Our new Attorney-General seems as ignorant about the independence of the courts as the last. Michael Cullen -- yes, him again -- was telling judges yesterday that Parliament is supreme. Chief Justice Sian Elias had properly taken issue with that notion last year; chief historian Michael Cullen still disagrees. Herald story here.
Delivering a speech to the Legal Research Foundation Cullen restates his objection to judicial activism, but shows his confusion when he equates judicial activism with judicial independence, and demonstrates too that he knows little about how such judicial activism became so common.
When Geoffrey Palmer was having legislation drafted back in the eighties, his intention with the law being drafted was to ensure 'flexibility.' Whereas in the past good law would be clear and unambiguous, and consequently what was legal and illegal known for sure in advance, Jellyfish Geoffrey wanted instead to make the language of legislation vague, ambiguous and unclear -- all the better for it to be flexible, you see. Palmer purposely put vague undefined terms into legislation in the expectation that the courts themselves would explain what the hell the law meant by means of the cases in front of them.
Not so good for the people whose cases are in front of the courts, but who don't know what the law actually allows in advance.
Concepts such as 'kaitiakitanga' from the RMA are still awaiting 'clarification,' as are the 'principles of the Treaty' clause which infests nearly everything written since the State-Owned Enterprises Act of 1986. Until they are clarified, law that contains phrases such as these are just so much dangerous mush, with no-one knowing precisely what is and isn't legally permitted.
This is idiocy, and Cullen has his erstwhile parliamentary colleague to blame for it. He certainly shouldn't be blaming the judiciary who have to ask themselves when dealing with such vague law 'what was in the mind of the parliamentarians when they write this.' The answer is in most cases: Nothing.