WEBVTT - Leighton Smith Podcast #260 - October 16th 2024 - Roger Partridge 0:00:09.133 --> 0:00:12.013 You're listening to a podcast from News Talks. It be 0:00:12.413 --> 0:00:16.213 follow this and our wide range of podcasts now on iHeartRadio. 0:00:16.773 --> 0:00:19.813 It's time for all the attitude, all the opinion, all 0:00:19.853 --> 0:00:22.493 the information, all the debates. 0:00:21.973 --> 0:00:24.293 Of theists, now. 0:00:24.293 --> 0:00:27.813 The Layton Smith podcast Coward by news Talks. 0:00:27.493 --> 0:00:30.013 It be Welcome to podcasts two hundred and sixty for 0:00:30.053 --> 0:00:34.133 October sixteen, twenty twenty four. What do these subjects have 0:00:34.173 --> 0:00:39.933 in common? Freedom of speech, censorship, rule of law, judicial activism, politics, 0:00:40.173 --> 0:00:44.733 the administrative state, morality, and there's plenty more. They are 0:00:44.813 --> 0:00:48.413 all part of an ongoing discussion, an important discussion over 0:00:48.453 --> 0:00:51.733 where society is headed and what the social future of 0:00:51.773 --> 0:00:54.213 the country, if not much of the world, will be like. 0:00:54.853 --> 0:00:58.413 Politics has always been a scene of changing alliances. Law 0:00:58.493 --> 0:01:02.613 and freedom have always gone together, but judicial activism now 0:01:02.733 --> 0:01:06.733 casts a shadow over that connection. Rights have in the 0:01:06.773 --> 0:01:10.133 past been a formulation of the essentials of freedom, but 0:01:10.373 --> 0:01:14.333 utopians have learned to turn a vast range of rights 0:01:14.373 --> 0:01:19.373 into the blueprint for some supposedly largest social perfection. That 0:01:19.493 --> 0:01:24.373 is why vigilance and political connoisseurship are necessary in sustaining 0:01:24.413 --> 0:01:27.893 the practices of our free world. The author of the 0:01:27.893 --> 0:01:33.013 book was Kennethmanogue, Kywe born and bred, lived most of 0:01:33.013 --> 0:01:36.133 his life in the Northern Hemisphere, specifically in London, where 0:01:36.133 --> 0:01:38.493 he was a professor at the London School of Economics. 0:01:38.933 --> 0:01:41.853 He was an economist, but he was also known very 0:01:41.853 --> 0:01:45.533 widely as a philosopher, and a very good one. He 0:01:45.613 --> 0:01:48.813 came back to New Zealand to do a speech. I 0:01:48.853 --> 0:01:50.973 think it might have been a Sir John Graham's speech, 0:01:51.293 --> 0:01:54.653 and that is where I met him, and memory serves 0:01:54.693 --> 0:01:57.973 me correctly, I interviewed him. But that's beside the point. 0:01:58.213 --> 0:02:00.373 The point is that we've reached the stage that men 0:02:00.533 --> 0:02:03.853 like Kenneth Minogue, and there's a list of others could 0:02:03.853 --> 0:02:06.813 see coming. The second quote I want I want to 0:02:06.893 --> 0:02:13.373 utilize is by Robert Bork, a judge in America, and 0:02:13.693 --> 0:02:16.373 he was a candidate for the Supreme Court, and he 0:02:16.453 --> 0:02:21.853 was destroyed by the present President of the United States. 0:02:22.533 --> 0:02:26.813 Robert Bork coercing virtue the worldwide rule of judges quick 0:02:26.893 --> 0:02:31.173 quote judicial activism, the ordering of results not supported by 0:02:31.213 --> 0:02:36.453 any reasonable interpretation of the constitution. They have their written constitution. 0:02:36.613 --> 0:02:41.333 We have our unwritten constitution. May be rampant, but it 0:02:41.373 --> 0:02:45.893 is completely unsupportable. Numerous attempts at justification have been made 0:02:45.933 --> 0:02:49.013 by academic lawyers and by left wing activist groups such 0:02:49.053 --> 0:02:52.773 as the American Civil Liberties Union, and more recently by 0:02:53.173 --> 0:02:56.453 heated statements from the leaders of the American Bar Association 0:02:57.333 --> 0:03:01.093 that swing should not be surprising. Some people will always 0:03:01.173 --> 0:03:04.093 rally around the center of power, particularly if it is 0:03:04.213 --> 0:03:08.493 the center most accessible to them and it produces the 0:03:08.533 --> 0:03:11.733 results that they want. Now, as you would already be 0:03:11.773 --> 0:03:16.093 aware because you've seen it in the notes or heard 0:03:16.133 --> 0:03:20.613 it on the radio, this podcast centers around the New 0:03:20.653 --> 0:03:25.093 Zealand Supreme Court. Tuesday afternoon, the fifteenth of October, which, 0:03:25.333 --> 0:03:28.933 as this is being released on the sixteenth, was just yesterday, 0:03:29.613 --> 0:03:33.213 the New Zealand Initiative add its chairman, released a paper 0:03:33.413 --> 0:03:38.093 written by Roger Partridge, who is a lawyer and the 0:03:38.453 --> 0:03:42.173 chairman of the New Zealand Institute. It's called Who Makes 0:03:42.213 --> 0:03:45.813 the Law Reigning in the Supreme Court and the report 0:03:45.933 --> 0:03:49.853 challenges the Supreme Court's recent decisions and their implications for 0:03:49.973 --> 0:03:54.093 our constitutional balance. So, in the discussion that follows, how 0:03:54.133 --> 0:03:57.213 the Supreme Court has adopted a loose approach to interpreting 0:03:57.253 --> 0:04:00.813 laws passed by Parliament. The Court's reshaping of the common 0:04:00.893 --> 0:04:04.573 law based on judge's perceptions of changing social values and 0:04:04.613 --> 0:04:10.013 the consequences of judicial overreach for them, critic legitimacy and 0:04:10.053 --> 0:04:13.213 the rule of law, and then provides some suggestions for 0:04:13.573 --> 0:04:16.293 solutions to the above problems. So in just a moment 0:04:16.333 --> 0:04:19.453 we'll talk with Roger Partridge. After which, of course there 0:04:19.533 --> 0:04:22.493 is the mail room with Missus Producer, and there are 0:04:22.573 --> 0:04:25.813 some advisories with regard to things that I think will 0:04:25.813 --> 0:04:43.853 interest you which we have recently introduced. But next Roger Partridge. 0:04:46.293 --> 0:04:50.733 Leverix is an antihistamine made in Switzerland to the highest quality. 0:04:50.933 --> 0:04:54.773 Leverix relieves hay fever and skin allergies or itchy skin. 0:04:55.253 --> 0:04:59.573 It's a dual action antihistamine and has a unique nasal 0:04:59.813 --> 0:05:04.413 decongestant action. It's fast acting for fast relief and it 0:05:04.493 --> 0:05:07.613 works in under an hour and lasts for over twenty 0:05:07.613 --> 0:05:11.453 four hours. Leveris is a tiny tablet that unblocks the nose, 0:05:11.773 --> 0:05:15.653 deals with itchy eyes, and stops sneezing. Levericks is an 0:05:15.653 --> 0:05:20.053 antihistamine made in Switzerland to the highest quality. So next 0:05:20.053 --> 0:05:23.333 time you are in need of an effective antihistamine, call 0:05:23.413 --> 0:05:26.733 into the pharmacy and ask for Leverix l e v 0:05:27.333 --> 0:05:31.813 Rix Leverix and always read the label, take as directed 0:05:32.053 --> 0:05:35.893 and if symptoms persist, see your health professional. Farmer Broker 0:05:35.933 --> 0:05:40.373 Auckland Layton Smith Roger Partridge was for twenty three years 0:05:40.413 --> 0:05:44.173 a litigation partner at law firm Bell Gully. He is 0:05:44.293 --> 0:05:47.373 now the chairman of the New Zealand Initiative and has 0:05:47.413 --> 0:05:52.093 written numerous papers on matters of public importance. His most 0:05:52.133 --> 0:05:57.333 recent was Prescription for Prosperity, a briefing to the incoming 0:05:57.373 --> 0:06:00.693 government of twenty twenty three. He has now written and 0:06:01.093 --> 0:06:05.653 released who Makes the Law reigning in the Supreme Court 0:06:06.613 --> 0:06:10.093 While somebody needed to do it? Roger Partridge, great to 0:06:10.093 --> 0:06:14.133 talk with you and I congratulate you on what you've done. 0:06:14.733 --> 0:06:19.173 It's very impressive. What brought you to the point of 0:06:19.213 --> 0:06:22.293 realizing you needed to do this well. 0:06:22.933 --> 0:06:26.293 I've spent nearly nine years now working with the team 0:06:26.333 --> 0:06:30.493 at the Initiatives as well as sharing the organization, and 0:06:31.413 --> 0:06:35.053 most of those nine years I've tried to pretend I 0:06:35.173 --> 0:06:37.973 wasn't formerly a lawyer, and I've written on a range 0:06:38.013 --> 0:06:43.773 of public policy matters, monitoring fiscal policy, New Zealand's culture health, energy, 0:06:44.293 --> 0:06:49.693 anything really the team lets me. I was drawn back 0:06:49.733 --> 0:06:53.133 into writing on the law by what I saw as 0:06:53.493 --> 0:06:59.493 increasingly erratic decisions from the Supreme Court. It started three 0:06:59.613 --> 0:07:02.813 years ago with the Make It sixteen case, that's the 0:07:02.893 --> 0:07:07.093 voting age case, where the Supreme Court weighed in on 0:07:07.173 --> 0:07:13.933 something that's obviously a political issue and and and in 0:07:13.973 --> 0:07:17.853 its enthusiasm it made a really very basic error in 0:07:17.853 --> 0:07:21.653 interpreting the Bill of Rights Act. The Minority there was 0:07:21.693 --> 0:07:24.133 a minority judgment of Stephen Kosch which got the law 0:07:24.253 --> 0:07:31.053 right justice coach, but it was an obvious flaw and 0:07:31.493 --> 0:07:36.053 it belied a court very keen to intervene on on 0:07:36.053 --> 0:07:38.493 on political matters and matter is that really should be 0:07:38.533 --> 0:07:42.613 left to Parliament and to voters. Earlier this year then 0:07:42.853 --> 0:07:47.293 another extremely erratic cases I saw at the Climate change case, 0:07:47.333 --> 0:07:51.213 where the Court of Appeal had said civil proceedings between 0:07:51.293 --> 0:07:54.053 a plaint of and a defendant couldn't couldn't really hope 0:07:54.053 --> 0:07:56.453 to address the challenge that is climate change in it 0:07:56.533 --> 0:08:01.293 that it required a complex regulatory regime and international treaties. 0:08:01.333 --> 0:08:03.253 But the Supreme Court was having none of that and 0:08:03.293 --> 0:08:09.333 granted granted leave for the for the unsuccessful plaintiff to 0:08:09.533 --> 0:08:11.853 appeal the decision from the Court of Appeal striking out 0:08:11.853 --> 0:08:14.253 the claim. So we're now going to have the judges 0:08:14.453 --> 0:08:20.653 inserting themselves into into a show trial on climate change, 0:08:20.653 --> 0:08:23.893 on an issue which many will think is best left 0:08:23.893 --> 0:08:29.453 to Parliament. And then in I think it was early March, 0:08:29.493 --> 0:08:33.733 it might have been late February, the CAC Jack Hodd 0:08:34.413 --> 0:08:36.653 sent me a draft of an article he was going 0:08:36.693 --> 0:08:39.533 to deliver at a conference run by the Legal Research 0:08:39.573 --> 0:08:43.373 Foundation marking twenty years of the Supreme Court's anniversary. It 0:08:43.453 --> 0:08:46.373 was written in very polite language, but it was at 0:08:46.413 --> 0:08:51.093 trenchant criticism of a court that's really straight outside its 0:08:51.093 --> 0:08:54.893 bounds and misunderstood its role. I wrote it up in 0:08:54.933 --> 0:09:01.053 my herald column that Jack's criticisms confirmed some of my 0:09:01.173 --> 0:09:04.373 own thinking. I wrote a follow up column with some 0:09:04.893 --> 0:09:07.333 a couple of thoughts on what Parliament might do to 0:09:07.413 --> 0:09:12.693 reign in the Court and kept thinking about it and 0:09:12.693 --> 0:09:16.173 that led to the project which is released today. 0:09:17.333 --> 0:09:20.973 So the Supreme Court has adopted a loose approach to 0:09:21.053 --> 0:09:25.253 interpreting laws passed by Parliament is one of the lead 0:09:25.333 --> 0:09:29.293 lines of the email that I first received. Who decides 0:09:29.413 --> 0:09:32.453 whether the Court is following what are perceived to be 0:09:32.493 --> 0:09:35.573 the rules and what the rules are well. 0:09:36.093 --> 0:09:41.733 It's a mix of jurisprudential analysis by academics and the 0:09:41.773 --> 0:09:46.453 politicians themselves. It is, after all, Parliament that's supreme in 0:09:46.493 --> 0:09:50.613 the legal hierarchy. Parliament makes the laws, Parliament created the 0:09:50.613 --> 0:09:55.013 Supreme Court. Parliament has laid down the guidelines that the 0:09:55.013 --> 0:10:00.613 courts must follow when interpreting Parliament's words. And what we're 0:10:00.693 --> 0:10:05.773 seeing now is a radical departure from those guidelines by 0:10:05.933 --> 0:10:12.333 a court that has becoming increasingly unconstrained and increasingly inserting 0:10:12.373 --> 0:10:16.733 itself into the role of lawmaker, which is traditionally Parliament's 0:10:16.813 --> 0:10:23.173 role rather than just adjudicator deciding disputes between parties. And 0:10:23.213 --> 0:10:27.053 when you become a lawmaker, you're making policy decisions, and 0:10:27.093 --> 0:10:31.533 that inevitably politicizes the judicial role. And I think we 0:10:31.573 --> 0:10:34.373 can see from the US the cautionary tale of what 0:10:34.533 --> 0:10:39.093 happens when a Supreme Court becomes too activist, and the 0:10:39.213 --> 0:10:43.533 erosion of trust in the impartiality of the judiciary and 0:10:44.493 --> 0:10:47.613 in a sense, the erosion of the democratic legitimacy of 0:10:47.653 --> 0:10:51.173 the law if the laws are being made by unaccountable 0:10:51.973 --> 0:10:55.253 not politically accountable judges rather than accountable politicians. 0:10:55.773 --> 0:10:59.693 So you raise the US scenario, and I'm glad you did. 0:11:00.213 --> 0:11:03.493 What are the similarities and what are the differences between 0:11:03.693 --> 0:11:06.373 the Supreme Court of New Zealand and the Supreme Court 0:11:06.413 --> 0:11:08.733 of the US and how they both operate. 0:11:09.773 --> 0:11:12.213 Well, the big difference is that the Supreme Court in 0:11:12.253 --> 0:11:15.973 the US can strike down legislation. Because the US has 0:11:16.013 --> 0:11:19.773 a written constitution, the Supreme Court in the US can 0:11:20.773 --> 0:11:27.173 declare legislation passed by Congress to be unconstitutional and therefore invalid. 0:11:27.773 --> 0:11:32.373 New Zealand's Supreme Court can't do that. It's given itself 0:11:32.453 --> 0:11:37.213 the right to declare legislation inconsistent with the Bill of Rights. 0:11:37.253 --> 0:11:39.333 But the Bill of Rights is just an ordinary piece 0:11:39.373 --> 0:11:45.333 of legislation, doesn't result in legislation being invalidated. That's the 0:11:45.333 --> 0:11:50.373 biggest difference. The biggest similarity now is that we've got 0:11:50.653 --> 0:11:57.533 a Supreme Court that is increasingly keen to get involved 0:11:57.693 --> 0:12:02.493 in political contentious political issues. The voting age is a 0:12:02.533 --> 0:12:07.293 good example. Climate change is another good example. The sentence 0:12:07.373 --> 0:12:10.133 in case the three strikes legislation. Whether you like the 0:12:10.133 --> 0:12:12.813 three strikes legislation or not, I was never a fan 0:12:12.893 --> 0:12:18.173 of it. But it was undoubtedly within Parliament's reavemant to 0:12:18.213 --> 0:12:22.613 pass it. But it's the court took a hostile approach 0:12:22.733 --> 0:12:27.693 to three strikes. So we're seeing a court increasingly involved 0:12:27.933 --> 0:12:32.693 in making policy, in inserting itself into important policy decisions 0:12:33.013 --> 0:12:36.013 which traditionally the courts would have left to Parliament. 0:12:37.213 --> 0:12:43.533 So it's referred to here mostly as judicial overreach. Is 0:12:43.533 --> 0:12:46.053 there a difference in your to you? Is there a 0:12:46.053 --> 0:12:48.613 difference between overreach and the activism? 0:12:50.453 --> 0:12:55.653 No? I no, I think the terms are pretty much interchangeable. 0:12:56.493 --> 0:12:58.093 So let me go, let me take you back to 0:12:58.133 --> 0:13:01.213 the very beginning, if I can put it that way, 0:13:01.653 --> 0:13:05.173 of how how a judge becomes a Justice of the 0:13:05.213 --> 0:13:09.093 Supreme Court in this country. 0:13:09.333 --> 0:13:15.573 Appointed appointed by the executive by the Prime minister. So 0:13:15.773 --> 0:13:20.373 the judicial appointment process as either the either the Attorney 0:13:20.373 --> 0:13:22.493 General or the Prime Minister in cabinet. 0:13:23.133 --> 0:13:23.773 And that's it. 0:13:24.693 --> 0:13:25.213 Yes, that's it. 0:13:25.373 --> 0:13:28.373 There is no interrogation, there's no cross examination, there's no 0:13:28.453 --> 0:13:30.133 hearings like they have in the Senate. 0:13:31.133 --> 0:13:33.973 That's right. And I think we've got a pretty good 0:13:35.333 --> 0:13:42.573 cross party track record of appointing judges based on on 0:13:42.773 --> 0:13:47.813 quality and not based on their political leanings. But I 0:13:47.853 --> 0:13:51.053 don't think what we haven't paid enough attention to is 0:13:52.173 --> 0:14:00.813 whether judges are committed to parliamentary sovereignty, committed to judicial restraint, 0:14:01.773 --> 0:14:04.973 and committed to ensuring and upholding the rule of law. 0:14:05.853 --> 0:14:08.973 And it's probably worth dwelling from home on just what 0:14:09.013 --> 0:14:12.653 the rule of law means. It's reasonably well understood by lawyers, 0:14:13.093 --> 0:14:16.733 but most importantly, it means that laws are certain and predictable. 0:14:17.253 --> 0:14:21.253 And if you've if you've got judges weighing in and 0:14:21.453 --> 0:14:27.293 taking radical or perhaps even unreasonable views of what legislation means, 0:14:27.293 --> 0:14:29.733 then the law becomes less certain and predictable. And that 0:14:29.853 --> 0:14:33.573 challenge is the rule of law. So the report recommends 0:14:34.053 --> 0:14:37.693 one of the five recommendations is that we sharpen up 0:14:37.773 --> 0:14:43.333 judicial appointment processes to focus more on those qualities, the 0:14:43.373 --> 0:14:46.493 qualities of judicial restraint, respect for the sovereignty of parliament, 0:14:46.573 --> 0:14:47.493 and the rule of law. 0:14:47.973 --> 0:14:50.253 How much of a part would track record play on that. 0:14:51.853 --> 0:14:52.493 A huge part? 0:14:53.173 --> 0:14:56.773 Okay. The reason I'm pushing this line a little bit 0:14:56.973 --> 0:15:02.853 is because we've witnessed in the United States lawyers, sorry, judges, 0:15:02.893 --> 0:15:06.733 who have been appointed to the Supreme Court who, particularly 0:15:06.933 --> 0:15:13.653 by Republicans presidents, have not necessarily lived up to expectations. 0:15:13.773 --> 0:15:18.413 In fact, there are suggestions, if not accusations, that one 0:15:18.533 --> 0:15:22.573 or two of them I have been dishonest in their 0:15:23.133 --> 0:15:24.773 interrogation period. 0:15:25.533 --> 0:15:30.013 Well, sorry, I jump in. I don't think you'd find 0:15:30.053 --> 0:15:33.933 the Democrats feeling that. We've had a long period where 0:15:33.933 --> 0:15:41.493 the US Supreme Court was dominated by Democrat Democrat appointments, 0:15:41.773 --> 0:15:45.773 the Democratic Party appointment so social democrats or socially liberals 0:15:45.853 --> 0:15:48.773 or the Americans like to call them progressives. So we've 0:15:48.773 --> 0:15:52.613 had a progressive dominated bench. We've now got it and 0:15:54.773 --> 0:15:59.333 quite an activist Supreme Court, and the Conservatives have railed 0:15:59.333 --> 0:16:04.893 against that. Now we've got a conservative dominated Supreme Court 0:16:04.973 --> 0:16:09.373 bench and that's also activist, and the Democrats are railing 0:16:09.533 --> 0:16:12.573 against it. And it's a cautionary tale for us. We 0:16:12.653 --> 0:16:19.013 don't want a judiciary that's overtly or subject overtly to 0:16:21.053 --> 0:16:25.853 the charge that it's politically partial, because that undermines trust 0:16:25.893 --> 0:16:30.653 and the judiciary and the democratic legitimacy of the legal 0:16:30.653 --> 0:16:31.453 system and the law. 0:16:32.453 --> 0:16:35.853 So you're happy with the way that judges are appointed 0:16:35.893 --> 0:16:38.373 here to the Supreme Court? Do you think there's not 0:16:39.293 --> 0:16:40.293 advances we could make. 0:16:41.253 --> 0:16:44.533 I don't I wouldn't want to change the process of appointment. 0:16:44.613 --> 0:16:51.373 I'd like I'd like more focus on judges demonstrated respect 0:16:51.413 --> 0:16:53.733 for the sovereignty of Parliament and the rule of law 0:16:54.013 --> 0:16:59.653 and the doctrines of precedents, President and the other. The 0:16:59.693 --> 0:17:05.053 other suggestion, though, and this is not as radical as 0:17:05.053 --> 0:17:09.093 it sounds, is to introduce term limits for Supreme Court judges, 0:17:09.173 --> 0:17:10.853 so they'd spend they'd come up out of the Court 0:17:10.853 --> 0:17:14.653 of Appeal and spend five to seven years perhaps in 0:17:14.693 --> 0:17:16.373 the Supreme Court and then go back to the Court 0:17:16.373 --> 0:17:19.693 of Appeal or retire, and that way we'd I think 0:17:19.693 --> 0:17:25.413 we'd counter an Ivory Tower concern that spending too long 0:17:25.653 --> 0:17:28.333 at the top in the palace that we've built for 0:17:28.373 --> 0:17:33.493 the Supreme Court in Wellington gives the risks giving Supreme 0:17:33.493 --> 0:17:38.533 Court judges hears above their station. Their role is to 0:17:38.573 --> 0:17:43.053 adjudicate on disputes, not to be not to take over 0:17:43.133 --> 0:17:46.893 Parliament's role. So I think Supreme Court terms for Supreme 0:17:46.893 --> 0:17:49.693 Court judges would be a good idea, and a greater 0:17:49.733 --> 0:17:53.413 focus on judicial restraint in their track record. 0:17:53.533 --> 0:17:58.533 The appointment to the superior courts, the retention of seventy 0:17:58.693 --> 0:18:04.533 sorry that the tension of retirement at seventy Yes, retention 0:18:04.613 --> 0:18:07.773 of that. Why is it that somebody who's had an 0:18:08.493 --> 0:18:15.293 a lifelong experience in the legal system is necessarily useless 0:18:15.373 --> 0:18:21.133 at Seventy's just a question that I've often pondered. Why 0:18:21.213 --> 0:18:23.853 there isn't why there aren't other arrangements. 0:18:24.973 --> 0:18:29.333 I think anything else becomes too hard. So it's a 0:18:29.373 --> 0:18:34.933 blunt rule to avoid having to deal with judges with 0:18:34.973 --> 0:18:38.453 cognitive decline. And you want to put the cut off 0:18:38.493 --> 0:18:41.253 point early enough so that you're not you're not running 0:18:41.253 --> 0:18:43.893 into the risk of it. We've seen that with some 0:18:43.933 --> 0:18:48.453 Supreme Court judges in the US. Perhaps it could be 0:18:48.493 --> 0:18:51.533 seventy five, but I think you need a blunt rule 0:18:51.853 --> 0:18:55.613 rather than an evaluation of a particular judges cognitive performance. 0:18:56.573 --> 0:19:00.733 You may mention of the Americans being a written constitution, 0:19:00.933 --> 0:19:08.253 which of course is right. We don't our constitution is well, 0:19:08.853 --> 0:19:10.213 is it a living constitution. 0:19:12.733 --> 0:19:18.413 It's not a living constitution in the sense that progressive 0:19:18.493 --> 0:19:21.293 or activist judges in the US would claim it to be. 0:19:21.853 --> 0:19:27.533 And this idea of living law the meaning and just 0:19:27.573 --> 0:19:31.933 to explain it, that's generally the idea that the meaning 0:19:32.133 --> 0:19:38.093 of legislation changes as society's values. Change. I think that's 0:19:38.133 --> 0:19:41.773 a very dangerous concept. I think it's inconsistent with the 0:19:41.853 --> 0:19:46.013 rule of law. I think legislation means what it meant, 0:19:46.053 --> 0:19:49.453 including a constitutional document, means what it was meant when 0:19:49.453 --> 0:19:54.853 it was enacted. And if society of voters the electorate 0:19:54.933 --> 0:19:59.653 wants changes to us, then that should go through the 0:19:59.693 --> 0:20:03.533 democratic process and so and we've seen that with the 0:20:03.613 --> 0:20:08.933 US Constitution with a series of amendments. That's the democratically 0:20:09.013 --> 0:20:14.533 legitimate way of changing both your founding constitution and any 0:20:14.613 --> 0:20:19.533 other law that needs updating. Not the courts saying well, 0:20:19.653 --> 0:20:22.453 Parliament might have meant one thing in nineteen ninety, but 0:20:22.573 --> 0:20:26.413 in twenty twenty four it would have decided something else 0:20:26.533 --> 0:20:30.813 because we think society's values are changed. Therefore we'll interpret 0:20:30.853 --> 0:20:34.253 it in a different way. That's not the job for 0:20:34.293 --> 0:20:37.973 the courts. That's a job for our democratically elected parliament. 0:20:38.293 --> 0:20:41.453 The courts are not equipped to make social policy decisions. 0:20:41.453 --> 0:20:44.013 They don't have the process of decisions. They don't have 0:20:44.053 --> 0:20:48.253 the submission making process that occurs in Parliament with select committees. 0:20:52.453 --> 0:20:55.213 They are dealing with issues in a very constrained way. 0:20:55.613 --> 0:20:58.173 The issues come before the courts in a dispute between 0:20:58.213 --> 0:21:01.613 two parties, so not everybody with an interest is represented, 0:21:03.813 --> 0:21:06.933 and so they're not equipped to make social policy decisions. 0:21:07.533 --> 0:21:11.173 And then they're not but obviously obviously they think they are. 0:21:12.413 --> 0:21:15.333 Well they think they are. And that's the problem that 0:21:14.693 --> 0:21:18.973 the report primarily addresses. How to reign in a court 0:21:19.013 --> 0:21:24.093 that thinks that it's got a function that's beyond its remit. 0:21:25.533 --> 0:21:30.173 I know I'm retreading where we've already been, but the 0:21:30.213 --> 0:21:35.893 suggestion that they are overreaching and the reasons that we've 0:21:35.973 --> 0:21:40.453 discussed makes it makes it more difficult to accept the 0:21:41.373 --> 0:21:44.973 appointment process. And I know that you've explained that. I'm 0:21:45.013 --> 0:21:48.413 just expressing my frustration with it. Can I quote you something? 0:21:48.653 --> 0:21:53.893 The living constitution argument usually proceeds from the observation of 0:21:54.053 --> 0:21:57.613 that society's morality is involving and the Constitution should be 0:21:58.013 --> 0:22:02.173 interpreted by the courts to reflect that. The argument is disingenuous. 0:22:02.253 --> 0:22:05.773 When a court invalidates a statute, it invalidates the best 0:22:05.813 --> 0:22:11.453 evidence available of what society's morality, and the evolving morality rationale, 0:22:11.493 --> 0:22:13.893 which the Supreme Court has used a number of times, 0:22:14.013 --> 0:22:16.253 is actually no more than a statement that the court 0:22:16.293 --> 0:22:20.813 believes the morality it prefers should be enforced. The society 0:22:20.893 --> 0:22:28.213 is not involving only the court is will. That summarizes here, well, 0:22:28.213 --> 0:22:31.213 that's that is a central issue. 0:22:31.373 --> 0:22:35.133 But the living constitution concept is not really taken hold 0:22:35.693 --> 0:22:41.333 in New Zealand except in some specific instances, and one 0:22:41.333 --> 0:22:45.333 of the recommendations in the report is that to nip 0:22:45.373 --> 0:22:48.013 it in its court. That's described in the report as 0:22:48.053 --> 0:22:51.853 the ambulatory approach, so that the meaning of legislation changes 0:22:51.933 --> 0:22:56.653 over time, the ambulatory approach or the living the living 0:22:56.693 --> 0:23:02.573 constitution approach. In the US, the Parliament gives guidelines to 0:23:02.613 --> 0:23:07.733 the courts on how they interpret legislation. It provides that 0:23:07.853 --> 0:23:13.453 legislation is to be the meaning is to be determined 0:23:14.013 --> 0:23:17.093 from the text of the legislation and in light of 0:23:17.133 --> 0:23:22.733 its purpose and context. So that's the purpose that Parliament 0:23:22.773 --> 0:23:26.813 had when it passed the legislation. Those last three words 0:23:26.853 --> 0:23:31.133 and the context and its context I think could be 0:23:31.173 --> 0:23:36.573 sharpened up. It does not make clear that the context, 0:23:36.613 --> 0:23:39.533 the relevant context is the context when the law was passed, 0:23:40.733 --> 0:23:43.533 and there are some suggestions that the court can look 0:23:43.573 --> 0:23:50.893 to later context, so changing values. I'm suggesting that Parliament 0:23:51.453 --> 0:23:55.573 sharpen up that wording to introduce some guardrails to make 0:23:55.613 --> 0:23:58.013 it clear that we're talking about the context when the 0:23:58.093 --> 0:24:02.773 law was enacted, and so that's designed to stop the 0:24:04.293 --> 0:24:09.093 mischief you've described in that quote of the courts updating 0:24:09.133 --> 0:24:14.173 the meaning of legislation without it going through Parliament simply 0:24:14.213 --> 0:24:17.773 by interpreting it differently based on their perceptions of changing 0:24:17.813 --> 0:24:18.933 society's values. 0:24:20.413 --> 0:24:26.253 The report runs forty six pages. It starts off with 0:24:26.733 --> 0:24:31.413 the introduction Chapter one, which came from a New Zealander 0:24:31.453 --> 0:24:32.933 I believe, originally. 0:24:33.533 --> 0:24:40.733 The reference to the Ford from Richard, Professor Richard Eakins. Yes, yes, yes, 0:24:40.933 --> 0:24:45.533 Richard's the graduate of That's right. Richard's a graduate of 0:24:45.573 --> 0:24:51.133 Auckland Law School. He was for a period, he was 0:24:51.173 --> 0:24:56.573 for a period on the elector at Auckland and during 0:24:56.573 --> 0:24:58.973 that time he was a council member of the Legal 0:24:58.973 --> 0:25:01.613 Research Foundation, of which I was the executive director for 0:25:01.693 --> 0:25:06.053 nearly a decade. And he's gone on to a glittering 0:25:06.133 --> 0:25:09.493 career for a man of such a young age. I 0:25:09.493 --> 0:25:11.253 don't want to put a name a figure on it, 0:25:11.293 --> 0:25:13.773 but he must be in his early forties at most. 0:25:13.933 --> 0:25:16.133 He's a King's Council in the UK and a full 0:25:16.133 --> 0:25:21.373 professor at Oxford of Law and Constitutional government. So he's 0:25:21.413 --> 0:25:24.173 a bright star in constitutional law. 0:25:25.053 --> 0:25:29.573 So chapter Chapter two is the problem and overreaching Supreme Court, 0:25:30.333 --> 0:25:34.213 which we've covered of course, subverting Parliament the Supreme Court's 0:25:34.253 --> 0:25:38.973 approach to statutes because there are two areas, statutes and 0:25:39.093 --> 0:25:43.613 common law. That's right, and they are behaving the same 0:25:43.813 --> 0:25:46.893 or tend to behave the same on both counts. Am 0:25:46.933 --> 0:25:47.213 I right? 0:25:48.213 --> 0:25:50.293 Well, the same in the sense that the approach they're 0:25:50.333 --> 0:25:56.013 taking is radical. So when it comes to interpreting statutes, 0:25:56.813 --> 0:26:01.013 for most just to finish off on the statutory interpretation 0:26:01.173 --> 0:26:04.653 peace first before moving to the common law. For most 0:26:04.733 --> 0:26:10.933 of the last twenty years they've been relatively constrained when 0:26:10.973 --> 0:26:14.773 interpreting statutes. They'd accepted that the license given to them 0:26:15.733 --> 0:26:20.053 by Parliament didn't allow them to adopt an unreasonable interpretation. 0:26:20.733 --> 0:26:23.973 But the Chief Justice in the three Strikes case, Fitzgerald 0:26:24.013 --> 0:26:27.653 in twenty twenty one, was quite splicit and casting off 0:26:28.173 --> 0:26:32.533 those shackles and saying the word reasonable didn't exist when 0:26:32.573 --> 0:26:36.213 they were looking at laws that conflicted with rights protected 0:26:36.213 --> 0:26:38.493 by the Bill of Rights, and that they could that 0:26:38.573 --> 0:26:42.093 they weren't constrained by a reasonable interpretation. It follows from 0:26:42.093 --> 0:26:45.213 that that they were willing to adopt an unreasonable interpretation 0:26:45.293 --> 0:26:49.893 which could never have been Parliament's intent. So they became 0:26:50.453 --> 0:26:56.333 they've become increasingly unconstrained in relation to the interpretation of legislation. 0:26:56.813 --> 0:26:57.653 Becawed. 0:26:58.973 --> 0:27:01.973 No, but they've given themselves license, that's what I mean. 0:27:02.053 --> 0:27:05.853 They've been allowed to make up their own rules. 0:27:06.893 --> 0:27:10.333 That's right. And another one of the recommendations and the 0:27:10.373 --> 0:27:14.853 report is that Parliament may clear ed its guidelines on 0:27:14.933 --> 0:27:19.093 how the court's approach to interpreting statutes. Again, to titan 0:27:19.893 --> 0:27:23.333 up the guidelines to make it clear or not guidelines, 0:27:23.333 --> 0:27:27.133 they're rules, to make it clear that they can't adopt 0:27:27.213 --> 0:27:32.813 meanings of legislation that's inconsistent with Parliament's intent, or interpretations 0:27:32.853 --> 0:27:39.253 that are unreasonable. So the report recommends changes to the 0:27:39.373 --> 0:27:45.933 rules Parliament sets for the courts when interpreting legislation. Of course, 0:27:46.133 --> 0:27:51.853 Parliament is supreme and so it can overturn and if necessary, 0:27:51.893 --> 0:27:55.893 pass legislation clarifying its intent, but it shouldn't have to 0:27:55.933 --> 0:27:59.413 do that. Sometimes Parliament can be careless with the words 0:27:59.413 --> 0:28:01.893 it used, and sometimes they do need to be fine tuned, 0:28:02.493 --> 0:28:06.453 but they shouldn't be facing a court that is insisting 0:28:06.613 --> 0:28:10.893 on a meaning that is different from what Parliament clearly intended, 0:28:11.453 --> 0:28:14.253 and that's what we saw in the Fitzgerald Fitzgerald case. 0:28:15.293 --> 0:28:18.133 So I've dwelt a little bit on the legislation side 0:28:18.173 --> 0:28:21.213 of things. Shall we come to the common law side now? Yes? 0:28:22.773 --> 0:28:26.173 And perhaps the best place to start as a description 0:28:26.533 --> 0:28:30.693 for your listeners of what the common law is, because 0:28:31.093 --> 0:28:34.693