Simple Simon met a Chief Justice going to the fair

Now, the post title may be a bit unfair to Simon Power – I actually think he is one of the more intelligent members of the Cabinet – but his response to Chief Justice Sian Elias’ speech today indicates a complete lack of understanding of the respective roles of the Judiciary and the Executive. Maybe he is constrained politically by the likes of David Garrett. Who knows. But I would have expected better of him than this:

Chief Justice Sian Elias quoted from a speech today:

The country’s top judge is suggesting giving some prisoners an amnesty as a way of relieving prison overcrowding, but the Government has ruled out the idea.

Chief Justice Dame Sian Elias sparked the debate in a speech where she said the controversial idea should be considered.

“We need to look at direct tools to manage the prison population if overcrowding is not to cause significant safety and human rights issues.”

Dame Sian pointed to the system working in other countries to prevent overcrowding.

“Such solutions will not please many. . . but the alternatives and the cost of overcrowding need to be weighed.”

She also criticised the denial of bail and parole to inmates – an area the Government is considering tightening further.

“I question whether that strategy can reasonably be maintained,” she said.

Justice Minister Simon Power reponded bluntly:

This is not government policy. The Government was elected to set sentencing policy, judges are appointed to apply it.

Now, Simon, that is the way of thinking that leads to autocratic rule. The three wings of Government – the Legislature, the Executive, and the Judiciary – must maintain independence from each other (one of the good things about MMP is that it has helped the forst two of these to do so).

Each have a role to play, and must play it without subjugation to any of the others. The Judiciary (ie Judges), through the operation of the Common Law, “make law” all the time. So does the Legislature (ie Parliament) “make law” by passing legislation.

But, apart from subordinate legislation, made by Order in Council or Ministerial Direction under empowering legislation, the Executive, of which Simon Power is a member as a Minsiter) does not make law.

That is where Simon Power has crossed the line. A Cabinet Minister implying the Chief Justice should butt out of an important debate on judicial issues is not a good look.

And, as a Judge who has had to sentence people herself, and hear appeals against sentences, I suspect she has a much better grasp of the reality of the justice system than someone who was a rather junior lawyer before becoming a Member of Parliament and who has now been elevated to the position of Minsiter of Justice.

I would hate to be Chris Finlayson

Attorney General Chris Finlayson is one of the National Party Ministers whom I think is generally a nice guy. He’s not a nasty far right ideologue, and he deals with issues pragmatically and fairly on the basis of his considerable experience as a senior barrister.

So he must have been squirming yesterday, when National rammed a Bill through Parliament that, in his capacity as Attorney General, he opposed.

Finlayson’s report to Parliament as Attorney General on the Parole (Extended Supervision Orders) Amendment Bill is extraordianarily condemnatory of a Bill promoted by his own Party. He states:

… I conclude the new power to impose residential restrictions after 12 months also raises apparent inconsistencies with s 22 Bill of Rights Act as authorising arbitrary detention.

It is not settled whether justification under s 5 is available for either s 22 or s 26. However, it is not necessary to determine that point here, because the apparent objectives of this Bll could be determined in a rights consistent manner.

It would appear to be possible for the imposition of restrictions amounting to long term detention to be achieved in a rights consistent way through the use of the preventive detention regime or through amendment to the Sentencing Act 2003 to allow courts to impose an extended parole period as part of the sentence following conviction for specific offending. This is broadly the scheme that was adopted in Canada.

That this Bill’s objectives could be achieved without contravening the right against arbitrary detention or double jeopardy does not provide justification for these inconsistencies. The state should not detain offenders solely on the basis of preventing future offending, nor should it punish offenders twice for the same offence.

But, despite their own Attorney General’s concerns, the Government rushed this Bill through under urgency and did not even disclose those concerns to other political parties. Keith Locke was rightly concerned.

Now, don’t get me wrong – I believe serious sex offenders should be locked up until the Parole Board is convinced they are not longer a threat.

But I do not think introducing arbitrary detention and double jeopardy into our legal system is the way to go about it in a fair and democratic society, and nor does a senior Cabinet Minister Chris Finlayson.

But he was over-ridden, and the Bill pushed through all stages in an hour under urgency, with no opportunity for Select Committe submissions and hearings. Finlayson must be spewing!

I wonder how long someone with the integrity of Chris Finlayson will be able to tolerate being a senior Minister in this Government. Another Bill will be coming back to the House soon – ACT MP David Garrett’s Three Strikes Bill. Finalyson has already reported that this too is inconsistent with the Bill of Rights Act (on the basis of disproportionately severe sentencting). It will be interesting to see what he does if the Government endorse it against his opinion.

There have always been scumbags in Parliament who will sacrifice principle to personal aggrandisement, but I don’t count Finlayson among them. For a start, he could earn a lot more outside Government or Parliament than in it, and I also believe he is someone who stands by his principles and has the well-being of all humanity at heart.

So how long will he tolerate being over-ridden by those in the National Party with a desire to appease David Garrett and his redneck bigoted constituency?