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.