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Radio NZ
May 23, 2004
Sunday Supplement
James Allan,
Faculty of Law, University of Otago
I live
in one of the most pleasant places in New Zealand. The people are friendly. The golf is excellent, and cheap. The last vestiges of a Calvinist disdain
for those who gaudily display their wealth continue to hang over the city,
though they grow fainter by the year.
Still, I bet it is much harder to tell who is rich and who is not down
where I live than where you live. And
as for the claims about weather that is too cold, let me just say that as a native
born Canadian I know cold weather, and this is not cold weather. When you live in a place where golf is
possible year round, that place does not have cold weather. Some poorly built old villas with next to
no heating, maybe. But not cold
weather.
All in all, then, Dunedin
is a terrific place to live. My wife
and I arrived here nearly eleven years ago and we love the place. We’ve always said that if we left Dunedin, we’d leave New Zealand.
As it happens, and with much regret, that is precisely what we’re doing come
this July, joining the exodus across the Tasman of those offered jobs they
couldn’t refuse.
As one on his way out, however sadly, I will claim that license regularly
given to emigrants to comment on one thing they’d wish to change in the
country they’re about to depart.
For me, it’s the lack of deference to elected authority in our
judiciary. I think our judges - the
top ones - have become too big for their unelected boots. In my ten plus years here I’ve watched as
these justices have claimed for themselves powers that I, for one, would much
prefer to see rest with our elected politicians.
To start, our judges have basically rewritten our Bill of Rights Act simply
giving themselves the power to issue declarations of inconsistency and to
award monetary damages while making noises about all the value judgments they
have to make on behalf of society. Now
I know that many people find the language of rights emotively irresistible,
and forget that the consensus one finds up in the realm of abstractions -
who, for instance, is against the right to free speech in the abstract - soon
disappears down in the quagmire of detail, of drawing difficult lines about
campaign finance laws, defamation laws and hate speech laws. But simply mouthing five words - ‘the right
to free speech’ - does not make drawing any of those lines easier, or less
contentious. Nor does it remove, in my
opinion, the desirability of having those lines ultimately drawn by the elected
representatives of the people and not by unelected judges.
Too many people forget that living in a democracy means you win some and you
lose some. And when you lose or when
someone disagrees with you that does not normally mean that the other person
is morally blind, stupid or in need of further education. It is a function of the observable fact
that sincere, reasonable, well-informed, even nice people often disagree
about fundamental moral and political issues.
Translating the dispute into the emotive language of rights and hoping that you’ll
get a better outcome from the judges than the politicians is not an obviously
democratic outlook, however common the hope may be.
Add that’s just the Bill of Rights Act.
Our top judges have also recently rewritten the rules surrounding
parliamentary privilege, to lessen the protections it affords MPs. And arguably they’ve been the main cause of
this whole foreshore fiasco; the technical legal decision may have been a
narrow one but the fact is that our judges overturned a forty year old
precedent with barely a mention of whose job it was to overturn established
precedents that had formed the basis of legislation in the interval.
I think that at some point old cases, whether rightly or wrongly decided at
the time, become so well entrenched that they’re best left to parliament to
be changed.
A tough-minded critic would now bring up the Peter Ellis case and contrast it
with all the voiced concern for rights in the abstract. Here is real injustice. In my view Peter Ellis should never have
been convicted and the prevailing attitude here seems to be to sweep this
embarrassing episode under the carpet.
It stinks.
I look forward sometime in the future to reading in my Australian newspaper
of Peter Ellis’s shamefully delayed pardon.
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