Thanks from me too, Gary. Your incisive comments should be spread far and wide. One fears the possibility of our SC thinking it’s a kissing cousin of the menace known as the USC.
Gary, I seem to recall that Geoffrey Palmer had it as a principle of legal drafting that the wording be left somewhat vague so that the courts could "interpret"it for themselves in the context of the case (this in contradistinction to the idea of applying clear law and firm principles to a particular context). If my recollection is correct, and given Palmer's influence as both teacher and legislator, could this help explain how a judge might one day come to proclaim that "the function of this Court [is] to declare the law of Aotearoa/New Zealand"?
Peter, what you say is relevant to the "principles" of the treaty. Here's a link to an excellent article (https://thelawassociation.nz/the-principles-of-te-tiriti-o-waitangi-where-it-all-started/) which includes this: "What were those principles in 1987? Given the lack of a legislated definition, the authority to interpret te Tiriti was given to the courts, which were empowered by the “prompt for litigation” contained in s 9, [Geoffrey] Palmer and Knight write."
What I was talking about was a Supreme Court instigated insertion of tikanga into the common law. Governments have been at fault for dropping "tikanga" into all sorts of legislation but in Ellis the SC was not interpreting legislation. Off its own bat, it was saying that tikanga should be part of the common law.
Peter, wrong Palmer. I have just realised it was Geoffrey's son Matthew, who is a High Court judge, who was the joint author with Professor Knight of the book the author of the article was referring to. However, Matthew probably had a good idea of what was going on!
Gary, I think Saxmere v Wool Board Disestablishment [2009] NZSC72 amply demonstrated that the upper echelons of the NZ Bar & Judiciary can be as incestuous and self-regarding as their equivalents anywhere. This rarefied, cloistered and dare I say it, occasionally arrogant cadre, run the risk of believing their own publicity. The deference shown, can inspire feelings of infallible wisdom in those Judges so deified.
To paraphrase Thomas Sowell, sometimes intellectuals can become so convinced of the superiority of their own intelligence, that they indulge in judgment in areas well outside their area of expertise, believing that only they have the mental faculty to comprehend such heady concepts. They abhor the diffused nature of the practical knowledge built up across society involved in solving what they perceive as mundane problems such as engineering, finance, administration etc. There is the danger that intellectuals believe that they and their colleagues have a monopoly on all higher-concept thinking.
This is the slippery slope which can lead to the upper echelons of the judiciary overstepping their constitutional authority - deciding what law is, rather than interpreting and applying it to resolve an issue.
Well said Gary. I enjoyed it in Law News and I am glad you have made your thoughts available to a wider audience. Para 110 of Ellis is a worry indeed.
Thanks, David. I have just finished a discussion with Leighton Smith for his Wednesday podcast so that will increase the audience.
Thanks from me too, Gary. Your incisive comments should be spread far and wide. One fears the possibility of our SC thinking it’s a kissing cousin of the menace known as the USC.
https://www.courtsofnz.govt.nz/about-the-judiciary/role-of-courts/government/
https://www.courtsofnz.govt.nz/about-the-judiciary/the-statement-of-principles
https://thelawassociation.nz/law-commission-publishes-roadmap-for-blending-tikanga-and-state-law/
Brilliant. Utterly irrefutable. How to get the Herald or MSM to publish it?
Gary, I seem to recall that Geoffrey Palmer had it as a principle of legal drafting that the wording be left somewhat vague so that the courts could "interpret"it for themselves in the context of the case (this in contradistinction to the idea of applying clear law and firm principles to a particular context). If my recollection is correct, and given Palmer's influence as both teacher and legislator, could this help explain how a judge might one day come to proclaim that "the function of this Court [is] to declare the law of Aotearoa/New Zealand"?
Peter, what you say is relevant to the "principles" of the treaty. Here's a link to an excellent article (https://thelawassociation.nz/the-principles-of-te-tiriti-o-waitangi-where-it-all-started/) which includes this: "What were those principles in 1987? Given the lack of a legislated definition, the authority to interpret te Tiriti was given to the courts, which were empowered by the “prompt for litigation” contained in s 9, [Geoffrey] Palmer and Knight write."
What I was talking about was a Supreme Court instigated insertion of tikanga into the common law. Governments have been at fault for dropping "tikanga" into all sorts of legislation but in Ellis the SC was not interpreting legislation. Off its own bat, it was saying that tikanga should be part of the common law.
Peter, wrong Palmer. I have just realised it was Geoffrey's son Matthew, who is a High Court judge, who was the joint author with Professor Knight of the book the author of the article was referring to. However, Matthew probably had a good idea of what was going on!
Gary, I think Saxmere v Wool Board Disestablishment [2009] NZSC72 amply demonstrated that the upper echelons of the NZ Bar & Judiciary can be as incestuous and self-regarding as their equivalents anywhere. This rarefied, cloistered and dare I say it, occasionally arrogant cadre, run the risk of believing their own publicity. The deference shown, can inspire feelings of infallible wisdom in those Judges so deified.
To paraphrase Thomas Sowell, sometimes intellectuals can become so convinced of the superiority of their own intelligence, that they indulge in judgment in areas well outside their area of expertise, believing that only they have the mental faculty to comprehend such heady concepts. They abhor the diffused nature of the practical knowledge built up across society involved in solving what they perceive as mundane problems such as engineering, finance, administration etc. There is the danger that intellectuals believe that they and their colleagues have a monopoly on all higher-concept thinking.
This is the slippery slope which can lead to the upper echelons of the judiciary overstepping their constitutional authority - deciding what law is, rather than interpreting and applying it to resolve an issue.