Nobody likes being told, “told you so”, but, New Zealand, you’ve asked for it. Told you so. You got carried away by your own “progressivism”, and now look where you are. I recall the debate over New Zealand’s then-mooted Bill of Rights, and the warnings from grumpy conservative types that it would create an activist judges’ picnic. Which is exactly what it’s done.
Legal scholar and writer James Allan is here to remind you all that he told you so. Allan moved from Hong Kong to Dunedin in 1993, which, granted, must have been a bit of a shock to the system. New Zealand’s shiny new, oh-so-progressive, Bill of Rights was newly-enacted. Allan warned, even then, that New Zealand was handing huge powers to unelected judges.
Time has only justified himself in saying, told you so.
These days top judges around the common law Anglosphere simply do not care what the legitimate lawmakers intended when they made a law. They shun any interpretive approach (often labelled ‘originalism’) that seeks to limit outcomes by tying them to what the legitimate law-makers intended […] instead, most judges revel in the notion of ‘living constitutions’ and in the idea that the judiciary has its finger on the pulse of changing social values. Is there a more laughably implausible supposition? Top judges are the most cocooned, glad-handled group going […]
You couldn’t pick a group more divorced from every-day life.
Unless, of course, it’s a Greens or Labour politician. Small wonder, then, that both types furiously agree with each other about the latest eructation of judicial activism in New Zealand.
Wait for it. The Kiwi Supreme Court declared that the law that set out a right to vote for those 18 and over was rights-infringing. Now which law set that particular age out? Why, it was in the statutory bill of rights itself in section 12. You see the Kiwi legislators clearly intended the right to vote to apply to those 18 and above. Remember, they put it unambiguously into the bill of rights itself. To paraphrase a Kiwi commentator, the NZ Supreme Court last week decided that the NZ bill of rights breached itself.
Indeed, Section 12 clearly and unambiguously states that voting is strictly limited to New Zealand citizens over 18 years of age. So, how do the activist judges decide that it doesn’t really mean what it indisputably and explicitly says?
See if you can follow this serpentine reasoning. In the bill of rights there’s another provision dealing with discrimination, section 19. And from there the judges wandered over to a discrimination statute and noticed that its purview for ‘age discrimination’ started at 16 years old […]
These are the same judges who uttered not a peep about Jacinda Ardern’s thuggish pandemic response being rights-infringing.
Nor have they roused themselves to point out that Ardern’s “hate speech” activism clearly tramples on the Bill of Rights, specifically Sections 13 and 14. Which, again, unambiguously state that Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference and Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Still, don’t say you weren’t warned.
Back in the early 1990s I said that when you buy a bill of rights, all you are ever buying is the views of the top judges. I preferred the elected legislators who are accountable to all of us voters. But I never would have guessed back then the degree to which top judges would allow their commitments to ‘social justice’ to infect their ability to deliver what most of us would describe as ‘plausible interpretations of the legal text’.
In other words, they’re just making it up.
And, of course, the activist judges are just the tail wagging the activist political dog.
These days we often see a sort of tag-team effort to get controversial social policies brought in. First off, the top judges will purport to ‘discover’ some rights entitlement based on some interpretive innovation (again, I speak as kindly as possible). Then, right on cue, the left-wing political party will say ‘we have to legislate this because the judges have declared this is a timeless fundamental right’.
Spectator Australia
From co-governance to trying to lower the voting age, activist judges and left-wing politicians are locked in a furious circle-jerk. Ordinary citizens who, as Orwell said, are not foolish enough to be hoodwinked by the nonsense of the “intelligentsia”, find their own supposed fundamental rights weaponised against them. Whoever could have seen this coming?
Told you so.