Damien Grant: The Supreme Court needs to be wary
Sunday, 20 October 2024
Damien Grant is an Auckland business owner and a regular opinion contributor for Stuff, writing from a libertarian perspective.
OPINION: It wasn’t a good morning to die. Bitterly cold. Two of the King’s five children were on hand to hear his final advice. He wore an extra undershirt to protect him from the chill and defray any suspicion of cowardice as he prepared to move from a corruptible to an incorruptible crown.
On the scaffold the soon to be late king addressed the issue that had caused him to lose both his crown and the head that it rested uneasily upon. The liberty and freedom of the people was best served by being ruled; “…It is not for having share in government Sir that is nothing pertaining to them. A subject and a sovereign are clean different things…” King Charles, who fell to the executioner’s axe in 1648, held firm in the belief that government was too important a function to be left to his subjects, or their representatives in parliament. This disdain for democracy is as old as democracy itself.
Back in antiquity Plato and his teacher Socrates wandered the agoras of Athens discussing ideas of great moment. Plato wrote some of these discussions down and one of the more influential was The Republic.
Citizens are best ruled by a philosopher-king, which was seen as superior to a collection of disputatious sailors fighting for control of the ship of state, which was how they described democracy.
Last week this issue resurfaced, several millennia on, with allegations that a new set of philosopher-kings sitting on the Supreme Court bench have emerged to challenge the power of those elected to office.
The legal profession is an unusual guild where status is revered, talent is rewarded and a high premium is placed on personal integrity. Those who reach the Supreme Court are the patrician class of an already elite caste.
The process by which we elect parliamentarians, well, produces individuals of a somewhat diminished calibre and it is unsettling to think that these individuals write the laws. Asking the brightest minds in the land to enforce their laws is like asking Rembrandt to judge a set of finger-paintings.
Inevitably, parliament passes stupid laws and one of those was Three Strikes; a piece of legislation certain to produce perverse outcomes. Sadly, Daniel Fitzgerald was that perverse outcome. Here was a gentleman, burdened with mental health and boundary issues who was guilty of sexually harassing women.
Thanks to the three strikes law he earned a seven-year sentence for trying to force a woman to kiss him. This, the Supreme Court held, was a breach of his rights under the Bill of Rights. Which it was. But this was also irrelevant as Parliament had been clear that the three strikes applied even if this violated any other piece of legislation.
Including the Bill of Rights.
As Justice William Young wrote in his dissent, Parliament knew what it was doing.
“Its purpose was to require sentences to be imposed which were necessarily going to be disproportionate – and sometimes significantly so – by reference to ordinary sentencing principles.”
The Fitzerald case, decided in 2021, isn’t an aberration. Over the last decade the Supreme Court has been reserving to itself the powers Plato envisioned to that of the Philosopher-king.
In the Peter Ellis case the Supreme Court accepted tikanga. It made a social policy declaration on the voting age in Make it 16. It conceded a new tort in the area of climate change could exist by allowing the sea to sue Fonterra and reimagined parliament’s intention when defining when iwi could claim customary title over the foreshore (noting this case only reached the Court of Appeal).
Into this contentious arena wades Roger Partridge, the chair of the Wellington based free-market think-tank the NZ Initiative and former Bell Gully managing partner.
Politicians, he writes in a report released on Wednesday, set the rules of the game and judges see that those rules are enforced. Partridge maintains that some of the Supreme Court’s recent decisions are blurring these lines and has “…strayed into shaping policy.”
Under our constitutional arrangements parliament is sovereign; this has been clear from the moment that King Charles’ head rolled freely across the blood stained-boards of his scaffold.
Our mostly unwritten conventions are built upon centuries of institutional restraint.
The Partridge report follows on from other disquiet, both public and private, in the legal fraternity as to the current Supreme Court diverging from this tradition, alongside periodic parliamentary interventions to correct judicial overreach.
We can see across the Pacific the turbulence that results when the judiciary becomes politically contested. We appear to be on that path as Partridge is calling for greater scrutiny of judges before elevation and his voice is not alone.
This is the inevitable reaction when our highest bench assumes to themselves powers that rightly sit across the intersection at Lambton Quay. It is understandable that they seek to moderate the worst instincts of whichever group of wrestling sailors briefly hold power in the ship of state.
They must resist the temptation for to do so undermines confidence in their own mana, and that of the entire constitutional structure upon which their authority rests.
This story has been updated to clarify some issues around law.