1 00:00:00,320 --> 00:00:03,160 Speaker 1: As a Supreme Court justices getting a bit big for 2 00:00:03,200 --> 00:00:05,240 Speaker 1: their boots, do we think? An new report from the 3 00:00:05,320 --> 00:00:08,360 Speaker 1: New Zealand Initiative the think tank suggests a time limit 4 00:00:08,440 --> 00:00:10,600 Speaker 1: for judges of the Supreme Court would help to guard 5 00:00:10,640 --> 00:00:13,840 Speaker 1: against them getting quote an exaggerated view of their role. 6 00:00:14,280 --> 00:00:16,639 Speaker 1: It says the Court is straying into Parliament's domaine and 7 00:00:16,720 --> 00:00:19,920 Speaker 1: is granting itself the power to rewrite legislation and essentially 8 00:00:19,960 --> 00:00:22,479 Speaker 1: that it doesn't like. The report suggests a bit of 9 00:00:22,520 --> 00:00:26,120 Speaker 1: a rotation system. Stephen Franks is a lawyer at Frank's 10 00:00:26,160 --> 00:00:28,760 Speaker 1: Ogilvy and is a former act MP. He's with me 11 00:00:28,800 --> 00:00:31,880 Speaker 1: this morning. Good morning Stephen, Good morning Ryan. Good to 12 00:00:31,880 --> 00:00:33,800 Speaker 1: have you on the show. Are they too big for 13 00:00:33,840 --> 00:00:34,760 Speaker 1: their boots? Do you reckon? 14 00:00:36,120 --> 00:00:38,479 Speaker 2: I think the report makes a very compelling case and 15 00:00:38,560 --> 00:00:42,080 Speaker 2: there's been a lot of sort of vot grumbling about 16 00:00:42,080 --> 00:00:46,160 Speaker 2: it amongst lawyers for some time. There was a celebration 17 00:00:46,280 --> 00:00:50,879 Speaker 2: of its twentieth anniversary earlier this year where one of 18 00:00:50,960 --> 00:00:57,120 Speaker 2: the probably the most eminent QKC present of the paper 19 00:00:57,160 --> 00:01:00,720 Speaker 2: where he said they're making the law, not the law. 20 00:01:00,760 --> 00:01:03,720 Speaker 2: It's ceasing to be predictable because they've decided they can 21 00:01:04,240 --> 00:01:07,319 Speaker 2: change it, to develop it in accordance with their view 22 00:01:07,319 --> 00:01:09,960 Speaker 2: of social values. But it didn't really get a lot 23 00:01:10,080 --> 00:01:12,880 Speaker 2: as much attention as you'd expect. It was addressed to 24 00:01:12,880 --> 00:01:16,880 Speaker 2: a lot of lawyers, but for a major business organization 25 00:01:16,959 --> 00:01:19,280 Speaker 2: to desplants is pretty unprecedented. 26 00:01:19,600 --> 00:01:21,640 Speaker 1: Yeah. I remember a friend of mine showing me that 27 00:01:21,760 --> 00:01:25,160 Speaker 1: article saying this is important. I think it is for 28 00:01:25,200 --> 00:01:27,880 Speaker 1: most people. It's like a judge's court, Supreme Court. But 29 00:01:28,280 --> 00:01:31,640 Speaker 1: what they're doing were their two issues right, loosely interpreting 30 00:01:31,959 --> 00:01:35,119 Speaker 1: the laws that Parliament makes and then getting a little 31 00:01:35,160 --> 00:01:37,119 Speaker 1: bit activist on common law. 32 00:01:39,000 --> 00:01:42,560 Speaker 2: Yes, yeah, they're both part of the same thing though, 33 00:01:42,800 --> 00:01:47,920 Speaker 2: and a view that their role isn't to apply the 34 00:01:48,000 --> 00:01:51,160 Speaker 2: law as it is. Their role is to develop the 35 00:01:51,240 --> 00:01:53,840 Speaker 2: law in accordance with their view of where New Zealand 36 00:01:53,840 --> 00:01:57,560 Speaker 2: should be going and their social values, which is exactly 37 00:01:57,640 --> 00:02:04,080 Speaker 2: what democracy is to control. So the problem for a 38 00:02:04,120 --> 00:02:09,320 Speaker 2: country when your institutions don't stay in their lane can 39 00:02:09,360 --> 00:02:13,400 Speaker 2: be quite dire, and Israel was really stuck in that 40 00:02:14,440 --> 00:02:18,799 Speaker 2: until the attacking year ago. Israel was paralyzed by their 41 00:02:18,840 --> 00:02:22,800 Speaker 2: Supreme Court doing a similar thing. And so these aren't unprecedented, 42 00:02:22,880 --> 00:02:26,280 Speaker 2: but they can lead to very long periods of chaos. 43 00:02:26,520 --> 00:02:28,639 Speaker 1: How do you put judges back in their place? 44 00:02:30,480 --> 00:02:33,560 Speaker 2: Well, the report suggests five different ways of doing it, 45 00:02:33,680 --> 00:02:37,600 Speaker 2: and one of them basically just a reminder of what 46 00:02:37,639 --> 00:02:40,120 Speaker 2: the rule of law is. That it's a rule of 47 00:02:41,160 --> 00:02:43,480 Speaker 2: rules that you can find out in advance and read 48 00:02:43,560 --> 00:02:46,200 Speaker 2: and understand, and you don't have to go to the 49 00:02:46,240 --> 00:02:48,560 Speaker 2: court to find out what the law is. It's for 50 00:02:48,639 --> 00:02:51,519 Speaker 2: most cases except the boundary cases, it's easily found out. 51 00:02:52,160 --> 00:02:55,920 Speaker 2: So they suggested that they could write a description of 52 00:02:55,960 --> 00:02:58,880 Speaker 2: what they called a thin rule of law. The court's 53 00:02:58,919 --> 00:03:04,080 Speaker 2: been talking about thick rule of law which allows them 54 00:03:02,520 --> 00:03:08,160 Speaker 2: to proceed with decolonization, which no one knows what that means, 55 00:03:08,160 --> 00:03:13,680 Speaker 2: but they apparently think they know, and that teakhanger is 56 00:03:13,720 --> 00:03:18,000 Speaker 2: an original part of MW Zealand law. Custom has always 57 00:03:18,040 --> 00:03:24,200 Speaker 2: been important in making decisions where customs relevant. But one 58 00:03:24,200 --> 00:03:26,880 Speaker 2: of the things pointed out in this report is that 59 00:03:27,560 --> 00:03:31,560 Speaker 2: in the Alis decision, which didn't involve Mari, the courts 60 00:03:31,560 --> 00:03:37,200 Speaker 2: decided to bring in tea hunger as a factor, and 61 00:03:37,240 --> 00:03:42,400 Speaker 2: then one of the judges said that the court can 62 00:03:42,680 --> 00:03:46,080 Speaker 2: declare tea kanger, but it can't change it, which is 63 00:03:46,120 --> 00:03:50,560 Speaker 2: sort of very odd. Because they only discover it by 64 00:03:50,600 --> 00:03:54,120 Speaker 2: asking Mario old is what it is or what it was? 65 00:03:54,800 --> 00:04:01,200 Speaker 2: And the idea that it's then more immutable than than 66 00:04:01,360 --> 00:04:05,440 Speaker 2: something that they say is very peculiar. Anyway, they just 67 00:04:05,480 --> 00:04:07,960 Speaker 2: confused everyone. No one knows what it is now and that. 68 00:04:08,000 --> 00:04:09,560 Speaker 1: Is part of the problem is and it is the 69 00:04:09,600 --> 00:04:13,680 Speaker 1: confusion and who's who has who should have final say? 70 00:04:13,760 --> 00:04:15,800 Speaker 1: I mean, if Parliament makes a law, even think you 71 00:04:15,840 --> 00:04:18,200 Speaker 1: know it's the court stob to just you know, interpret it, 72 00:04:18,240 --> 00:04:21,080 Speaker 1: follow it. Stephen, thank you very much for joining us 73 00:04:21,080 --> 00:04:22,440 Speaker 1: this morning. We do have to leave it there. Stephen 74 00:04:22,440 --> 00:04:25,680 Speaker 1: Franks and Wellington lawyer at Frank's Ogilvy. The report is 75 00:04:25,680 --> 00:04:28,040 Speaker 1: by the New Zealand Initiative. It's up on their website. 76 00:04:28,080 --> 00:04:30,400 Speaker 1: I do employee to go and have a look for 77 00:04:30,520 --> 00:04:33,480 Speaker 1: more from early edition with Ryan Bridge. Listen live to 78 00:04:33,640 --> 00:04:36,799 Speaker 1: News Talks it be from five am weekdays, or follow 79 00:04:36,839 --> 00:04:38,440 Speaker 1: the podcast on iHeartRadio.