Maxim Institute - real issues - No. 260

Maxim Institute - real issues - No. 260
5 July 2007
www.maxim.org.nz

Chores more important than children
What's a judge to do?
Unprecedented change
IN THE NEWS
Half-time
Youth rate looks set to stay
Stand for your DHB and represent your community

CHORES MORE IMPORTANT THAN CHILDREN

Many Americans are concerned about the increasing rift between marriage and raising children, according to a recent poll by the Pew Research Centre. Even though marriage rates and people's perceptions of the value of marriage have changed, most people surveyed were concerned about the number of children born to unmarried parents and the majority still believed that a child needs both a mother and a father to grow up happily.

However, people in the survey did not prioritise children in the answers to all questions. The number of people who indicated that children were very important in a marriage has declined from 65 percent in 1990 to 41 percent today. Also, while having children was ranked number three on a list of nine priorities that make a successful marriage in 1990, today it ranks second to last, behind factors such as 'sharing household chores,' 'adequate income' and a 'happy sexual relationship.' The survey also showed that 65 percent of respondents believed the main purpose of marriage was the mutual happiness and fulfilment of the spouses while 23 percent thought the main purpose of marriage was making a union for bearing and raising children. The remainder of respondents believed that the main purpose of marriage was both or neither of these options.

Although this survey shows that Americans still think that marriage is important for children and, in the abstract, that it is best for people with children to be married, this does not seem to filter down into their personal actions or into what they view as priorities for marriage. Overall it seems there has been a cultural shift in the way Americans view marriage; while the family used to be viewed more as a unified whole, today it appears to be viewed in a more compartmentalised manner. Marriage is important to most people, as are children, but not necessarily in the same way that they used to be. Because marriage is associated with a range of benefits for children, and divorce can place children at risk in many ways, the challenge for the future will be to help equip people with the tools to make their aspirations for marriage a reality and to realise the centrality of children in such a vision.

Read As Marriage and Parenthood Drift Apart Public is Concerned about Social Impact http://pewresearch.org/assets/social/pdf/Marriage.pdf

WHAT'S A JUDGE TO DO?

What role are judges supposed to play? Do they have a sweeping remit to respond to social injustices wherever they see them? The issue was raised at a recent conference marking the 20 year anniversary of the first case to consider the meaning of the phrase 'the principles of the Treaty of Waitangi.' In a paper presented by Justice Baragwanath, counsel in the case in 1987, His Honour described the role of judges 'as protectors of the rights of those whose minority position makes them vulnerable.' The judges hearing the case, he said, 'saw a great injustice and used their authority to meet it.'

However, two of those judges disagreed. In their conference papers, Sir Ivor Richardson and Sir Maurice Casey both affirmed that they had simply interpreted the law that was in front of them. At the heart of this disagreement is the debate about a judge's role; whether their primary function is to apply settled law to the facts of the case or whether they actually have discretion to make the law to meet injustice.

Judges' decisions can set precedents for future cases, building up the common law, and decisions in individual cases may take account of wider social issues where this is relevant to the facts of the case. This accepted process is sometimes used to support arguments that judges are law-makers. However, the judges are traditionally confined to deciding the case in front of them and are bound by the precedents of higher courts. They also have to apply any relevant laws passed by Parliament, and these laws are superior to the common law. Difficult cases where judges have to apply an unclear or open-ended law may confuse the issue, but ultimately the judges' task is to interpret and apply that law, and they are not free to ignore or re-write it. Without a democratic mandate, focused on the individual claimants before them and acting in a forum that does not allow access to the full range of relevant social, economic, political and other material that informs law-making, judges are not best placed to act as legislators.

As Professor Watts from the University of Auckland has said, it is the 'starting premise that Judges are legislators, with the legislator's usual discretions, that is ... objectionable.' Judges must clearly exercise judgement, but that discretion exercised through judging should be in applying the law not in setting out to make it. These questions about a judge's role are not just academic; the way they are answered affects our system of government, the separation of powers and the rule of law. These questions go to the core of how a judge should act, but more broadly, to the foundation of our legal and constitutional order, and to the rule of law itself.

Read the paper of Baragwanath J, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 687: A perspective of counsel http://www.otago.ac.nz/law/symposium/Baragwanath.doc

UNPRECEDENTED CHANGE

'In 2008, the world reaches an invisible but momentous milestone: For the first time in history, more than half its human population, 3.3 billion people, will be living in urban areas. By 2030, this is expected to swell to almost 5 billion.' This opening paragraph from the UN's latest report State of World Population: Unleashing the Potential of Urban Growth shows something of the magnitude of change that is occurring in the world's population. The report draws attention to the important role that urbanisation can play in development and rightly suggests that despite its difficulties, so long as we adapt to the change positively, it has the potential to be used for good.

Radical change like urbanisation has always been a difficult and fraught business with graphic images of slums becoming synonymous with population drift from rural areas. Indeed as the report suggests, 'The current concentration of poverty, slum growth and social disruption in cities does paint a threatening picture: Yet no country in the industrial age has ever achieved significant economic growth without urbanization. Cities concentrate poverty, but they also represent the best hope of escaping it.' The choice we face in light of such a trend is not an easy one, growth through urbanisation may not be comfortable and may bring a whole range of costs, only some of which can be ameliorated. Still the positive growth it brings makes a better future more likely and harder to say no to.

The challenges of urbanisation include shelter, cultural conflict (as people from different ethnicities with different values and beliefs are thrown together) and the threat of violence, especially against women, as gender roles change. However the benefits in economic growth, positive change and bright futures make these challenges worth confronting, as urbanisation brings people into areas with better infrastructure, more growth, greater opportunity and greater access to services such as health and education.

Ultimately, as the report points out, how well we take advantage of the opportunities of urbanisation in developing countries will depend on our ability to help countries view governance, 'as both government responsibility and civic engagement.' Urbanisation may fracture some communities, but if countries are to develop we must help them build and foster new and reconstructed ones.

Read State of World Population: Unleashing the Potential of Urban Growth http://www.unfpa.org/swp/2007/presskit/pdf/sowp2007_eng.pdf

IN THE NEWS

HALF-TIME

This Saturday marks the halfway point of the Millennium Development Goals, targets set in 2000 to reduce global poverty by the year 2015. Across the world Micah Challenge (a coalition of organisations concerned about poverty) will be holding events this coming Saturday (07/07/07) to raise awareness of this important landmark.

Find out more information about events being held in Auckland and Christchurch http://www.micahchallenge.org.nz/index.html

YOUTH RATE LOOKS SET TO STAY

A Parliamentary select committee has re-jigged and amended the Bill to abolish the youth rate for the minimum wage. Green MP Sue Bradford's Minimum Wage (Abolition of Age Discrimination) Amendment Bill would have abolished the lower youth rate for younger workers, meaning that younger workers would have had to be paid the adult minimum wage. The Government majority on the Select Committee acknowledged there was a case for ending the youth rate, but at the same time came down in favour of the argument that 'youth workers on entering the workforce for the first time lack basic work skills and experience.' Instead of the outright abolition of the youth rate, the Committee recommended that a lower rate should apply for the first 200 hours of work.

Read the Select Committee report http://www.parliament.nz/en-NZ/SC/Reports/9/c/1/9c1f7661f9ee45609e02b4d48c297849.htm

STAND FOR YOUR DHB AND REPRESENT YOUR COMMUNITY

At the end of this month District Health Board (DHB) nominations will be opening. The 21 DHBs around New Zealand provide an important link between the Ministry of Health and health service providers in the community. The role of the board is 'one of stewardship, direction-setting and monitoring the DHB's overall performance against its goals.' Board members can play a vital role in representing their community and its needs. The competencies a board member is expected to have include 'integrity and ethics; best practice governance and accountability skills; and strategic leadership.' A candidate must be a New Zealand citizen and must be nominated by two people on the electoral role in the DHB district. Training and remuneration are provided for all board members. Nominations open on 27 July and close on 24 August; elections take place on 13 October 2007.

Read the 2007 District Health Board Elections: Information for Candidates http://www.moh.govt.nz/moh.nsf/pagesmh/6373/$File/dhb-elections-information-for-candidates-2007.pdf

TALKING POINT

'Judges are not commissioned to make and unmake rules at pleasure in accordance with changing views of expediency or wisdom.'

Cardozo J

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ENDS

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