Island Life by David Slack


This might be an appropriate time to quote a learned judge. Here is Chief Justice Sir Richard Wild in 1976.

It is a graphic illustration of our legal heritage and the strength of our constitutional law that a statute passed by the English parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years. And yet it is not disputed that the Bill of Rights is part of our law.

Chief Justice Wild proceeded to apply the full force of said Bill of Rights by declaring that the Prime Minister-elect, one R. D. Muldoon, was not permitted to rule the country by press release, no matter how convenient he might find that form of government.

Muldoon had announced that he was abolishing the compulsory superannuation scheme set up by the previous Labour government and ordered all the employee contributions to be refunded. He would be passing the necessary empowering legislation "in due course".

The Chief Justice recognised that the government had the numbers to do so, and so his judgment neatly straddled principle and pragmatism. He declared that the Prime Minister was not a rule unto himself, that the only place for this law to be changed was in Parliament, and that until Parliament had spoken, the law remained the same.

However he then tidily adjourned all other matters in the case for six months and thus avoided a giant administrative headache by not forcing the Superannuation Act briefly back into business.

So what did we get in Parliament today? Same dance, different form.

We saw the same haughty disregard for democratic niceties,
and we got the same reminder that the Parliament is paramount.

I am not so vexed by matters of administrative correctness - as Treasury sees them - as I am by the question of a pending day in court.

If you had been about to take on the Labour Party in the High Court on the question of unauthorised election expenditure, it might not have been fanciful for you to imagine that you might soon be taking your place in political and legal history alongside Fitzgerald v Muldoon.

But that would be underestimating the thermonuclear capability of the H-bomb that is created by the fusion of 1 and 2. Unlike Muldoon, they took their device to the Parliament.

Fitzgerald v Muldoon emphatically confirmed the constitutional position. Parliament trumps everyone. It trumps the Executive, it trumps the One News room, and even though our present Chief Justice has suggested some theoretical constraints to the rule, for the largest part it trumps the judges. If you can get the numbers in the house, then you can make the law.

And that includes a law that passes through all three readings without so much as a pause for a glass of water. Thus you get legislation which validates 'irregularities' in the spending of the parliamentary services vote, and as a consequence, you may see the case of Darnton v Clark blown out of the water.

Can they do it?

Is it bad politics? Time will tell, and it will tell us when we come to the one force that trumps Parliament: the ballot box.

Notwithstanding the understandable outrage being expressed by Bernard Darnton and his supporters, I don’t believe that this unlovely spectacle demonstrates that our rights to free speech stand in peril.

I have done business with people who live in countries where speech truly is imperilled, and they would trade the bad odour of this eau-de-banana-republic for the appalling tyrannies in their nations without a second thought.

But the high-handed nature of this is not at all edifying, and the H-people will now have plenty of time to ponder whether the voters will remember this as keenly as they still do the seven–minute wonder that was the passing of the legislation for the 'gold-plated' MPs superannuation scheme all of twenty years ago now.