Five police officers arrived at the journalist’s house at 7.45 on a Thursday morning. The journalist was in another city that day but they knocked anyway. His daughter was home, and opened the door in her night-gown, thinking it was probably a courier and she would be able to despatch things quickly. It wasn’t. The officers informed her that they had a warrant to search the house. She told them her father was away. They told her they were going to go ahead anyway. We know from court documents that, had nobody been home, they would have forced their way inside.
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| Not the actual house |
I’m going to ask you to forget that the journalist was Nicky Hager. Well, kind of. You need to bear in mind some facts that are specific to this case: for instance, that the crime the Police was investigating with such an investment of manpower and force was relatively minor, but had great media visibility and political reverberations; or that the search came twelve days after the general election that returned the National Party to power; or that Hager wasn’t a suspect, but merely a witness, and that his daughter wasn’t even a witness and had no role in the investigation whatsoever.
All of these things are worth keeping in mind, for they are what makes this case extraordinary. They are reasons that moved me to argue before that the eventual decision by the High Court concerning the legality of the search will have significant implications for our democracy. But we must remind ourselves of the extent in which this case was also quite ordinary. That is to say, of the fact that the Police acted the way they did because it is natural to them; because this is how executive power works, and because – like at Ruatoki in 2007 – it comes with very little cost or likelihood of checks.
And so on that Thursday morning in early October of last year, five police officers entered the journalist’s house, allowed his daughter to call a lawyer – upon her request – and, when she got no answer, commenced the search anyway. When she asked to get dressed by herself in the bathroom, they told her she had to do it in front of a police officer, as if she could have secreted on her person the information they were after. They then proceeded to search her room, rifling through her drawers and her private photo albums: again, as if there was a likelihood that this person, who wasn’t even a witness, might have hidden the information there. They cloned her phone, on which no journalistic privilege could be claimed, copying all her contacts and taking a year’s worth of personal messages, which they planned to review later. This person whose only crime was to live with her father, in the house of a journalist.
Then they seized her laptop – because of course they did – just two weeks before the final papers for her Honour’s degree in History were due. Only after the intercession of one of her father’s lawyers, who had arrived at the scene in the meantime, was she allowed to copy the six files she needed most urgently; she otherwise managed to complete her degree using a borrowed computer and after being granted extensions on two of her course requirements. Her laptop was finally returned 5 months later. Think how you would do without it, and all of the private information you would have accumulated on such a device.
In an affidavit, she describes the ten-hour search as exhausting and upsetting, and lists having to get dressed in front of an officer and the prospect of her private communications being read by the Police as particular causes of distress. While they were searching her room, she felt she had to leave.
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| Still not the actual house |
Then there was her father, the journalist: that is to say, a witness, according to the documents discovered in court, or more precisely an uncooperative witness – who got this designation in spite of the fact that the Police had never sought to speak to him. He was in Auckland on the day of the search, which matters a great deal seeing as his absence would allow the Police to not just seize but search the contents of his house, without him having a chance to claim journalistic privilege on any of the material. He was in Auckland to give two public lectures, so hardly on a secret assignment. I’ll leave it to you, the reader, to speculate whether it was incompetence or malice that led the Police to his house on a day when he was away. But it’s at this point that his daughter being at home becomes a silver lining: for she managed to get hold of her father, and eventually of his lawyers, which managed to protect some (but by no means all) of his privilege. Yet even in this, not the worst of all possible scenarios, the Police seized every document they could find, including materials related to all of the journalist’s current and past investigations, imperilling the confidentiality of countless sources – including sources for investigations on the Police’s own conduct – and effectively destroying his ability to work. To all this we need to add the searches conducted outside of Hager’s home, which involved among other things informing all New Zealand banks that he was being investigated for fraud (he wasn’t), or asking airplane carriers information on all the domestic travel he undertook, as well as the names of the people sitting next to him on those flights.
The combined effect of the two searches – of the journalist and of his daughter – suggests a comparison with the Police raiding the offices of The New Zealand Herald and seizing everyone’s computers and the entirety of the newspaper’s archives. As David Fisher wryly remarks in an affidavit for the Court case, one doubts that the Police would have raided a media organisation had the story originated there, ‘not least because of the resources it could bring to bear to oppose such treatment’. The comparison reminds us that the fourth estate is just that: an estate, that is to say a power which the executive has to reckon with. The independent journalist, while granted the same protections in law, is much more vulnerable, as well as a prime target for political intimidation if need be. Which goes to the heart of this case.
However, if we examine the raid as a discrete series of events, what we are faced with is not an abuse of power, but its ordinary exercise.
The Police planned the raid the way they did because nobody was there to tell them to stop. They found an accommodating judge to sign their warrant because you can always find one of those. They raided the house when the journalist wasn’t there because they could either pretend not to know he was away, or not bother to find out. In any case, they were prepared to break in. Had they broken in, his privilege would have been destroyed, but power needn’t care about that. Power found a way, and it barely needed a motive, to get what it wanted. It knew it could raid first, answer questions later, because the cost of those decisions would be borne by the rest of society.
So when you think of the intrusion and the disruption and the violation that two particular citizens – Nicky Hager and his daughter – have described, think of other investigative journalists, or targeted communities, or political dissenters. Think of the chilling effects not just on confidential sources, but on our collective ability to sustain critical institutions. Think of the cost of going against that power which still so many, too many, view as a benign force.
It is commendable that Hager decided to challenge the raid in Court, and characteristic of his outlook that in doing so he considered those broader issues of justice, beyond the narrow confines of the legal argument. It seems appropriate to give him the last word, from his second affidavit for the case:
The legal issues this presents are for the Court to determine. But from my position, as the person raided, this seems an inherently unjust process. The Police seized my business machines and papers, caused me thousands of dollars of cost, hundreds of hours of work, and months of disruption to my work, threatened the viability of my future work and livelihood, and caused upset to my family, all without considering whether any of this was lawful or justified. I have not committed a crime. I was told by the Police that I am not a suspect. And yet, the Police have turned my life upside down and have delayed any issues about whether the raid should have taken place to be sorted out in Court later. By this point, much damage has already been done.
The Court documents that have been released so far, in redacted form, are available at Scoop here and here. A reminder that Nicky Hager's daughter's name is suppressed so please keep it that way.
Justice Clifford has yet to publish his decision.
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59 comments:
Great piece: I agree with every word of it. But to keep making my point - from time to time :) - this happens daily to the self-employed. It's called a tax audit. IRD have more powers than the police. I would love to see Left recognise this huge invasive cost of the tax surveillance state as a start to entente in the civilised society we all want.
More power to Hager seeking justice. He's one of the good ones.
One of your best, Giovanni! Sickening that this sort of thing, and worse, is tolerated in our society.
That is to say, of the fact that the Police acted the way they did because that it is natural to them; because this is how executive power works, and because – like at Ruatoki in 2007 – it comes with very little cost or likelihood of checks.
That, to me, was the crucial part of your argument; it's the lack of real oversight that has got us to this place. As many commentators have joked in the past, we don't have a Minister of Police but rather a Minister for Police, and the way in which the Government and the Opposition talk about the NZ Police is skewed. They are apparently mostly good, with only a few bad eggs. Yet no one talks about how these bad eggs got into the Police, nor what might cause some nominally good coppers to turn bad. It's just shunted to one side; it's a minor problem, we're told, and we should not let it distract us from the good work the Police do.
Yet that's rubbish, isn't it? Given the position and authority the Police have in our society, we must expect better of them, and we should expect the Police (or, in a better world, the body which keeps tabs on the Police) to treat such bad eggs as a serious threat to the safety of our society. Absolute power corrupts absolutely; Who Watches the Watchers; et cetera et cetera.
But is it bad eggs or just eggs? I mean so long as abuse of power comes without consequence, and the judiciary - as we have seen in this and other cases - provides no barrier (at least not until someone goes through a High Court appeal after the fact), you can only rely on culture within the force to provide a check. Which seems almost impossibly naive.
Once you scrape of its facade of false sovereignty it becomes apparent that the Crown is utterly corrupt. With this in mind it should come as no surprise that one of their employees would sign off on a false warrant which injures the rights of the innocent.
I suppose I should have been clearer; I'm not suggesting the problem with the Police is "some bad eggs". Rather, if the Police and their Minister run the "bad eggs" line, then the idea it's a minor problem and not a structural one is a terrible response which downplays the danger of said bad eggs. Personally, I think the Police are a problematic institution generally and – a little like Capitalism – we seem to have forgotten they have not always existed.
Quite.
Thanks for the information Giovanni. How terrifying for Hager's daughter. The whole thing fits with the impression I have had of NZ police for 30 years. I remember my uncle telling me that the "cops knew Arthur Thomas did the murders but couldn't prove it so they planted evidence" and it was not said disapprovingly.
As you say "Power found a way, and it barely needed a motive, to get what it wanted"
So we are gradually awakening to the fact, long known to those who fought for and gained democracy, that the state itself is the greatest threat to democracy - a democratically corrupt Police force, compliant judiciary, democratically blind Parliament and a timid Fourth Estate.
Yes, it's a fact known to political radicals and critics, the rest of society gets to be re-awakened periodically. Dirty Politics was such a moment. Ruatoki never quite became one (for reasons that are depressingly obvious).
I'm heartened by above comments. So everyone here wants to do away with the autocratic state, starting of course with the tax take of the tax surveillance state?
Mark, I'm going to take a dim view of your repeated attempts to derail the discussion and make it about your personal obsession with the IRD. Fair warning.
The fair warning was insufficient, I've had to delete a bunch of comments. You already took over an entire comment section of this blog once for your thing, Mark, from now on kindly use your own. Thanks.
People seem to forget that the proverb, whether it's eggs or apples or whatever, finishes with "spoil the bunch". Same with the wineskin analogy from the bible - if you put good wine in a bad skin it goes bad. The whole *point* is that you have to deal strongly with the bad apples/eggs/seeds/wineskins if you want everything else to stay usable, but people use it as if to say "oh, well, that's just how it is, if we ignore it it'll work out okay."
Theres a word that came into vogue regarding police action when protesting become something that western govts tried to silence -PIGS and it is still true in the powers the police have or abuse in order to protect a situation that powerful people don't want exposed
If this govt has nothing to hide then why should they be allowed to use fear on those who have done nothin but expose the truth?
We dont have a democracy anymore
There is nothing particularly unusual about the manner of the search in this case, the taking of computers from family members, searching in the early morning, waking people up, being in the room when they get dressed, etc. What you describe here is pretty much how all search warrants are executed.
In the case of witnesses? Really?
But I refer you back to my "this is an ordinary case" point. It doesn't have to be out of the ordinary in order for us to reject it. It's worse if it's normal.
"The Police seized my business machines and papers, caused me thousands of dollars of cost, hundreds of hours of work, and months of disruption to my work, threatened the viability of my future work and livelihood, and caused upset to my family, all without considering whether any of this was lawful or justified. I have not committed a crime. I was told by the Police that I am not a suspect. And yet, the Police have turned my life upside down and have delayed any issues about whether the raid should have taken place to be sorted out in Court later. By this point, much damage has already been done."
As Mr. Hager stated above, the police got the outcome they wanted..."If you fuck with the PM, we will fuck with you"
It's chilling without any real skin to lose. If one were a journalist with a livelihood, a reputation, and people who trusted you's lives at stake, this is a nightmare.
A lot rests on Justice Clifford. Fingers crossed he takes a wide view and puts the police on notice in future.
As David Fisher wrote today...
http://www.nzherald.co.nz/entertainment/news/article.cfm?c_id=1501119&objectid=11553915
"Du Plessis-Allan is a presenter on TV3's Story current affairs programme. In October, she broke a story highlighting a loophole which allowed the purchase of a rifle through mail order, apparently without producing a gun licence."
And how did they know this? It was a televised report on an apparent loophole in our gun laws showing that by simple deception you could obtain a gun illegally.
Having "discovered" this "crime" tho police pounced, because a real criminal would never deceive, eh?.
Another journalist bites the dust.
I find Nicky Hager and his activism to be highly dichotomous. On one hand is is new Zealand's pre-eminent independent investigative journalist who has opened our eyes to the dreadful machinations of certain politicians.
On the other hand he has used stolen emails in his work - not from a whistle-blower insider like Chelsea Manning but from a hacker who brute-force broke into Whaleoil's computer. That is a crime whereas the Elsberg, Snowden and Manning leaked information they had access to legitimately
The other fault I find with Hager is that he has deliberately published books twice now in the immediate run-up to General Elections in NZ, in a deliberate attempt to influence the outcome. He participated in turning the last election into a hugely negative, adversarial turn-off (as did Dotcom). I am strongly against this kind of tactic and it is just as bad coming from the left or right.
Elsberg, Snowden and Manning *may* have accessed the information legitimately, but that is not to say they had a technical right to gather it, and broke much more serious criminal codes than Rawshark in releasing it.
On this issue in fact you may enjoy reading the affidavit by Seymour Hersh for the Court case: http://img.scoop.co.nz/media/pdfs/1510/20150326__Affidavit_of_Seymour_Hersh_sworn.pdf
The question of the timing of the release of the books is thornier. Personally I think there is no question those stories needed to come out before the election as they spoke directly to how the party in government operated. They could have come out one by one in newspaper form, but it would have been utterly unconscionable from a journalistic point of view to wait until after the election to tell them.
It's worse if it's normal.
My point was to back up your observation about it being ordinary.
Simply put, this is what a search warrant is.
On the other hand he has used stolen emails in his work
Unlawfully accessed yes, stolen no. There is nothing to suggest that Rawshark uplifted them from Slater.
from a hacker who brute-force broke into Whaleoil's computer.
Brute-force is a very specific type of attack, there has been no evidence to suggest that this was the manner in which he was attacked, and it is unlikely.
The other fault I find with Hager is that he has deliberately published books twice now in the immediate run-up to General Elections in NZ, in a deliberate attempt to influence the outcome.
The Hollow Men was written about the 2005 campaign, released the year after, unless you are referring to a different book, your claim is patently wrong.
Perhaps you may want to reserve some criticism for those who partake in actives so immoral and illegal that they will effect the election should they be exposed.
"On the other hand he has used stolen emails in his work"
No he hasn't. Stealing involves loss of possession by the rightful owner, and this doesn't happen when emails are copied. Copying and theft are not the same thing.
"The Hollow Men was written about the 2005 campaign, released the year after, unless you are referring to a different book, your claim is patently wrong."
Seeds of Distrust was released just before the 2002 election. That would be what Curtis was referring to.
Ugly Truth and Anonymouse - you are playing semantic games.
Yes Giovanni, thanks, I was referring to the Seeds of Distrust book.
It's not a game, Curtis. You don't get to make up meanings of words to suit your interests like the copyright industry does.
Steal. This term is commonly used in indictments for larceny ("take, steal, and carry· away"), and denotes the commission of theft, that is, the felonious taking and carrying away of the personal property of another, and without right and without leave or consent of owner, and with intent to keep or make use wrongfully.
Larceny: Felonious stealing, taking and carrying, leading, riding, or driving away another's personal property, with intent to convert it or to deprive owner thereof. The unlawful taking and carrying away of property of another with intent to appropriate it to use inconsistent with latter's rights.
Black's dictionary of law, 5th edition.
Well, it _is_ semantics. What do you call it when somebody takes something of yours against your will?
I don't think it is especially helpful to minimise the act of appropriating a significant amount of Slater's personal communications, if only because he's done it to others - Matthew Blomfield - to what the Courts have found to be malicious ends. The personal, intimate information you take from my computer may remain in my possession, but it can be a very meagre consolation if what you're going to do with it is blackmail me or divulge it in order to embarrass me.
Also, our Supreme Court has just found - in the Dixon case - that digital information can in fact be stolen. I don't agree with them, but they have (although it's all very muddled - see the discussion by Andrew Geddis here: http://pundit.co.nz/content/dixon-v-r-an-easy-case-that-raises-hard-questions). Semantics can come back to bite us there.
A better, and much more important question, is the end to which the act of taking the information was put. The revelations in Dirty Politics are in the public interest and Hager made every effort to make sure he only used Slater's communications to the extent that they supported them. In his arguments during the judicial review, Julian Miles QC defended Rawshark's own conduct in the 'whaledump' phase, after the book had already come out, showing how he too - after an initial stumble - tried to limit disclosure to matters of public interest. That is the test that Hager's work - which is safeguarded by one of the most important protections in a democracy - passes with flying colours.
The point that Geddis fails to address is that an essential quality of property is exclusive possession. In Dixon's case the data was erased from the reception's computer after he copied it to his USB stick, meaning that Dixon did have exclusive possession.
With Hager the significance of the false allegation of theft is that it implies that the information is inadmissible as evidence.
"With Hager the significance of the false allegation of theft is that it implies that the information is inadmissible as evidence."
Eh? Information obtained through hacking is no more or less admissible as evidence than stolen information, surely.
The difference is that hacking simply involves defeating a security protocol, while stealing involves committing a crime. Hacking may or may not involve an actual wrong, depending on the circumstances.
This is relevant because of a legal doctrine called "the fruit of the poisonous tree", which can be expressed as the principle that a wrongful act is poisonous to due process.
"The difference is that hacking simply involves defeating a security protocol, while stealing involves committing a crime."
The hacking that the police suspect Rawshark of having committed is punishable with up to seven years imprisonment, if I recall correctly. If that is what actually happened, it's a crime all right.
"This is relevant because of a legal doctrine called "the fruit of the poisonous tree", which can be expressed as the principle that a wrongful act is poisonous to due process."
Yeah I'm really not sure about the admissibility of evidence argument you're making - admissibility in what context, for what proceeding? There have already been high level enquiries based on the claims made in the book.
"The hacking that the police suspect Rawshark of having committed is punishable with up to seven years imprisonment, if I recall correctly."
The fact that an act is inconsistent with the Crown's public policy doesn't make it a Crime, since the Crown has no mandate to legislate in this country.
http://www.actsinjunction.info/nzsov.html
"admissibility in what context, for what proceeding?"
The context of the law of the land, which is common law, not statute law. From the Magna Carta:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
"The fact that an act is inconsistent with the Crown's public policy doesn't make it a Crime, since the Crown has no mandate to legislate in this country."
That was actually Rawshark's own reckoning, not the Crown. And hager's counsel freely admitted the alleged hacking would have been a crime.
"The context of the law of the land, which is common law, not statute law. From the Magna Carta:"
Talk about not remotely answering a question!
We are getting awfully close to "Freeman on the Land" legal reckonings here.
(The problem with Ugly Truth's legal thesis is that they either don't recognise or refuse to accept that the modern concept of sovereignty might well be derived from the legal concept of a sovereign monarch, but it is no longer identical with it.)
Due authority!
No, DUE AUTHORITY!
"Talk about not remotely answering a question!"
So what context where you talking about, if not the context in which admissibility of evidence is relevant?
"The problem with Ugly Truth's legal thesis is that they either don't recognise or refuse to accept that the modern concept of sovereignty might well be derived from the legal concept of a sovereign monarch, but it is no longer identical with it."
Wrong. I'm fully aware of the concept that is passed of as sovereignty by the Crown, just as I'm aware that it is inconsistent with the sovereignty described in dictionaries of law like Bouvier's. Facts are not dependent upon the concept of their expression.
sovereignty: The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Story on the Const. sect 207. (Bouvier's 1856)
"Parliament is recognised as sovereign (the highest authority) in the law-making process because it is accountable to the people."
http://www.parliament.nz/en-nz/about-parliament/how-parliament-works/fact-sheets/00HOOOCPubResAboutFactSheetsWhat1/parliament-brief-what-is-parliament
Sovereignty as a basis for legislation is related to the principle of sovereign immunity; i.e. "the king can do no wrong". The "king" here is the ideal king, he is not accountable because he does no wrong. Although historically sovereignty was associated with monarchy, there's no reason for it to be dependent upon monarchy.
"So what context where you talking about, if not the context in which admissibility of evidence is relevant?"
You propose that declaring the information 'stolen' is a ploy to have it declared inadmissible. So: declared inadmissible where? In what actual proceedings?
But, Ugly Truth, that is not what sovereignty means in the modern sense. Dictionaries are not the arbiters of meaning; they simply describe what a word means at a particular point in time. That's why modern dictionaries tend to define sovereignty as "supreme power" or "highest power", as opposed to some sense of "Can do no wrong"; they describe the current usage.
"You propose that declaring the information 'stolen' is a ploy to have it declared inadmissible."
No, what I said was that with Hager the significance of the false allegation of theft is that it implies that the information is inadmissible as evidence. I said nothing of any ploy or scheme that might have caused this to happen.
The context of due process would be applicable in proceedings of the High Court.
"But, Ugly Truth, that is not what sovereignty means in the modern sense."
The interpretation of what sovereignty means in this context is determined by the doctrine of contra proferentem. If this were not the case the Crown could redefine sovereignty to mean anything that suited its interests and there would be no remedy.
"Dictionaries are not the arbiters of meaning; they simply describe what a word means at a particular point in time."
Any change in the meaning of language introduces ambiguity, and this ambiguity can be used as a vehicle for a bait and switch. For example consider that the word "person" originally meant "mask", i.e. something without natural rights. If a man is induced to describe himself as a person through the bait of the language of the corporate media, then the switch can be applied in a civil context as an implicit denial of the existence of his natural rights.
Redefining sovereignty as power obscures the qualities of wisdom and goodness described by Blackstone, and this redefinition is part of a common theme of hypocrisy of the head of state as the "Supreme Governor" of a religious organization.
"In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the supreme being; '''the three grand requisites, I mean, of wisdom, of goodness, and of power''': wisdom, to discern the real interest of the community: goodness, to endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government."
William Blackstone: INTRODUCTION, SECTION 2:Of the Nature of Laws in General
"The context of due process would be applicable in proceedings of the High Court."
The admissibility of the contents of Dirty Politics as evidence in the context of the judicial review in the High Court is utterly irrelevant.
Well, Ugly Truth, good luck persuading governments and their attendant judicial systems that your folk-legal system trumps the social contract most of them operate under. Frankly, I'd much live under the current system than one that supposes that those who hold the power are somehow good or wise; I can't really think of any historical example where that was actually true. Even Aristotle gave up on that idea after the failure of the Alexander experiment.
"The admissibility of the contents of Dirty Politics as evidence in the context of the judicial review in the High Court is utterly irrelevant."
I said nothing about any judicial review. I mentioned the High Court simply because it's the most appropriate venue for issues of due process.
"Well, Ugly Truth, good luck persuading governments and their attendant judicial systems that your folk-legal system trumps the social contract most of them operate under."
I have no interest in fixing the civil system as it's broken beyond repair. The remedy involves finding a workable alternative, one that doesn't involve the Crown.
Calling NZ's constitutional framework a folk-legal system is misleading, as is your misrepresentation of Blackstone's description of sovereignty.
The social contract is fundamentally broken because a valid contract must have lawful purpose, and such purpose is not defined by society, but by the law of the Creator.
I was calling your "interesting" understanding of sovereignty "folk", Ugly Truth, not the common usage.
Also, who or what "Creator" are you referring to?
My understanding is based on reliable sources like Blackstone's commentaries and early versions of Black's dictionary. Usages are presumed to be reasonable and lawful, can you show that my understanding is not?
The Creator I'm referring to is the one that is described by those sources. Religion, although it does get mentioned occasionally, isn't that important in the common law, which speaks more about reason and ethics. If you go to the source, so to speak, you find that English common law began in the time of King Alfred the Great and his book of dooms, or judgments, which began with a Saxon version of the ten commandments of the book of Exodus.
From Blackstone:
And indeed our antiquaries and early historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred, the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome-book, or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred.5 "Omnibus qui reipublicae praesunt etiam atque etiam mando, ut omnibus aequos se praebeant judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habeter: nec quicquam formident quin jus commune (Saxonice, folcnihte) audacter libereque dicant." ["To all who preside over the republic my positive and repeated injunction is, that they conduct themselves towards all as just judges, as it is written in the dome-book, and without fear boldly and freely to declare the common law."]
Also:
That ancient collection of unwritten maxims and customs, which is called the common law, however compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, had in great measure weathered the rude shock of the Norman conquest.
I guess my worry, Ugly Truth, is why you are using an 18th Century jurist as a reliable source for commentaries on 20th Century law? The law is an evolving concept, and old commentaries and equally antiquarian dictionary definitions are all well and good for a historiography of sovereignty, but if they do no reflect the modern usage and sense in law, then they tell us little about the law in the here and now. Your understanding of 18th Century law might be very accurate, but why insist that we must see sovereignty through that lens in the here and now? it would be like my insisting we only talk about belief in conspiracy theories in Popperian terms; analyses and commentaries have moved on in the intervening years.
"why you are using an 18th Century jurist as a reliable source for commentaries on 20th Century law?"
Because 20th (or 21st) Century law inherits from it. Of course circumstances have changed since Blackstone's day and the law changes to reflect that, but what could possibly have happened between then and now which could account for such marked descriptions of sovereignty?
"but why insist that we must see sovereignty through that lens in the here and now?"
Because the earlier description is consistent with its associated legal framework. This is not the case for the Crown's current description. Consider this text from the LAC Guidelines:
http://lac.org.nz/guidelines/lac-revised-guidelines/chapter-3/
"The rule of law: The rule of law is the most fundamental constitutional principle in New Zealand law"
"The principles and values that follow all stem from, or uphold aspects of, the rule of law."
"Parliamentary sovereignty: Parliament is the supreme law-making body of New Zealand and comprises the House of Representatives and the Governor-General."
And yet there is no connection whatsoever between the rule of law and the arbitrary belief in the supremacy of of the NZ parliament.
So what is the rule of law?
rule of law: A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. '''The rule of law, sometimes called "the supremacy of law", provides that decisions should be made by the application of known principles or laws without the intervention of discretion in their application.''' (Black's 5th)
The rule of law embodies the concept of the supremacy of law, not the supremacy of a group of people who pretend to make law.
The problem with your view, Ugly Truth, is that while you are right there is a difference between the 18th Century view and the 21st Century view, that's all your argument has going for it. Unless you can pinpoint a moment in the intervening two and a bit centuries where the gradual change in legal terminology was perverted and the legal concept sovereignty was corrupted (rather than came to be recognised as realisable in different terms; sovereignty, as dictionary definitions over the centuries would attest, is a multiply realisable concept given changes in definitions), then all you are saying is "I prefer 18th Century jurisprudence" without giving us an argument as to why 21st Century jurisprudence is illegitimate.
"... that's all your argument has going for it."
No, I've already shown that the Crown gives a meaning for sovereignty (i.e. accountability to the people) which is not supported by reputable source. The fact that the Crown is lying about it's mandate to make law should not be overlooked.
The perversion of sovereignty in NZ starts here:
"Now therefore I, William Hobson, Lieutenant-Governor of New Zealand, in the name and on the behalf of Her Majesty, do hereby proclaim and declare to all men, that, from and after the date of the above-mentioned Treaty, the full Sovereignty of the Northern Island of New Zealand vests in Her Majesty Queen Victoria, Her heirs and successors, for ever."
The first point is that Tuhoi didn't cede their sovereignty and the second point is that the declaration is ultra vires:
Clausula que abrogationem excludit ab initio non valet. A clause [in a law] which precludes its abrogation is void from the beginning.
No, Ugly Truth, all you've shown is that the current definition of sovereignty is different from an earlier definition of sovereignty. That in no way shows that the New Zealand Government is lying about it's mandate to make law. In order to show that, you would need to show that the concept of sovereignty that the New Zealand Government claims underwrites its legislative power is incompatible with current legal definitions of sovereignty. Unless you can do that, all you are doing is engaging in semantics.
Anyway, I think this really has gone right off the topic our host posted on, and I do not want to worry his patience on this any further.
"... Unless you can do that, all you are doing is engaging in semantics."
Of course it's about semantics - semantics is how the state uses legalese to defraud the public, injuring their natural rights. That's why I mentioned contra proferentem, as it is a lawful and reasoned approach to interpretation of the Crown's language. Because of this the ambiguity of the terms serves to condemn the Crown, and as the Crown Law Office can't reasonably claim ignorance as an excuse, the only alternative is intentional falsehood or lying.
Also I didn't simply show that the meanings were different, I showed that they were entirely different ideas, just as virtue and accountability are entirely different ideas. And since the early definition as part of a coherent legal framework and the Crown's definition is arbitary, the Crown is condemned by reason as well.
The Crown even condemns itself when it says that the rule of law is the most fundamental constitutional principle in New Zealand law, since the one of the maxims which describes a principle of law voids the Crown's claim to sovereignty.
Unless you can show that the 18th Century notion holds true today (which would be to show there has been no evolution of the legal concept over two centuries), I'm afraid I will continue to think your quasi/folk-legal ideas have no bearing on our constitutional debate. Which is my final word on this.
It holds true because the nature of sovereignty does not change according to the will of the body politic, i.e. there is no reason for it to change.
Justice Clifford has come down firmly on thwe right side- we have some damn good judges in this country.
Yay for justice. It's something we should be able to say a lot more (not that our justice system is bad per se, but sometimes it produces truly sub-optimal outcomes).
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