Judges’ Pay

February 11th, 2009 at 9:00 am by David Farrar

The Herald reports:

Prime Minister expects other high-earners paid from the public purse to follow MPs and the Governor-General by asking not to get a pay rise this year.

Parliament yesterday unanimously agreed to ask the not to lift MPs’ wages when they are reviewed in the middle of this year.

The Remuneration Authority is responsible for setting the salaries of MPs, judges, local body councillors and public sector bosses.

“I’m sure judges and the like will take a similar view and I’m sure the Remuneration Authority, in reaching their conclusion, will take into consideration that this is a time of restraint and it’s important that we, as well-paid New Zealanders, show leadership,” said Mr Key

Good God, this is about as subtle as firing a flare gun through the door of the court. The PM is basically telling Judges to suck it up and also ask for a nil pay rise.

John has to be careful here. Trying to pressure Judges into a nil pay rise, isn’t that far removed from trying to pressure them into a pay cut. And in real terms, a nil increase is a pay cut. The motives are good, but perhaps the Attorney-General could point out to the Prime Minister that rather useful piece of law known as The Constitution Act 1986:

24 Salaries of Judges not to be reduced
  • The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge’s commission.

Dean Knight also blogs on this issue, and suggests freezing Judges salaries could border on unconstitutional.

John did say he admired Muldoon when he was at school. Hopefully admiration does not become emulation!

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59 Responses to “Judges’ Pay”

  1. aardvark (417 comments) says:

    Why should judges (by decree of law) be immune to the things that the rest of us must endure?

    I suspect that the effective wage/salary of most workers will fall over the coming years as oil prices rise again but a stagnant economy provides no room for pay increases.

    Judges do play a very important role in this country (gaffes and ridiculous bail decisions notwithstanding) but I think it would be a mistake to somehow consider them to be so special that they need this kind of dispensation.

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  2. Brian Smaller (4,028 comments) says:

    I work in a private company. All our scheduled pay rises in Feb were cancelled late last year due to the economic down turn. If it is good enough for us to take effective pay cuts, I don’t see why those on the public payroll should be any different.

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  3. dad4justice (7,988 comments) says:

    I do wonder why slow justice is putting some trials at risk and find it rather disturbing that our justice system is suffering from a huge backlog of cases. I would have thought that the exorbitant salaries paid to senior Ministry of Justice officials, law commissioners and judges would have created an effective system that provides a satisfactory service that maintains acceptable standards for the public. Our justice system is a bloody disgrace and judges should be put on the minimum wage until someone rectifies all the dysfunctional systematic failures.

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  4. big bruv (13,571 comments) says:

    “I do wonder why slow justice is putting some trials at risk and find it rather disturbing that our justice system is suffering from a huge backlog of cases”

    Then do your bit D4J, just plead guilty and save us all a lot of time and money.

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  5. Glutaemus Maximus (2,207 comments) says:

    Their offer of remaining on the same salary, would of course be ‘voluntary’

    Anyways, LiquorSave have got Port on special at the moment.

    Having been on Jury service just the once, and not being fully occupied by any stretch of the imagination.

    I was gob-smacked at the laconic nature of the Courts.

    Think they should have All Nighters with background music, special lighting, and guest appearances by judge Judy

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  6. Crampton (215 comments) says:

    There’s a reason that Parliaments bind themselves against undertaking certain activities using constitutional constraints. Pointing out what I’d thought was rather obvious, think about what happens when Parliament sets judges’ salaries directly when judges are the ones that decide on whether legislation is constitutional. It would be tempting for some governments to use pay as a punishment devise if court outcomes didn’t match what Parliament wanted. And so Parliament binds itself against doing that by means of a constitutional stick and delegates authority to an independent body.

    A constitution isn’t self enforcing: it only binds if people agree to be bound by it. Either Parliamentarians have to have some constitutional spirit that leads them to recognize the long term utility of the constraints, or voters have to be willing to punish Parliament if it abrogates constitutional principles. It seems here that the former doesn’t hold too strongly (EFA implementation for starters) and the latter only weakly. Many on both sides seem to cheer on their respective parties’ jettisoning of constitutional principles.

    [DPF: I hope I am consistent with my criticism no matter what party does it]

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  7. dime (9,676 comments) says:

    why is it whenever they bust a big pedophile ring, theres always a judge involved in it?

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  8. F E Smith (3,315 comments) says:

    Cutting or freezing the judge’s salaries is pretty much unconstitutional. The idea is that judicial salaries are sacrosanct, so that there is absolutely no chance that the judges might be seen as being beholden to the government for their pay.

    One of the British governments tried it in the 1930′s in pretty much the same circumstances that we face today and just about brought the courts to a stand still. Pretty much the entire judiciary revolted and the government backed off.

    D4J, the biggest problems with the trial backlog is not judicial pay, nor the increasingly bloated Ministry of Justice. It is the fact that we have a shortage of defence lawyers willing to do trials on legal aid rates. The numbers show that in the last 8 years the overall increase in legal aid lawyers registered (which is a lot more than those actually accepting legal aid work ) amounts to about 30 lawyers. (in 2000 about 1040 registered legal aid lawyers, last year about 1070ish registered legal aid lawyers. Only about 800 of those actively doing legal aid).

    And slow justice is putting a lot of cases at risk. Once they go past the 20 month stage then an application for a stay should become mandatory for the defence lawyer, unless the defence caused the delay for some reason.

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  9. greenfly (1,059 comments) says:

    DPF said: “And in real terms, a nil increase is a pay cut.”
    Does this apply to the minimum wage as well? A 50 cent increase is next to nil. Should we be regarding that as a ‘pay cut’ for the most needy workers?

    [DPF: You must have failed maths - an increase, no matter how small, is not a cut. Go back to school]

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  10. dad4justice (7,988 comments) says:

    “Then do your bit D4J, just plead guilty and save us all a lot of time and money.”

    big bruv, my case has already hit the two million $$$ mark. Expensive things false allegations when judges’ don’t admit to ever making mistakes.

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  11. Redbaiter (13,197 comments) says:

    Pfft.. judges.. If they were paid on performance, they’d be receiving a pittance.

    They have betrayed the civilized law abiding citizens of NZ and sold out to the social liberals, turning the NZ justice system into a completely unworkable farce.

    I’d sack the lot of them and start all over again. and make it clear to any new applicants that their primary role is to protect law abiding citizens from criminals, not advance the left’s social and political agenda.

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  12. OECD rank 22 kiwi (2,820 comments) says:

    So in effect the Judges can tell John Key where to get off.

    If you want to save some money reinstate the Privy Council and scrap the Supreme Court. One less tier of expense for the taxpayers.

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  13. F E Smith (3,315 comments) says:

    Crampton, judges in this country cannot declare laws unconstitutional. Mainly because we don’t have a written constitution by which they can be judged. Therefore, even the principles of judicial separation, enshrined in the 1688 Bill of Rights, can be abrogated by Parliament if it wants.

    Dime, that is stupid. Name when that happened in this country.

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  14. dad4justice (7,988 comments) says:

    F E Smith, who is the Christchurch Judge that is the proud owner a Court Protection Order? You can’t hide the filth forever. You are alright if you went to Saint Andrews or Christs – eh?

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  15. Adolf Fiinkensein (2,834 comments) says:

    greenfly – a 50 cent increase on $12.00 actually is closer to a 4.17% increase.

    Others – you can always rely on pedants to argue against something which is common sense. John Key is doing no more than enunciate common sense. If judges want to bring the judiciary into disrepute, the best way they can do it is to take a pay increase of ANY dimension when pretty much the whole of the community is exercising restraint or having it thrust upon them.

    Why, I see that even prostitutes are having to reduce the price of nooky because there is less discretionary income about. If it’s good enough for hookers it’s good enough for Judges.

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  16. NX (603 comments) says:

    John did say he admired Muldoon when he was at school. Hopefully admiration does not become emulation!

    I’m of the opinion that it’s ridiculous to blindly follow a leader – and anyone that does needs their head-checked.

    …… but John Key is just so cool! Anything for the Helen-slayer!

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  17. Redbaiter (13,197 comments) says:

    “Either Parliamentarians have to have some constitutional spirit that leads them to recognize the long term utility of the constraints, or voters have to be willing to punish Parliament if it abrogates constitutional principles.”

    Well said. This is the spirit the left work so assiduouly to crush in any country they become politically and socially ascendant, and they have succeeded so well in the US making the American Constitution a document either scorned or held in either disregard or ignorance by a large proportion of the populace.

    Another example of why leftists of the global socialist variety are such dangerous people.

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  18. dime (9,676 comments) says:

    “Then do your bit D4J, just plead guilty and save us all a lot of time and money.” HAHAHAHA youre harsh sometimes bruv!

    greenfly – the 50cent pay rise is inline with inflation.. so no, it cant be called a pay cut.

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  19. Crampton (215 comments) says:

    Correct me if I’m wrong here, FE, but I was under the rather strong impression that the Courts could declare piece of legislation to not be in conformity with the Constitution Act 1986 or the other quasi-constitutional documents (electoral legislation, fiscal responsibility act, reserve bank act). Parliament can always then turn around and pass legislation telling the courts that the legislation has to be enforced regardless, but they have to jump that extra hurdle. So Parliament can abrogate anything, but they have to do so explicitly. The hope then is that if it’s a serious constitutional breach, the conflict between the judiciary and Parliament might lead to some voter response.

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  20. dad4justice (7,988 comments) says:

    dime if you think big blouse is funny then you are sicker than I first thought. I do wonder how he would be face to face?

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  21. Portia (204 comments) says:

    I’d sack the lot of them and start all over again. and make it clear to any new applicants that their primary role is to protect law abiding citizens from criminals, not advance the left’s social and political agenda.

    Thank you Redbaiter, for so wonderfully illustrating why it’s a good idea to ring-fence the judiciary from political pressure!

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  22. Murray (8,842 comments) says:

    While I agree that it would be a good thing for judges to decline a pay rise I believe it is actually highly inapropriate for the PM to attempt to influence them in this manner.

    Key is an elected official, NOT a king. We voted against that autocratic style quite recently and he would do well to remember that.

    The judiciary must remain outside political influence. That it hasn’t previously is not an open door to Key.

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  23. big bruv (13,571 comments) says:

    Dime

    Harsh yes, fair…..always.

    D4J

    Trust me, you have NO IDEA how sick Dime is.

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  24. dime (9,676 comments) says:

    D4J – it was kinda funny. mate i dont even know what your court case is about.

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  25. dad4justice (7,988 comments) says:

    dime; it’s about children and dishonest judges.
    Goodbye and do enjoy your day!

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  26. Redbaiter (13,197 comments) says:

    “Thank you Redbaiter, for so wonderfully illustrating why it’s a good idea to ring-fence the judiciary from political pressure!”

    Is that remark an exhibition of complete utter and unbelievable ignorance of the fact that the politics has come from inside the judiciary, or an attempt at a joke?

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  27. F E Smith (3,315 comments) says:

    Crampton, that is highly theoretical and to my knowledge has never been done. Even then, the decision not to apply the law could be appealed and overturned. Also, that decision would only apply in that case. Comes back to the sovereignty of Parliament. Under the theories advaced by A V Dicey, and pretty much accepted in the UK and here, I don’t think there can be a breach of the constitution. Even the New Zealand Bill of Rights Act can be ignored if Parliament wants to do so.

    D4J, seriously? Would love to find out who.

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  28. PhilBest (5,120 comments) says:

    Dime, be very very sympathetic to D4J.

    The Liberal Left is forever insisting on due process and human rights for the worst criminals and terrorists; but when it comes to fathers and men generally, the sky is the limit to what hell a bitter woman can make of a mans life by way of unilateral accusation.

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  29. Andrew W (1,629 comments) says:

    Since the Remuneration Authority’s decisions are based on the remuneration paid on equivalent jobs in the private sector they probably should conclude that a pay cut for MP’s and judges is required to maintain parity.

    The justice system is a complete fuck up. Starting with the idea that judges competence is beyond question. Being a judge must be the ultimate in ego trips.

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  30. workingman (84 comments) says:

    greenfly

    An increase of 50c from $12 to $12.50 is an increase of 4.17%. I would love to get a pay rise of 4.17%, as it is my increase this year is 0.00%.

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  31. big bruv (13,571 comments) says:

    Murray

    “The judiciary must remain outside political influence”

    I agree, however you would have to admit that as a group they (Judges) are about as divorced from reality as it is humanly possible to be.

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  32. PhilBest (5,120 comments) says:

    Redbaiter is largely right about the politicisation of the judiciary. “Conservative” judges are becoming like “conservative” teachers and “conservative” journalists………almost extinct, and about to become that if the Left continues to get things all its own way.

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  33. PhilBest (5,120 comments) says:

    Closer to the original topic, I am reminded of something that Prebble or Douglas said about Richard John Seddon’s speeches. Back in those times, the PM and the parliament had only a very limited role in society or the economy; yet the PM exerted considerable MORAL influence, and used it wisely, people took note of his speeches, a bit like they would take note of what a religious leader would say. Especially if they respected the person; which was very true of “King Dick”.

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  34. Murray (8,842 comments) says:

    Divorved from, protected from. Potato tomato.

    The important issue is that they must be able to operate without fear or favor. Simply because they haven’t is not a reason to continue to do it wrong.

    And I disagree on one point, they’re not as divorced from reality as the Greens. It’s a line call but the Greens take it.

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  35. Andrew W (1,629 comments) says:

    There should be no such thing as “conservative” or “liberal” judges, otherwise presumably the sentence handed down is going to be based on the politics of the judge.

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  36. greenfly (1,059 comments) says:

    workingman – you didn’t get the 4.17% so I take it you’re not on the minimum wage. Those who are would have received more if Labour were governing, considerably more, had the Greens or Maori party had the influence they deserve :-) and, soberingly, lost the security of a minimum wage had, shudder Act had any influence. In balance, Nationals 50 cent contribution is not worthless, just …minimal.

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  37. big bruv (13,571 comments) says:

    “Those who are would have received more if Labour were governing”

    Really?…despite not doing so for the last nine years.

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  38. Redbaiter (13,197 comments) says:

    “There should be no such thing as “conservative” or “liberal” judges”

    Oh gawd….

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  39. F E Smith (3,315 comments) says:

    Andrew, we don’t think that a judge’s competence is beyond question, unless they sit on the Supreme Court. That is why we have the appeals process. But yes, it seems to be one hell of an ego trip. And you are right, there should be no such thing as conservative or liberal judges, all we ask for is consistency.

    Big Bruv: “you would have to admit that as a group they (Judges) are about as divorced from reality as it is humanly possible to be”

    No, I wouldn’t admit that at all. The judges are often just as involved in their community as the rest of us. They just earn better paychecks. Although a DCJ’s salary on $270 grand p.a. would be a pay cut for some of my more high profile colleagues. I don’t think it is being divorced from reality that is a problem, I still think it is the ego trip thing.

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  40. big bruv (13,571 comments) says:

    “There should be no such thing as “conservative” or “liberal” judges”

    Really?….the only time we hear the left moaning about conservative judges is when they do not hold the balance of power.

    Look at the way the American media have gone after the Supreme court because they have a perceived right wing bias, if the balance of power was reversed there would be no comment.

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  41. greenfly (1,059 comments) says:

    Key’s throwing his weight around, getting too big for his boots, shooting his mouth off … who does he think he is? Muldoon?

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  42. grumpyoldhori (2,416 comments) says:

    Adolf Fiinkensein, comparing hookers to lawyers, rather unfair on the hookers is it not.

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  43. Andrew W (1,629 comments) says:

    “That is why we have the appeals process.” Which is very expensive, surely if the justice system got it wrong there should be no cost to other parties to see things put right, shouldn’t the justice system be obliged to pay for its own cock-ups?

    If a judge gets it wrong, does s/he get the sack?

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  44. MT_Tinman (3,055 comments) says:

    # dad4justice (4772) Says:
    February 11th, 2009 at 9:53 am

    dime if you think big blouse is funny then you are sicker than I first thought. I do wonder how he would be face to face?

    BIG, harsh and fair.

    Dime I too thought it humorous.

    Damned concerning when I agree with you. ;)

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  45. F E Smith (3,315 comments) says:

    Andrew: no. because usually only one side thinks the judge has got it wrong. And because the appeals process is an adversarial process also, so there is almost always someone supporting the decision.

    Grumpy: ouch!

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  46. AG (1,820 comments) says:

    Crampton:

    “Correct me if I’m wrong here, FE, but I was under the rather strong impression that the Courts could declare piece of legislation to not be in conformity with the Constitution Act 1986 or the other quasi-constitutional documents (electoral legislation, fiscal responsibility act, reserve bank act). Parliament can always then turn around and pass legislation telling the courts that the legislation has to be enforced regardless, but they have to jump that extra hurdle. So Parliament can abrogate anything, but they have to do so explicitly. The hope then is that if it’s a serious constitutional breach, the conflict between the judiciary and Parliament might lead to some voter response.”

    You are wrong. The only limits on ordinary Parliamentary lawmaking are the entrenched sections of the Electoral Act 1993 (but even these can be changed simply by repealing the entrenching provision) and (very, very, very possibly) some judicially-recognised (created?) “deep lying, common law rights” (such as not to be tortured, or access to a court).

    However, you may be thinking of “implied repeal”, where Parliament passes an Act that appears to override/contradict a “quasi-constitutional” statute, but doesn’t do so clearly/explicitly. In the normal course of events, the last piece of legislation Parliament passes is the operative one that the courts will apply. But if the overridden/contradictory statute is of “quasi-constitutional” status, then the courts may (may … this hasn’t been finally decided in NZ) say that implied repeal isn’t enough, rather than Parliament must be explicit about its intent to bring in a new legal rule.

    On the general point of this thread, however, J.K. might do well to remember Muldoon’s fate when he attempted to override legislation by press release – the High Court slapped his hand for breaching the Bill of Rights 1698, Art.1. I guess the question is whether J.K.’s comments can be taken as purporting to “suspend” the operation of the Remuneration Authority Act 1977 “by regal authority” … probably haven’t (yet) reached that stage.

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  47. GPT1 (2,106 comments) says:

    F E Smith your point re. LSA rates and the declining pool of defence lawyers is well made although I wouldn’t discount the role of the Ministry in it either. What is interesting is that the Ministry keeps getting bigger but the front line staff numbers seem to remain the same. Although, of course, if the ministry had its way defence lawyers wouldn’t be allowed in Court – after all if the police charge someone they’re bound to be guilty…

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  48. Andrew W (1,629 comments) says:

    But F E Smith, you’ve already acknowledged that judges do get it wrong!

    What about: “If a judge gets it wrong, does s/he get the sack?” I’m thinkng that judges have power without answerability, the ability to question their competence is too limited.

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  49. Ross Miller (1,681 comments) says:

    JK is probably skating on thin ice with his call re the judiciary but he is probably right in synch with 99% of the electorate.

    Judges would be advised to heed his call.

    There is a deal of difference between a dictator (Muldoon) and someone showing leadership (Key).

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  50. dime (9,676 comments) says:

    Tinny – i know for a fact that im your fav aucklander!

    greenfly – you on troll duty this week or what? ya know the standard bans people for doing what you do.. i will say this though – Labour/Greens have no intention of helping the underclass. they like them exactly where they are – dependant on the government and scared to vote for anyone else.

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  51. Brian Smaller (4,028 comments) says:

    He should tell all state sector employees that there are no pay rises as well for thye duration of the recession. I see no reason why I should be taxed so that state tit suckers get a payrise when I don’t.

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  52. Crampton (215 comments) says:

    AG, FE, thanks.

    I wasn’t trying to say that the Judiciary can overturn Parliament, but rather that it can raise the costs to Parliament of passing certain legislation by potentially forcing Parliament to declare explicitly that it’s abrogating or amending prior constitutional principles. If voters get upset about things breaching prior constitutional convention, then this imposition of costs has real effect even if Parliament is supreme. But only if voters get upset about the breaching of prior convention.

    The case in Canada gives an interesting comparison. There, there’s a written constitution with explicit Charter of Rights and Freedoms. The judiciary can strike down legislation that does not comply with the Charter, but Parliamentary supremacy is maintained by the potential for the invocation of the “notwithstanding” clause: legislation can be passed regardless of Charter implications simply by adding into the legislation a line saying that the legislation operates notwithstanding anything in the Charter. Of course, lots of folks get very upset by even the suggestion that government might possibly consider ever maybe using the notwithstanding clause, so the threat that the Courts might require its invocation imposes real costs on Parliament despite Parliamentary supremacy. But, it wouldn’t if people didn’t get upset about the use of the Notwithstanding clause.

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  53. Portia (204 comments) says:

    Why didn’t MPs simply leave the Remuneration Authority alone and, instead, collectively agree to pay any increase back into public coffers?

    That way, there could be no risk of politicians being seen to undermine the Authority’s independence.

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  54. wreck1080 (3,815 comments) says:

    the rules need changing. Pay rises to be linked to gdp changes.

    This means, in a recession judges pays decrease.

    Isn’t it fair we all feel the pain?

    Why should a cleaner forgo pay rises while a judge still gets them? Are we saying some people are more equal than others?

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  55. AG (1,820 comments) says:

    Crampton:

    “The judiciary can strike down legislation that does not comply with the Charter, but Parliamentary supremacy is maintained by the potential for the invocation of the “notwithstanding” clause: legislation can be passed regardless of Charter implications simply by adding into the legislation a line saying that the legislation operates notwithstanding anything in the Charter.”

    Nice in theory. However, the Canadian Parliament has NEVER done this in the 26 year history of the Charter. So, in effect, the Canadian judiciary always gets the last word on what is/is not allowable under the Charter (ie: a very small group of unelected, unaccountable individuals get to say for all time what is/is not permitted as a social policy choice). In large part, this is because Parliament would have to say “we are choosing to override the Charter and its rights” – it would have to appear to be “anti-rights” and “against freedom”. The reality is, of course, that Parliament often adopts policies after balancing them against rights and concluding that any limit the policy imposes is justifiable. The judiciary may think differently, but as there is no one unarguably true, right answer here, why do we privilege the judiciaries view of the matter? Are they more moral and naturally virtuous people? Why is being an ex-lawyer who is thought of as “the right sort of chap/chapette” good training for deciding what sorts of policies should/should not be allowed for society as a whole? Why judges, and not (say) priests? Or Professors? Or army generals?

    [DPF: The Canadian Parliament may not have, but the Quebec one has used the clause many times IIRC]

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  56. jackp (668 comments) says:

    I don’t know any judges but if they are as arrogant as most lawyers I have met, they won’t listen to John Key.

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  57. Crampton (215 comments) says:

    See this Canadian Parliamentary Report on the use of Section 33. Saskatchewan’s also used it for some back-to-work legislation.

    The Canadian Parliament hasn’t used it, which means that any Canadian government that has wanted to pass something that would have been contrary to the Charter has reckoned it wouldn’t have public support to override the Charter provisions. Provinces have done it in cases where they find broad public support for what they’re wanting to do. It then kinda acts like a supermajority requirement for issues flagged as important. And that’s what constitutional matters are supposed to be like. Go read Buchanan and Tullock’s seminal 1962 book “The Calculus of Consent”. It lays out all the issues. Short version: some kinds of policies risk imposing large costs on minorities, and constitutional provisions that effectively demand a higher threshold for enactment of such policies are ex ante desirable for everybody ’cause we all stand some risk of some day being in the minority. Having the judiciary raise a flag when such issues come up, and Parliament being able to override if there’s a lot of public support, is not an unreasonable solution to that problem (though B&T prefer supermajority agreement to constitutional amendments instead — they’re working within an American institutional framework).

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  58. AG (1,820 comments) says:

    [DPF: The Canadian Parliament may not have, but the Quebec one has used the clause many times IIRC]

    Quebec is an outlier, due to its opposition to the very idea of the Charter:

    “Events surrounding Quebec language law stimulated vigorous debate on section 33 of the Charter. In the 1981 constitutional accord, the federal government and all the provinces except Quebec agreed upon the terms of constitutional change. The Quebec government expressed its strong opposition to those terms by including a notwithstanding clause in every piece of legislation put before the National Assembly between 1982 and 1985. It also caused every Quebec law in place at the time the Charter came into force to be amended with like effect.
    This practice largely ceased after 1985: section 33 has been used only occasionally by both Liberal and Parti Québécois governments since that time.”

    http://www.parl.gc.ca/information/library/PRBpubs/bp194-e.htm

    [This was a overlapping post - apologies Crampton!]

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  59. grumpyoldhori (2,416 comments) says:

    Judges versus truck drivers, damn funny that if an under educated truck driver makes a mistake going into a corner thus losing the logs off the trailer and killing a couple of women, he goes to jail.
    Which I have no problem with with, he should have taken more care.

    But, if the cops warn a judge a bloke is dangerous and he gets bail , then goes out and kills we are supposed to be understanding about the judge.
    It seems in some ways the greater the education and pay, the less some are held responsible.

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