Simon Power is right that governments are elected to govern. But he's wrong to slap down Sian Elias for her comments on prison policy

New Zealand's constitution contains a number of rules that seem simple enough on their face, but are quite tricky to apply in practice. One of these is the principle of "comity" between the various branches of government. At its most basic, it means that each branch (the legislative, executive and judicial) should recognise and respect the functions the others perform in our constitutional arrangements, and try not to do anything that may improperly interfere with those functions. The Solicitor General recently summarised this principle and its rationale in his evidence to Parliament's Privileges Committee as follows:

It has been said that the rule of comity establishes a “constitutional boundary”. It emphasises the “undesirability of an unnecessary clash between the legislature and the judiciary”, a prospect to be avoided by the exercise of “mutual restraint” by both organs of the state. The “legislature and the Courts should not intrude into the spheres reserved to one another”.

Simple enough. Each bit of the government should seek to stick to its own knitting, thereby minimising the risk that they will come into undesirable conflict. That sounds sensible. Except that what exactly "sticking to your own knitting" means isn't always so clear in practice. For example, when should (and shouldn't) members of Parliament be silenced by suppression orders issued by the Courts - the issue wrestled with by the Privileges Committee report in the above link?  And when does judicial musing on a matter of public policy cross over from being a useful contribution to debate, to an unwarranted meddling in the executive's realm?

This latter point, of course, brings us to Chief Justice Dame Sian Elias' recent, wide-ranging speech on matters of criminal justice policy. Some context might be useful here. First, she delivered the speech over a week ago, so exactly why it has exploded into the media now is a bit unclear - and certainly indicates that she didn't go hunting for publicity for it. Second, the speech was given in honour of Shirley Smith, who was New Zealand's first female law lecturer before she returned to practice and specialised in criminal law - so it was hardly inappropriate to devote it to criminal justice matters. Finally, the speech contains a lot of welcome, well-reasoned thinking about what can be achieved through sentencing for criminal offences - especially when put alongside some of the "contributions" to this "debate". Frankly, I think it ought to be compulsory reading for anyone wanting to express an opinion on the topic of penal policy!

But there was one paragraph, and apparently one paragraph only, of the speech that has caught public attention.

My last suggestion may be controversial. I do not know whether it is practical or politically acceptable, but I think it needs to be considered. We need to look at direct tools to manage the prison population if overcrowding is not to cause significant safety and human rights issues. Other countries use executive amnesties to send prisoners into the community early to prevent overcrowding. Such solutions will not please many. And I am not well placed to assess whether they are feasible. But the alternatives and the costs of overcrowding need to be weighed.

Dame Sian got one thing right, anyway; her suggestion has proven extremely controversial. Justice Minister Simon Power leapt straight on it: "This is not government policy. The Government was elected to set sentencing policy, judges are appointed to apply it." He reiterated this message to TV3 news: "The government makes the law on behalf of New Zealanders who elect them, judges take that law and apply it. That’s the end of the matter.”

A pedant (such as an academic who teaches public law for a living) might point out that the government actually doesn't make the law on sentencing matters, it's Parliament that does so. However, given that Dame Sian's suggestion involved an executive action, does Simon Power have a point in implicitly accusing her of stepping beyond the appropriate bounds of her judicial role with her comments? Is this a case of an unelected, unaccountable judge trying to impose a policy on the elected representatives who make executive decisions?

Well, no. For a number of reasons. First off, Dame Sian hardly demandedthat the executive release prisoners early. Rather, she simply pointed out that unless something like this does happen, on current rates of imprisonment there's going to be overcrowding problems that will raise safety and human rights concerns (which you can bet will translate into complaints before the courts under the New Zealand Bill of Rights Act). Maybe an executive amnesty isn't the best response, as Dame Sian herself acknowledged. But something is going to need done!

Second, it's not exactly unheard of for judges to give elected politicians and the public the benefit of their first-hand experience on criminal justice matters and opinion of suggest policy reforms, whether this advice is solicited or unsolicited. Indeed, if judges are somehow constitutionally barred from doing so, then how exactly are we supposed to get that information?

Third, Dame Sian herself acknowledged in her speech that it is, in the end, the call of elected politicians what New Zealand's sentencing policies will look like. So she says, "In the last 10 years especially, there has been a change to greater prescription by Parliament [in sentencing matters]. That is entirely legitimate." And she goes on to say of changes to parole policy that "there is nothing illegitimate about this prescription or the substance of the reforms." These are hardly the words of a judicial activist seeking to supplant elected representatives in deciding how our sentencing law will work!

In fairness to Simon Power, though, I can understand why he would be frustrated with Dame Sian's intervention. As Minister, he has taken steps to try and address the causes of crime - alongside steps that will continue to expandthe prison population. And the last thing the government needs at the moment is another issue to stoke up populist anger; "not only is the gummint putting chemicals in my bread, now they're gonna let the crims out early to steal it from my mouth!" So he wanted to stop this issue cold, before it could get any traction.

And he's not the first politican to seek to slap down the judges when they appear to be getting a bit uppity (or inconvenient) in their views. Back in 2004, Michael Cullen also felt the need to sharply remindDame Sian of the constitutional fact of parliamentary sovereignty; thereby exacting a bit of political utu for the headache caused by the Court of Appeal's decision on the Foreshore and Seabed. And in 1990, Geoffrey Palmer thought it necessary to remind President Cooke that politicians, not the judges, would have the final say on Treaty matters.

But as for Dame Sian's speech, I say good on her for making it. And there's one last line from it worth quoting. "It is," she says, "difficult for the public and political debate to be properly informed in an age where our news and comment is geared to simple messages and the stories of individual crimes are readily and graphically communicated." I think the media response we've just seen proves her point nicely.

Comments (34)

by Graeme Edgeler on July 17, 2009
Graeme Edgeler

How exactly does the executive release people early? I don't recall Parliament granting it the power.

I assume it would (technically) be the Governor-General. I'm sure it can be done - it's been done here in the past - although it wouldn't involve an amnesty, but commutations.

by Andrew Geddis on July 17, 2009
Andrew Geddis

Hmmm ... yes. Good point. A pedant might say the C.J. was suggesting Parliament empower the executive to grant early release where necessary to relieve overcrowding.

You're right that at the moment it is only the Gov. Gen. who can exercise the prerogative of mercy and commute a sentence ... which isn't the ideal vehicle to tackle the concerns the C.J. is raising.

by Andrew Geddis on July 17, 2009
Andrew Geddis

Heh! Dean Knight raises an interesting question ...

"If the Minister of Justice and government think that judges' singular role is to apply the law enacted by Parliament and they should not contribute to the debate on appropriate penal policy and the criminal justice system, why then did the government invite 6 judges (Judge Becroft, Judge Bidois, Judge Carruthers, Judge Clark, Judge Johnson, Judge Rota) to participate in the government's "Drivers of Crime" ministerial summit?"

by Graeme Edgeler on July 17, 2009
Graeme Edgeler

Perhaps the Chief will just exercise some mercy next time she's the Administrator :-)

Also, thanks for the link, I note that my correction of the Chief Justice (i.e. it's a commutation, not an amnesty) was a little wrong - it appears that the Letters Patent allow for the following within the prerogative of mercy:

  • free pardons
  • pardons subject to conditions
  • respites
  • remittances

It's still not an amnesty, but commutation doesn't appear to be the type of word that's wanted in our Letters Patent. Or should that be "Our"?

by Chris Diack on July 17, 2009
Chris Diack

I think the Ministerial summit on the [motorway] drivers of crime is a red hearing - the gathering together of worthies to suggest a positive potpourri of ideas to fix crime (or any other number of public policy issues) all carefully noted by earnest scribes and done and dusted before 2pm will be alas one of those things that great and good are required to do - the price of the public purse or citizenship

New Governments do this and we will see more of it next time a new Government is elected. The documents produced usually sink like a stone and often if the pols involved are inexperienced the dopiest ideas are the one's adopted, usually to later regret

However that is different from what is a political speech - the Judge acknowledges as much in the speech itself

Chief Justices should be like sports stars - they should recognise that getting political gets one offside with around half the population - and that's not good for one's standing or for the game

Being occasionally political is a bit like being a little bit pregnant. Consequences flow from being part of current political debates

by elmer homofeld on July 17, 2009
elmer homofeld

I don't think that the power to pardon or remit a sentence would be used to release anyone early - the ambit of the Governor-General's powers are pretty limited in practice, and really only allow cases to be referred back to the court where there is serious doubt about a person's guilt.

"Executive amnesty" sounds like a general policy to let prisoners with particular characteristics out early, possibly by broadening the class of prisoners to which parole can apply.   Something like that would require legislation - luverly, I'd like to see Hon. Power try!

by Andrew Geddis on July 17, 2009
Andrew Geddis


I guess the point of raising the "drivers of crime" summit is not whether it'll achieve anything, but rather that the deliberate inclusion of judges in it rather undermines Simon Power's neat distinction that "The Government was elected to set sentencing policy, judges are appointed to apply it." Apparently there's a mid-way point between those poles that judges are allowed to fill, in the Minister's eyes anyway ...

As for the claim that "Chief Justices should be like sports stars - they should recognise that getting political gets one offside with around half the population - and that's not good for one's standing or for the game", I'm not sure the analogy quite works. The reason sports stars "shouldn't" get political is not that they hurt "the game", but that they may scare off their sponsors ... it's purely a contractual issue! In comparison, the reason C.J.'s "shouldn't" get political is (1) to protect their perceived role as neutral, unbiased appliers of law; and (2) as a quid-pro-quo for the other institutions of government not interfering with the courts' job in deciding and applying the law in particular cases. Which is in general a wise and good thing to do. However, there are then countervailing pressures on a judge - especially a Chief Justice. One of her roles is to "speak[ ] for the Judiciary and explain[ ] its role in the legal system." And if there is a matter on which the Judiciary has an especially good vantage point - such as criminal justice matters - then I think the Chief Justice has an obligation to contribute to the debate (so long as she recognises in the end (as she does) that final policy choices must remain in the hands of the elected branches).

I guess it boils down to whether we think judges should be faceless entities that do not seek to communicate with the world (or, communicate with the world only in the course of their judgments and through bland, anodyne public messages that make no mention of anything that might be in any way controversial), or judges should be revealed as humans with opinions on issues (especially those they have direct experience with). I think the latter is more honest, even if it carries more risks.

But you may well be right in saying "Being occasionally political is a bit like being a little bit pregnant. Consequences flow from being part of current political debates." The relationship between the judicial and the political (ie legislative and executive) branches of government is not cast in stone ... it's something that constantly is being  negotiated and renegotiated. As when Stephen Franks got up in Parliament and criticised Dame Sian for not stepping down from the Ngati Apa case because she had previously shown professional interest in the subject matter of the case “and the boldness of the decision” (see 36 NZPD 8549-8550 10 September 2003).

by Andrew Geddis on July 17, 2009
Andrew Geddis

Oh ... and Elmer ... you are right. The prerogative of mercy wouldn't serve the function Dame Sian moots.

by Harley Dear on July 17, 2009
Harley Dear

I have just read Dame Sian Elias' speech.

I'm appalled.

Her comments about victim's rights are almost laughable, so long as you were never a victim or family of a victim of violent crime yourself.

I quote; " There is no question of going back to the days when victims were largely irrelevant in criminal proceedings. They were not well treated"

So far so good.

Quote; " But we need to consider how much further we can go without undermining basic values and whether indeed we may have gone too far in this respect already"

Now, she's lost the plot!  By this statement It is patently obvious to me that she's never ever been a victim, or family of the victim of violent crime.  I know this from personal experience and being directly involved with others in the same shoes as me, otherwise she would just not say that, or, she's totally insensitive.

Further; "What are we trying to achieve?"  How about looking near the start of her speech where she concerns herself about 250,000 NZers being directly affected by crime!  I would have thought that the crux matter would have been, surprise, surprise, looking at how to reduce that crime and have a hard think about this...criminals knowing they have to face their victims or victim's family who also have a say and ownership of the judicial process must ultimately be a deterrent. After all, aren't we all interested in reducing crime in this country?

I go further "Perhaps direct assistance to victims may be more help than a sense of ownership of the criminal justice process"

Sorry, but here she's going into orbit here! The measly assistance in monetary terms was $1,600 max then! My sister's murder cost me and my company about $35,000 which is documented in a court VIS.  But to me the money matters much less than the right for victims to have their say and feeling of ownership  of not only the the justice process, but also to let the criminals know personally how they, the victims, feel.

Lastly " I do not know whether this is right"

The under-statement of the year!  To hear this from a Chief Justice, I am sickened!



by Chris Diack on July 17, 2009
Chris Diack

The drivers of crime summit produced a document where none of the contributors were quoted other than the pols and the guest expert.

It's entirely different in character from a speech on matters of contemporary political controversy.

My point isn't about whether it (or the Judge's speech) make any difference to public policy but rather the difference between them.  There is simply no comparison

The anology to sports stars works perfectly - you don't think sponsorship is an important part of professionalized sport?  The sponsor's concern is about controversy (that is why it's in the contact) that is why staying away from political issues is wise even when what is said is right.  It distracts from the point of being a sports star; to play sports.  It's a trade off that sports stars make.  It's also an issue after their professional career - political controversy effects popularity.  Again a trade off.

For me the issue isn't the content of the judge's speech which isn't novel and actually offers little of substance to address the range of issues identified.

In fact the speech of the C.J. offered her personal opinions - she wasn't speaking about the role of the Judiciary in the legal system and she certainly wasn't speaking on behalf of the judiciary.

Regarding judges as faceless entities well I guess no one is forcing any individual to accept a judicial warrant - it might be a gilded cage but it is gilded at considerable public expense nonetheless.

I guess when an individual accepts judicial appointment there are both costs and benefits that flow from that.  In return for job security, status and a level of deference not enjoyed by other public actors, one must be reasonably publicly discrete regarding one's views about matters of contemporary political debate.

The disadvantage of a system where the judiciary regularly enter the political debate with their personal views (a public official using a public office to advance personal policy views) is that perhaps the public need a more direct input into the appointment of those public officials; more direct scrutiny of those personal views.  That must be the consequence surely.  And that would be a change in our arrangements.

Regarding what is said in Parliament yes I think even the most recent changes go too far.  The remedy for the misuse of the privilege of free speech in Parliament is and should be primarily electoral.

by Andrew Geddis on July 18, 2009
Andrew Geddis


"Her comments about victim's rights are almost laughable, so long as you were never a victim or family of a victim of violent crime yourself."

Dame Sian has been married to Hugh Fletcher since 1970. Hugh Fletcher's brother (and thus Dame Sian's brother in law) was murdered in a home invasion in 1993. Not that the right to comment on these matters should be predicated on having suffered loss - the whole point of the criminal justice system is that it serves society as a whole.


But you haven't addressed whether Simon Power's invitation in itself risked causing judges to stop being "law appliers" and become "law makers". Or what about John Falloon when he suggests that the senior Family Court judge take on this role? Or when Parliament's select committee asks that same judge to give this evidence? Or when he makes this speech? My point isn't a "gotcha" one, but rather that these examples of judges entering into public debate on matters of policy indicate that there perhaps isn't a consistent or universal an understanding of "the role of the judge" amongst legislators or Ministers, let alone society as a whole. Simply put, it seems odd to ask a judge to appear before Parliament to give his views of criminal justice one day, then slam another judge for giving her views of criminal justice on another day!

And the constraints on judges doing so are different to a sports star. There are certain boundaries judges shouldn't cross at all, because of their role. Sports stars trade off whether they are prepared to accept a lower income in exchange for making their views known. If they are, they can. But judges can't make this sort of trade off.

So the question, then, is whether the C.J.'s comments fell on the "OK" or the "never should be said" side of that line. Personally, I think the topic (criminal justice, versus (say) tax-rates, military policy, electoral finance regulation, etc), the tone (cautiously prodding and largely self-doubting, rather than definitive and demanding), and the setting (to a group consisting entirely of the legal profession) make it OK. But reasonable minds may differ on this - just as reasonable minds may differ on whether Stephen Franks overstepped the mark by using his freedom of speech in Parliament to criticise the C.J. These are lines drawn in sand ... a good gust of wind can erase them and require that they be redrawn.

Finally, I don't think there's any necessary connection between the C.J.'s beliefs about criminal justice and her capacity to apply sentencing law as set by Parliament. While we retain Parliamentary sovereignty, I think the sort of scrutiny applied in the US (which, incidentally, is pretty much a charade) and now in Canada (which is even more of a charade) is unnecessary.

by Chris Diack on July 18, 2009
Chris Diack

Andrew: You don't seem to grasp my point.  The controversial nature of the comments is the issue for me.

In the end how a judge conducts themselves in a public context (outside their Court) must be a matter for them; a matter of personal judgement.

Of course judges serve on commissions of enquiry, royal commissions, give evidence to select committees and are part of panels of worthies etc considering weighty issues.

The do so because of skill, discretion and judgement - precisely because they are not part of contemporary political debates.  Usually judges in these forums are most judicious.  In the case of commissions, their personal views are in part reflected in the report.  In select committees (political bodies) one would expect them to be careful and technically focused and the politicians to restrain themselves.

In the immediate case the judge made a speech offering her personal opinions on issues well canvassed and offered few if any concrete solutions.

Look at the environment the C.J. herself acknowledges before she gets into her speech:

"Crime and its punishment are pressing social and political concerns to very many more. Criminal justice is rightly the subject of close political attention. It comes to be considered in a climate of anxiety, in which professional are not trusted to have the answers." (para [7])

And on the matter for which she gained public attention:
"My last suggestion may be controversial. I do not know whether it is practical or politically acceptable but I think it needs to be considered." (Para [42])

This environment would tend to suggest discretion on the part of the judge.

Furthermore, irrespective of one's view of the content, but for the controversy she hasn't added much value.  There is active civil society engagement on all the issues; her point of view is well represented by the legal profession and those in bureaucracy dealing with criminal justice matters.   There is no debate or information deficit that she needs to address.

I am amazed you don't acknowledge that there are trade offs when individuals accept a judicial warrant - one of those is that they become political neuters - they are not direct participants in the political controversies of the day.  In return they uniquely get a job for life, pretty generous remuneration and retirement benefits, crown limos, status and deference.   Most choices in life (be they sports stars or lawyers deciding to accept a judicial warrant) involve tradeoffs.   The fact that there is actually a "deal" is why the politicians get so antsy.

Regarding Mr Franks - yes he faced the voters.  As I said that is the check on what is done in Parliament.

How can one engage in a robust debate with a judge on political issues (outside the context of a case where political elements might be relevant) without that necessarily eroding the capacity of the judiciary.

Yes regarding the US position every element of Judge Sotomayor's past has been examined her values checked and probed  and her nomination is in part due to partisan politics as will her confirmation be.  Here judges as direct participants in political debates will prompt calls for a similar vetting process prior to appointment - it must do.

by Andrew Geddis on July 18, 2009
Andrew Geddis


I don't quite get your position here with respect to Stephen Franks ... if you are saying "MPs can say whatever they want about judges and the judicial process, 'cause they get elected (and re-elected/de-elected)", then you're proposing a rather novel understanding of the comity principle. Which is OK - but you need to recognise you are suggesting rewriting the rules for politicians.

I fully accept judges must stay silent on particular issues, by virtue of their role as judges (that this is a "trade-off" implicit in taking judicial oath). And if they breach that rule/limit, then they should be criticised for failing to abide by their proper constitutional role. As opposed to sports stars, who may "pay a price" for speaking out, but there is no wider social rule/reason why they should have to stay silent. So I think you're wrong to say I don't acknowledge this reality.

But there are some things the judiciary can and should speak out on - and one of these is criminal justice policy. If such speech may be controversial, this means it needs to be carefully calibrated and hedged with qualifiers, and should make no demands on the political branches. Which I think the C.J. did. So again, even though judges do face limits on their speech, this doesn't (imho) breach that rule.

Bottom line - I'm a big proponent of Parliamentary sovereignty and the importance of policy lying in the hands of elected/accountable figures. But I don't see this position as being a bludgeon with which to hammer the judiciary when they raise some awkward facts about things they have direct expertise in and experience of.

by Chris Diack on July 18, 2009
Chris Diack

st1\:*{behavior:url(#ieooui) } The point about MP's speech in Parliament is that the primary accountability mechanism is electoral and exercising personal self restraint.  Yes there are internal rules and in extreme circumstances an MP can be removed by Parliament itself.  Yes Parliament keeps ramping up the rules regarding matters before the Courts - unhelpfully in my view as it undermines the basic principle that the use of parliamentary free speech is controlled for by frequent election.

But what is the accountability mechanism on Judges for run of the mill political commentary?  They are after all public officials on the public payroll.  And as I have said there is a consequence for this type of speech.  However much sympathy I have for some of the C.J. views, I recognise that most New Zealanders would not share them.  The right of criticism of CJ in reply does actually help the judiciary surely?

The point about sports stars (who are generally held in high regard) is that post career they often are faced with a choice regarding political speech; the consequence of such speech results in a loss of reputation.

The fact that you compare the contrast the speech of the C.J. with the Sensible Sentencing Trust should ring alarm bells surely.   That suggests she is acting as one side of a partisan political contest or entering into the fray.  The fact that the speech was made to an audience of lawyers (generally hierarchical in temperament) means that but for the occasional voice of support of her views few lawyers if any will publicly criticise the C.J.'s content or the fact of the speech.

For me the content of the speech further undermines the idea that the speech is simply on the criminal justice system.  In fact all the factors you point to suggest it complies with the norms from my point of view actually tend towards suggesting that its outside the norms.

Its so broad and non technical. It canvasses issues that the speech itself acknowledges are subject to political controversy.  It doesn't say anything particularly novel nor anything not said elsewhere nor does it offer any real solutions.  What is the purpose of a speech which is a general entreaty to debate things further?  Yes it might be oblique about politicians but that doesn't make it any less of a political speech.

If you claim that the norm isn't about controversy but rather subject matter (some aspect of the legal system in this case criminal law) then there is no limit to which a judge might speak about since most aspects of New Zealand life are impacted by the law in some manner.   Or if it's just the criminal law but not other areas of the law why the distinction?   Why should not judges speak out about the regulation of the fundamental freedom of expression within the context of regulating political competition between candidates and parties for example?  Why is that a matter of deference to Parliament and therefore a no go area of judicial speechifying?

Raising awkward facts - what awkward facts?   Every fact she raises in the speech is well known.

by Andrew Geddis on July 18, 2009
Andrew Geddis


You're not quite right about the issue of MPs and their speech about judicial matters. They can't get removed from Parliament for this - they may be found to have breached privilege, thus opening themselves to being censured by the House, but that's it. And I just don't buy the "MPs face reelection, so they should be free to criticise". The number of people who'd base their votes on such matters is miniscule. So the real brake on MPs making such comments is a sense of constitutional propriety ... just as the real brake on judges making political comments is a sense of constitutional propriety.

As seems clear from our discussion, reasonable people can (and do) disagree on where these lines lie. That's hardly surprising. But, to reiterate, I don't think your particular criticisms of the C.J. are enough to tip her over that line. So what if he speech "doesn't say anything particularly novel nor anything not said elsewhere nor does it offer any real solutions"? You can't on the one hand say "don't be political", then on the other hand blame the C.J. for being cautious and limited in her comments! Would it be better if she commissioned her own novel research on the issues, then advocated to the government certain policies based on that research? And just 'cause the facts she raises are "well known" doesn't make them any less awkward!

by Harley Dear on July 18, 2009
Harley Dear

Andrew - thanks for pointing that out.

It saddens me to learn about that home invasion murder as you can well imagine, and my sympathy goes out to her for having to endure that.  Obviously I should do my reasearch better before engaging my mouth.

However, given her statement in her speech, it was hard to pick she'd gone through that, so now the contents of her speech are even more msyterious to me.

Yes I totally agree, the whole point of the criminal justice system is that it serves society as a whole.

I'd be a silly person to expect that the justice system should be there for victims only.

However ponder this; every crime has at least one or more victims.

It seems to me that the more we pussy foot around with liberal ideas on pandering to crimlnals by making sure they are nice and comfortable in their jail cells, not over-burdeneding them with hard work and focusing on their needs and rights throughout the entire process, the more prevalent crime becomes.  On top of that, the idea of 'an amnesty' provides an even clearer signal to the criminals that 'crime is quite ok'

That means crime will flourish more, that means more victims.  It does not take much imagination therefore to work out that you as an individual and part of society as a whole are more than likely to become a victim at some stage. You cannot prepare for the horror of it let me assure you, however we can prepare to dramatically lessen the likelihood of criminal events occuring  by putting sensible and proper measures in place.

Therefore, the victim actually does play an important role in the justice system but the reality right now, as I see it, is that that importance is well short of what it should be if we are serous about tackling the crime problem in NZ.

In retrospect, I still stand by my feeling of shock and horror reading Dame Sian's speech.

by Andrew Geddis on July 19, 2009
Andrew Geddis


I'm not a criminologist/expert in criminal justice and sentencing matters, so I can't comment with any particular knowledge on the points you raise. I guess, though, that the debate that really needs to be had is between your perspective and the questions the C.J. poses to that perspective. (This is a quite different matter to that which Chris D and I have been discussing, which is whether the C.J. ought to have posed those questions at all (at least in the form that she did).) There may be other readers with views on the more substantive matter that Harley raises?

by Chris Diack on July 19, 2009
Chris Diack

st1\:*{behavior:url(#ieooui) } Actually an MP can be expelled from the House by the House itself as a punishment for a serious contempt.  It is conceivable that repeated attacks on the judiciary or repeated breaches of the Standing Orders regarding matters before the Courts could be a regarded by the House as a serious contempt.  The class of what constitutes a contempt (either trivial or serious) of the House isn't closed.

The right to expel a member for a serious contempt was a well established but rarely used privilege of the UK House of Commons and was exercised in the 17th, 18th and 19th centuries.

It's a privilege of the New Zealand Parliament via section 242 of the Legislature Act 1908.  This from the Parliamentary website:

"In the case of members of Parliament being found in contempt, punishment could be as severe as suspension or even expulsion from the House. The latter has not occurred in New Zealand to date."

Regarding frequent election to the House of Representatives as a check on the exercise of free speech in Parliament that's the system.  Ultimately speech short of a breach of privilege or contempt and not subject to self restraint as is all other political behaviour is a matter resolved by political competition.  That is simply to state the obvious.  Voters base their votes on many factors; it's a complex process but that is nonetheless the system.  Voters provide MP's with the platform and judge their use of it and their prospective use of it.

The issue for me isn't whether the speech is detailed or contains broad observations about public policy around law and order over the past 20 or more years (however I would prefer less of a broad sweep of history and more beef).  Rather it is self acknowledged to be controversial and offers advice in the context of a hot political debate and its advice that the C.J. herself notes might not be either practically or politically possible.   I fail to see the point therefore.  I don't think there are any awkward facts in the speech at all.  I wonder why one would "pay the price" in controversy for a general entreaty to debate public policy issues that are well known.

However the matter is for her to determine whether she is outside the norms expected.


by Andrew Geddis on July 19, 2009
Andrew Geddis


Check out the Electoral Act 1993, s.55. There's a very, very strong argument that this comprehensively codifies the circumstances in which a MP's seat becomes "vacant" (ie an MP can be expelled from the House). And s.55 doesn't provide for an MP's seat becoming vacant as the result of a breach of privilege. As you say, parliamentary privilege is based on statute, so the extent/scope of those privileges can be limited (or extended) by later statutes. Guess we won't find out for sure whether the Electoral Act has this effect until an MP does something so bad (ie breaches privilege so egregiously) that the House thinks about voting to expel them - as the ultimate interpretation of s.55 falls to the House (under the exclusive cognisance privilege).

As for the C.J.'s being the final judge of the suitability of her speech, the public (and political) reaction to it will be an important point of her making that call. And, as for once in my life I appear to be on the majority side on something, I'd simply point out that the Law Society, the editorial staff of the Sunday-Star Times, the Sunday Herald, and even the Southland Times all think it was justified.

by Graeme Edgeler on July 19, 2009
Graeme Edgeler

How does "I think you're both wrong" sound?

I would have said that the House could expel a member - that that person would no longer be an MP, that their party couldn't exercise their vote, that they wouldn't get paid, etc.

That a seat is "vacant" in terms of section 55 of the Electoral Act is only relevant to the consequences in that act (i.e. a by-election, or the replacement of a list member). It doesn't have a broader consequence beyond the Electoral Act; and you can't use section 55 to work backward to limit Parliament's privileges. Section 55 comprehensively codifies the circumstances in which a seat becomes vacant (which is essentially a term of art); it doesn't codify the circumstances in which someone ceases to be a member of the House of Representatives.

Thus, I'd argue, if the House expelled a member, he or she would no longer be a member, but the seat wouldn't be "vacant" for the purposes of the Electoral Act and no writ would issue (for a by-election, or a replacement list MP). The House would reduce in size by one until the next election (potentially section 55 would still be in play, and if the expelled member were to die etc. the seat might then become vacant).

by Graeme Edgeler on July 19, 2009
Graeme Edgeler

Actually, looking back at it, my argument is that only Andrew is wrong :-)

But for the moment, at least, I'm staying out of the rest...

by Graeme Edgeler on July 19, 2009
Graeme Edgeler

And I'm wrong too - at least in part - section 55 of the Electoral Act probably has consequences in terms of section 18(1) of the Civil List Act.

It would be odd that an expelled MP keeps getting their salary, but the law may require it. On that note: It had been my understanding that an MP who was suspended (i.e. "named") wasn't paid for the period of that suspension: how does this actually come about, or was my memory on that point faulty?

by Andrew Geddis on July 19, 2009
Andrew Geddis


Not sure about that. Would you, for example, say that the House still has the power to expel an MP for committing a crime that carries a tariff of less than 2 years (if the House judges that this crime has brought the House into disrepute), but having done so that MPs seat must remain unfilled 'till the next election; whereas an MP who commits a crime carrying a tariff of more than 2 years automatically has his or her seat taken by another? I don't think this rather odd outcome could be what Parliament intended in passing s.55 ...!

Note that the UK, which undoubtedly still has the power to expel for contempt/breach of privilege, hasn't anything like our s.55 (that I know of, anyway). I'd say (and Philip Joseph says likewise) that the NZ Parliament's decision to enact it, and to do so without including as one of the grounds of vacancy: "upon a vote by the House that a member shall be expelled from the House" (which it could easily have done), impliedly constrains that institution's privilege.

by Graeme Edgeler on July 20, 2009
Graeme Edgeler

I don't believe the standing orders would usually allow such a contempt (at least using the normal process: complaint to the Speaker, referral to Privileges Committee, House response thereto, etc.) - let's remember that the allegation that Taito Phillip Field had accepted bribes wasn't a matter appropriately for the Privileges Committee - but yes, that's what I'm saying.

You're not seriously using the fact we have a section in one of our electoral laws that would have an odd result as an argument? In short, I think it was an oversight, but it's hardly the only one: if you can find me the bit in the Electoral Act which says that in an electorate race the candidate who gets the most votes wins I might reconsider :-)

by Andrew Geddis on July 20, 2009
Andrew Geddis

Check out the duty of the Chief Electoral Officer to "declare the results of the official count" under s.179(2), and read this in the context of ss.(5)&(6). Then look at s.185(1)(a). Seems reasonably clear what the C.E.O. is to do.

As for the real point at hand - the question is whether Parliament, by codifying aspects of the House's composition privilege through legislation, has completely overridden that former privilege (as is the case with disputed elections, where the courts and the courts alone get to determine who has been elected (see E.A. 1993, part 8)), or has left a residual privilege that continues to exist where the statute is silent. I favour the earlier interpretation, for these reasons:

(1) Democratic principle - the conclusion that there is a mechanism whereby the House can expel a member without having any means for replacing that member (thus leaving his/her constituents unrepresented in the House) is deeply unpalatable. Note that this issue does not arise in the UK, as they have not codified these matters through statute in the same way NZ has.

(2)  The fact that the grounds for a "vacancy" closely track the grounds for which a member could previously have been expelled under the composition privilege (i.e. it looks like Parliament intended to completely codify this matter);

(3) Previous parliamentary practice - when Harry Duynhoven caused s.55 to be retroactively suspended, Parliament didn't just leave the issue to be resolved in the future through the privileges process. Rather, it amended s.55 to better reflect what it believed to be the "proper" grounds for a vacancy ... indicating that it believes the E.A. s.55 is the sole route for determining if an MP should/shouldn't be in the House. Same thing goes for the party hopping amendments.

by Graeme Edgeler on July 20, 2009
Graeme Edgeler

Well under s 179(2), and form 14, one could easily argue that the CEO is required to declare elected the candidate whose name comes first alphabetically...

The arguments you raise are nice policy reasons we would want s 55 to be the end of the matter, but they remains unhelpful in meeting the other lacunæ in s 55. I think for example of Nick Smith; he could have received a lengthy prison term (even a life sentence) for his contempt of court; had he done so he would not have lost his seat. His seat would not have been vacant, even though he would have been in prison for the remainder of the term, he couldn't have voted or been their MP. Similarly, an MP actually sentenced to prison for a year, for a crime with that as the maximum sentence (perhaps common assault - they walked up and punched the Speaker after he ruled them out of order) would not create a vacancy even though they effectively ceased to be an MP.

I would suggest that your second and third arguments can be answered by looking at your first. Parliament likes democracy, and didn't want to leave people without representation, so they closely mirrored the tests for whether a vacancy had arisen on the cirsumstances when someone would cease to be an MP, and when they wanted to change them following Duynhoven, they took the democratic route.

They didn't get s 55 quite right - missing actual imprisonment, expulsion from Parliament, and including 55(1)(g). If they wanted to abolish composition privilege I think they'd have been a little more clear.

by Chris Diack on July 20, 2009
Chris Diack

st1\:*{behavior:url(#ieooui) } <!-- /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:""; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman"; mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-NZ;} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.Section1 {page:Section1;} --&amp It takes a special type of madness to spend some of a weekend on this stuff. However it’s excellent that Andrew blogs on such interesting issues (or is baby sitting in Dunedin in midwinter).

Dealing with the points in order:

1. Its clear an MP using parliamentary speech on repeated attacks against the judiciary or on matters before the Courts is not only subject to mere censure (as Andrew maintains) - there is a range of contempt options available to Parliament up to suspension and arguably expulsion (I note they have removed the stopping of the pay from the Standing Orders relating to suspensions provided for under Standing Orders – from recollection it used to be there) The issue was about parliamentary punishment for parliamentary behaviour; Andrew essentially argued that the sanctions (both parliamentary and electoral) were inadequate – I am not so sure.

2. It’s not particularly helpful to understanding what sanctions parliament has for parliamentary misbehaviour to broaden the argument to parliament’s power to punish in parallel for crimes outside parliament (those being convicted of a crime punishable by a prison sentence under 2yrs) Crimes (as opposed to parliamentary misbehaviour) are best punished by the criminal law. For crimes under the threshold that triggers a vacancy, are best dealt with by political competition. The fact the parliament criminalises some non parliamentary behaviour and provides for making a parliamentary seat automatically vacant upon conviction in some circumstances says little.

3. An unintended consequence argument or oddness argument (unfilled vacancy resulting from expulsion for parliamentary misbehaviour; filled vacancy by operation of criminal and electoral law) is unpersuasive. Given the Electoral Act, one could not assume it’s its not been simply overlooked (the Edgeler position). Whether intended or not, it might also serve an important counterbalance to Parliament lightly using its inherent expulsion power. It would have the effect of ensuring voter judgement would be in the context of political competition at a general election. A majority in Parliament would be in no better voting position in Parliament with an expulsion than they would be with a suspension. An expelled member couldn’t automatically return from an electoral district in a by election. And of course it also might assume that MPs are not stones; a strategy for dealing with a Parliament intent on expelling a member might be to ‘pip it at the post’ and resign and thereby normally triggering a by election in an electoral district if the MP concerned represents one.

4. The s55 EA statutory reaffirmation approach suggested by Andrew is very problematic. First of all it would no longer part of general privileges of the House (the scope of which is a live issue before the Courts but not the use of it) but parliament would exercising a statutory power under the EA 93. logically that is the effect of statutory incorporation or acknowledgement. Statutes dealing with matters internal to parliament are problematic; they require extreme self restrain from the judiciary. The drafting suggest by Andrew almost casualises parliament’s use of the power. Fleshing out a process for its use (like the Waka Hopping amendments to the EA) is an invitation to litigation and for Courts to accept jurisdiction. In the circumstances it might be a wise Parliament that leaves the issue entirely as a matter of its general privileges.

5. Duynhoven is completely irrelevant; there he broke an existing clear statutory provision. Parliament found this inconvenient and so changed the law and applied the law retrospectively. It wasn’t a matter of parliamentary behaviour or the sanctions available to Parliament for misbehaviour.

6. The Waka Jumping law is also not particularly helpful; it was never a breach of privilege and therefore punishable with a finding of contempt to change one’s party in Parliament.

7. I see that whether the speech of the C.J. is outside the norms expected has been conclusively settled by the editorialising of the august Southland Times. Whom am I to demure.


by Andrew Geddis on July 20, 2009
Andrew Geddis


We probably are the only three people in the country interested in this stuff. Does this make us special, or particularly sad? Anyway.

That said, I'm a bit surprised you both appear so insouciant at the thought of the House retaining the power to expel an MP without any means of replacing him or her. Isn't the very thought of such a state of affairs outrageous in the 21st Century? The fact that "vacancies" and the means of filling them has been comprehensively codified strikes me as the strongest argument that there are no grounds other than s.55 for exiting an MP from the House - it's not just an "unintended consequences" argument, but rather a matter of ascribing a parliamentary intent to s.55 based on the results of one interpretation or another. So - Graeme - what are your arguments in favour of interpreting s.55 as leaving a residual privilege to expel? Is it enough just to say "Parliament wasn't express enough in its intentions?" After all, we ascribe intent to Parliament in all sorts of situations!

And Chris, it may be true that "in the circumstances it might be a wise Parliament that leaves the issue [of composition] entirely as a matter of its general privileges." But that isn't what has happened - Parliament passed s.55! So if Parliament were to try to expel an MP tomorrow using a claim of residual privilege, you can bet there'd be an attempt to have the courts declare that no such privilege exists because of s.55. As you point out, the courts can determine the ambit or extent of parliamentary privilege ... including whether s.55 has the effect of replacing it with a statutory regime. So I'm not sure why you say my statutory reaffirmation approach is "very probematic". The problem of judicial intervention exists irrespective of whether Graeme is right or I am right in our interpretations of the meaning of s.55!

Finally, on an old, old topic ... "I see that whether the speech of the C.J. is outside the norms expected has been conclusively settled by the editorialising of the august Southland Times." Not at all. But insofar as the "rules of comity" are settled by what is/is not judged to be publicly acceptable, this is evidence ('tho hardly conclusive) that the C.J. was on the right side of the line. That's not overly silly, is it?

by Graeme Edgeler on July 20, 2009
Graeme Edgeler

Probably not the only three - I'm sure Davids Farrar and McGee would have an opinion =)

I start from the point that the House at least had the power to determine their membership. Good thing or bad, it was a power the House had. I then recognise that post-1993 Speaker Hunt - no doubt acting on the advice of David McGee - referred the Duynhoven matter to the Privileges Committee on the basis that questions of membership of the House were matters of privilege within the control of the House, despite the Electoral Act arguably making it a matter for the Speaker.

We then get to the practicalities. I note that - as linked above - Parliament asserts it has the power to expel. Just as in response to the argument that the Governor-General's power to refuse assent was removed by changes to the Letters Patent, I respond by linking to the page on the Gov-Gen's website which says he has that power, I think it is important what the House considers its powers to be.

I really do think that if an MP stood up and started beating up the Speaker, and was unrepentant for doing so, that Parliament would move to be rid of them (if it was Speaker Wilson, they'd be gone upon conviction, but with Speaker Smith they wouldn't...). And I ask myself if they did so, how likely would it be that the Courts would intervene. I think they would really try to avoid it. I cannot see that the Courts would force Parliament to treat as a member someone perhaps every member had voted to exclude on such a basis.

Would there be democratic consequences? Yes. There wouldn't automatically be a by-election or list replacement. On recognising this, it is distinctly possible that Parliament would temporarily amend the Electoral Act to allow this to occur.

Next, it is safer, I think, to err on the side of believing that Parliament has a power that it has never used and would only use in extremely rare circumstances, than to assume that (despite not making it explicit in any way) Parliament has removed the power from itself. If at some point in the future Parliament doesn't expel someone I won't be surprised, if they do (attempt to) expel someone you will =)

Finally section 55 just simply does not cover all the circumstances we would want it to. The Courts might step in in the situation that an MP was refused the right to take the oath of office (as happened in the UK), but what would happen if - as is far more likely now - an MP-elect refuses to take the oath of office (promising, as it does, support for the Queen)?

Do I have policy arguments as to why my interpretation of s 55 would be preferred? Not really. I don't have a particular interest in the House having the power to expel a member, but I don't think Parliament thinks it got rid of that power with s 55, and that's how the matter would ultimately be decided. If Parliament thinks it has the power to expel, it probably does.

by Andrew Geddis on July 20, 2009
Andrew Geddis

Fair enough. But ...

(1) Just 'cause the House believes/says it has a particular power doesn't mean it does have that power. For instance, the House fined TVNZ for contempt after it put Ian Fraser on "gardening leave" for being rude about its board in front of a select committee. Yet it is extremely dubious whether the House really has the power to do so as a matter of law. A more cantankerous target could have challenged the decision in court.

(2) Was Duynhoven's reference to the Privileges Committee really a question of composition privilege (i.e. to decide if he should/should not be a member) or was it a question of the exclusive cognisance privilege (i.e. to decide if Duynhoven's situation actually met the s.55 grounds for vacancy (as the section is interpreted by the House))? I'd suggest the latter, even if it was treated as the former - after all, once it was decided that he did fall within the s.55(1)(c) ground, there was no question as to the consequence unless retrospective legislation was passed.

(3) Your "beating up the Speaker" problem shows that there are unpalatable consequences to either analysis. Either such an act cannot be directly punished by expulsion (unless there is retrospective legislation passed to let this happen), or it can be punished by expulsion but without replacing the expelled MP (unless there's further legislation passed to allow this to happen). But how's this for a way to square the circle? The House votes to suspend the member for a whole session of Parliament (using its power to punish contempts via suspension), then refuses the member permission to be absent from then House, thus triggering the s55(1)(a) ground for a vacancy? Any reason this couldn't work?

by Graeme Edgeler on July 20, 2009
Graeme Edgeler

Any reason this couldn't work?

Yes. The current practice of our Parliament renders s 55(1)(a) moot. Though the power exists, our Parliament is never prorogued, only adjourned (or dissolved/expired). The entire course of each Parliament is a single session and has been for quite some time - para (1)(a) wouldn't be implicated.

A few Parliaments ago (I think 1999-2002) what is now standing order 89 was amended because it used to hold that suspension on a third naming was for the remainder of the session. Someone (I'm guessing McGee) will have pointed out that as the practice had evolved of holding a single session, this was now a rather harsh penalty.

The Prime Minister could advise the GG to prorogue Parliament and (re)summon it, but the Government would be wasting a substantial amount of precious legislative time holding a second address-in-reply debate...

I was thinking of TVNZ as helping my argument. People expressed doubts that the House could fine for contempt and then it fined for contempt. If we were having this argument about that matter in advance of the House's decision in that case, I'd be pointing to it and saying "I told you so".

by Tim Watkin on July 21, 2009
Tim Watkin

I'm not sure if I should even try to drag you guys out of this indepth debate, but thought I'd chip in some thoughts on the original point, anyway...

Few people who have their heads around our prison system would, I suspect, have many concerns about the content of the CJ's speech (except for Chris, thinking it's not special enough to warrant her intrusion into politics). We have a system where the majority of prisoners have drug or alcohol problems (an estimated 80% at one time or another) and many are barely literate. Yet we have only 500 places for drug and alcohol treatment (soon to be raised to a thousand). That's about a fifth of what's needed.

But should she be offering opinions? I have some sympathy for judicial activism. But isn't it better done in the form of decisions from the bench than in public speeches? I can't imagine even such an activist and ideological judge as John Roberts taking such an approach.

Our constitutional conventions are so thin as they are, is it ok to play around with them so loosely? (Or is it because they're so loose that this is ok?).

Would Elias be happy for politicians to run through her sentences with a fine tooth comb and publicly critique her decisions? Because what's good for the judicial goose must be good for the parliamentary gander...And adding to that point, I'd ask about the timing. Perfect, inasmuch as last week the government announced that our prison population was now the highest it has ever been in this country's history. But this government had a very clear mandate from the people just eight months ago, and at the heart of its platform was tougher sentencing. Should she speak out against the will of the people?

And finally, a point that Chris has touched on... isn't she sacrificing a judge's supreme power by entering the political forum; that is, being above politics?

Harley, I assume from your comments that you or a loved one has been a victim of serious crime, so I take that on board. But I want to challenge some of your points...

Victims do play a significant role in our justice system by international standards. One example: I understand that NZ is the only country in the world where victims can appear in person year after year before the parole board. Yes, it's important that their pain is heard and understood, but equally that pain may distort what is actually the best outcome for society (the criminal not offending again).

I don't think you create model citizens who don't reoffend by ignoring prisoners' rights, but I agree with your point about not working. Spending up to 20 hours a day in a cell (which is increasingly common withour understaffed prisons) only frustrates those inside. Given the captive audience, it's criminal we don't use that opportunity to prepare them for a life without crime (be that training, education, whatever).

But I can't agree that a one-off amnesty would send the sort of signal you suggest it would. At a time of lengthening sentences, releasing some prisoners late in their sentence in a one-off move to free-up some beds would hardly be seen as a licence to commit crime. Heck, California's Republican governor has done it there to save money, so it's hardly a wet liberal option. And of course, there's no evidence that those sorts of 'signals' make any difference to the rate of offending anyway. Most serious crimes are still crimes of anger, addiction or domestic violence... those people aren't thinking of sentencing signals when they go off the deep end.

*And I've cleaned up the messy code as best I can from the front of some comments. Sorry some remains... it's stubborn stuff!



by Andrew Geddis on July 21, 2009
Andrew Geddis


I did not know that about Parliament now sitting in one complete session! Interesting...

I don't buy your point on the TVNZ case, though. If someone refused to pay a fine levied by the House, and sought a declaration that the House had no such power, an argument "we think we can do it, so there" wouldn't carry much weight. Privilege is, after all, a matter of law ... and the House can't lay claim to privileges that have no such basis in law. Just as they can lose privileges if they legislate in a way that impliedly repeals them.

I am going to take Tim's subtle hint, though, and leave this thread alone for a while. I need to start thinking about my next post!

by Graeme Edgeler on July 21, 2009
Graeme Edgeler

... the House can't lay claim to privileges that have no such basis in law. Just as they can lose privileges if they legislate in a way that impliedly repeals them.

I'd have them do away with any power of the privileges committee to punish strangers. Create a statutory offence of "contempt of Parliament" and have it prosecuted in the courts. They can create a statutory offence of "contempt of Court" and get rid of the power in the inherent jurisdiction while they're at it. And if they want there to be the potential for life sentences or indefinite detention they can include it in the law - with a right to a jury trial.

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