Hot topic

The Northland Age - - Opinion -

The Supreme Court has sud­denly be­come a hot topic as Chief Jus­tice Elias pre­pares to exit in March 2019. Mrs Elias was ap­pointed by Prime Min­is­ter Ship­ley in 1999 and headed the new Supreme Court in 2004.

I agree with the crit­ics who ex­press con­cern about the cur­rent se­lec­tion process and the last thing Ki­wis need is the ap­point­ment of an­other ju­di­cial ac­tivist. Some of the likely names be­ing bandied about are alarm­ing and any­one with en­trenched race-based or po­lit­i­cal views must not be con­sid­ered as im­par­tial­ity is the paramount test.

The Supreme Court has in my view op­er­ated ‘dys­func­tion­ally’ since its in­cep­tion and to be fair I can’t re­call see­ing many (if any) de­ci­sions I agreed with. Jet­ti­son­ing the Privy Coun­cil which gave us ac­cess to the finest le­gal brains, at no cost to NZ while gov­ern­ing the ex­cesses of NZ judges was a mis­take — it was a ma­jor con­sti­tu­tional change, which ne­ces­si­tated a bind­ing ref­er­en­dum. The job of judges and the courts is pri­mar­ily to in­ter­pret and ap­ply statutes/ com­mon law, not make their own laws per se. The elec­torate must be sole ar­biter on cre­ation of laws, al­beit un­for­tu­nately via politi­cians.

Bind­ing ref­er­en­dums on all ma­jor is­sues might as­sist in set­tling some things that be­come con­tentious and at least this gives the ‘ir­rel­e­vant ma­jor­ity’ a say in mat­ters.

Any Supreme Court ap­point­ment needs a wide con­sen­sus prob­a­bly in­volv­ing NZ Law So­ci­ety/ NZ Bar As­so­ci­a­tion, and se­nior judges not sim­ply some­one cho­sen by the the Prime Min­is­ter who can’t even se­lect a cred­i­ble Cabi­net — that would cer­tainly be an ac­ci­dent look­ing for a place to hap­pen. Any­thing else would be right up there with John Key’s ef­fec­tively uni­lat­eral moves to ap­point the new gov­er­nor gen­eral and drive the new flag ref­er­en­dum. Per­haps the Chief Jus­tice and Pres­i­dent of Supreme Court posts should be sep­a­rate ap­point­ments with 10-year time lim­its.

A by the way ob­ser­va­tion the Prime Min­is­ter, Chief Jus­tice, Gover­norGen­eral, and three of five Supreme Court judges are women, now that’s what one would call gen­der equal­ity in spades.

Lit­eral thought for the day ‘quis cus­todies ip­sos cus­todes’ or who judges the judges? ROB PATER­SON

Mt Maun­gonui

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