David Round: Thoughts for our Time - Article 9

It is no exaggeration to speak of possible judicial tyranny. Already, New Zealand judges have succeeded in turning the nonsense of a Treaty of Waitangi ‘partnership’ into something approaching a fundamental legal principle. Their interpretation of the current foreshore and seabed legislation raises the genuine possibility that they might decide to ‘recognise’ Maori ownership of much of that immensely important and treasured public resource, in the teeth of Parliament’s clear intention that that not happen. They have just announced that ‘tikanga’ ~ whatever exactly that means ~ is part of our fundamental law. What might that involve? It will be up to the judges to decide; but the Supreme Court is of course determined to continue the ‘process of decolonisation’. The Maori Party has already announced that its policies include a tariff ~ a tax ~ on all sales and leases of land in this country, presumably justified on the ground that all this land was originally owned by Maori and there is still some lingering Maori authority over it. Already such policies are looming in Canada and Australia. Is it beyond the bounds of possibility that our very comfortably-off judges decide that, even without legislation to that effect, some such obligation exists? Or that in other respects local Maori have the final yea or nay on any proposed developments and changes? If the judges are in charge, as they are now beginning to claim ~ as our previous Chief Justice stated, and as various Supreme Court decisions also seem to state ~ what is to stop them?

What a pity it was that the patently innocent Peter Ellis was not Maori. The late unlamented Saint Robin Cooke was among those who could not dismiss that poor man’s appeal quickly enough. Peter Ellis’s case alone is surely abundant evidence of the callous stupidity of our judiciary and the subservience of our system of justice to fashion and bureaucratic self-protection.

And when, well after Mr Ellis’s death, the Supreme Court did finally decide to recognise his innocence, they actually added insult to their previous injury by using his case as an opportunity to ‘discover’ that Maori tikanga is also part of our fundamental law.

It will be little consolation to think that there will be a lot more judicial business in years to come, as the courts listen to some very expensive lawyers exploring the many intriguing possibilities that the Ellis decision throws up.

Our judicial system is long overdue for a shake-up. It is mind-numbingly expensive, for a start. Even to get as far as the High Court is an impossible burden for many citizens. So justice is denied to all but the rich. Judges smugly congratulate themselves that appeals to the Privy Council in London have been replaced with appeals to a Supreme Court in Wellington ~ big deal ~ but these same judges are strangely oblivious to the financial barriers which make it impossible for many citizens to obtain justice in any courts here. That is why the Disputes Tribunal was established, of course; so there is at least one humble place where citizens might seek justice.

Judicial hearings can easily last for weeks; lawyers are very expensive. It may well be a year or more before a criminal case has been heard, at who knows what cost to the recollections and memories of witnesses and victims. The great delay in even criminal trials is one of the reasons why bail is now granted to practically everyone accused of crimes. We are, quite rightly, deemed innocent until proven guilty. It would be outrageous to imprison someone for a year or even two before he is actually tried. So release on bail is necessary. It would not be necessary if trials followed much sooner after arrest.

We might also like to see decent sentences imposed on undoubted criminals. I recall at least two recent cases where men convicted of manslaughter have been sentenced to nothing more than a few months home detention. You kill another human being, and the only punishment our system of ‘justice’ imposes is to spend a few months at home watching television. Another drunk driver in Auckland with a list of convictions as long as your arm, and who killed two people while driving drunk through a red light has just been given three and a half years by a compassionate High Court judge ~ who also declined to impose any minimum period of sentence and who also refused an order for the confiscation of the motorbike.

We are often unhappy about relaxed police attitudes to crime, but really, what encouragement do the police get from the bench? When sentences are pathetic, one can hardly blame the police for not trying very hard.

An Auckland District Court judge recently gave a depraved but rich man permanent name suppression after he gave a large sum of money to a suitable charity. So now we have one law for the rich and another for everyone else.The Chief District Court and Principal Family Court judges saw nothing wrong in having numerous discussions with the chief executive of a government department who was wanted them to put the hard word onto the excellent Judge Callinicos, who had the temerity not automatically to believe everything a Whanau Ora functionary said about cultural upbringing. I respectfully suggest that the Principal Family Court judge should spend more time attempting to deal with the undoubted serious incompetence of her own Family Court; not to mention its very regular bias and injustice against half the population ~ males ~ which that system undoubtedly displays.

Another drunk District Court judge gate-crashes a private meeting at a private club and screams vulgar abuse at the Deputy Prime Minister, and instead of doing the honourable thing and resigning immediately, clings like a limpet to her position and ample emoluments.

Where do they find these people?

And yet the only suggestion which Winckelman, our Chief Justice, can make towards solving these problems with the courts is to appoint more judges.

Much of the rest of our society is in the hands of the stupid and complacent, backed up by the half crazy. Why should our judicial system be any less unsatisfactory? It is abundantly clear that ones chances of promotion, or even appointment, in taxpayer-funded institutions and plenty of other places in this country are pretty low unless one is prepared to commit oneself to our official state ideology ~ of Treaty ‘principles’ and the whole disgraceful apparatus of the Treaty industry, of fashionable hysterias and stupid wokeism. Why should the judiciary be exempt from this rule? When they behave as politicians ~ unelected ones ~ why should they and their decisions receive any more respect than we would give to any other politician’s political platform? When the Supreme Court opines, as it has, that ‘human rights’ require giving sixteen year olds the vote, or that Family First does not deserve to be recognised as a charity, but Greenpeace does, it makes it clear that it is ~ as once the Court of Star Chamber was ~ not a court of law, but a court of politicians enforcing a policy.

Justice is not a cloistered virtue. Our judicial system, for good or ill, is part of the bedrock of our society, and its functioning is an entirely legitimate matter of public interest. I know for a fact that my own doubts are shared not just by many ordinary decent citizens but also by many lawyers, compelled as they are by professional ‘ethics’ to toady up to judges. I daresay even a few judges may sympathise. They are not all bad. Unfortunately their leadership is disastrous, and the rules of judicial precedence require them all to follow the orders of those above them in the judicial hierarchy.

The judges and the whole judicial system have no right to be exempt from the scrutiny of a public concerned not just about value for money ~ although that is an entirely reasonble concern ~ but about whether the courts are actually doing properly what we expect them to do. The judges are in danger of getting seriously above themselves. This is very foolish. They are the servants of the law, not its masters. If they get above their station ~ well, as Kipling wrote in MacDonough’s Song, expressing the grand tradition of our laws ~

Whatsoever, for any cause,

Seeketh to take or to give

Power above or beyond the laws,

Suffer it not to live!

Holy State or Holy King ~

Or Holy People’s Will ~

Have no truck with the senseless thing.

Order the guns and kill!

Or Holy Treaty and Holy Judges.

Not literally, of course.

To be continued…

David Round, a sixth generation South Islander and committed conservationist, is an author, a constitutional and Treaty expert, and a former law lecturer at the University of Canterbury.