More judicial activism

Roger Partridge writes:

When Parliament says gang insignia “is forfeited to the Crown,” citizens are entitled to assume those words mean what they say. Yet on 11 August the District Court ruled otherwise. Judge Lance Rowe directed that a Mongrel Mob vest, seized under the Government’s new Gangs Act 2024 and forfeited following a guilty plea, should nevertheless be returned to its owner, Andrew “Andy” Leef.

Whether or not one agrees with the policy behind the Act’s provisions, the decision should alarm anyone who believes Parliament’s unambiguous words should be respected.

I’m not actually a fan of the gang patch law. But I am a big fan of judges not ignoring the clear words of legislation. This is yet another example of a judiciary thinking they can ignore the clear will of Parliament.

What should be done? Parliament cannot shrug. When courts stretch or ignore clear words, corrective legislation is legitimate and necessary.

The most urgent reform is specific to Ellis. Parliament should overturn the decision and reinstate the Loasby framework under which tikanga could only be recognised as law when it met the settled requirements. That approach had the virtues of clarity, predictability and respect for both tikanga and the common law.

Parliament may also need to amend section 7(3) of the Gangs Act to address the uncertainty created by Judge Rowe’s decision. That should not be necessary. But in the current judicial climate, clarity must sometimes be made clearer still.

The Leef decision may be only one case. But it signals a larger story. The Supreme Court’s doctrinal looseness in Ellis and Fitzgerald has filtered down to the District Court. Parliament wrote a simple two-step process: offence, then forfeiture. The court has turned it into a vibe-check.

Law is not meant to work that way. In a democracy, citizens deserve to know that a guilty plea under a bright-line statute means what it says.

If “forfeited to the Crown” can now mean “returned to the defendant,” the problem is not a single District Court ruling. It is a jurisprudence, seeded in the Supreme Court, that has taught judges and the public alike that even Parliament’s clearest words no longer anchor the law.

I think Parliament should act. The only way judges will stop ignoring clear statutes is if the moment they do so, Parliament passes an explicit repudiation of their decision. Parliament shouldn’t have to do this, but sadly it has become necessary.