The Elias speech

October 15th, 2011 at 11:05 am by David Farrar

The media have suddenly found a speech by Chief Justice Elias and are reporting:

The country’s top judge has taken a veiled swipe at the Government’s justice policies, warning that some Cabinet decisions threaten the “fragile” independence of the judiciary.

In a rare public critique, Chief Justice Dame warns that decisions “which seem quite innocent” are undermining the basic principles of the constitution.

In a speech at Waikato University last month, Dame Sian broke with convention, criticising moves by politicians to interfere with the courts in pursuit of cost savings.

The speech was made on 12 September, so has been available for five weeks. The first part of her speech is about constitutional reform, and I tend to agree with the sentiments of the CJ that the reliance on conventions has its risks. On one issue of electoral law the CJ said:

The Electoral Acts stand in a special category because they establish the conditions of democratic government and have long been subject to supermajority requirements for amendment as a result.

I wish that was the case. But in fact only a small number of provisions in the Electoral Act require a super-majority, and in recent times we have seen highly partisan and even retrospective changes to the Electoral Act done on narrow majorities. I would like to see more of the Electoral Act entrenched.

Of course the entrenchment clause itself is not entrenched so Parliament could change even entrenched clauses with a bare majority, but there would be a significant political price to pay for doing that.

The CJ then refers to three risks from the current “obscurity” of the constitution. They are:

  1. the rule of law
  2. the role of the Treaty

With regard to (1) she quotes Lord Cooke that there are some rights and duties that are “truly fundamental” and are ultimately an inescapable judicial responsibility. This is an ages old argument about what would the courts do if for example Parliament voted to execute all babies with blue eyes. It is an interesting academic argument but not one I deem necessary to stay awake at nights worrying about.

Personally my view is that the reserve powers of the head of state should be the protection we rely on from a non-benign Parliament, but the problem with our current arrangements is the PM can sack the effective head of state at will.

The part that has got people excited is this:

I think there are signs that the courts are isolated and aspects of their independence precarious. Court resources are within the responsibility of executive government. Regulations prescribe the terms on which citizens have access to the courts. Court fees are within executive control. These are matters which should be subject to more public discussion than has been the case, perhaps because they are not popularly seen as touching on the constitutional principle of access to the courts. One of my colleagues has asked in a previous Harkness Henry lecture, not entirely in jest, whether we would regard with similar equanimity the imposition of fees to have access to a member of Parliament or a responsible Minister. Judges and lawyers may get the point. But if the wider community does not, it is no jesting matter at all.

Judges complaining about court fees is nothing new. But unless the Judges wish to self-fund their salaries, then Parliament will set the fees (or delegate to Govt) as it is Parliament that raises the revenue to pay for their operations.

As for the comparison to access for MPs, I think it is apples and oranges. No developed country charges for access to MPs and no developed country I know of has no court fees.

Judicial support staff are Ministry employees. The Registrars of the courts are managers employed by the Ministry although nominally responsible to the judges for their registry functions. The judges have no effective say in the allocation of the budget for courts and have had little influence in the priorities set by the Ministry. It seems to be assumed that the administration of the courts (including the administration of judges) is an executive function and that judicial independence is sufficiently preserved if individual judges are not directed how to decide particular cases.

Here the Chief Justice is acting as head of the Judges’ Union. Most previous CJs have done the same. Wanting their own budget has been a long-standing issue, as is wanting to control their support staff directly. I have some sympathy for their desires but would be interested in how many countries have the judiciary actually managing their own department.

It can be expected, too, that the work of international agencies such as the United Nations Human Rights Committee will provide encouragement towards commonality. It would be bold to suppose that legal cultural differences will not shift under such external influences.

The UN Human Rights Committee/Council is probably the biggest threat to human rights we have. They seek to invent new rights such as for religions to be immune from criticism which would be fatal for free speech.

Perhaps it is time to think again about the recommendation of Lord Lester that we would benefit from a Human Rights Committee of Parliament to keep a close watch on legislation which impacts on fundamental rights and freedoms. Such a Committee might even with advantage take on a wider responsibility to scrutinise measures which impact upon constitutional values.

The CJ says several times that protecting human rights is not the duty of the courts alone. I agree, and think a Human Rights Committee of Parliament could be a good thing.

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64 Responses to “The Elias speech”

  1. Other_Andy (2,676 comments) says:

    “It can be expected, too, that the work of international agencies such as the United Nations Human Rights Committee will provide encouragement towards commonality. It would be bold to suppose that legal cultural differences will not shift under such external influences.”

    The UN…….
    Democracies have been a minority within the UN since 1958.
    The UN is controlled by a bunch of failed, corrupt, racist, anti-Semitic, misogynistic, dictatorial states.
    The block of 57 OIC countries comes to mind.
    These 57 countries, have their own official ‘ declaration of human rights’, are actively involved in suppressing the right of free speech and have only signed several other UN declarations with reservations as they contradict with Islamic Sharia law.
    Several of these countries that repress women, homosexuals, ethnic and religious minorities are members of the UN Human Rights Commission. Syria, Sudan, Libya, and especially Saudi Arabia, together with China and Cuba are countries that oppose and reject the concept of universal human rights, have an appalling record of human right abuse and they happily criticise New Zealand.
    It is a sad state of affairs.
    Last year……
    Libya had a chair on the Human Rights Council.
    China, Russia, Cuba, Saudi Arabia and Cameroon all had seats on the Human Rights Council.
    North Korea had the presidency of the UN Conference on Disarmament
    Iran had a seat on the UN’s Commission on the Status of Women.
    Pakistan served as acting head of a U.N. body called the Counter-Terrorism Implementation Task Force.

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  2. Manolo (14,044 comments) says:

    She’s one of many Helen Clark’s activist appointees. A minefield awaits.

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  3. David Farrar (1,901 comments) says:

    Actually she was appointed by Jenny Shipley.

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  4. Manolo (14,044 comments) says:

    Actually she was appointed by Jenny Shipley.

    Ooops. I stand corrected and will eat humble pie. :-)

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  5. Someone Else (135 comments) says:

    We have the best justice system money can buy. Join the National Party and reap the benefits.

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  6. Graeme Edgeler (3,290 comments) says:

    Why would you combine the Human Rights Committee (almost a judicial body) and the Human Rights Council (a political body)?

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  7. reid (16,632 comments) says:

    I’ve said before Elias is a poisonous lefty and her actions will continue to reverberate accordingly. The SC she heads will subtly and continually promote leftist agendas as in the Uruwera decision which was carefully calculated both in its content and in its timing.

    She will remain in office until a lefty govt is in power then she will retire and the A-G will appoint another poisonous lefty to take her execrable place.

    You watch it play out over the years as the real agenda (social engineering) behind dumping the Privy Council becomes increasingly apparent to your average punter who sadly behaved collectively like slack-jawed yokels throughout the nine long years of Hulun’s destructive evil reign.

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  8. Johnboy (16,994 comments) says:

    God. Sounds like she was quoting Mi Lord Birkenhead:

    “I warn the Government is a speech by F.E. Smith, made on 12 March 1906. It was his maiden speech in the British House of Commons. According to Brian MaCarthur, it was “the most famous (speech) ever made” in the Commons in modern times. The historian Paul Johnson has described the speech as, “without question the most famous maiden speech in history, quite unprecedented, and never equaled since.” Smith used his opportunity as a member of the embattled Tory opposition of 1906 to decry and assail the government for their heavy-handedness and arrogance after winning a landslide victory in the general election. The speech solidified Smith’s reputation as an orator and rising political star, and established him as a major figure within the Conservative Party. His place in party politics thus established, F.E. Smith would go on to hold numerous posts and cabinet positions in the government, culminating in Lord Chancellor from 1918-1922.”

    http://en.wikipedia.org/wiki/F._E._Smith,_1st_Earl_of_Birkenhead.

    I quite like the bit where poor old FES succumbs to cirrhosis. He can’t be all bad after all! :)

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  9. Scott Chris (6,176 comments) says:

    Well, if you were to privatize the justice system, then they could charge what they were worth in an open market. The government would then be solely responsible for making the law.

    Of course, the judges would have to be accountable for their decisions. (Wouldn’t like that one would they)

    Need a decent constitution to start with though, so the law can be rewritten from the ground up in a single, cohesive and culturally relevant form. Excluding the monarchy would be a given.

    New Zealand constitution itself, is made up of a whole bunch of Statutes, Treaties, Orders in Council, and a few other bits and bobs. Like the UK, there is no single, comprehensive document.

    In other words, it’s a cobbled together hybridized and redundant piece of junk.

    Off with its head!!

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  10. leftyliberal (651 comments) says:

    “She will remain in office until a lefty govt is in power then she will retire and the A-G will appoint another poisonous lefty to take her execrable place.”

    A lefty like Jenny Shipley?

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  11. Pauleastbay (5,035 comments) says:

    Yep, Reid, I’m sure Sian Elias sits around the Xmas table with her in-laws and tells them how she plans to socially engineer NZ with her leftist agenda and plans to make them wealthy!!!!!!!!!!!!!!

    Shes only 62 years old so she’ll have a wait 1) before she is old enough to retire , 75 I thinkfor Judges 2) we have a lefty government to appoint someone else, she’ll be 97 by then

    The Urewera decision wasn’t some political stunt, it was because I’m afraid to say the police fucked up, that is all

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  12. Johnboy (16,994 comments) says:

    Johnboy would be happy to accept the position when it is available (if the money was good enough).

    Far better that the Judge is not selected from the ranks of the lawyers just to get some balance back in the system.

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  13. big bruv (14,141 comments) says:

    Chief Justice Elias is Klarks gift to the nation, a gift along the lines of Herpes.

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  14. Johnboy (16,994 comments) says:

    Fuck me Bruv. I thought she gifted us Goofy as the gift that keeps giving on and on and on and…….. :)

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  15. David Garrett (7,533 comments) says:

    BB: Do read the earlier comments before commenting old boy….apparently Dame Sian was appointed by Jenny Shipley….

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  16. big bruv (14,141 comments) says:

    David

    My mistake, however I am bloody sure that this stupid woman was a good pal of dear corrupt ex leader.

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  17. reid (16,632 comments) says:

    BB: Do read the earlier comments before commenting old boy….apparently Dame Sian was appointed by Jenny Shipley….

    Who the fuck gives a shit who appointed the execrable cow? That’s not repeat not, the point.

    The point is, Hulun gave her a very powerful social engineering and constitutional vehicle to drive, that’s the real point. And you and I will see that vehicle destroy one good and cherished thing after another, and promote in their place evil festering fetid rotting corrupt things, as the years roll by. You watch.

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  18. Johnboy (16,994 comments) says:

    Thank God the raptures come then reid. We will all be spared that fetid, rotting, corrupt pit of despair! :)

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  19. F E Smith (3,307 comments) says:

    Well, if you were to privatize the justice system, then they could charge what they were worth in an open market.

     Which is precisely what the CJ is arguing against- raising Court fees discourages access to justice.  The last time Court fees were raised significantly (more than doubled, from memory, and some might have quadrupled) both the Judicary and the NZLS were against it for exactly that reason. 

    Delivering justice via a court system is an inherent function of the Crown, older and more important than all others except defence of the realm.  It is one area where user pays is not always appropriate.

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  20. F E Smith (3,307 comments) says:

    Hulun gave her a very powerful social engineering and constitutional vehicle to drive, that’s the real point

    Yep, one that the hated legal profession, that odious group that only ever looks out for itself (apparently), opposed strongly.  

    But the fact is that the judges appointed to that Court came from a relatively right-wing Court of Appeal, one that was pro-Crown and had distanced itself from the activist stance of the Cooke P era.

    It never ceases to amuse me that so many people seem to think that a strong commitment to the rule of law, even when there are unpleasant consequences, is seen by so many people as left wing.  I always thought it was more right wing than left, especially given the authoritarian tendencies of most lefties.

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  21. Johnboy (16,994 comments) says:

    Time we did away with Working for Welfare for Lawyers (WWL) then Fester.

    You scum could only charge what the market could bear, much less than the handsome benefit that the taxpayers provide for you.

    That would lower the cost of getting justice by a huge margin I suspect. :)

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  22. annie (539 comments) says:

    blockquote># F E Smith (1,288) Says:
    October 15th, 2011 at 2:33 pm

    Well, if you were to privatize the justice system, then they could charge what they were worth in an open market.

    Which is precisely what the CJ is arguing against- raising Court fees discourages access to justice. The last time Court fees were raised significantly (more than doubled, from memory, and some might have quadrupled) both the Judicary and the NZLS were against it for exactly that reason.

    Delivering justice via a court system is an inherent function of the Crown, older and more important than all others except defence of the realm. It is one area where user pays is not always appropriate.

    A much more significant issue is that of legal aid. Currently, only the truly wealthy and the truly poor can afford legal redress or defence. The disenfranchised in New Zealand are those with assets, but without the couple of hundred thousand spare cash needed to defend yourself against legal action, even frivolous action.

    And as for managing their own budget, no thanks. We’ve seen in the past what the judiciary considers essential spending on their own comfort and support, and IMO their budget is best managed by people a little more in touch with financial reality.

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  23. reid (16,632 comments) says:

    FES, like I say, watch it play out over the years.

    I know what you’re saying, but just watch it play out over the years.

    I’m only putting it onto people’s radar, so they can watch for it.

    I hope I’m wrong, but so far, with Uruwera, it’s 1-0 to my way of thinking.

    I wouldn’t be at all surprised to see the UN tenets become much more strongly entrenched as will anti-family (against the dad’s), pro-gay, anti-war stances be broadened.

    Wait and see.

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  24. Scott Chris (6,176 comments) says:

    F E Smith says:- “CJ is arguing against- raising Court fees discourages access to justice.”

    Disclaimer: I am arguing from a layman’s position. I don’t care if I make mistakes or erroneous assumtions, if in doing so it helps to clarify common misconceptions.

    Perhaps more people would just have to opt for arbitration. If the law is clear enough then this should be sufficient justice IMO. The system as it stands is still by far more heavily weighted in favour of those who have limitless resources in party disputes anyway.

    For public prosecutions, presumably the government would meet the cost, and be charged with the responsibility of recovering those costs from culpable parties. At least this would establish the true market cost of the judicial system and fair recompense for its agencies.

    The accountability of Judges would self regulate the quality of justice. The Judges’ competence would simply be assessed by the their correct application of the law.

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  25. Johnboy (16,994 comments) says:

    FESter is fighting his corner which is continual rorts for his mob of welfare bludgers at the expense of most of the rest of NZ.

    Pricks like him make me puke. It’s their self righteous aggrandisement of their assumed value to society that really gets my goat up.

    The current legal system was created by creeps like him for the benefit of creeps like him.

    When they come on here bleating about how much they could earn if they weren’t being nice guys and saving the low lifes (at our expense) you have my permission to throw up. :)

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  26. David Garrett (7,533 comments) says:

    Johboy: firstly let me say I have know idea who FE Smith is, and I personally have never practised criminal law [Cue jokes and venomous references to my pleading guilty to a historic crime committed 27 years ago]

    BUT….if you think that legal aid lawyers get what the “market” thinks lawyers are worth you are sadly underinformed. “The market” determines that a competent barrister doing civil work is worth (or can get away with charging, whichever you prefer) about $4-500 an hour. Mix in the right circles, impress the right people and belong the the right club(s), and you can add “QC” to your name which adds about $250 MORE to the hourly rate “the market” will pay for your civil (i.e non criminal) work. In other words, a well regarded QC doing high level civil work is valued by the market at somewhere between $500 and $1000 an hour, or even more.

    FE and his mates doing criminal legal aid get around $200 an hour (I think), including GST…Whatever makes people do criminal legal aid work, it aint the money….

    It is fair to say however – and I think FES might agree – that some criminal defence lawyers wouldnt be employable anywhere else, but that’s a different matter….

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  27. Johnboy (16,994 comments) says:

    If there was no legal aid (WWL as I like to call it David) :) Fester would get paid what the market could bear in other words what his clients could afford.

    Legal aid is a dandy little scheme of bludging off the taxpayers to enable lawyers to earn what THEY think they are worth.

    Invented by lawyers entirely for the benefit of lawyers. Much like the rest of our legal system.

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  28. Dave Stringer (188 comments) says:

    A fair point Johnboy, but only up to a point!

    If you audited the average lawyer’s account, you would find many hours of work undertaken by clerks, assistants, para-legals and juniors contributing to the hours billed at the :lawyer’s” rate. Yes, Commercial enterprises have no real problem raiding their cash-flow to pay legal firms accounts, it’s tax deductable and “always” in the best interests of shareholders. By the same token, government agencies, who have access to “crown Law” (and of course including Crown Law itself,) spend tens, if not hundreds, of millions of dollars on legal advice, buy when CYA is paid for by TBTP, where’s the problem – it’s in the country’s best interest that this is done.

    We live in a society where the number of lawyers admitted to the bar each year is nowhere close to the number retiring – as a result we have more and more newly qualified people looking to get on the gravy train and “recover” their investment in learning. However, if a vet (who spends about five times as much to qualify both in time and money) were to ask for “$500 – $1000 per hour” the noise from pet owners, farmers and government would drown out the screams for an allblack try tonight, and is a GP were to try the same I suggest a lynching party might result. Our problem is in the relativity of revenue to the professions, not the hourly fee charged by any one of their practitioners.

    For those not technically qualified in government initial specification . . .
    CYA – Cover your a ss
    TBTP – The bloo dy tax payers

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  29. Johnboy (16,994 comments) says:

    The whole legal system is a corrupt monolith, designed, built and operated by the bludging legal profession entirely for their own benefit. It needs to be dragged down and rebuilt from the ground up. The old rort of charging QC rates for clerks time is just one of the examples of how corrupt the whole set up is.

    While we get the scum of the legal profession floating to the top of the pond as judges I can’t see any change imminent.

    It would take a government with real balls to deal with the legal system, somehow I don’t think Keys lot are it.

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  30. F E Smith (3,307 comments) says:

    DavidG,

     thanks for the support.  Most grateful for it, and spot on in all but one area.  You will be horrified to discover that the hourly rates are as follows:

     (90% of cases are at PC1, which has a general allowance of 5 hours at the relevant hourly rate, all excluding GST)

                                        1-4yrs relevant pqe     4-9 yrs        9+yrs relevant pqe 

    PC 1  (summary cases)             92                       96                 106

    PC 2 (jury up to 10 years)       96                        120               124

    PC3 (jury 10 yrs but not life)    116                      124               134

    PC 4 (jury, life)                        130                      144                159

    C of A/SC                               130                      144                159

     

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  31. F E Smith (3,307 comments) says:

    some criminal defence lawyers wouldnt be employable anywhere else

     True, although there are a few general practitioner lawyers that shouldn’t be employed, either.  The percentage is a lot smaller than people might think, and the defence bar has a very good number of extremely good lawyers who stay with crime not for the money but to do some good.

    annie,

    IMO their budget is best managed by people a little more in touch with financial reality.

    True, but the Ministry of Justice are the people, and nobody who deals with them thinks they are at all in touch with financial reality.  Or even reality, for that matter!

    Scott Chris,

    We have had this debate before, I think?  I remember that you like arbitration.  I don’t, but there you go!

    reid,

    but the Urewera decision (regardless of timing) showed the Court has a strong commitment to the rule of law.  Isn’t that a good thing?

    DavidG, those rates are excl. GST

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  32. Johnboy (16,994 comments) says:

    Wouldn’t have much work then FESter if you were not bludging off the taxpayers, couldn’t see your clientele forking out $92 to $159 per hour.

    They might be able to afford say $20/hr about what you are really worth without WWL. :)

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  33. Scott Chris (6,176 comments) says:

    Garrett says:- “that some criminal defence lawyers wouldnt be employable anywhere else, but that’s a different matter….”

    Parliament’ll take ‘em.

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  34. Johnboy (16,994 comments) says:

    Garrett also says he doesn’t know who FESter is and he knows that he is Garth McVicar/Greg KIng/Gil Elliot/Stephen Franks. :)

    Garrett speak with forked tongue.

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  35. reid (16,632 comments) says:

    but the Urewera decision (regardless of timing) showed the Court has a strong commitment to the rule of law. Isn’t that a good thing?

    Not when the law is an ass, FES. And in Uruwera, it is, and in many other instances to come, I predict it will also be such so no, it’s not a very good thing, to me.

    Of course the Westminster elegance with its layers of wisdom and precedents and evolution of interpretation is indescribably elegant and I don’t critique the mechanism at all.

    It’s the person occupying the key role whom I do critique and her alone. Plus I critique the whole motive for dismantling the free objective and irreplaceable wisdom we used to receive with an insular cabal for what does this gain us and what does this lose us, on balance.

    I don’t particular care who the rest of the bench are currently, for as they retire, Elias and/or her successor will gradually wreck their way toward the future I describe. And this has been Hulun’s and Wilson’s and Elias’ plan all along.

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  36. Johnboy (16,994 comments) says:

    Nice of you to come on and talk to FESter reid.

    He doesn’t talk to me cause I am rude to him.

    I’m the cancer he is trying to ignore. :)

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  37. F E Smith (3,307 comments) says:

    Not when the law is an ass

    Parliament wrote the law.  The SC just agreed with the Law Commission and previous Courts as to the interpretation of it.  This decision was in no way a surprise.

    And I have set out in previous threads what the voting patter was here.  Elias CJ was one of, oh, all five judges who said that the police action was unlawful and unreasonable.  She was one of two who said all of the evidence should go, and hers was not the vote that said that 4 defendants should remain.

    Your singling out of the CJ is not just unfair, it has no basis in fact.

    Elias and/or her successor

    The CJ will retire when she wants to.  Her successor will be the choice of the government of the day, not hers.

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  38. Johnboy (16,994 comments) says:

    Hopefully it won’t be a prat like you Greg! :)

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  39. UpandComer (537 comments) says:

    You need to understand how a law firm works. The senior members make their money by leveraging off of the junior members. Even Summer Clerks still charge $170 on behalf of the firm, even though they are being paid a salary that is effectively minimum wage. As a starting lawyer the market pay rate is $33 thousand dollars a year. It goes up ten g after one full year of 90 hours weeks, then another ten g, then there is no guarantee. If you aren’t abreast of the firm’s politics and personalities that is where you lie. It is piss poor pay in fact, and gruelling work that requires masochistic dedication. This is the situation in all of New Zealand’s major firms. You can spend years of your life conducting interlocutories on behalf of Meridian or Telecom or some other such company and then the ‘case’ never reaches court.

    As Mr Garrett notes above that hourly rate can rise to a large amount, but that takes years and years and years of painstaking institutional progression and managing the personalities around you.

    Judges are very cossetted. Sian is bleating about a lack of independence but the truth is that there has been a dire need for efficiency and cost cutting in our legal system. The system has been a bloody joke for many years. Why should crims respect a system when they commit a crime, and then nothing happens for 14 months while lawyers have meetings to decide when to hold substantive meetings. Criminals don’t respect a shit, inefficient system.

    Simon Power and Bill English have done more for people faced by this inefficient system then anyone in New Zealand’s history. Case in point. A girl-friend of mine was viciously assaulted by her then boyfriend early last year. It took the courts 11 months to process the charge and to reach the point of a substantive hearing. By that time witnesses had left the country others had changed their statement and a number of lawyers had been changed, so the case was dropped. She still has to live with this guy sending her threatening texts, turning up at her house out of the blue, ringing at all hours of the day and night etc because the system let her down, and she doesn’t believe there is any kind of redress. This is the state of affairs Simon Power has been very admirably dealing with.

    Precisely what we don’t need in New Zealand are higher court fees, and a judiciary feeling empowered to defend more abstract rights that are not grounded in any wrong.

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  40. F E Smith (3,307 comments) says:

    Even Summer Clerks still charge $170 on behalf of the firm

    Not in any firm that I know of.  You must be talking about top 6 Auckland firms, because I can tell you that is not the norm in NZ.

    As a starting lawyer the market pay rate is $33 thousand dollars a year. It goes up ten g after one full year of 90 hours weeks, then another ten g, then there is no guarantee.

    And that must be Auckland, because in the provinces the starting rate can be lower, and with smaller pay rises.

    As Mr Garrett notes above that hourly rate can rise to a large amount, but that takes years and years and years of painstaking institutional progression and managing the personalities around you.

    But you need to make the point that the high hourly rate is not what you actually get as personal income.   For most law firms, the costs are in the $75 -$100 per lawyer per hour, sometimes more.  So, taking those legal aid rates as an example, the profit margin for law firms doing legal aid is usually very small, and often is loss making.

    Judges are very cossetted.

    True, but that does not mean they are out of touch in any way.  They still live in the community, and they often spent many years in practise before becoming judges.

    Why should crims respect a system when they commit a crime, and then nothing happens for 14 months while lawyers have meetings to decide when to hold substantive meetings. Criminals don’t respect a shit, inefficient system.

    The fastest I have resolved a criminal case is 8 hours from offence to sentence.  Most defended cases only take 6 to 9 months, and most cases are not defended at all and are over in a matter of weeks.  Your point only refers to the big cases, in which case much of the delay can be attributed to the Police and Crown need to build and then organise their case.

    Simon Power and Bill English have done more for people faced by this inefficient system then anyone in New Zealand’s history.

    Not sure what Bill English did, but I will forever disagree with you over Simon Power. He is the worst Justice Minister we have had in years. Many of the changes have lead to more delays in the system, not less.

    a judiciary feeling empowered to defend more abstract rights that are not grounded in any wrong.

    That doesn’t make any sense.

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  41. Johnboy (16,994 comments) says:

    Love it. Lawyers squabbling over how much they screw the rest of us.

    I’d get that lump in your wallet looked at straight away Greg! :)

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  42. Pauleastbay (5,035 comments) says:

    Johnboy

    You are in Queen Street one night, a bit pissed and a serious assault takes place . Seven witnesses describe the clothing you are wearing as that worn by the offender, CCTV footage shows someone remarkably like you committing the offence.

    You did not committ this offence. I am the cops and arrest you . I only need good cause to suspect to do this.
    You are a broken arse with no money, you are looking at 7 years in jail. What type of legal defense are you going to get for the price of a jug which is all you have? Pleading to the Court that you are a sheep shagger and have mastered the smiley face on KB will not sway a jury.

    Thats why we have legal aid.

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  43. UpandComer (537 comments) says:

    I know that Summer Clerks work billable hours in the big 7 firms in Auckland and Wellington and are charged out at that rate, with that starting salary. Given the cost of a law degree this seems very low to me, and students doing medicine or indeed any other thing are quite bemused and amused by it.

    I admittedly am unaware of pay scales in the provinces.

    Yes you are right, the hourly rate is charged out on the firms behalf, everybody takes a slice, and your own slice is your salary, so people outraged at lawyers pay rates should keep that in mind.

    Judges were previously lawyers, but I think they hazard a loss of their dollar-sense, and also their perspective on the relative importance on legal and real-world truths. The Citizens United case in the States is an example of the latter. We say a corporation is a person as a convenient legal fiction. To say a company is a person in fact subject to full second amendment protections is a travesty. But I can see how you might think that view reasonable as a judge doing what a judge does.

    I disagree with you regarding Simon Power, I know that some of the impetus for efficiency came out of Bill Englishes office, just like practically every other substantial government policy.

    As to the last statement you’ll have to forgive me, I’ve had my head buried in jurisprudence. The CJ seems to be talking about a commission with an expansive view-point on rights, and a lot of academics I’ve been reading don’t see such an expansion as valid. But you are right in context that statement doesn’t make sense.

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  44. Scott Chris (6,176 comments) says:

    Simple solution to unclogging the court system.

    Decriminalize pot.

    Allow people to grow their own.

    The Netherlands has a tolerant drug policy, and *one third* the number of pot smokers as NZ.

    No brainer.

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  45. Johnboy (16,994 comments) says:

    PEB:

    Johnboy: Your honour. I haven’t been to Auckland for over thirty years because it is an utter shithole.
    If you find me guilty I would like to point out that I drew a fucking lawyer out of the pool that thinks he is shit hot and deserves a really big screw but the useless bastard can’t even spell ‘commit’ properly.

    Judge: Case dismissed. :)

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  46. F E Smith (3,307 comments) says:

    Given the cost of a law degree this seems very low to me

    Eh?  A law degree doesn’t cost that much.  It is only one year longer than a B.A. is.  I don’t get what you are saying with that.

    Judges were previously lawyers, but I think they hazard a loss of their dollar-sense, and also their perspective on the relative importance on legal and real-world truths

    No, that is totally incorrect.  In fact, many take pay cuts to become judges, so their standard of living can actually decrease by becoming judges.

    The Citizens United case in the States is an example of the latter

    Ah!  Now I see!  A good lefty, eh?  The Citizens United case is good law and shows nothing like what you allege.

    I know that some of the impetus for efficiency came out of Bill Englishes office, just like practically every other substantial government policy.

    Really?  Please tell us how you know that?  And here was me thinking that Power was in fact making a play to bring the defence bar within governmental control by massively expanding the PDS!  When the police work for the government, the prosecutors work for the government and the defence lawyers work for the government, then the government need have no fear that what they want will be opposed, will it?  Here is a question- would a PDS lawyer have taken the Urewera matter to the SC, or would they have stopped at the CA?

    I’ve had my head buried in jurisprudence

    Really?  Are you a student?  If so, wait until you hit the real world- it is nothing like the theory you study.  Rights are all very well to talk about, but their practical application is far more a case of being honoured in the breach than in the observance.

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  47. Johnboy (16,994 comments) says:

    How is your lump coming along Greg? :)

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  48. alex Masterley (1,523 comments) says:

    I haven’t bothered about this thread as the Rena is a matter of professional and personal interest to me.

    I need to read the speech that Elias J gave to comment properly but as is the case with the Rena many are making comments abouta field that they know very liitle about.

    Having said that I am starting to think that Johnboy is to this thread as Toad is to the Rena threads.

    FES, don’t dis jurisprudence. Nigel Jamieson 30 odd years ago at Otago put in place jurisprudential foundations that remain in place today. Especially Hofeldian analysis. and believe it or not “Red” Jim Flynn had a similar effect.

    Note, I think Jims lectures were a bit too much for Chris Trotter who was in the same class.

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  49. F E Smith (3,307 comments) says:

    Alex,

    definitely ain’t dissing jurisprudence! Just noting that upandcomer’s saying that he/she ‘had [his/her] head buried in jurisprudence’ appears to place him/her at law school, that’s all. I definitely agree with your comment about knowledge of the situation being lacking in some comments.

    And johnboy is just trolling, so I ignore him. He rarely has anything constructive to add, anyway, and his venomous abuse tends, I think, to show his true colours.

    Was Trotter in your jurispudence class? I have a friend who was in law school with Simon Power…

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  50. Johnboy (16,994 comments) says:

    I just hate lawyers alex with good reason and Greg strikes me as a perfect example of why I detest the arseholes.

    It just amuses me to play with him and his buddies.

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  51. Johnboy (16,994 comments) says:

    Hell you sure are sitting on the go button Greg nice to have someone sensible to talk to I guess. :)

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  52. alex Masterley (1,523 comments) says:

    FES,

    No, pol studies with Jim Flynn. Very interesting.

    I’m firmly of the view that JS Mill and Thomas Hobbes have a lot to answer for.

    I thought that was the case with JB.

    As an under grad I had stellar lecturers. H2 for Economics 1, and Michael Cullen in one of the history papers I sat in my 2nd year. They were the yin.

    Yang was was Mark Henagahn and Richard Sutton for law and Michael Cooper for economics. Truely great teachers and Michale now makes a very good olive oil in martinborough.

    Right thats it.

    I’m going to drink good pinot and watch rugby. Vaya con dios.

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  53. alex Masterley (1,523 comments) says:

    Er Johnboy, I am a lawyer.

    Bye now.

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  54. Johnboy (16,994 comments) says:

    Happy to hate you too alex. :)

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  55. F E Smith (3,307 comments) says:

    H2? Seriously? Wow. Cullen would have been fantastic, I am sure- notwithstanding his politics, he is very smart and comes across as a very entertaining and knowledgable speaker.

    You had a good set of legal teachers. I was also fortunate to have the late Gerry Orchard and John Burrows (now Burrows QC) at Canterbury when I was there.

    Ah, good times.

    Enjoy the wine and the rugby.

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  56. Scott Chris (6,176 comments) says:

    Alex Masterly says:- “as is the case with the Rena many are making comments abouta field that they know very liitle about.”

    It’s just Kiwiblog Alex. People just say stuff.

    There are Lawyer’s forums and ship spotter’s forums, but they tend not to be heavily patronized for some reason.

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  57. F E Smith (3,307 comments) says:

    There are Lawyer’s forums and ship spotter’s forums, but they tend not to be heavily patronized for some reason.

    Don’t be so sure, at least with the lawyer’s forums.  I know of a couple that get quite a bit of attention, although neither are NZ based.  Forums for defence lawyers are always the best, because we have the best stories…

     Ship spotters’ forums I wouldn’t know about…

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  58. Johnboy (16,994 comments) says:

    Whereas shit stirrers forums get all the attention funnily enough. You win some you lose some. :)

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  59. alex Masterley (1,523 comments) says:

    FES,

    Cullen was not as smart as he thought he was.

    Personally I thought he didn’t put any effort into his teaching which was a pity as the course was of some interest to me.

    H2 was smart. enough said.

    Richard Sutton was taken too early. He had a great deal to offer. And Mark H, probably the best teacher I have ever had.

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  60. Scott Chris (6,176 comments) says:

    F E Smith

    Just a question of critical mass I guess. Unless you want to go debate American constitutional law, then I guess you’re stuck with us and our silly ideas Smithy.

    Personally, I like to talk about epistemology and philosophy, but funnily enough, no one else does….

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  61. reid (16,632 comments) says:

    Elias CJ was one of, oh, all five judges who said that the police action was unlawful and unreasonable. She was one of two who said all of the evidence should go, and hers was not the vote that said that 4 defendants should remain.

    Your singling out of the CJ is not just unfair, it has no basis in fact…The CJ will retire when she wants to. Her successor will be the choice of the government of the day, not hers.

    Like I said FES, I’m simply flagging an issue which will play out over time. I agree the visible evidence for such an outlandish proposition is sparse.

    Suffice to say there is no evidence about Hulun’s malevolence either, is there, but what is your opinion re: her on that scale, during her time in charge over here?

    So that’s where I’m coming from FES. It’s not a legal proposition, but I suggest you and anyone else who’s bothered to read our conversation merely files this away and continues keeping score, as the years slip by.

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  62. Johnboy (16,994 comments) says:

    I’ve been watching ‘Central Steam’ on the history channel as I have a particular interest in applications of the Carnot Cycle with regard to moving large lumps of iron Scotty.

    Perhaps this is not the correct forum for us, it would appear to be a love fest for old worn out WWL recipients reliving their glory days. :)

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  63. Lee01 (2,171 comments) says:

    Regardless of who appointed her, she was appointed because she was a women. Affirmative action always brings the wrong kind of people into positions of power.

    ALL so-called human rights legislation is a threat to freedom. The UN’s especially, but also our domestic legislation violates the right to voluntry association.

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  64. F E Smith (3,307 comments) says:

     Lee01,

    Regardless of who appointed her, she was appointed because she was a women.

     And your evidence for this is?  Dame Sian was a well respected QC prior to being appointed to the High Court bench.  QCs often get appointed to the High Court bench.  (In fact, it should be the norm for High Court judges, but that is just my opinion.)  Where is your evidence that her appointment was affirmative action, or simply because she was a woman? 

     

    ALL so-called human rights legislation is a threat to freedom.

    The right to a fair trial is a human rights law.  The right to be free from search and seizure is a human rights law.  The right to silence is a human rights law.  The right to freedom of association is a human rights law.  The right not to be arbitrarily arrested or detained is a human rights law.  The right to be brought before a Court promptly if arrested is a human rights law.  The right to manisfest your religious belief is a human rights law.

     

    Lee, could you please tell me how each of those pieces of human rights legislation is a threat to freedom?  

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