Latest / Early Edition with Ryan Bridge / Stephen Franks: Former ACT MP and Lawyer on the NZ Initiative report into the Supreme Court

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Stephen Franks: Former ACT MP and Lawyer on the NZ Initiative report into the Supreme Court · Early Edition with Ryan Bridge

• 0:00
  Speaker 1: As a Supreme Court justices getting a bit big for
• 0:03
  Speaker 1: their boots, do we think? An new report from the
• 0:05
  Speaker 1: New Zealand Initiative the think tank suggests a time limit
• 0:08
  Speaker 1: for judges of the Supreme Court would help to guard
• 0:10
  Speaker 1: against them getting quote an exaggerated view of their role.
• 0:14
  Speaker 1: It says the Court is straying into Parliament's domaine and
• 0:16
  Speaker 1: is granting itself the power to rewrite legislation and essentially
• 0:19
  Speaker 1: that it doesn't like. The report suggests a bit of
• 0:22
  Speaker 1: a rotation system. Stephen Franks is a lawyer at Frank's
• 0:26
  Speaker 1: Ogilvy and is a former act MP. He's with me
• 0:28
  Speaker 1: this morning. Good morning Stephen, Good morning Ryan. Good to
• 0:31
  Speaker 1: have you on the show. Are they too big for
• 0:33
  Speaker 1: their boots? Do you reckon?
• 0:36
  Speaker 2: I think the report makes a very compelling case and
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  Speaker 2: there's been a lot of sort of vot grumbling about
• 0:42
  Speaker 2: it amongst lawyers for some time. There was a celebration
• 0:46
  Speaker 2: of its twentieth anniversary earlier this year where one of
• 0:50
  Speaker 2: the probably the most eminent QKC present of the paper
• 0:57
  Speaker 2: where he said they're making the law, not the law.
• 1:00
  Speaker 2: It's ceasing to be predictable because they've decided they can
• 1:04
  Speaker 2: change it, to develop it in accordance with their view
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  Speaker 2: of social values. But it didn't really get a lot
• 1:10
  Speaker 2: as much attention as you'd expect. It was addressed to
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  Speaker 2: a lot of lawyers, but for a major business organization
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  Speaker 2: to desplants is pretty unprecedented.
• 1:19
  Speaker 1: Yeah. I remember a friend of mine showing me that
• 1:21
  Speaker 1: article saying this is important. I think it is for
• 1:25
  Speaker 1: most people. It's like a judge's court, Supreme Court. But
• 1:28
  Speaker 1: what they're doing were their two issues right, loosely interpreting
• 1:31
  Speaker 1: the laws that Parliament makes and then getting a little
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  Speaker 1: bit activist on common law.
• 1:39
  Speaker 2: Yes, yeah, they're both part of the same thing though,
• 1:42
  Speaker 2: and a view that their role isn't to apply the
• 1:48
  Speaker 2: law as it is. Their role is to develop the
• 1:51
  Speaker 2: law in accordance with their view of where New Zealand
• 1:53
  Speaker 2: should be going and their social values, which is exactly
• 1:57
  Speaker 2: what democracy is to control. So the problem for a
• 2:04
  Speaker 2: country when your institutions don't stay in their lane can
• 2:09
  Speaker 2: be quite dire, and Israel was really stuck in that
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  Speaker 2: until the attacking year ago. Israel was paralyzed by their
• 2:18
  Speaker 2: Supreme Court doing a similar thing. And so these aren't unprecedented,
• 2:22
  Speaker 2: but they can lead to very long periods of chaos.
• 2:26
  Speaker 1: How do you put judges back in their place?
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  Speaker 2: Well, the report suggests five different ways of doing it,
• 2:33
  Speaker 2: and one of them basically just a reminder of what
• 2:37
  Speaker 2: the rule of law is. That it's a rule of
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  Speaker 2: rules that you can find out in advance and read
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  Speaker 2: and understand, and you don't have to go to the
• 2:46
  Speaker 2: court to find out what the law is. It's for
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  Speaker 2: most cases except the boundary cases, it's easily found out.
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  Speaker 2: So they suggested that they could write a description of
• 2:55
  Speaker 2: what they called a thin rule of law. The court's
• 2:58
  Speaker 2: been talking about thick rule of law which allows them
• 3:02
  Speaker 2: to proceed with decolonization, which no one knows what that means,
• 3:08
  Speaker 2: but they apparently think they know, and that teakhanger is
• 3:13
  Speaker 2: an original part of MW Zealand law. Custom has always
• 3:18
  Speaker 2: been important in making decisions where customs relevant. But one
• 3:24
  Speaker 2: of the things pointed out in this report is that
• 3:27
  Speaker 2: in the Alis decision, which didn't involve Mari, the courts
• 3:31
  Speaker 2: decided to bring in tea hunger as a factor, and
• 3:37
  Speaker 2: then one of the judges said that the court can
• 3:42
  Speaker 2: declare tea kanger, but it can't change it, which is
• 3:46
  Speaker 2: sort of very odd. Because they only discover it by
• 3:50
  Speaker 2: asking Mario old is what it is or what it was?
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  Speaker 2: And the idea that it's then more immutable than than
• 4:01
  Speaker 2: something that they say is very peculiar. Anyway, they just
• 4:05
  Speaker 2: confused everyone. No one knows what it is now and that.
• 4:08
  Speaker 1: Is part of the problem is and it is the
• 4:09
  Speaker 1: confusion and who's who has who should have final say?
• 4:13
  Speaker 1: I mean, if Parliament makes a law, even think you
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  Speaker 1: know it's the court stob to just you know, interpret it,
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  Speaker 1: follow it. Stephen, thank you very much for joining us
• 4:21
  Speaker 1: this morning. We do have to leave it there. Stephen
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  Speaker 1: Franks and Wellington lawyer at Frank's Ogilvy. The report is
• 4:25
  Speaker 1: by the New Zealand Initiative. It's up on their website.
• 4:28
  Speaker 1: I do employee to go and have a look for
• 4:30
  Speaker 1: more from early edition with Ryan Bridge. Listen live to
• 4:33
  Speaker 1: News Talks it be from five am weekdays, or follow
• 4:36
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