As a vote-building technique, National’s panicky law-changing is certainly unusual.
One of John Key’s closest aides, early on in the Government’s tenure, was nicknamed – although possibly not to his face – Captain Panic Pants. Turns out, he was just an early adopter. The Government appears increasingly to have taken 
as its guiding ethos the catch-cry of Lance-Corporal Jones from the classic comedy Dad’s Army: “Don’t panic!” This was an instruction wheezed out as Jones racketed around in chooky circles making absolutely no positive difference to whatever ludicrous problem had presented itself.
Because whatever one’s view of each particular shemozzle, the emergency Urewera legislation, coming on top of the 11th-hour panic about the right to silence amendment, and the usurpation of Auckland Council’s powers do all have rather a Jonesian motif: wait till there’s only a week of Parliament left, or till the Rugby World Cup is actually under way, and then decide to have a big new plan in place of the one you’ve been faffing about with for the past two or three years. And above all, don’t panic.
To be fair, the Urewera situation is somewhat opaque – and not just to us laypersons, but to the legal fraternity that is supposed to be all-knowing about such things. Some legal experts say vital evidence will be lost to the prosecution of dozens of trials and important investigations if the law isn’t passed. Others say it won’t make any difference. Even allowing for, shall we say, a certain lack of impartiality among the naysayers – ie, they are on the defence team – this does seem a ridiculous state of affairs.
In a sense, it’s unfair to blame politicians for panicking into Band-Aid solutions, when the root cause of the problem is hopelessly occluded by legions of lawyers having – to be coarse (I think forgivably) – a peeing contest.
The Law Commission warned years ago that the legislation enabling covert police video surveillance was faulty, yet the police – never slow in asking for political help to safeguard their powers – kept using it. Presumably, their legal experts decided they knew better than the commission’s? The Justice Minister and Attorney-General, both lawyers, and both presumably beadily across any warning by the commission, also failed to act in any timely fashion, leaving the new law designed to fix any woolliness sitting near the back of Parliament’s pie-warmer for a couple of years. Now the Supreme Court has decreed the surveillances were all unlawful.
Theoretically, the Supreme Court always wins the aforementioned contests, especially since the previous Government did away with the Privy Council.
But Parliament can always pee higher, even if it’s technically cheating by the equivalent of standing on the toilet seat: ie, by using the unthinkable R word. Retrospective legislation. This word is as scary for lawyers as naming the Scottish play is for actors, or saying Lord Voldemort’s name out loud is for wizards.
But then again, it depends which side of the ego mountain each particular lawyer is on. To the Government’s lawyers, the R-word luxury option of never being wrong is granted. It has decided to take it, and because – fortunately for it – the Crown Law opinion is Jonesian, and because the whole Urewera issue pushes Act’s law and order button, and because Labour is terrified of seeming anti-law and order at election time, it will have the numbers to trump the Supreme Court.
And don’t forget, the present Government isn’t all that struck on the “supremacy” of the Supreme Court, anyway, having opposed the previous Government’s decision to abolish our recourse to the Privy Council without gauging public support for the move. So, in a political sense, this legislative snub to the court has the delicious bonus for National of being one in the eye for Helen Clark, Margaret Wilson et al.
This is, of course, not the first debacle around the Urewera terror raids and, heaven help us, it won’t be the last. Various legal lions are still debating whether the bulk of the Urewera prosecutions failed because of the Terrorism Suppression Act itself, or because of the application by the police of the Terrorism Suppression Act.
You’d think we’d want to find out the solution to that conundrum, in case we need to use the Terrorism Suppression Act again some time. Like, say, during our hosting of an international event when overseas politicians, celebs, sports heroes and royalty are all down here presenting juicy targets for extremists. But no one in politics or law seems in any great hurry to get to the bottom of it.
After all, this is a country in which a VIP driver refused to let the Prime Minister of Australia get on a VIP bus at the Pacific Islands Forum because he thought she was just a chick …
As to what actually happened in the Urewera bush – were we talking wannabe al Qaeda boot camp, or more Dad’s Army hookery? – our legal betters have decided that’s none of our business, and our political betters aren’t fighting this high-handedness.
The secrecy surrounding the evidence has only fuelled speculation according to one’s lights: either Maori separatists and/or assorted anarchists were arming and training for an attack on our democracy, or the police massively overreacted to the actions of innocent, law-abiding citizens who happen to hold radical views. It’s beginning to seem as though we will never know – yet this is surely one of the most important things for citizens to be told. Were we in danger or not?
But if, after poring over a small, long-standing item of legislation, our legal fraternity cannot agree upon the legality of vital evidence in 40 pending trials and the conduct in 50 current police operations, perhaps we should not expect answers to the big questions? Bear in mind the evidence was ruled illegal by a Supreme Court vote of three-to-two. That’s the ratio the Act Party caucus has been working on. It doesn’t instil great faith.
Just to add to the confusion, the other last-minute panic, over curtailing the right to silence, is being “resolved” in the opposite fashion: the issue is being consigned to an eddy of lawyers because Parliament now has the collywobbles. This after more than a year’s deliberation. So one minute the Government is saying to our highest legal minds, “No, we’ll be the judge of that”, and next minute, it’s asking a dolly-mixture of them to sort out its dithering.
It’s going to be a somewhat bipolar finale to this parliamentary term: bitter ill will generated by the mad rush to pass legislation that, the Government admits, will have to be extensively amended later, taking place alongside the traditionally sentimental, non-partisan slew of valedictory speeches.
Add to that the fact most people are by now much more interested in Georgia vs Namibia, the malfunctioning body parts of various All Blacks and whether Zara Tindall née Phillips minds her girl chum kissing her husband on his bald pate in a night club. Throw in the sudden reappearance of fun-figure-of-the-80s Sir Michael Fay as a prospective saviour of New Zealand’s sovereignty and just one more insouciant shirt-removal by Sonny Bill – and, actually, the Government could probably sneak legislation through to exile the Urewera Four to the Ross Dependency and nobody would notice.