Long ago there was a King of England who thought he could do as he pleased, that he had absolute discretion. We, the common people, led by fifty barons, taught him in no uncertain terms that he did not. We sat him down in a field on the edge of the River Thames one summer's day in June 1215 and forced him to affix his royal seal to Magna Carta, which spelt out in detail that he only had the discretion set down and allowed by the rule of law, and nothing else. That was bad King John.
Then in the early seventeenth century another king, King Charles I, thought he had absolute discretion, that he could do as he pleased. We the common people said no, you do not, sign this, the 1627 Petition of Rights. He refused, and went to war against us. We defeated him, and in 1649 chopped off his head. That ended his arrogant thinking.
No one has absolute discretion. And in New Zealand law, there is a vital fragment of Magna Carta, enshrined in the Imperial Laws Application Act 1988, in which Chapter 29 of Magna Carta is featured as the second of our great Constitutional Enactments. It ends with an immutable promise: 'We will not deny or defer, to any man, either justice or right.' Not deny, not even put off.
That, and the other great rights enshrined in the seven general Constitutional Enactments in the Imperial Laws Application Act, set the fundamental limits of power and discretion under our rule of law. Which includes, as the sixth Constitutional Enactment, the 1627 Petition of Rights, and the 1688 Bill of Rights, to which Parliament added in 1990 the New Zealand Bill of Rights which says in section 27 that everyone has the right to the observance of the principles of natural justice, which the Privy Council ruled means fairness writ large.
Therefore no one has absolute discretion, and for Parliament to use that phrase in the Immigration Act 2009 is a gross evil, it is a betrayal of the rule of law, it is a gross betrayal of the fundamental rights and freedoms of the people.
In everyday speech that phrase means what it says: you can decide what you please, and no one may gainsay you, you are answerable only to yourself.
It is no relief to the evil that Parliament did the country in using it to point out that its definition in section 11 of the Immigration Act, to paraphrase it, only means that in that Act something cannot be applied for, that the decision-maker decides independent of any application. For that is doubly iniquitous, because the law should be understandable, it should use English as we all understand it, it should not used it in a way that means something different to common usage, because what will then happen is what happened in the Sroubek case--that people, including officials and the Minister and the media, will take the common meaning, and think that the decision-maker can decide what he pleases.
That phrase should be expunged from law. It militates against over eight centuries of fundamental rights and freedoms. It wars against the people.
For the Department of Immigration, that is only one of the long catalogue of evils that lie at its door.
Then in the early seventeenth century another king, King Charles I, thought he had absolute discretion, that he could do as he pleased. We the common people said no, you do not, sign this, the 1627 Petition of Rights. He refused, and went to war against us. We defeated him, and in 1649 chopped off his head. That ended his arrogant thinking.
No one has absolute discretion. And in New Zealand law, there is a vital fragment of Magna Carta, enshrined in the Imperial Laws Application Act 1988, in which Chapter 29 of Magna Carta is featured as the second of our great Constitutional Enactments. It ends with an immutable promise: 'We will not deny or defer, to any man, either justice or right.' Not deny, not even put off.
That, and the other great rights enshrined in the seven general Constitutional Enactments in the Imperial Laws Application Act, set the fundamental limits of power and discretion under our rule of law. Which includes, as the sixth Constitutional Enactment, the 1627 Petition of Rights, and the 1688 Bill of Rights, to which Parliament added in 1990 the New Zealand Bill of Rights which says in section 27 that everyone has the right to the observance of the principles of natural justice, which the Privy Council ruled means fairness writ large.
Therefore no one has absolute discretion, and for Parliament to use that phrase in the Immigration Act 2009 is a gross evil, it is a betrayal of the rule of law, it is a gross betrayal of the fundamental rights and freedoms of the people.
In everyday speech that phrase means what it says: you can decide what you please, and no one may gainsay you, you are answerable only to yourself.
It is no relief to the evil that Parliament did the country in using it to point out that its definition in section 11 of the Immigration Act, to paraphrase it, only means that in that Act something cannot be applied for, that the decision-maker decides independent of any application. For that is doubly iniquitous, because the law should be understandable, it should use English as we all understand it, it should not used it in a way that means something different to common usage, because what will then happen is what happened in the Sroubek case--that people, including officials and the Minister and the media, will take the common meaning, and think that the decision-maker can decide what he pleases.
That phrase should be expunged from law. It militates against over eight centuries of fundamental rights and freedoms. It wars against the people.
For the Department of Immigration, that is only one of the long catalogue of evils that lie at its door.
