How can Parliament reign in the Judiciary?

Strictly Obiter writes:

The first is the three strikes regime (and I use that word advisedly) itself. They say hard cases make bad law but bad law also makes for hard cases. When Parliament takes away judicial discretion for sentencing the judiciary will first maximise whatever small levers they’ve been left with. That saw courts finding manifest injustice on every third strike sentencing except one, and excluding one or two others where a sentence of preventive detention was imposed instead. Then the courts will create levers of their own. That saw courts finding ways to reduce sentence length precisely in response to the effects of three strikes (which is extraordinary): see Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49). Then the courts will go further. In Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 the Supreme Court found a way to say that in some cases a court could simply not apply an act of parliament. That is more than extraordinary. And Parliament and the Crown are now stuck with that ruling on the books. Maybe it won’t be used again – maybe it’s just a reaction to three strikes. But what a colossal strategic error by Parliament to push things so far that they get in writing a judgment that says maybe we don’t have to listen to you. Lord Cooke talked about deep lying common law rights. In the 2020s, the message from the courts is fuck around and find out. 

This is indeed a massive change. Up until last year we were a parliamentary democracy with parliamentary supremacy. But the Supreme Court gave itself the power to ignore statute law in a sentencing case, and has now set this as precedent.

This happens in countries where they have a written constitution which laws can be judged against to see if they are consistent. But we do not have that in New Zealand. In countries with a written constitution, the constitution can be changed to over-rule a judicial decision. But in NZ we now have judicial decisions that are potentially untouchable.

I don’t think Parliament should surrender supremacy to the unelected judiciary. I believe as a matter or priority the next National/ACT Government must reinstate the Three Strikes law (but remove indecent assault from the regime to stop the Fitzgerald case reoccurring). The law should explicitly state that Judges must follow the Sentencing Act regardless of any other Act of Parliament or international agreement. The principled thing for a Judge to do that finds the only legal sentence available to be abhorrent (to them, but probably not to 90% of New Zealanders) is to resign.

Finally to remove doubt, the Attorney-General in the third reading speech should clearly state that any Judge that refuses to follow statute law in sentencing issues would be seen as misbehaviour under S23 of the Constitution Act 1986 and that the Attorney-General would move in the House that it address the Governor-General to remove the judge or judges who do so.

This is not about whether or not you like the Three Strikes law. This is about whether people in a democracy get to make the final decision on what laws applies to them.

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