Deborah Coddington: Justice is crushed under the weight of the law

Parliament is in recess. We have respite from the Tuesday to Thursday circus - curtain up at 2pm. MPs are back in their electorates opening fetes and art exhibitions; attending select committee meeting hearings; or driving through the hinterland barking instructions into their cellphones.

But the machinations of the legislation-passing factory grind on regardless.

In 1978, New Zealand had only 600 principal Acts. Today our primary laws have swelled to 1096 statutes, and 4292 statutory regulations. The Income Tax Act 2004 alone is 2088 pages long, and occupies three of that year's seven volumes of statutes.

With the increasing number of statutes and regulations pumped out by Parliament each year you'd think, in a country of only four million people, we'd be perfecting the mechanics of our justice system. That does not seem to be the case.

In November last year, Court of Appeal judge the Hon Justice Grant Hammond gave an address to the North American Alumni Association, entitled "Law from Afar".

He used a fictitious girl called Sarah to illustrate the dichotomy between the ideal and the reality of the rule of law. Sarah, who visits New Zealand from a "far flung planet", is troubled that on the face of it, our body of law looks well-organised and comprehensive, but in reality its implementation is expensive, cumbersome, and unsatisfactory in terms of delivering prompt results.

"This is because," Hammond said, "the New Zealand legal system is, in operation, distinctly inequitable and inefficient. This industrious little country keeps pumping out more law than any comparable jurisdiction in the galaxy. But in practice it is only for those who can afford it. For those who cannot afford all this law, and who are likely to need it most, there is far too little law."

Sarah thinks (legal aid notwithstanding) that "most Kiwis find their legal rights hopelessly compromised by the cost of legal services, the extraordinary procedural complications produced by the law, and the seemingly interminable and frustrating delays involved in advancing proceedings to anything like a conclusion". I apologise, readers, for that long quote, but it's difficult to paraphrase an Appeal Court Judge without ruining his argument, and I believe Justice Hammond makes an important point.

Sarah is of the opinion that a small country such as New Zealand could function with fewer rules. What she actually sees is a country where the outputs are not justified by the tireless lawmaking activity.

Few MPs will heed Hammond's words. They rarely notice the judiciary, save when it's convenient to bag a political point and jump on one of the bench for dishing out a light sentence.

Yet I presume Justice Hammond speaks for many of his colleagues, who daily must administer legislation, "the meaning of which must be ascertained from its text and in the light of its purpose" - to quote the Interpretation Act.

That can involve taking on the unenviable task of getting inside the head of a cabinet minister.

But a proposal from the Law Commission may bring in legislation establishing a Sentencing Council which would make judges even more prone to political interference. This council's membership, it appears, will be half independent and half politically appointed. Ostensibly it would provide a guide to judges (who actually already have a manual of guidelines, plus the Sentencing Act). Implicitly, though, it would be hell-bent on influencing judges to sentence prisoners according to the whims of the Government of the day.

National's justice spokesman Richard Worth has already pointed out, notwithstanding under-floor heating, Labour is keen to reduce the prison population. So pressure could easily be applied by the executive, via the Sentencing Council, to leave criminals in the community.

"See how we've reduced the imprisonment/crime rate," a satisfied government could boast.

Alternatively, should Sensible Sentencing seize power, the Government could urge the Council to lock 'em up and throw away the key.

In any event, the separation of powers, a cornerstone of our democratic constitution, would be further eroded.

In Britain the Labour Government established a Sentencing Council under the Home Office and now the Prime Minister is living to regret it. One high-profile case which hoists Blair on his own petard, so to speak, is that of notorious paedophile Charles Sweeney, sentenced to 18 years' imprisonment, but who had his minimum sentence reduced to five years by the Sentencing Council. Bizarrely, even Blair is now joining in the campaign against judges who hand down light sentences.

If a Sentencing Council Bill is tabled in the New Zealand Parliament, MPs from all parties may support it for a myriad of reasons, all knee-jerk and political.

Maybe they should first be taken aside by Sarah for a quiet word.