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The rule of law

Written By: - Date published: 6:58 am, May 23rd, 2013 - 113 comments
Categories: corruption, democracy under attack, Spying - Tags:

In the 50s and 60s, two eminent jurists by the names of Hart and Fuller debated what makes a legal system. Nazi Germany was their real-world example.

Hart was a positivist* – he said a legal system is a legal system if people call it one and act like it (if people call it a duck, it’s a duck). Hart said that the Nazis had a legal system – one that made evil laws – but a legal system nonetheless and, so, people’s actions in accordance with it were legal, even if immoral.

Fuller, a natural law jurist, said you need the rule of law (amongst other things) to have a legal system. Otherwise, you’ve just got a bunch of bullies doing what they want and saying its OK. Fuller said that the Nazi’s didn’t have a legal system because they had immoral ‘laws’, secret ‘laws’, retrospective ‘laws’, because citizens were denied the right to challenge the exercise of powers purported granted under the law in court, and because State officials were not in practice bound to the ‘law’ at any rate. Put it another way, Fuller argued, people were not morally bound to adhere to the exercise of arbitrary power.

We follow Fuller’s model more than Hart’s – they prosecuted Nazi war criminals for breaches of human rights and, in doing so, denied the defence that they were just obeying orders that were legal under the Nazi government from duly empowered superiors.

Do we have the rule of law in New Zealand?

Of course, I’m not saying we have a situation like Nazi Germany (it’s only in this post because it was the subject of the Hart-Fuller debate).

But is our system of rules and government meeting the test to be considered a moral system of law? Or is it just bullies doing what they want? Is our State exercising arbitrary power?


  • Canterbury is ruled by a government minister who has the power to overrule legislation at his will. His decisions are not reviewable by the courts. This can include forcing the local government to spend money (say, on huge convention centres and stadiums that the council doesn’t want) and, if necessary, force them to sell assets to pay for that spending.
  • The Government last week passed a law giving itself the power to override local planning laws if it doesn’t have an agreement with the council that sets those laws.
  • It also passed a law while preventing Parliament knowing about the consequences of that law. The law itself gives a minister the power to decide caregivers’ right to pay and then set that pay in breach of their human rights. On top of that, it forbids people from challenging the minister’s exercise of their powers in court.
  • A deal was announced to sell law to a casino. The full details of that agreement and its consequences are being kept secret and will continue to be kept secret – only the government and the corporation are allowed to know.
  • This week, the public’s watchdog on the spies found that it was “arguably not illegal” for the spies to spy on New Zealanders despite the law clearly stating it is. The full report has been suppressed and we’re told that the State’s agents going “arguably not illegal’ things is OK. Oh and a law is being rushed through to make legal any repeat of their illegal actions.
  • Also, this week, the Police have said that no agent of the State will be held accountable in any form whatsoever, let alone charged, for illegally detaining people at gunpoint and searching them without cover of police powers because they were acting in excess and outside of those powers.
  • In related news, we learn that the lawyer appointed to investigate the unlawful spying by the GCSB on Kim Dotcom (which the watchdog also excused) is also appearing for the Police against Dotcom in court.

This is not a comprehensive list. It’s just the stuff that’s been in the news in the last few days.

The last ones are particularly disturbing. It’s clear that the State’s security apparatus is not subject to the law of New Zealand. The law can be ignored with impunity. The watchdogs and the foxes of the State will act in cooperation to ensure the foxes do whatever they want. And, if the violations become publicly embarrassing, the government will just amend the law.

But it is the wide and unchallengeable powers being given to ministers that are, arguably, more of a threat to more New Zealanders.

The question is, what’s next? How much further will this government extend the arbitrary power of the State?


*(that’s short-hand for unimaginative literalist with a tad of the authoritarian thrown in)

Update: The Herald’s take:

113 comments on “The rule of law ”

  1. Sanctuary 1

    I wouldn’t be at all surprised if John Key uses the organs of the state security apparatus (the leadership and reporting lines of which he has concentrated in his own office) to spy on the opposition in order to win next year. After all, bugging the opposition caucus room would give you all sorts of advantages.

    Remember, John Key likes aggrandizing Air Force helicopter trips (did you see how did he arrived for Horomia’s funeral?) and exaggerated security details of DPS bully boys. He seems to hold the functions and offices of democracy in utter contempt, preferring to rule by decree through a troika of like minded corporate authoritarians in cabinet and a rubber stamp parliament, so why not regard the opposition as enemies of his state?

    • Colonial Viper 1.1

      Why would you bug the Opposition caucus room (which is regularly swept by counter surveillance teams anyway)?

      I say this because most of us these days are very co-operative and carry an advanced surveillance bug with us all the time. Not only does this bug have a miniature microphone, it’s also got a built in transmitter, and newer models can locate where you are to within 10m, as you move around your day.

      Yes, it’s your mobile phone.

  2. karol 2

    I seem to recall that many here at the time of the CERA (Sept 2010) legislation, that this was equivalent to the Enabling legislation in Germany in the 30s. That was the beginning of that infamous guy’s rise to unrestricted power (what happens to discussions when the beginning post takes us into Godwin territory?).

    TS search function doesn’t appear to be working so I did a google search for comments back then.

    Andrew Geddis had something to say at the time,

    In my view, we haven’t seen anything this potentially draconian on New Zealand’s statute books since the Public Safety Conservation Act finally was consigned to history in 1987. Older readers might remember that enactment as being the basis for the 1951 Waterfront Emergency Regulations – not the finest hour for New Zealand’s legal system.
    …Rather worryingly, however, it seems that we have a tendency in this country
    to abandon our lip service to the value of the Rule of Law pretty quickly when it starts to get a bit inconvenient. Mathew Palmer has some interesting thoughts on why this might be. I’ll take the liberty of concluding with them: [see the quote that follows at the above link]

    then followed it up as the use and abuse of CERA raised various issues. A court case challenging King gerry’s powers showed the courts did have the power to hold the government in check re-CERA. But it was the result of an expensive court challenge, requiring funding at a level out of most Kiwis reach.

    however, the subsequent legislation, following CERA, has seen the government become more sophisticated in given itself unchallenged power as seen with the Bill on paying family for caring for disabled people in their home.

    • Colonial Viper 2.1

      I seem to recall that many here at the time of the CERA (Sept 2010) legislation, that this was equivalent to the Enabling legislation in Germany in the 30s.

      The Reichstag fire decree.


      • Colonial Viper 2.1.1

        From wikipedia, the text of the Decree:

        On the basis of Article 48 paragraph 2 of the Constitution of the German Reich, the following is ordered in defense against Communist state-endangering acts of violence:

        § 1. Articles 114, 115, 117, 118, 123, 124 and 153 of the Constitution of the German Reich are suspended until further notice. It is therefore permissible to restrict the rights of personal freedom [habeas corpus], freedom of (opinion) expression, including the freedom of the press, the freedom to organize and assemble, the privacy of postal, telegraphic and telephonic communications. Warrants for House searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.

        Yeah, nothing good was going to come of this.

    • ghostrider888 2.2

      “believe, the rule of law is a vulnerable constitutional norm in New Zealand”.- Matthew Palmer (don’t have to be an academic to see that, just familiarity with the husbandry of ruminant even-toed ungulates will suffice Trev).

    • “what happens to discussions when the beginning post takes us into Godwin territory?”

      An argument as to how discussion of politically sensitive topics can be avoided by a pontification which is deemed to be law?

      From Nazis to Christians and Zionists, the German house of Windsor, and the problems that the civil state has with the rule of law.

  3. irascible 3

    As noted on another post, the belief structure among Nact voters is very much along the lines of the situations existing on Planet KeY – the role of the opposition is to shout support and belief in all KeY does and says.. to do otherwise is to whinge,carp, moan and stand in the way of progress (even though that progress may be top throw the economy into reverse).
    For many of these Nact voters there can be no alternative to the KeY owned party… they can only vote for the one party.
    When questioned about the sale of state assets, the legislation to override local body planning and direction, the removal of legal protection for employees (the wingnut Warner Bros deal) and the dealings with the Casino bosses the Nact voters don’t raise any complaint… to them such actions are acceptable.
    Such acquiescience is worrying as these people will not protest as they find their rights and communities progressively removed.

    • Sanctuary 3.1

      “…Such acquiescience is worrying as these people will not protest as they find their rights and communities progressively removed…”

      I think you are being to generous to a significant proportion of our society. The psychology of all this was laid out in episode 2 of the landmark (and disturbing and compelling) 1997 BBC documentary series “The Nazis: A Warning from History”. Effectively, every society contains a significant proportion (even, in Nazi Germany, a majority) of people who are not just passive dupes of an authoritarian regime but active and willing participants in the repression of “troublemakers” and “inferiors”. The eugenicists, the authoritarians, the right wing men of violence, were all present in this country until they were discredited by the failure of fascism and the revelations of the inhuman excesses of Nazism. But the warning from history is now sixty eight years in the past, and the generation who remembers it is passing rapidly. It seems to me the rise of the casual authoritarianism of the likes of John Key, Joyce and Brownlee is born from their philistine ignorance of history, and the passing from our common imagination of the real consequences of neo-fascist governance. Go to somewhere like Chile and you discover people are aware of what fascism means, and they take the actions of their politicians all together more seriously than we do.

      • Tim 3.1.1

        “It seems to me the rise of the casual authoritarianism of the likes of John Key, Joyce and Brownlee is born from their philistine ignorance of history, and the passing from our common imagination of the real consequences of neo-fascist governance”

        Well said! It seems to be something that certain in today’s Labour Party seem ‘comfortable’ with too.

        • ianmac

          +1 The people in Germany in the 1930s were pretty casual about the changes being steadily enacted – until it was too late. Notice the apparent indifference of NZers in 2013?
          Maybe it will take an easily understood event, some event that we can quickly identify with, to set off a public response. Have noticed that it is not big questions like ECan that capture but tiny ones like dying of hair, or helicopter rides, or mincing walks. Catalyst in waiting?

          • Colonial Viper

            +1 The people in Germany in the 1930s were pretty casual about the changes being steadily enacted – until it was too late.

            Pretty casual? Germany was in dire economic straits with many millions unemployed, thanks to the Treaty of Versailles and the actions of European and American financial institutions around the stock market collapse of 1929. No doubt a lot of people thought that something had to be done…and many saw career opportunities for themselves in the changes.

            (NB look at the neo-Nazi Golden Dawn in Greece now. Greece is being subject to deliberate economic collapse and the Golden Dawn are now up to 15% popularity).

            After the morale crushing aftermath of WWI, the vision of a Großdeutschland was also very appealing to many.

            • ghostrider888

              exhibits B: Hungary. C: the far-right militants response to this attack in England.

          • Tim

            Actually I’m left wondering why the Chief Justice doesn’t express more concern at the manner in which the judiciary has been undermined – for years, but especially so recently.
            At its most basic, parliament legislates, the judiciary interprets and adjudicates.
            Dame Sian Elias has spoken out in the past on issues concerning the judiciary – as she should, and is the practice elsewhere where there are conflicts between legislation, and where authority is undermined, and separation of powers becomes ambiguous. Check out http://en.wikipedia.org/wiki/Sian_Elias (not that wiki is an authority) …. surprise surprise – the displeasure of Simon ‘POWER’.
            Politicians often try and usurp judicial function.
            (Just as one e.g.: there should actually be some sort of ombudsman type role on immigration issues that seem to have become vested in the Munsta – I’m sure people can think of other instances).
            Over the years we’ve seen a chip chip chipping away of this separation; we’ve seen the Police and “sensible” Sentencing Trust prattle on about the judiciary without challenge.
            We do hear them at times when it comes to things such as Treaty issues; Family Court issues, and so on, YET they seem to remain silent when the fundamentals are being fucked over.
            What gives?

          • David H

            But luckily we can limit the Damage because of distance from another country. So if JK tries to start a war he’ll be told, “on yer bike it’s too far away”.

          • Murray Olsen

            A lot of Germans fought tooth and nail against the Nazis. Hitler was surprised that they managed to take “Red Berlin” so easily. The social democrats (Labour) didn’t take the Nazis seriously enough, thinking they were just silly Bavarians in funny uniforms. The Communists (no real Kiwi equivalent) fought them, including in the street with the Rottefrontkampfverbund, until Stalin decided that the most dangerous enemy were the Social Democrats, who were just disguised fascists. The Germans who weren’t casual about it were sold out. The capitalist west also was somewhat ambivalent about the Nazis, with many of them seeing Communism as the real enemy and hoping Hitler would win. Needless to say, those who hadn’t taken them seriously got a real wake up call.

            This is one reason why I’m not going to waste my breath talking about what Tame Iti may or may not have been doing in the bush. He and any number of Tuhoe are not the danger. The redefinition of our legal framework and extension of policing powers to a completely arbitrary level are the danger.

  4. Rule of law. A legal principle, of general application,
    sanctioned by the recognition of authorities, and usually
    expressed in the form of a maxim or logical
    proposition. Called a “rule,” because in doubtful or
    unforeseen cases it is a guide or norm for their
    decision. The rule of law, sometimes called “the
    supremacy of law”, provides that decisions should be
    made by the application of known principles or laws
    without the intervention of discretion in their application.
    Blacks 5th edition

    Maxims of law are typically expressed as maxims of the common law.

    The state says that the common law is equivalent to case law: “The courts need to establish what is known as the ‘common law’ or ‘judge-made law’ to fill gaps where existing law is not clear.”

    The state is lying. Common law includes case law, but the heart of common law involves deity, both through the role of an oath in law and through the ten commandments which begin the legal code of King Alfred the Great, who established English common law. The state exercises the benefit of the source of common law by it’s application of oaths, but denies the source of this benefit in law.

    lex terre:
    The law of the land. The common law, or the due course of the common law; the general law of the land. Equivalent to “due process of law”. In the strictest sense, trial by oath; the privilege of making oath. (Blacks 5th)

    common law:
    1. As distinguished from the Roman law, the modern civil law, the canon law, and other systems, the common law is that body of law and juristic theory which was originated, developed, and formulated and is administered in England, abd has obtained amongst most of the states and peoples of Anglo-Saxon stock. Lux v. Haggin, 69 Cal 255, 10 Pac. 674.
    2. As distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs; and in this sense, particularly the ancient unwritten law of England. Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; State v. Buchanan, 5 Har. & J. (Md.) 365, 9 Am Dec. 534; Barry v. Port Jervis, 64 App. Div. 268, 72 N. Y. Supp. 104.
    3. As distinguished from equity law, it is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests confessedly upon custom or statute, as distinguished from any claim to ethical superiority. Klever v. Seawall, 65 Fed. 395, 12 C. C. A. 661.
    4. As distinguished from ecclesiatical law, it is the system of jurisprudence administered by the purely secular tribunals. (Black’s 2nd)

    The state often asserts that statute law overrides common law. This is only true in part, as an attempt by a group to “pass into law” a practice which is unlawful is a conspiracy, and can never be true law.

    Within the maxims of the common law which make up the rule of law, there is a maxim called the golden rule, which guards against repugnant or absurd interpretations of statute. In my experience this maxim present a serious problem for NZ courts.

    • One Anonymous Knucklehead 4.1


      Didn’t the discussion you had with Andrew Geddis (while confirming for everyone else that you don’t know what the fuck you’re talking about) teach you anything? Google is not an expert witness.

      • Ugly Truth 4.1.1

        Here’s the last of the argument:

        AG: The etymology you provide perfectly encapsulates the way the term is used in public law parlance.

        UT: No, affability/kindness doesn’t describe an implicit bargain, and it doesn’t describe the indulgence of unlawful behaviour between those who are supposed to administer justice and those who are supposed to represent the interests of the body politic.

        Here’s the etymology that I provided:
        comity (n.)
        early 15c., “association,” from French comitĂ©, from Latin comitas “courtesy, friendliness, kindness, affability,” from comis “courteous, friendly, kind,” of uncertain origin. Meaning “courtesy” in English is from 1540s. Phrase comity of nations attested from 1862: “The obligation recognized by civilized nations to respect each other’s laws and usages as far as their separate interests allow.”

        Comitas I kom:ld:ls I . Lat. Courtesy; civility; comity. An indulgence or favor granted another nation, as a mere matter of indulgence, without any claim of right made. Comitas inter communitates; or comitas inter gentes; comity between communities or nations; comity of nations.

        And here’s his original description:
        “Our constitutional arrangements work on an implicit bargain – the principle of comity – that the Courts and Parliament don’t mess with each other’s turf. I think that bargain just got broken.”

        • One Anonymous Knucklehead

          And here’s his response to your ignorant ranting:

          “…you are relying on a single dictionary definition, rather than understanding how the term is used by those who are expert in the field….”

          • Ugly Truth

            The comment is out of date, the argument involved the definiton from Blacks dictionary of law and the definiton based on etymology.

            You fail, One Anonymous Knuckledragger.

    • DS 4.2

      Utter nonsense. Parliamentary Sovereignty reigns supreme in New Zealand, and every court in this country recognises that.

      • @ DS – Which means the Greens are correct? A Labour-Green-Mana coalition can undo National’s sweetheart deal with Vice merchants, Skycity? And legislate not to pay a single bean in compensation?


        • DS

          Correct. Statute always trumps contract. A subsequent National Government could even retrospectively reenact the SkyCity deal and award compensation if it chose (though even the Nats wouldn’t try that).

          • Ugly Truth

            “Statute always trumps contract”.

            If a group of people agree to act unlawfully, the fact that they call it a statute does not stop it from being a conspiracy.

            • DS

              A parliamentary statute is the law, so by definition it cannot be unlawful.

              • According to your logic people who obey a parliamentary statute that says that every man or woman over the age of 25 must be put to death are not acting unlawfully.

                • DS

                  Correct. That’s the thing about Parliamentary Sovereignty: there are no legal limits on its power. There are, however, political limits: one imagines that no-one would ever vote in a Parliament that’d pass such a law.

                  • McFlock

                    And even if they did, if them that passed the law were on the losing side then history shows that the victorious side will rule that law illegal itself, and that folks who followed its instruction acted illegally.

                    So at the time it was lawful, but later on it was unlawful. That’s because law is a human concept, not an objective and eternal entity in its own right.

                  • “That’s the thing about Parliamentary Sovereignty: there are no legal limits on its power.”

                    Straw man. There are no legal limits on my power to fly to the moon, but that doesn’t mean that I actually have the power to do it.

                    Derativa potestas non potest esse major primitiva. The power which is derived cannot be greater than that from which it is derived.

                    • McFlock

                      Actually, there are indeed legal limits regarding air traffic control, aircraft design and certification, and pilot training and certification, as ell as the collection and storage of large amounts of hazardous materials like fuels.

                    • Which of course avoids the point that power is not derived from an absence of legal restrictions of power.

                    • McFlock

                      Indeed. Because when one is talking a lack of legal restrictions for one of the (if not the) most powerful institutions in the land, your “point” is only so much toilet paper.

                    • Most powerful? Where does this power come from? Lawful power does not come from the barrel of a gun.

                    • DS

                      If Parliament has no legal restriction on its powers then it follows that legally it can do anything it likes (except bind its successors). I’m not sure what relevance you flying to the moon comment has: we’re talking about the right to make laws within the jurisdiction of New Zealand.

                      Parliament’s powers derive from its victory over the British Crown in the seventeenth century, and more pertinently, from its status as a body of elected representatives. Parliament doesn’t wield delegated or derivative power; it is the supreme law-making body of this country.

                      Also, please consult sections 4, 5, and 6 of the New Zealand Bill of Rights Act 1990. Especially s4/ There is no such thing as an unlawful statute.

              • Mike S

                Wrong. statutes are not law. We’ve been led to believe that they are. Legal and lawful are two different things.

                • DS

                  Show me a single New Zealand court case where a court rejects a statute as unlawful. There isn’t. In the case of a truly rephrensible piece of legislation, s4 of the Bill of Rights Act 1990 still applies, and the courts must apply it.

                  • NZ case law is biased in the Crown’s interest. You’re essentially asking for evidence that amounts to an employee of the Crown knifing them in the back.

                    • DS

                      Case law (except where it is superseded by statute) is the law. You seem to have this idea that there is something beyond the law that determines the law. Hint: there isn’t.

                      Since the courts bow before Parliament, parliamentary statutes are supreme.

          • Mike S

            statute is contract.

            A statute is a rule or regulation given the force of law (not “is the law”) only by consent of the governed.

            • DS

              Um, no. A contract is a legally binding agreement between parties. Statutes are expressions of rules by which people are required to act.

              Our Parliament is elected by the governed: that is all the consent needed under our system. Try saying that you disagree with a statute in court and see how far that gets you.

              • Contracts must have lawful purpose otherwise they are void.
                Statutes are expressions of rules by which persons are required to act.
                Personhood is about rank or status under a sovereign.

                person: A man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. no. 137. A human being considered as capable of having rights and or being charged with duties, while a “thing” is the object over which rights may be exercised. (Black’s 2nd (1910))

                • DS

                  What on earth are you talking about?

                  Contracts must have lawful purpose because otherwise they are void. Correct. Why? Because the Illegal Contracts Act 1970 says so. You know, a parliamentary statute.

                  Parliamentary statutes are not contracts. They aren’t an agreement between parties.

                  • What I’m talking about, DS, is the extent of parliament’s authority. Both the right of parliament to make law and the power of parliament are limited, probably much more than you think.

                    The reason why contracts must have lawful purpose is because of the rule of law. The following maxim is as aspect of the rule of law:

                    Contractus ex turpi caus, vel contr bonos mores nullus est. A contract founded on a base and unlawful consideration, or against good morals, is null. Hob. 167; Dig. 2, 14, 27, 4.

                    Parliamentary statutes involve the implied agreement of the parties that the decision of the majority will be binding.

                    • DS

                      A contract is legally binding: a court will enforce it. A court won’t enforce an illegal contract because of the Illegal Contracts Act 1970. Thus an illegal contract isn’t valid. Because Parliament says so.

                      Again: please try saying in court that a particular statute is unlawful. You’ll be laughed out of court.

                    • “A contract is legally binding: a court will enforce it.”

                      Not necessarily. It won’t enfore a contract unless both parties are within its jurisdiction. Also district courts won’t enforce contracts involving amounts over $200000


      • Ugly Truth 4.2.2

        DS, to challenge the notion of parliamentary sovereignty would not be in the Crown’s interests, and the civil courts have a duty to do so. All sovereignty means in a political sense is the parliament is at the top of the pile. It doesn’t mean that the pile encompasses everyone in this country.

        The Crown’s dishonour regarding the treaty, i.e. the false claims that

        a) Maori ceded sovereignty
        b) they did so without reservation

        should be enough reason to investigate the actual mechanisms of power rather than just taking the state’s word for it.

        • DS

          The pile most certainly encompasses everyone in this country. The only thing Parliament cannot do is bind its successors.

          The courts will not investigate questions of how the crown acquired sovereignty (this has been established by case law), and the Treaty has no legal effect in NZ except insofar as it is explicitly included in statute.

          • Ugly Truth

            “The pile most certainly encompasses everyone in this country.”

            Faith in universalism, all blind slaves.

            Why can’t there be two separate piles?
            Why can’t the pile be flat?

            • DS

              What on earth are you talking about? Everyone in New Zealand is subject to laws, and parliamentary statutes are the highest form of law. End of story.

              • I’m talking about your universalist interpretation of statutes.

                “parliamentary statutes are the highest form of law”

                Who told you that BS?

                • DS

                  The NZ legal system?

                  But feel free to think that every judge and parliamentarian in the country is engaged in some conspiracy to hide the true law from everyone (whatever that is). I’m sure the black helicopters will be along in a minute.

                  • “The NZ legal system?”

                    Not as far as I know. I think you’re just imagining things, like the law of nature doesn’t exist or that it is somehow inferior to a bunch of humans who meet in Wellington.

                    “I’m sure the black helicopters will be along in a minute.”

                    Good luck with that. Do you dispute the fact that parliament misrepresents the nature of the common law?

                    • DS

                      Please notify when a single NZ court decides that the law of nature (whatever that is) trumps the law as decided by a bunch of politicians in Wellington.

                    • You are avoiding the point that NZ civil courts are biased in favour of the Crown.

  5. Ennui 5

    It is pretty fundamental: the rule of law and legal system go hand in hand. They represent those who legislate the laws and pay for the enforcement. The real question is who do these people (the politicians)represent?

    • Draco T Bastard 5.1

      It’s obvious – the politicians no longer represent the people.

    • “It is pretty fundamental: the rule of law and legal system go hand in hand.”

      That is how it should be, but in reality NZ’s civil system does not honour the rule of law.

      Derativa potestas non potest esse major primitiva. The power which is derived cannot be greater than that from which it is derived.

      The NZ civil system does not have lawful power over people because fraud is not a lawful source of power. One aspect of the fraud of the system is in representing people as persons when the legislation is over persons, not people (fraud by legalese).

      “The real question is who do these people (the politicians)represent?”

      They have a duty to act in the Crown’s interest. In that sense, they represent the Crown.

      • McFlock 5.2.1

        According to the principle of ubi sit cervisia? Et alibi positum, nunc invenire non possum. Numquid aliquis bibam illum? you should probably go and do something about it, then.

      • Clockie 5.2.2

        “You must know —” said the Judge: but the Snark exclaimed “Fudge!”
        That statute is obsolete quite!
        Let me tell you, my friends, the whole question depends
        On an ancient manorial right.

        “In the matter of Treason the pig would appear
        To have aided, but scarcely abetted:
        While the charge of Insolvency fails, it is clear,
        If you grant the plea ‘never indebted.’

  6. I think all of this gives even more support to the idea that we need to review our legal system, and perhaps some judges and the auditor general need to go?

    • Arguments based on need don’t work well in the long run.

      “that which is otherwise not lawful is made lawful by necessity” ~ Bracton’s maxim.

  7. DH 7

    What defines ‘rule of law’ is probably an interesting philosophical argument. I’ve always thought it was primarily down to the independence of the courts & judiciary; it’s separation from the state. The state is sovereign so parliament makes law and whether they’re good or bad laws would not, I think, determine whether a country has a rule of law.

    I think Michael makes some good arguments here. I though that John Key & others looked to have broken the law when dealing with SkyCity. Section 11 of the Gambling Act states;

    “11 No increase in casino gambling
    A person must not increase the opportunities for casino gambling.”

    The Act goes into further detail and there doesn’t appear to be any clause which exempts a Govt official from that law.

    Parliament might make law but it’s not above the law, which is probably where the rule of law argument might be examined more closely. I would think the proper process there would have been to amend the Gambling Act before they made any deals otherwise they’d be breaking their own laws and effectively denying the rule of law.

    Unfortunately it’s the kind of issue that legal beagles would argue over ’til the cows come home and we’d likely never have a universal agreement. The current situation does hint at a need for a constitution that takes away some of the unbridled power of the state.

    • mikesh 7.1

      [“11 No increase in casino gambling
      A person must not increase the opportunities for casino gambling.”

      The Act goes into further detail and there doesn’t appear to be any clause which exempts a Govt official from that law.

      Parliament might make law but it’s not above the law, which is probably where the rule of law argument might be examined more closely. I would think the proper process there would have been to amend the Gambling Act before they made any deals otherwise they’d be breaking their own laws and effectively denying the rule of law.]

      It would be the casino that is increasing the opportunities for gambling so they would be the ones breaking the law, not the government. The government turning a blind eye doesn’t exonerate the casino unless the government amends the law in some way to make it legal.

      • DH 7.1.1

        No, the point was that the Govt officials who were negotiating with SkyCity were indeed increasing the opportunities for gambling. SkyCity only asked for it, the officials of govt were the active enablers. The law specifically forbid that. They’ve made a deal to increase the opportunity for gambling before they changed the law to permit the increase.

        • mikesh

          I don’t agree. Opportunities for gambling only increase if the casino acts on the government’s “permission” and instals the pokie machines etc. The “permission” is presumably void if increasing the number of machines etc is illegal. This of course is not to say that the government is blameless, just they are not acting illegally. I think in normal contract law a contract to perform an illegal act is void.

          • Colonial Viper

            I think in normal contract law a contract to perform an illegal act is void.

            In that it is legally unenforceable in the courts.

            Usually they don’t worry about that, they can sometimes enforce it using guys with baseball bats and shotguns.

            • Ugly Truth

              mikesh is almost right.

              Contractus ex turpi caus, vel contr bonos mores nullus est. A contract founded on a base and unlawful consideration, or against good morals, is null. Hob. 167; Dig. 2, 14, 27, 4.

              Valid contracts are outside of the personal juridiction of civil courts, but the courts can obtain jurisdiction by the consent of the contesting parties.

          • DH

            We’d be arguing over definitions there. The law doesn’t say a person can’t increase casino gamblling, it says you can’t increase the opportunities for it. “opportunity” is a subjective word. It’s definition in this context would be;

            Opportunity : a chance or prospect

            The laws work on dictionary definitions and I’d read that as saying;

            A person must not increase the chances or prospects for casino gambling

            In negotiating, making and announcing a deal they’ve increased the prospect for casino gambling and the law says they can’t. From what I can see they’re going to retrospectively legalise their actions which I’d think is contrary to the rule of law.

            • mikesh

              The only ones who could increase casino gambling would be the players themselves.
              The only ones who could increase opportunities for gambling would be the casinos.
              If one wished to apply for an injunction against the increase, or prosecute for an illegal increase, the court action would be directed against the casino not the government. And if the agreement between the casino was void the the government’s “permission” presumably could not be used by the casino as a defense


              • DH

                You’re not getting the message there mikesh. The law’s not about increasing casino gambling. It’s about increasing the opportunities for casino gambling. And it’s the govt officials who have increased the opportunity. SkyCity would increase the gambling, not the opportunity.

                • DH

                  Just to add to that, the Act states what an increase is, ie:

                  An increase in the opportunities for casino gambling includes but is not limited to—

                  (a) an increase in the number of gaming machines unless the increase is accompanied by a reduction in the number of table games that the Casino Control Authority, or the Gambling Commission, believes is proportionate:

                  And so on….

                  My thinking is that by negotiating and agreeing to a deal that definitely will increase the opportunities for casino gambling, before the law has been changed, they’d be in breach of the Gambling Act. They also appear to have usurped the authority of the Gambling Commission.

                  An obvious counter argument could be that until the law is changed and SkyCity actually receive their extra licences there would be no increase. I’m not so sure that argument is entirely valid.

                • mikesh

                  The message I am getting is that the government has entered into a contract for the performance of an illegal act. As far as I know that is not illegal in itself, though the contract would of course be void and unenforceable. So the government haven’t actually done anything illegal in terms of section 11 as claimed. Also, there are no “opportunities for increased gambling” until the machines themselves are installed and, as far as I know it will not be the government that will be doing the installing.

                  Of course the government could pass legislation making it legal in which case the question would no longer arise.

                  However, saying the government has not acted illegally is not to imply that they have acted with complete moral rectitude.

            • handle

              “The laws work on dictionary definitions”

              What a clown. Look that up.

  8. vto 8

    This is a good subject and crucial. It kind of fits into another discussion that has been gonig on the last few days which you can see here http://thestandard.org.nz/open-mike-20052013/#comment-635628 The discussion goes back a little further too but it is encapsulated in that.

    The rule of law is crucial to a functioning society, as are broad principles of our democratic system, which are completely intertwined with your post here Mr Valley.

    Vigilance is required lest we let history repeat

    • From the other thread:

      “You seem to believe that the treaty doesn’t afford Maori this degree of partnership, that instead they should be ‘subjects’ like non-Maori.”

      The treaty doesn’t make Maori subjects of the Crown, contrary to the English version which says that Maori ceded sovereignty.


  9. burt 9

    Unfortunately for NZ the rule of law when it comes to the law makers is what the law makers want it to be. Apparently parliament know what the law was supposed to say and any other intrpretation is irrelavent. There were plenty of Labour folk who defened blatant abuse of legal process under Labour. Such dispicable acts as using urgency to pass retrospective validations outside of the normal budget cycle killing off a court case against dear leader spring to mind. Denigration of the Auditor General as having made a bad call because the AG’s call didn’t fit with the preferred position of the Labour party.

    Sadly for this country we have the fastest law makers in the west running parliament and if you support that situation when it’s your team running the show then you you do need to bite down on it and accept it when it’s the other team running the show.

    Partisan hacks need to understand this; If you don’t like it when it’s the other team then apply sufficient pressure when it’s your own team that they change the rules. If you let your team have free reign because you have some flawed notion they are good and only the other team are bad then you are going to need to put up with this kind of rubish always. Of coure being partisan hacks you will only notice the stench of self serving corruption when it’s the other team – so perhaps look at what is happening rather than who is doing it from time to time.

    • One Anonymous Knucklehead 9.1

      Speaking of partisan hacks, do you think your pretence that only Labour had broken the law fools anyone?

      • burt 9.1.1

        If you let your team have free reign because you have some flawed notion they are good and only the other team are bad then you are going to need to put up with this kind of rubish always.

        I guess a Knucklehead can’t work out that this is saying both teams do it – I guess being a partisan hack is a full time thought process for a Knucklehead.

    • Pete 9.2

      Both sides are bad, so vote National?

      • McFlock 9.2.1

        Both sides might be bad, but national is way worse.

        It’s a bit like Nixon – he seemed to figure that because Joe Kennedy had broken the law using organised crime, nobody would have a problem if he used the state intelligence services to do the same thing. Not to mention running parallel talks with the North Vietnamese.

        I mean, how Kennedy got elected in 1960 had many, many troubling aspects. And the entire “ooo shit, we all forgot to pay tax do let’s legitimise what we did” was a dodgy.
        But suspending our most intrinsic democratic rights just because it’s more convenient than developing well-structured policy in a democratic manner is waaaaaaaaaaaaay beyond anything labour did.

    • “Unfortunately for NZ the rule of law when it comes to the law makers is what the law makers want it to be.”

      Rule of law. A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a “rule,” because in doubtful or unforeseen cases it is a guide or norm for their decision. The rule of law, sometimes called “the
      supremacy of law”, provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.
      Blacks 5th edition

      Maxims of law are typically expressed as maxims of the common law.

  10. Descendant Of Sssmith 10

    Ultimately though we have the ability still to vote out those who abuse parliament in this way and who hide behind secrecy.

    The difficulty I see is that we don’t have opposition politicians clearly stating they they would reverse these laws, ensure that the courts had the right to review these (reinforcing the seperation of power that should exist) and make documents available where they should be.

    It’s OK to posture loudly but what actually would they do to fix it?

  11. Bearded Git 11

    The latest RMA reforms will, if implemented, massively reduce local democracy by limiting communities input into local planning matters while at the same time favouring intrusive development without checks and balances because there is no recourse to the Environment Court.

    • ianmac 11.1

      Yes Bearded One. When it becomes clear that the people will have lost the right to be involved in decision making they will realise too late what has been taken. Ironic really given that it was the Nats who created RMA in the 90s.

  12. Dv 12

    It will be interesting to hear the squeals when a very left wing govt start to use the apparatus put in place by the NACTZ

    • Ugly Truth 13.1

      “all investigators from the Independent Police Conduct Authority (IPCA) agreeing that law enforcement authorities cannot break the law, because they are the law.”

      In a sense that’s true, but the police are not law enforcement authorities, they are Crown employees. Authority involves the right to act, and the police do not have the right to apply force arbitrarily. The right of the Crown to make laws over people is assumed, not actual.

  13. Bourgeois law is about protecting the rights of subjects from the arbitrary power of rulers to plunder their wealth.
    So in the rights of subjects are the rights of private property owners, and effectively only those with the wealth to buy protection. Therefore subjects are also the rulers. The rest of us are subjects only at the discretion of the rulers. When our rights get in the road of their private property, we cease to exist as subjects except in the sense that we are ‘subjected’.
    ECAN got in the road of Canterbury farmers access to water.
    The ChCh earthquake gave the rulers to opportunity to disqualify many subjects and maximise the concentration of wealth into their hands.
    The courts occasionally behave as if the law is ‘above’ mere material interests and frustrate the rulers at which point they change the law and have hissy fits about the need for the ‘independence’ of the courts. Hence the ability of the rulers to define the disability of the subjects.
    So Cabinet Rule is the logical consequence of rulers excluding subjects and pro-actively suppressing resistance – from National Standards to GCSB.
    None of this should be a surprise if you understand the nature of the society you live in, capitalist society. If you want a law that actually protects the rights of all humans equally then you need a human society.

  14. JonL 15

    “Ultimately though we have the ability still to vote out those who abuse parliament in this way and who hide behind secrecy.”

    It’s all very well not voting for people to vote them out, unfortunately, most of the others who are voted in, are no better. For a lot of people who prefer to vote major parties, there is not much choice. (yes yes – I know there’s Greens, Mana, etc – to a lot of mainstream voters though, these choices, for whatever reason, are no choices)

    • tracey 15.1

      It’s the damage they do in the interim that is hard to unwind… remember douglas and richardson’s years?

      • SpaceMonkey 15.1.1

        What if a Government gets cross-party support to suspend elections, say, in a time of crisis…? It’s happened elsewhere throughout history, why not here? Or alter voting rights to exclude non-property owners or beneficiaries, or any group opposed to Government policies.

        John Key’s Government are implementing the mechanisms for a police state, piece by piece. Some would argue we are already there. But if this Government thought they could get away with cancelling elections, I have no doubt they would. Eventually, one future Government just might try.

  15. tracey 16

    Where is the outrage which accompanied the Electoral Finance Act for all this messing with rights and democracy?

    • burt 16.1

      These things are not directly and cynically put in place to tilt the playing field in favour of the incumbent government for an election. Sure they are covering their own ass in terms of pretending they did nothing wrong – but that is very different to using parliament to increase their chances of reelection.

      • One Anonymous Knucklehead 16.1.1

        You’d hate my preferred electoral finance act, then.

        Give us a central agency that accepts donations which are then distributed to all political parties regardless of donor preference. No other legal sources of funding. Period.

      • North 16.1.2

        So that’s as to say that pissing on constitutional convention and corrupt governance is acceptable, at a certain level. How patently ridiculous !

  16. Treetop 17

    “Cops do not up hold the law by breaking it.”

    Broad is so audacious. The Commissioner of Police is responsible to the Minister of Police for the administration and control of the police. King and Broad are no longer at the helm; Broad notified King of the Ruatoki raid sanctioned by Broad and King was not allowed to interfere in a operational matter. King has come out and apologised for Broad breaking the law, (unlawful detaining and unlawful searching). At least King has a conscience, unlike Broad.

    I would like to see a fund set up for those who were detained and searched to take out a collective civil case against the police because Key’s government are rotten to the core when it comes to the GCSB and the police being made accountable.

    The Labour Party need to come out and say that a Commission of Inquiry will be held as soon as they are returned to government. Justice delayed is justice denied.

  17. Neli 18

    Firstly, I’d like to say Thanks! I finally get what my jurisprudence lecturer was on about all those years ago.

    Given the findings of the IPCA, those who were illegally detained and subject to unreasonable search at the road blocks are entitled to compensation under the NZBOR Act. This principle was established in Simpson v A-G (Baigent’s case) back in the 1990s. Do I think this deserves a lot of compensation? No, but it should be meaningful.

    As to the legality of the Nacts casino deal … the opportunity cannot arise without the law change to the Gambling Act. All that the deal has done is said the Nacts will do their best to enact the law change enabling the increased opportunity. Unfortunately, where one party has the power as here to change the law to suit, I do not consider this conditional offer to be unlawful under the current legislation.

    And on the Maori Party support for the truly appalling caregiver legislation, that is where the Nacts were sneaky in doing this as part of the Budget. As a supporting party to the govt, the Maori party could not vote against this bill without in effect not having confidence in the govt of which it is a part. I hope there were at least some knashed teeth in the Maori caucus, but if so they cannot say so publicly.

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