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Early moves by members of the new cabinet risk doing real damage to New Zealand’s constitutional framework

06/02/2018

So runs the opening to an opinion piece by Christopher Penk, the National MP for Helensville, writing at The Spinoff.

Penk notes the concept of separation of powers which underpins our constitutional framework.

He notes:-

The doctrine demanding a separation of powers is a sacrosanct safeguard within our partly written, partly unwritten constitution. Its importance lies in preventing any one individual or group from gaining an outsized portion of power.

Taken together, constitutional safeguards have helped to keep New Zealand blessedly free of corruption in our short but proud history. Enjoying such stability and certainty is an international advantage that we should guard jealously and zealously.

Indeed this is critical.

All this is to explain why moves by ministers of the new government to weaken our nation’s constitutional framework pose such a major problem………. but does the carelessness constitute conspiracy, cock up or a combination?

A major offender is Andrew Little, who appears to think, despite being a lawyer and Minister of Justice that he should be criticizing the judiciary for the way they apply the law.

First, his musings on a perceived problem with criminal bail: “I suspect it’s more about the way it’s being applied and enforced as opposed to whether there’s a problem with the law.”

If he has a problem in this regard change the law, do not seek to direct the judges either publicly or privately. As Penk writes such comments could well lead to suggestion of transgressing the boundaries between the executive and the judiciary

Constitutionally speaking, that’s about the most questionable thing he could have said. And when I say it’s questionable, the question is whether the minister’s criticism will be remembered by the bench as new bail applications are presented.

This of course is not the only instance, as Penk points out:-

Again Little is overstepping the boundaries. Indeed Penk goes further:-

it certainly is “not right” for any cabinet member to be thinking aloud about that. And the minister with “justice” and “courts” on his nameplate is the last one who should venture such an opinion. If new evidence comes to light later about the facts of the matter, could a decision to prosecute then be made without appearing as though it had been politically influenced?

Then there is the case of Clare Curran:-

the minister of broadcasting, Clare Curran tweeted what was in effect an astonishing allegation about the conduct of a police investigation. I won’t repeat the allegation (because I know how defamation law works) but suffice it to say she was implying that improper influence was exercised, on a named police officer, to make a particular operational decision.

To date it would appear that Curran has escaped any form of censure.

His final example is the way Grant Robertson has appointed himself as judge, jury and executioner in regard to rental rates for properties in Wellington

A final example serves to prove that no new year’s resolution can have been made by the cabinet regarding executive overreach. On 20 January it was reported by RNZ that the finance minister was looking to make an example of any landlord found to be illegally raising their rents to exploit students: “we are looking very closely at some of the examples that have been put to us today to see if they would breach [the Residential Tenancies] Act”.

Whether or not Grant Robertson likes it, he doesn’t get to decide what’s illegal in any given case. That’s what the Tenancy Tribunal and/or the courts exist to do. And if a finding is made against a particular landlord by the judiciary – in accordance with the law that Robertson’s government can seek to amend at any time – then punishment is determined by the judiciary, not Robertson, in accordance with the law. For the minister then to add a name-and-shame consequence as he’s threatening (“calling out” landlords who don’t “do a good job”, as he describes it) would surely be double jeopardy, as well as executive interference.

This reveals an astonishing pattern of breaches of long understood boundaries. The usurpation of the role of the legal system is extremely concerning. It is akin to the way Trump and his cohorts in the US have been acting.

Furthermore when we then take into account the way Winston Peters has recently sought to use the legal process to enable him to move against people he regards as his enemies  A concerning picture emerges.

One question is why  the much vaunted Fourth Estate not looking into this? Why are these doughty defenders of essential freedoms not outraged? Where is commentary by our political journalists and commentators?

In recent times our ‘revered media’ has been all over issues which they have regarded as corrupt or breaches of convention. However, such media outrage was essentially always focused on National and especially on John Key, Bill English and Judith Collins. Since the change of government it would seem that fawning adulation is the order of the day.

Furthermore is this symptomatic of a lack of control of her Ministry by PM Jacinda Ardern? Or does it indicate that she herself sympathises with and supports her Ministers in these matters? If either of these  should be the case that is a major cause for concern. If in fact both suppositions are correct, then we are further along the path to crisis than one might have wished. Indeed, one could argue that the compilation of a sexual harassment register based on allegations erodes basic rights and is a transgression of a similar nature.

In Adam’s view this trend needs to be nipped in the bud now. He suspects that other ministers may well be encouraged to undertake similar acts and indeed go further, if they have not already.This behaviour suggests that our government is on a very slippery slope.

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