"State has no place in setting manners”

Press, Volume CXII, Issue 33049, 17 October 1972, Page 16

"State has no place in setting manners”

There was no reason why a judge’s views of what were good manners should be imposed on the rest of the community, Mr D. F. Dugdale told members of the New Zealand Law Society in Christchurch yesterday.

Mr Dugdale who spoke on the judicial discretion allowed by some statutes, said that when Parliament banned obscene or indecent language, or disorderly or offensive behaviour, it was legislating on manners, not morals. And it should be recognised, he said, that the enforcement of manners was not a legitimate function of the State.

When legislation governing manners allowed for discretion, the problem was that the judge and the defendant rarely came from the same social group, Mr Dugdale said. “Parliament, by using such general terms as ‘indecent’ or ‘obscene,’ really leaves the judge no alternative but to apply his own standards.” The judge, he said, would often and quite sincerely equate his own standards with those of the community. The State had an interest in maintaining civil order, and might properly punish breaches of manners likely to provoke breaches of the peace, Mr Dugdale said. It was not possible to draw any

other line between culpable and non-culpable breaches of manners. “Except where his actions may provoke a breach of the peace, a man should no more be subjected to the sanctions of the criminal law for disorderly behaviour than he should for eating his peas with a knife.” Mr Dugdale said that as well as being inappropriate in cases involving manners, judicial discretion was inappropriate where its exercise might seem politically motivated, and where those affected were entitled to expect certainty from the law. In other cases, where it seemed impossible to foresee every possible set of circumstances, it was legitimate to confer judicial discretion as a last resort, but the discretion must be fettered by as precise guidelines as it was possible to devise, and the statute must be worded so as to leave no doubt of the intention of the Legislature, he said.

When considering how much discretion should be left to judges, one should consider how discretion worked in practice, Mr Dugdale said.

There was a tendency for discretions to harden into fixed rules: judges and counsel often "clutch for guidance at previous cases where discretion has been exercised.”

A fixed general rule might permit changes in attitude on the part of courts without any change in the formal rule. But it must not be forgotten that there tended to be a time lag between public ideas of what was proper and the notions of propriety held by some judges, Mr Dugdale said. “It is best if legislation is precise, and the conferment of judicial discretion is justified only where the formulation of precise rules is impossible.” Mr Dugdale suggested that it might be an unhealthy sign that there was a lack of discussion of the premises on which judges and magistrates exercised their discretions.

“Where the law requires a man in performing the duties imposed on him by a public office to apply his own moral assumptions, then surely public discussion of those moral assumptions is not disrespectful. “Consider the fact that the great reservoirs of illiberalism in New Zealand today are the rural areas—it was not for nothing that in the ‘Hair’ prosecution it was the

evidence of a lady from the provinces on which the Crown relied—and that it is from these very areas that most of our stipendiary magistrates are drawn,” Mr Dugdale said. “Would we not be assisted by a study of the effect of these factors on the operation of the Magistrate’s Court in New Zealand?” Several speakers challenged parts of Mr Dugdale’s address saying that Parliament must itself decide if it wanted to legislate manners, and that politics was always involved with legislation. One speaker said that Mr Dugdale’s address pointed up the problem of getting certainty into the law while retaining flexibility, and another said the curtailment of discretion was indeed appropriate in instances where the State was against the citizen, but not where it was a case of citizen versus citizen.