Howard's End: SOS! Judge Reinvents Right Of Kings

Whether New Zealand should have an air combat force is now not the main issue. What is at issue is whether the reasoning in a judgement of Justice Heron in the High Court defies logic and is, therefore, a logical fallacy. Maree Howard writes.

This week, Justice Richard Heron rejected the application of the organisation, Save Our Squadrons, for an interim order to stop the disbanding of the air combat force.

He accepted the Government's counter-claim to strike out the challenge meaning the application could not proceed to a full Court hearing.

The judge said the Defence Act required that the Air Force exists but did not dictate how it should be comprised. Nor did it specify that there had to be an air combat force.

In the absence of a clear intention of Parliament in the Act, then surely the judge must adopt the understandings of community standards and norms that, as a member of the independent judiciary, he represents.

It seems to me that the judge has re-defined the ordinary meaning of words in the English language. My dictionary says that an air force is "a branch of the armed forces fighting in the air."

I wonder how one fights in the air without combat aircraft. And after all, it is called a Defence Act which also leaves me wondering exactly how you defend an attack coming at you from the air, without the ability to fight that attack in the air.

We don't have ground-to-air missiles.

Even more important, the law in the Defence Act is not addressed to the Government or the judge. The law is addressed to all New Zealanders and, therefore, it is to be judged by the standards and norms of the objective observer in the community.

In other words, by the standards of the ordinary person travelling on the Kilbirnie or Ponsonby bus.

The stability of law is under threat when a Court, acting on behalf of the community, "finds" the law outside of community understandings when there is no clear intention of Parliament.

An explanation of the formulation of the Rule of Law was well put by Justice David Baragwanath in the case Cooper v Attorney General in 1996.

He said " Any rules that require distortion to receive a reasonable interpretation will infringe principle (vi):

(vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules..."

That says it all. The law surely cannot be stable for Society, nor can we be guided by our knowledge of it, if the ordinary person in the street has a different view of meanings and words to those used by a judge.

In this case, the judge seems to be saying that the Government has the proper responsibility to make and implement policy irrespective of what society thinks.

Fine, except cardinal among such principles underpinning and forming a central feature of our constitutional framework is the principle of responsible Government.

In my view, it is not responsible Government when the parties now in power failed to advise the people of such significant policies before they voted at the last election. And it is not responsible Government for those parties to now abrogate the true and reasonable defence of the people and the country.

Writing in the Harvard Law Review in 1958, Lon Fuller said, " The German lawyer was therefore peculiarly prepared to accept as law anything that called itself by that name, was printed at Government expense and seem to come von oben harab. Hitler did not come to power by violent revolution. He was chancellor before he became the leader.

The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the established order were on the ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle."

Amen to that.

I understand that the Save Our Squadrons people merely wanted the Parliament, our elected representatives, to examine the Government's decision. And don't we elect a Parliament, not a Government or a Prime Minister.

What is deeply disturbing for me is that Justice Richard Heron unreservedly accepts an unwritten convention that the Government (the Crown) can do no wrong or, at least, he is not prepared to allow that question to proceed to a full Court hearing.

That is a re-invention of the Divine Right Of Kings which was thrown out in 1688 when Parliament claimed sovereignty.

It's hardly democracy.

The Crown owns all the equipment of the armed forces, paid for by taxpayers, so who is the Crown?

The Crown means "Her Majesty the Queen in right of New Zealand and includes all Ministers of the Crown and all departments." (Public Finance Act 1989)

Presumably, the Ministers held consultation over this matter with the Queen or the Governor-General. After all, all legislation from Parliament must receive the royal assent before it becomes law.

It has been said that the Queen must take the advice of her Ministers. But that theory is full of holes because the Queen has reserve powers and royal will is to do what Parliament desires.

Responsible Government? I don't think so.

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