Mmmmm. Indeed a somewhat vexed situation and your exchange with Mr Partridge has been illuminating and very interesting. The old cliche, 'I can see both sides of the argument' is alas apt in this situation, but a couple of thoughts:
1. Where the law is 'deficient' (let's say 'not adequately broad to deal with change' to fit your examples), then sure, the Court needs to fill the gaps, or 'intuit' (!) to some degree. But any extension of the 'law as written' must surely do its darnedest to follow the line of thinking of those who wrote the law. Were they trying to protect 'property' rights? Well then, computer hacking needs judgement. Easy. But it is a moon-leap to infer from token cultural appeasement in legislation to the Supreme Court infusing BS such as 'tikanga' into the equation.
2. Your other example of the court finding novel ways to deal with what it deems 'cultural' variances is a slippery slope. What does the wider public want? Difficult to discern, but the Swiss use referanda so with modern tech, why can't we? Maybe we don't want 'cultural solutions'. Personally I am tired of such. We have a dominant 'cultural model' and if it is applied, then it works pretty well. Consider the degree to which 'sharia law' is now established in the UK. Maybe we, the wider public, want harder, traditional lines to be taken? Some of the sentences being handed down these days are just laughable. Excessive discounts for all manner of rot, and sneaking under the threshold for Home D for serious crimes? WTF? Kids are trickier, I get that.
3. Yep, the wheel turn too damn slowly, so the Court may need to plug a gap in the interim. But much judicial activism is clearly 'identity' driven and going against public feeling. The last woke lot were turfed out, yet Williams, Glazebrook and co are still peddling their left-wing, pro-Maori crap.
4. How about we elect Mr J Maclean as ultimate head of the Supreme Court? That should fix things.
I think you and Mr Partridge broadly agree with n many respects. This debate is about Courts changing the law from Parliament’s intention . It’s been a debate ever since Parliaments enacted laws and Courts interpreted them. Scalia n one have and Denning on the other. Parliament clearly intended the Principles to be meaningless - Palmer assured Cabinet minus Koro Wetere of that - and Parliament clearly intended that 95% of the coast would remain owned by all and 3 Strikes was supposed to mean 3, not 23. Partridge must win this debate.
This seems to be turning into a "barrister's" debate, David
My concern is with judicial activism, not legitimate interpretation where the law is not sufficiently clear in an obvious case (criminal or otherwise).
Decisions taken by judiciary in relatively recent times on issues related to Maori affairs and "Treaty" matters could well be labelled as both dubious and spurious... as Roger Partridge's superb original document covered well. As another commentor said, "This debate is about Courts changing the law from Parliament’s intention " and I agree.
I understand the position Peter and the way in which the matter has become a lawyers discussion. The issue is a bit more nuanced than Mr Partridge would suggest and I am still concerned about judicial independence. My last post emphasized the way in which that independence and judicial freedom within the law can work positively to create solutions. I still agree with Mr. Partridge about NZSC overreach especially in the Fitzgerald Case.
LOL. I use the 'like' heart to remind myself that I have read the article. So now its at 4 likes (but really 3 because I have read it.) Interesting debate, a bit pedantic maybe. Keep it up!
Yeah it’s the type of debate that lawyers get involved with and I confess when it comes to a debate I am a bit of a dog with a bone. A shrink would probably call it OCD :-)
The problem with the so-called specialist courts and such as “therapeutic” remedies (devised by well- meaning judges) is that the shining light is more upon the offender than upon the damage done to those who suffer the consequences of criminality. These devices appear to rely on the false (as is obvious to a realist) premise that every offender can be redeemed. Those such as I who accept that some in society are inherently and irredeemably evil baulk at the there is a way to Salvation for every wrong doer approach. I for one would herald a return to a “let the punishment fit the crime” regime. And I see signs that the pendulum may at last be swinging back that way.
Mmmmm. Indeed a somewhat vexed situation and your exchange with Mr Partridge has been illuminating and very interesting. The old cliche, 'I can see both sides of the argument' is alas apt in this situation, but a couple of thoughts:
1. Where the law is 'deficient' (let's say 'not adequately broad to deal with change' to fit your examples), then sure, the Court needs to fill the gaps, or 'intuit' (!) to some degree. But any extension of the 'law as written' must surely do its darnedest to follow the line of thinking of those who wrote the law. Were they trying to protect 'property' rights? Well then, computer hacking needs judgement. Easy. But it is a moon-leap to infer from token cultural appeasement in legislation to the Supreme Court infusing BS such as 'tikanga' into the equation.
2. Your other example of the court finding novel ways to deal with what it deems 'cultural' variances is a slippery slope. What does the wider public want? Difficult to discern, but the Swiss use referanda so with modern tech, why can't we? Maybe we don't want 'cultural solutions'. Personally I am tired of such. We have a dominant 'cultural model' and if it is applied, then it works pretty well. Consider the degree to which 'sharia law' is now established in the UK. Maybe we, the wider public, want harder, traditional lines to be taken? Some of the sentences being handed down these days are just laughable. Excessive discounts for all manner of rot, and sneaking under the threshold for Home D for serious crimes? WTF? Kids are trickier, I get that.
3. Yep, the wheel turn too damn slowly, so the Court may need to plug a gap in the interim. But much judicial activism is clearly 'identity' driven and going against public feeling. The last woke lot were turfed out, yet Williams, Glazebrook and co are still peddling their left-wing, pro-Maori crap.
4. How about we elect Mr J Maclean as ultimate head of the Supreme Court? That should fix things.
I think you and Mr Partridge broadly agree with n many respects. This debate is about Courts changing the law from Parliament’s intention . It’s been a debate ever since Parliaments enacted laws and Courts interpreted them. Scalia n one have and Denning on the other. Parliament clearly intended the Principles to be meaningless - Palmer assured Cabinet minus Koro Wetere of that - and Parliament clearly intended that 95% of the coast would remain owned by all and 3 Strikes was supposed to mean 3, not 23. Partridge must win this debate.
This seems to be turning into a "barrister's" debate, David
My concern is with judicial activism, not legitimate interpretation where the law is not sufficiently clear in an obvious case (criminal or otherwise).
Decisions taken by judiciary in relatively recent times on issues related to Maori affairs and "Treaty" matters could well be labelled as both dubious and spurious... as Roger Partridge's superb original document covered well. As another commentor said, "This debate is about Courts changing the law from Parliament’s intention " and I agree.
I understand the position Peter and the way in which the matter has become a lawyers discussion. The issue is a bit more nuanced than Mr Partridge would suggest and I am still concerned about judicial independence. My last post emphasized the way in which that independence and judicial freedom within the law can work positively to create solutions. I still agree with Mr. Partridge about NZSC overreach especially in the Fitzgerald Case.
One 'like' and four comments - not the normal ratio so I tapped the 'comment' button several times while trying to like.
:-)
LOL. I use the 'like' heart to remind myself that I have read the article. So now its at 4 likes (but really 3 because I have read it.) Interesting debate, a bit pedantic maybe. Keep it up!
Yeah it’s the type of debate that lawyers get involved with and I confess when it comes to a debate I am a bit of a dog with a bone. A shrink would probably call it OCD :-)
The problem with the so-called specialist courts and such as “therapeutic” remedies (devised by well- meaning judges) is that the shining light is more upon the offender than upon the damage done to those who suffer the consequences of criminality. These devices appear to rely on the false (as is obvious to a realist) premise that every offender can be redeemed. Those such as I who accept that some in society are inherently and irredeemably evil baulk at the there is a way to Salvation for every wrong doer approach. I for one would herald a return to a “let the punishment fit the crime” regime. And I see signs that the pendulum may at last be swinging back that way.
Sorry, small print and failing eyesight. In many respects. Scalia on one hand.