor into their decisions. I am grateful to the kaitiaki and kaimahi of Ināia Tonu Nei for their wisdom, generosity and commitment. These Guidelines are much better for their input” says Ms Jagose.” . .

 The Platform picked up the issue, Mike Hosking raised this with the PM on Newstalk ZB, other media belatedly picked it up and Judith Collin’s was clear about the government’s position in an interview with Ryan Bridge on Newstalk ZB:

Judith Collins says race shouldn’t be a factor in prosecution decisions.

Solicitor-General Una Jagose KC has been under fire after advising prosecutors to “think carefully about particular decisions… where a person is Māori”.

Collins —in her capacity as Attorney-General— is refusing to endorse the directive.

She told Ryan Bridge all prosecution decisions should be carefully thought about, but based on circumstances, not on race.

Collins says it’s not just about whether someone can be prosecuted, but whether they can be prosecuted in those circumstances. . .

By Friday Ms Jagose was backtracking:

Solicitor-General Una Jagose KC has decided to review the recently published Solicitor General’s Prosecution Guidelines after reflecting on public discussion.

“I have read and listened to public commentary over the last few days. I can see that my wording, particularly in the Introduction, has missed the mark. I can be clearer, and it’s important to get this right to avoid public uncertainty or misunderstanding.

“I have therefore taken down the Guidelines, while I review the Introduction and the rest of the guidance for clarity and consistency. My intention is that this process will be completed promptly, and I will republish the Guidelines in time for them to come into effect as scheduled from 1 January 2025.”

The problem wasn’t that the wording had missed the mark.

The problem was that the guidelines were requiring prosecutors to make judgements based on the race of defendants.

That would be enough to raise questions about the SG’s judgement at any time. Justice must, as the Minister said, be colour-blind.

The question is even more pertinent when the government’s policy is so strongly against race-based policy.

It begs the question: who’s running this show?

Apropos of that, the NZ Initiative has published a report on court over-reach:

This report warns of a looming constitutional crisis in New Zealand, as the Supreme Court increasingly oversteps its bounds, threatening the balance of power between the courts and Parliament.

The report, “Who Makes the Law? Reining in the Supreme Court,” authored by Roger Partridge, Chair and Senior Fellow at The New Zealand Initiative, examines recent Supreme Court decisions that have sparked widespread concern among legal scholars, practitioners, and politicians.

“The Supreme Court’s overreach is making our laws less consistent and predictable, eroding public trust in both the law and the courts.” said Partridge.

“When unaccountable judges rewrite clear statutory language or reshape common law principles based on their perception of social values, they’re not just interpreting the law – they’re making it. This shift risks pushing our Supreme Court down the same path as the US Supreme Court, where judicial activism has led to a troubling politicisation of the judiciary and a dangerous loss of public trust in the courts,” Partridge said.

Professor Richard Ekins KC, Professor of Law and Constitutional Government at the University of Oxford, who wrote the foreword to the report, stated, “Roger Partridge’s paper is a powerful critique of the Supreme Court’s new jurisprudence and sets out an intelligent, thoughtful programme of action that would help to put it right. I commend the New Zealand Initiative for publishing this paper and hope that New Zealand’s parliamentarians, who are responsible for maintaining the balance of the constitution, study it closely.”

Key findings of the report include:

•  The Supreme Court has adopted a loose approach to interpreting laws passed by Parliament, often stretching or ignoring clear statutory language.
• Judges are reshaping common law principles based on their perceptions of changing social values, despite lacking democratic accountability for such policy decisions.
• This judicial overreach is making laws more uncertain and unpredictable, undermining the rule of law and the sovereignty of Parliament.

The report recommends several legislative strategies to address these issues:

1. Passing targeted legislation to overturn problematic court decisions.
2. More clearly defined statutory guardrails to stop the courts from straying beyond their proper role.
3. Improving judicial appointment processes to emphasise the need for judicial restraint and respect for parliamentary sovereignty.

There’s a link to a summary of the report at the bottom of the media release.

Click to view

Ele Ludemann is a North Otago farmer and journalist, who blogs HERE - where this article was sourced.