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Anthony Willy

Stepping Off the Bench

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No this is not about Harry and Megan’s children’s book but about those Judges who elect to leave the shelter of the Bench and descend into the arena to air their personal views. Judges are ordinary people who know something about the law and court processes but appointed to do an extraordinary job. Ordinary because on appointment they bring with them their personal range of the human prejudices and foibles to which the flesh is heir. Extraordinary because they are the only individuals in society who can determine our civil and criminal rights and obligations, and who stand between our liberties and oppression be it from government or in whatever form it may arise. They are the guardians of the common law which ensures that all persons appearing before the courts are treated equally and with respect and to whom the law will be applied impartially irrespective of race, colour, creed, or one of the more fashionable causes currently enjoying a place in the sun. All of that is guaranteed by the Judicial oath which should be displayed in every Judicial chamber and Court. It requires the newly appointed judge to discharge the office “without fear or favour affection or ill will.” That being so it is well established that any criticism of a judge’s decisions should be moderate, factual, and tempered with respect, not only because the critic is rarely in possession of all of the facts, but because intemperate criticism diminishes not only the Judge, but more importantly the standing of the office. The consequences of a loss of public confidence in the office of Judge are incalculable but wholly bad.

All of this changes when the judge vacates the bench and descends into the arena to air his or her views on any topic particularly where the subject matter is of important political or social significance. They do this as an individual shorn of the judicial cloak and must expect to have their personal views (because that is all they are) subject to scrutiny and criticism sometimes trenchant. In airing such personal view’s, the judge risks giving rise to a loss of confidence in that Judge’s impartiality should the subject matter arise in later litigation which the Judge is called upon to decide. The loosing party will quite naturally feel aggrieved that it was the Judges private views which lost them the case and ergo confidence in the office of Judge is diminished. Similarly with the important issue of whether or not the common law should be altered in some way. That is a matter for democratically elected Parliaments not appointed judges particularly as under our system they are subject to no popular scrutiny before appointment. Sadly, there are too many “activist” judges who hold themselves above the common law which they have sworn to uphold and are all too willing to express their views on some topical issue, or what they think may or may not be a desirable reform of the law. This trend is widespread and can be seen in three recent global warming cases – one in The Netherlands, one in Belgium, and another in Australia – in which Courts there have dreamed up a new cause of action based on a legal duty resting on a defendant to avert a “climate catastrophe.” That said the tendency to grandstand on the bench in this way is tempered by the need to give reasons and is subject to appeal. But when a judge descends into the arena and airs personal views any reasons are inevitably subjective – what the speaker thinks would be a good idea and there is no appeal. If the audience is young and impressionable lacking as yet developed critical faculties this is a toxic mix which compounds the damage to the impartiality of judicial office.

In August 2019 the present Chief justice gave what is described as the keynote address to Te Hunga Roia o Aotearoa which translated into English is the Maori Law Society (it no longer exists having been folded into the New Zealand Law Society). Having congratulated those present on their wise choice of careers and expressed the hope that they would discuss the” future shape of the law” and to enquire into whether the law is “broken” presumably meaning not fit for purpose. In the view of the Chief Justice that discussion embraces three topics. The first, increasing family violence and high levels of Maori offending is uncontroversial but not something the common law can do anything about. The courts come at the end of the of the sorry tale of violence and abuse. Of course, the courts can ensure that victims of violence are treated fairly and with respect by the Courts and that defendants are encouraged to understand the court processes. There is nothing novel about enlisting the assistance of Maori elders and Kuia in deciding how best to understand and deal with young Maori offenders. In my time in Dunedin this became routine but never displaced the duty of the court to impose a sentence which complied with the law. The second is the question of whether Maori customs and beliefs have any place as part of the common law about which more later.

The learned judge then departs from these issues which have relevance to the law and enters the realms of “climate change.” She says:

Climate change crosses jurisdictional boundaries creates intergenerational issues and raises difficult problems of causation and loss when everyone is a polluter and everyone a victim. There is (she says) a growing demand particularly amoung the young for environmental justice.

It is astonishing that any judge, let alone the head of the judiciary would expose her personally held views in these fraught areas of Government policy and scientific enquiry relating to “global warming” and the demonstrably mistaken confusion conflating changes in the climate with air pollution. Libraries and the internet are replete with scientific works by highly reputable experts in the field of climatology and related scientific disciplines: physics, chemistry, geology etc, which either cast doubt on or debunk the notion that a tiny amount of the life-giving gas carbon dioxide is capable of warming the planet thereby making life as we know it unsustainable. A quote from Professor Ian Plimer Professor emeritus of earth sciences at the university of Melbourne publisher of many scientific papers and co-author of the Encyclopaedia of Geology gives a flavour of views on climate change widely held in the scientific community:

In our lifetime there has been no corelation between CO2 emissions and temperature. Geology shows us there is no correlation between atmospheric carbon dioxide and temperature. Each of the six major past ice ages began when the atmospheric CO2 content was far higher than at present. The idea that a slight increase in atmospheric carbon dioxide will lead to unstoppable global warming is demonstrable wrong.

This is a view shared by hundreds of eminent climate scientists. It was the caution against confected public panic expressed by over four hundred of them which persuaded the President of the United States to withdraw from the Paris “accord.” What the learned Chief Justice is apparently unaware of is that these predictions of climate “crisis”, elevated recently to “catastrophe” are not based on empirical science they rest solely on the discredited practice of computer modelling and the narrow remit of the IPCC which excludes any enquiry into the causes of natural climate variations. Scratch the surface of the model forecasts underpinning government agencies plans to combat “climate change” and you will find that they often rely on a notorious model called RCP 8.5W/M2 which was always intended to be extreme and unrealistic. It rests on the assumption that the world will get half its energy from coal in 2100, burning ten times as much as happens today even using it to make fuel for aircraft and vehicles. It predicts that by 2300 earth’s temperature will increase by at least 5 degrees. In this it has infected the minds of policy makers but in every respect RCP8.5 is already hopelessly wrong. Other models such as RCP2.6 suggest that earth’s temperature will increase by 2 degrees by 2100 and no prediction beyond that. Who actually knows? We have become familiar with the “reliability” of such models in the dystopian world of the Wuhan flue. Professor Niall Ferguson that “eminent English virologist” (caught with his pants down in breach of the draconian Government negation of personal liberties)  used a model similar to that relied on by the global warmers to predict that the virus would kill 500,000 in the United Kingdom in fact 128,000 people died with the virus. It is not known how many died of it. In New Zealand the models predicted 80,000 deaths in fact 26 people have died with the virus. Similar wildly inaccurate “expert” predictions have been made warning against the British government deciding to remove most of the previously imposed restrictions on personal liberty. All of them so far wrong

The judge, is of course, in her private capacity entitled to believe whatever she wishes on any subject no matter how ill-founded her views; what she is not entitled to do is to create alarm among young and impressionable lawyers by elevating their anxieties into an exhortation to become climate warriors under the rubric of “environmental justice” (whatever that is) and her exhortations have borne fruit. I understand that some hundreds of mostly young lawyers have brought proceedings in the High Court criticising the report of the Climate Change Commission on the basis that it does not go far enough soon enough in averting the climate “crisis” which is now upon us. Presumably the plaintiffs are seeking judicial review compelling the  Commission to make more draconian its recommendations irrespective of the social damage they will cause. This notwithstanding that the report of the Commission has been heavily criticised by those who have some knowledge of the relevant sciences, that it either ignored or misrepresented crucial evidence in coming to its draft recommendations. These are troubled waters into which our senior judicial officer would have been well advised not to dip her toes. It leads to a loss of respect for the institutions of the common law and compromises the separation of powers between the courts and the state.

Then there is an added complication. In the likely event that the lower Courts do their job and decline to become involved in such matters of speculative government policy the case will no doubt end up in the Supreme Court. Should that occur and in a matter of such crucial importance to the doctrine of separation of powers between the state and the courts one would expect the Chief Justice to preside over the Bench hearing any appeal. For her to do so would be a denigration of her oath of office to hear the case “without fear or favour affection or ill will.” Assuming that she honours her oath and stands aside then the Bench is deprived of the contribution of the head of the judiciary. Either way the outcome is damaging to public confidence in the judiciary and the courts.

The Chief Justice is not alone in these forays into politics and policy at the highest level. Similar forces have been at work in the United Kingdom surrounding Brexit. In attempting to enact the results of the public referendum as to whether or not Britain should leave the European Union the debate  amoung Members of Parliament had become so toxic and inconclusive that the Prime Minister decided to ask The Queen to exercise her Royal prerogative and prorogue (dissolve) Parliament thereby enabling fresh elections. A highly placed and obviously wealthy pressure group fronted by a personable and articulate young woman brought proceedings in the High Court to prevent this. The case reached the Court of Appeal presided over by the Master of the Rolls. It delivered a scholarly judgment on the constitutional implications of interfering in the exercise of the Royal prerogative and refused the relief sought. In the Supreme Court (presided over by Baroness Hales a former law lecture and family disputes lawyer who had spoken ex judicially on the chaos which would result from Brexit) this judgment was barely referred but overturned principally on the basis that the Prime Minister must have misled the Queen into dissolving Parliament. Apart from the gross insult to her Majesty who had been dealing with British Prime Ministers since 1952 the barely veiled accusation that the Prime Minister committed a constitutional outrage by lying to the Sovereign damaged the relationship between Parliament and the courts to the extent that the Attorney General has introduced legislation into the House restricting the powers of the courts to interfere in matters of political policy by way of judicial review. This has serious implications which remain to be worked through. Judicial review has been an important safeguard in protecting the citizen from an overbearing government acting outside of the law. Where now the  doctrine of separation of powers between the courts and the state. Similarly in Australia where the conduct of one Federal judge appears to have become so partisan in favour of litigants on the left of politics that the Morrison government has set up a commission of enquiry to examine the allegations and report.

The Lord Chancellor Viscount Kilmuir who as Sir David Maxwell Fyffe served  as the Chief British prosecutor at the Nuremberg trial of German war criminals actively discouraged Her Majesty’s judges from stepping off the bench into the market place of contestable ideas. Few senior judges have been so exposed first-hand to the appalling consequences of a loss of respect for the Judiciary and the institutions of the  law when Judges indulge their prejudices and half formed views on social and political issues. These erosions of public confidence always begin with small steps and always end in tears.

Then there is Tikanga Maori (Maori customary practices) and the damage it will do to the “common” in common law. A subject also dear to the learned Chief Justice’s heart and that of her Supreme Court colleague Justice Joe Williams, but more on that later.