Leighton Smith Podcast #317 - February 25th 2026 - Jim Allan - The Leighton Smith Podcast

Episode Transcript
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Speaker 1 (00:09):
You're listening to a podcast from news talks It b
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Speaker 2 (00:27):
Be Welcome to podcasts three hundred and seventeen for twenty
five February twenty twenty six. Well seems the world is
falling apart. That's according to some sources that arrive in
my mailbox, some of them sent by some of you.
It's certainly, though, a grand time for speculation, and one
could draw up a long list, but no, I've only

(00:49):
got a short one. Let's just start with the Well,
what we might call today's feature, and that is that
for some considerable time, in countries with judicial systems like
New Zealand, Australia, Canada and the US, the senior courts
have been expanding their are A Professor Jim Allen was

(01:10):
commissioned to write an appraisal of a new six hundred
page book, actually six hundred plus pages for a US
law journal. In summary, he concluded, what one Supreme court
has been doing is bonkers, flat out judicial supremacy, but
a book for anyone interested in the law and politics.

(01:31):
We also share comment on a range of current troublesome issues.
But now I'm suffering from a little frustration. It's one
of those days when things go wrong, not accidentally by intent,
but there's no correlation between the intenders and the my reaction.
What I'm talking about, of course, is the State of

(01:51):
the Union address that by the time you hear this
will undoubtedly be over. This podcast tries to maintain a
regular time that it's released, and some get it early,
if others because it goes out in stages. But nevertheless,
the State of the Union speech is a very very

(02:13):
important one. Usually it is so Trump's State of the Union.
Here are five things to watch. You'll be able to
double back on them and see after the event whether
or not this is correct. But what does he say
about Iran? Obviously, Iran is the most obvious topic on
which Trump could make seismic news. Second one is how

(02:34):
bad will tariff tensions be with Scotus justices. He's been
openly furious about last week's Supreme Court ruling on Tariff's
and He's Entitled to Me, which invalidated levies that he
had imposed under the International Emergency Economic Powers Act. Then
how fervently does he defend ice. That'll be interesting to watch.

(02:56):
My guess is that he's going to soft peddle it.
And I guess, so what is the midterm message? There
have been rumblings of discontent, even in the conservative world
about the degree in which Trump's stranger fixations distract him
from the more pressing concerns. For example, even many Republicans
are skeptical that the question of whether the US controls

(03:18):
Greenland will be uppermost invoters' mines in November. So one
key question is whether Trump can deliver a pithy campaign message. Then, finally,
what do the Democrats do in response? This year, the
newly elected Virginia Governor, Abigail Spanburger will give the official rebuttal.

(03:39):
That will be interesting because already she's in trouble financially
and taxing all and sundry, raising taxes, all in sundry
about all and sundry things, So that will be intriguing.
I find them boring usually, and OLICHA know next week
how I felt about this one. Now before we proceed,

(03:59):
just one more thing. It's a very local thing, but
I think most people around the country would understand it,
if not having experienced, they can certainly imagine that is
the goings on about the rough sleepers. Now, it doesn't
matter whether it's down Queen Street in Auckland in front
of all the billion dollar shops, or whether it's a

(04:22):
park in the suburbs or anywhere in between. But all
of a sudden things have changed. There is and we
know this, there is a very large increase in those
sleeping in sleeping bags, sleeping in cars, sleeping in buses.
Guess who has one outside their house frequently And it
is not to be tolerated. And anybody who makes an

(04:45):
excuse for it is probably guilty of the reason that's
happening in the first place, because there should not be
any reason why these people are where they are. The
question is who's responsible for it? Now? After the discussion
to follow, it's the mail room as always, and at
the back end of podcasts three one seven there's a

(05:05):
lengthy contribution from the anonymous but known to me, the
anonymous former National Party MP, and it's a little bit fiery.
But next it's Professor Allen Buccolan is a natural oral

(05:27):
vaccine in a tablet form called bacterial nicate. It'll boost
your natural protection against bacterial infections in your chest and throat.
A three day course of seven Buckland tablets will help
your body build up to three months of immunity against
bugs which cause bacterial cold symptoms. So who can take
buccolan well, the whole family From two years of age

(05:48):
and upwards. A course of Buckelan tablets offers cost effective
and safe protection from colds and chills. Protection becomes effective
a few days after you take buccolan and lasts for
up to three months following the three day course. Buccolan
can be taken throughout the cold season, over winter or
all the year round. And remember Buckelan is not intended
as an alternative to influenza vaccination, but may be used

(06:11):
along with the flu vaccination for added protection. And keep
in mind that millions of doses have been taken by
Kiwi's for over fifty years. Only available from your pharmacist.
Always read the label and users directed and see your
doctor if systems persist. Farmer Broker Auckland Layton Smith Professa

(06:39):
James Allen holds the oldest named chair of the University
of Queensland before arriving in Australia in February of two
thousand and five. He spent eleven years teaching law in
New Zealand at the University of Otago, and before that
lectured law in Hong Kong. Professor Allen is a native
born Canadian who practiced law in a large Toronto firm

(07:01):
and then at the bar in London before shifting to
teaching law. He's published widely in the areas of legal
philosophy and constitutional law, including in all the top English
language legal philosophy journals in the US, the UK, Canada
and Australia. It's great to have you back. If you've

(07:21):
written for all those journals, you must have been working
very hard.

Speaker 3 (07:25):
Well, it depends what you mean. If you mean working
hard by academic standards, maybe, but compared to being a lawyer.
Don't let any academic tell you they work hard. So
I can say, you know, nothing was worse than the
six minute time slights of a big firm where you're
trying to hit and I think it's like twenty one
hundred billible hours a year. It just wasn't really possible,

(07:45):
and it was brutal so that was hard work this year,
actually doing something that occasionally you're interested in. And so no,
I don't think I don't think any academic really works
out hard.

Speaker 2 (07:57):
So this conversation I wouldn't have had you on quite
this early, because we replayed your last one in the
holiday period over Christmas, and I would have left it
a little longer. Now, I say that with justification because
there I was on January twenty four, just having touchdown

(08:18):
at Kingsford Smith Airport in Sydney, and we hadn't we
hadn't even pulled up properly when I turned the phone on,
and it went straight to a text that had just
the right what I had derived right then from you
with regard to a book that you were writing an
appraisal of, and you were writing it for an American

(08:40):
crowd called it's a US law journal called Constitutional Commentary.

Speaker 3 (08:45):
Yeah, it's the big US constitutional law publication.

Speaker 2 (08:49):
Yes, well, I got a question to ask you about
that in the second But as it happened, it was
a very short conversation. You were leaving for Jamaica in
a couple of days. I was in Sydney for two weeks,
and so we got together a few days ago, and
the organized what we're going to talk about in just
a second. This book six hundred pages. Long before we

(09:11):
announce the name of it, Can I just ask you
how long it took you to read this book?

Speaker 3 (09:16):
Well, I was reading it on and off for maybe
two weeks. I'd read a chapter or two and then
leave it for day, and then another chapter two. It's
just an excellent book. It's depressing but mesmerizing.

Speaker 2 (09:32):
Well, it's also very closely printed, so the six hundred
pages would probably turn out to be I reckon about
one thousand if it was in normal space print. However,
the book is called Rogue Justice, The Rise of Judicial
Supremacy in Israel by one Jonathan Green, and it is

(09:58):
for anybody who's not interested in Israel or the Middle East,
or law or shall we say corruption and the things
that go on behind the scenes. You're not interested in it,
see you later, because this book is fascinating and Jim
has done an extremely good job of writing a nineteen

(10:19):
page appraisal which is probably going to be published any
day now. So let's start at the back. Shall we
just tell us what we're going to find out in
the next little while, and why it's important.

Speaker 3 (10:35):
Okay, so then some context. I might have mentioned this
in the past, but over the last thirty or forty years,
judges around the common law world. It's a little different
in civilian Roman law systems, but around the common law world,
and this is pretty much without exceptions save for the Americans,
the very special case. We have seen an ever increasing

(10:57):
willingness by unelected judges to second guests or game say,
the elected legislature of the elected government. And they do
it in various ways. They adopt what I would say
are completely implausibleroach approaches to interpreting the legal text. If
they have an entrenched bill of rights the way Canada does,

(11:21):
they just will invalidate statutes. If they have a statutory
bill of rights the way Britain or New Zealand does,
then they read the reading down provision to basically deliver
interpretive outcomes that are that no one intended except for
the judges. So this sort of inflation of judicial power

(11:44):
is going on everywhere in the commonwaw world. You saw
it in New Zealand loads that case where the judges
just tortured every known method of interpretation to say that
sixteen year olds could vote was laughable. But what this
book does is to show that the Israeli judges are
the worst or if you like, if you don't like

(12:07):
democracy and you like elite judges deciding things, and the
Israeli judges are the best for you. But he just
runs through how the Israeli judges took a jurisdiction which
is effective, which was effectively like New Zealand, it had
no written constitution, it had inherited the British parliamentary sovereignty
set up, so again no written constitution, no document that

(12:31):
the judges could use to hold legislation up against the
way they do in the US or Canada and say,
you know, the statute breach is one of the constitutional
provisions that have any of that. And over the course
of twenty or thirty years, the judges just gave themselves
the power to override and strike down and invalidate the
statutes of the Knesset based on what based on their

(12:54):
own sense of what's morally and politically proper, and then
it just keeps getting worse and worse. They have engineered
a system where they have an effective veto on who
the government can appoint to the Supreme Court. I mean,
the book just goes through, detailed by detail, all the
ways in which you've effectively, in slow motion, over thirty years,

(13:15):
had this judicial coup. And I need to say for listeners,
if we leave aside the judiciary in Israel. I am
an open and proud supporter of Israel. I am no
critic of the Israelis. I see them as a small
island of democracy surrounded by countries and people that want

(13:35):
to eradicate them from the face of the earth. I
think they have been far more restrained dealing with being
attacked than say Britain and the US and the Allies, Canada,
New Zealand Australia in the Second World War. You know,
as as Douglas Murray says, starting wars have consequences, and

(13:57):
one of the consequences in World War Two is that
Winston Churchill leveled Dresden to the ground and the Americans
drop two nuclear bombs on Japan. Israel is meticulous and
trying to make sure that they're not bombing schools and hospitals.
Sometimes they do, but largely always that's because you know,

(14:19):
Hamas has people stationed there sending out rocket They are
much more careful than the West ever was when the
West was threatened. And I admire Israel. I like their patriotism.
I like their sense of you know, trying to make
a go of it in a hostile area. And you know,
they have have been a remarkable success. They have twenty

(14:41):
percent of their population or Arabs who don't want to
leave because they have a more liberal rights respecting So
I'm not I'm not just the prefaces. I'm not someone
who comes out and tries to find criticisms of Israel everywhere.
But their top judiciary is completely out of control. And
this is in the context where you know New Zealand's

(15:02):
is out of control, but not like Israel. The only
in the world that gives Israel run for its money
in terms of out of control whose grouping judges is India.
So you know, that would be a different discussion. You
could argue which is worth I think Israel's is worst,
but they've put the government in a position where it's
impossible to reply. They can't even try to fix the

(15:22):
problem by judges will take a you know, the book
starts with The book starts in the first chapter with
the story of a woman who was one of the
most credentialed legal academics and lawyers, and she was a
skeptic of how far the judges had gone. And then
the main judge, the sort of Robin Cook of Israel,

(15:46):
heard Baraq. He just he and the Supreme Court just
blocked her from being put on the court. Now can
you imagine in the US if the judges could tell
a president and the Senate who's going to be on
the court, or even in Britain or in Australia. It's
flatly outrageous. And so the book, I mean, we want

(16:07):
have time to cover all the ways in which and
it's not just the judges, of course, in Israel, it's
the lawyerly cast because overwhelmingly lawyers prefer judges to be
making the social policy decisions. They yeah, I mean this
sounds weird, but I think as a bland, as a
sort of gross generalization, the lawyerally caste has sort of

(16:29):
lost faith in majoritarian democracy. And the way they drive
this involves a number I think, one of which is
they they take the phrase that we all sort of
emotively are attracted to the rule of law and they
sort of turn it into anything. The judge says is
the equivalent to the rule of law. They turn the
rule of law into effectively rule by judges. They make

(16:52):
it impossible for you to say, well, what those judges
did is such a such an egregious misreading of the
statute that you know, it's it's an outrage no. And
then they also do it, you know, they play this
exact same Penn and Teller type ga what does it
mean to call a jurist democracy? And for most of

(17:14):
history democracy was a majoritarian, procedural sort of idea where
you have ruled by the people, where you count everyone
equally and it's you know, more beats fewer. It's a
it's a sort of letting the numbers count type set up.
And they they infuse the idea of demollis moral substantive outcomes,

(17:36):
so that if you don't deliver outcomes that are morally
acceptable to the judges, they deem you not to be
a democracy. And so you know, nine judges can overrule
an entire country because they say, well, you know, the
moral that it doesn't count as democracy, and that that
game is being played by the way in all sorts
of other jurisdictions. They just haven't taken it to the

(17:58):
extent that they haven't. There's but there's plenty of there's
one or two well known writers in New Zealand who
play the let's let's you know, make all these concepts
morally pregnant. And then so you take a procedural understanding
of the rule of law or the procedure understand the markety,
and you stuff it with every moral outcome you like,

(18:19):
and those outcomes already achieved, you just start showed in
from the rooftop. It's not the rule of what It's garbage,
by the way, But that's what they've done in Israel.

Speaker 2 (18:27):
All right. So there's one obvious question that comes to mind,
that is the judges have taken over the elected governments.
I don't know, you're going to tell me in a moment.
I'm sure how they deal with this one way or
the other. But doesn't the elected prime minister have al

(18:49):
mighty power over just about everything else. And when judges
run a mock and go astray, what is stopping the government,
the cabinet, the prime minister from ordering the military to
go and take care of things?

Speaker 3 (19:06):
Well, I guess, I guess if you're saying, could they
order the military to go and arrest the judges that
I guess, I mean, nobody wants to go down that road.
I haven't mentioned that the Israeli top judges have also
given themselves a veto over who gets the top civil
service appointments, even to the Secret Service, if they don't

(19:27):
like a government appointee. And basically what they don't seem
to like is anyone who's a skeptic of judicial power.
They just don't let that person become appointed. And you know,
so it's easy to say, what, we'll elect the government
now the net and Yahoo government, and you know, I
understand that a lot of people don't like Benjamin Nett
and Yahoo, but he did try to organize. So one

(19:48):
of the things they did is they just took these
statutes in the nineteen seventies have been called basic laws,
although they were just regularly past statutes.

Speaker 2 (19:57):
You're rising ahead of me, okay.

Speaker 3 (20:02):
So a few years back in twenty twenty four, the
government tried to pass a basic law saying or we're
changing all of this, and the judges struck that statue
down having said that these basic laws, which you know
it had been a false draps operation. So the government
played the judges game past one of those and said, okay,

(20:24):
we're using one of these to wind you judges back
a bit, and the judges invalidated that statute. So I
don't know what recourse they have who tried to organize
a sort of I mean, I don't know what you do.
I suppose you could call a referendum. What they're going

(20:44):
to need to do is to start calling out the
judges as undemocratic and sort of elitist philosopher kings. But again,
you have the same problem in Israeli you have everywhere else.
You have sort of This isn't going to surprise everyone.
The outcomes that the judges are imposing are left of

(21:06):
center outcomes. He goes through that in the book too.
The left wing establishment, the public broadcasters, the civil service,
they are a majority, they are a minority of the population.
They are losing elections, but with the judiciary, they are
winning the outcomes. Because you know, when you know who
tried to do something about this, you had all of

(21:29):
the organs of sort of elitist establishment power come out
against him. Very hard to deal with that.

Speaker 2 (21:37):
Can I can I just quite something? This is out
of came out of a springer. The Swiss publisher out
of that stable. Israel has no written constitution, but it
does have extended constitutional arrangements, namely the basic laws, constitutional
rulings of the Supreme Court, and the binding norms that

(22:01):
have evolved over the years. Therefore, a working in quotes,
working constitution exists in the material in Brackett's essential sense,
that is, arrangements that derive from the existing social and
political reality. And if Israel does have such a constitution,
why has it not contributed more to the stability of

(22:21):
the political system, the rule of law, or at least
the legality of the government itself. Debates continues concerning the
status of the basic laws, constitutional areas not covered by them,
such as human rights and religious affairs, and the constitutional
status of the Supreme Court. Would a formal constitutional structure
contribute to strengthening democracy in Israel? Question Mark, you say.

Speaker 3 (22:47):
Well, I mean, I think, first off, it's wrong at
the What Jonitan Green does is he goes back and
looks at some of the original basic laws. They were
passed in the exact ordinary way of a statute. They
didn't get a supermajority the way you normally bring in
a written constitution. Some of them dealt with the most
pedestrian things. I can't remember, but you know, like bylaws

(23:09):
type stuffy, the basic laws. It was just a phrase
they used for some laws. It didn't indicate anything that
they were dealing with, you know, really important rates, respecting matters.
And that went on for decades, and then Baroque, the
sort of king of the activist judges started claiming that

(23:29):
because they had the label basic laws, the judges could
use some of those to affect their interpretation of other statutes.
And again the way Green goes through it, no one
intended it. The kinds of basic laws don't support that,
but they did this, and over time they just started

(23:51):
striking down all sorts of statutes. But they had never
struck down a basic law, so that up until two
years ago, it was always sort of an underlying assumption that, well,
if the government was to they can just call something
a basic law, play the game the judges have created,
and just by calling it a basic law, the judge.
Since the judges had used these so called basic laws

(24:12):
to give themselves all this power. And of course, in
twenty twenty four, I think it was a nine to
eight decision, the Israeli Supreme Court struck down a basic
law based on what again, there's no written constitution. They
had created this bogus edifice by pointing to these things,
and then when the government used one of them, so

(24:33):
they effectively have invalidated a law based on their own
sense of what is appropriate, which is the very definition
of not a democracy. And remember when these judges say
they don't like, you know, letting the numbers count, they
don't like majoritarianism. There's more to the world than majoritarianism.
Every judicial decision is the most majoritarian thing ever. Nine

(24:57):
votes beat eight, five beats four, three beats two. It
doesn't matter about the quality of your judgment, it doesn't
matter about who has written the more convincing argument. Numbers
are all that matter when it comes to higher courts.
And you know, so they are the most majority in institutions,
majoritarian institutions in the world. And yet they point to

(25:21):
the elected legislature and they say, oh, well, there's a
lot more into the world than just, you know, letting
the numbers count. I disagree right at the first I'm
a majoritaire and I don't think it's perfect, but there's
no better system than just counting everyone equally in voting.
It's going to get it wrong a lot of times,
but it's going to get it right more than any
other system. And you always have recourse and you have accountability,

(25:44):
and you have no accountability to judges. And they, you know,
they I've lived my life in this sort of milieu,
and these the thing about being a top judge in
New Zealand or Australia or they are setted as though
they were minor royalty because all of the people with
whom they associate, the barristers, they earn their living appearing

(26:06):
in front of these people. Thought, tell someone what you
honestly think of their views if the next day you'll
have a million dollar case in front of them. So
they are the worst sort of Uriah heap flattery and
then for many of them it goes to their head. Now,
you know, there's the odd judge who realizes this is

(26:27):
all just garbage. They're treating me like this because they
have to professionally. So these people become so inflated with
their own worth, their own you know, and they lose
track of the fact that they ought not to be
making these decisions. And nobody would take moral advice from
a lawyer. I mean, let's be honest. Now, not to

(26:47):
say there aren't some great lawyers out there, but on average,
why would anyone think that a plumber is any less
morally worthy than a lawyer. And there's no answer to that.
So there's the problem is they lose connection with their
own fallibility, I think, and I'm generalizing their exceptions. Now,
antonin Scalia was always making it plain that his more

(27:11):
he didn't think his moral views were any better than
anyone else's. But a lot of judges if he catched
them over drinks, or top lawyers the head of the bar,
associated catch them over drinks when no one's around, and
they just have contempt for the average lawyer or the
average order. That's nice.

Speaker 2 (27:28):
Yeah, Chapters one and the final chapter are the two
most important in the book. You could you could actually
skip a lot of the middle stuff if you wanted.
But the introduction, and I should add here that I
ordered the book on Monday of last week and there
was due on Friday, didn't come on Friday, come on Thursday,

(27:50):
which isn't bad. Pretty good, and it's not a cheap book,
but it's it's one that hooks you. And the introduction
itself did exactly that, and that's where the author opens
up with the story. I'm tempted to read it now,
but I'm leave it till after we've finished and included later.

(28:12):
But it stuts like this. On a Sunday September morning
in the fall of twenty twenty three, fifteen justices of
the Supreme Court of Israel filed into the Court's main chambers.
The stakes were as high as they had ever been.
The drama and tension in the room was palpable against
the backdrop of a government led effort at reforming the
Israeli judiciary and of a parallel and unprecedented mass protest

(28:35):
movement against the proposed reform measures. The court would now
hear oral arguments. This is quite stunning. Would hear oral
arguments challenging or defending the constitutionality of an amendment to
Israel's basic law the judiciary.

Speaker 3 (28:51):
It was a pretty moderate winding back of what the
judges had done, too. It wasn't trying to take them
back in nineteen seventy the way I would, I would
be trying to go back to parliamentary sovereignty. I wasn't
even trying to do that, And of course, you find
out at the end that the judges struck this down.
The interesting things talking to a couple of American buddies

(29:12):
who are law professors and Jewish, you have the left
right political problem in Israel as one overlay, and these
judges are overwhelmably left leaning. But you also have a
second thing that the author of this book is careful
not to go into. But my friends in the US
say this is also going on, which is that you

(29:34):
have the Ashkenazi Jews, mostly coming out of Europe, and
you have the Sephardic Jews mostly coming out of Africa.
And for all of the early years of Israel from
independence and what was it forty nine, I forget nineteen
forty eight or nineteen forty nine, even though they have
an incredibly proportional voting system, the Labor Party, which was

(29:56):
the party of the sort of Ashkenazi Jews who had
fled out of Europe, they won all the elections. They
didn't win them by themselves, but they won them vast preponderance.
Of this they won the plurality of the seats, and
then the couple of little parties would keep them in power,
and for decades the sort of Labor Party, which was
the party of these Ashkenazi Jews. All the Kibbutz's were

(30:18):
left wing. They would win. And then enough Sephardic Jews
came into Israel that they started winning elections. And so
another way you can understand what's happening in Israel. This
isn't in the book, let me remind you, but according
to my American friends, is that it's sort of a
rear guard action by the sort of the powerful elites

(30:41):
of the Ashkenazi sort of world against the growing democratic
or majoritarian power of the Sephardic Jews, a lot of
whom are Orthodox Jews. They have big families. The Ashkenazis
have small families, and you know, they're looking at the
way things are and they see no prospect of winning elections.

(31:05):
You know, nat Yahoo wins large on the Sephardic and
other you know, Russian vote and things like that. Now,
I don't know that is Green doesn't talk about that
in this book, but that's another overlay. You've got the
left right overlay where the judge is overwhelmingly or in
the left wing political camp I don't like, uh, you know,
and then you have this Ashkenazi the fartic to sort

(31:29):
of split. So all that's interesting, but whatever the actual
contributing causes are the fact that unelected judges would just
start striking down statutes and they can't point to a
legal text. You know that this is incredible. The Canadian
judges can point to the Canadian Constitution and the Charter.

(31:50):
Now I think often their reading of the Charter is
a deliberate law in effect, and they know that the
Charter doesn't give it, but at least there's something they
can point to and say, this is the source of
my legitimacy for invalidating the statute. It's like they are
living in an unwritten constitution and will set up. There
is absolutely no written text that's purporting in any way

(32:13):
to give them these powers, and they're doing it anyway,
I mean, And so what can you say other than
you know, what ought we to do? And then when
unity tries to do anything, the forces of the elite establishment,
you know, right out onto the streets.

Speaker 2 (32:31):
Well after what you said about the secret service and
et cetera. And the judges themselves are making the appointments
at the top.

Speaker 3 (32:39):
Well they don't make the appointment they veto any appointment
they don't like, which are most of the same thing?
You keep appointing untill they like one of them.

Speaker 2 (32:46):
Yeah, yeah, So let's put Israel and New Zealand side
by side. What's the difference and what is they're stopping
the judiciary here from following a similar part.

Speaker 3 (33:05):
I just think the culture is one that they wouldn't
do it. I mean, I'm not a big jet I
think they're activists, but in the face of a blunt
statute by the legislature, I don't believe. I mean, if
it were ever going to happen in New Zealand, it
would be done through the vehicle of making claims about

(33:27):
what the Treaty of Whitangy requires. They would all be
fake and obviously false claims, but they would point to
some text like the Treaty of Waitangy. Now, I just
think the legal culture in New Zealand wouldn't allow it.
It certainly wouldn't allow it in Britain. And those are
the you know, we're talking about the three countries that

(33:48):
have the unwritten constitutional legacy. And then let's be honest,
if you look at the world's constitutional setups in the
democratic world, the two stellar longstanding constitutional arrangements that have
stood the test of time, that have been incredibly success

(34:08):
US will are a the British unwritten constitutional setup, where
parliamentary sovereignty and letting people vote lies at the heart
of the setup, and in theory there is no law
that the elected legislature could not pass, and your recourse
is always political and a reliance on the core shared

(34:29):
moral values of the elected politicians, which of course is
in contrast to the other great constitutional structure that the
time are coming up to two hundred and fifty years
for it, which is the Madisonian American checks and balances constitution.
It's often called the separation of powers, but I don't
think that's right. There's lots of ways in which there's

(34:49):
no separation of powers in the US. But Madison designed
a checks and balances of strong federalism. You have an
incredible powerful upper House, so they have strong biicameraism that
no other democracy really copied except for Australia. I mean,
nobody in the US wants to get elected to the

(35:10):
House of Representatives if they can get elected to the Senate.
So imagine preferring to be in the upper house where
you know the democratic legitimacy of the US Senate doesn't
look the House is you divide the whole country up
and each each district, each constituency has roughly the same
number of voters. The Senate. There's two senators from each state.

(35:32):
So if you're a Senator from the most populous state
of California, you're you know, your voters vote is worth
about one, I don't know, seventy sixth of what it
is in the least populous Wyoming. You know, the Senate
does not have very good democratic credentials compared to the House.
But nobody really copied that except for Australia.

Speaker 2 (35:50):
So if I might point out, Astrada is still copying
because that California and Victoria are suffering from the same
sorts of punishment for their stupidity.

Speaker 3 (36:05):
Yes, except that California pays the price. And and you know,
John Howard, for his many good things, was hopeless on federalism.
He was the most centralizing of the coalition Prime minister,
so he brought in work choices, which he says, so
effectively we have a nominally American version of federalism. But

(36:25):
over since about nineteen twenty, the High Court of Australia
has and I'm exaggerating slightly, but basically on every single
important case they side with the center. And so we
have the only states in the federalist world where the
states in effect have no income tax power all of
the if you enter into a treaty as the federal
government and just about any topic that becomes a federal

(36:48):
head of power. I mean, so we have the world's
worst vertical fiscal and balance. So the states are in
charge of education and health, but they can't raise any money.
So I mean, it's a disaster what has happened. And
Howard made it worse, and the GSTA made it worse,
and he brought in the GST, which gives money to
the state. But they use this basically marked formula. So

(37:12):
Victoria doesn't allow fracking. They are a complete basket case.
But at the end of every sort of cycle, you
sit down with all the GST money and you effectively
equalize the states. So Queensland allows cracking. It's entrepreneurial and
they have to give money, so that Victoria ends up
in more or less the same spot that doesn't happen

(37:35):
in the US, so Victoria doesn't really pay the cost
of having an insane lockdown pot and now they do
pay it a little I'm exaggerating slightly, but in the
US you have a massive outflow of people from California,
from New York, from Illinois, and they're all moving into
red states where there's low taxes. Well, in Australia, the
states can't set income tax, so there's no difference in

(37:57):
your tax rate. There's no competitional and sort of entrepreneurial
small government thing. So we not we the highest judges
in Australia have destroyed federalism, which the help of all
the central politicians. And the main job in a federal
system is for the judges to police the federal distribution
and powers, which they've done in Canada. I'm no fan

(38:19):
of Canadian judges, but on federalism, you know, provinces have
kept powers and for one hundred and five years in Australia,
since nineteen twenty, the states have been gutted so that
we have the worst of both worlds. We have a
centralized system with all these extra layers in government.

Speaker 2 (38:38):
Well, if you've got the if you've got the worst
of the world, where would you put New Zealand.

Speaker 3 (38:44):
Well, it depends what the question is.

Speaker 2 (38:46):
The question is how does New Zealand's governance, how well
does it work by comparison with what it might might
otherwise be.

Speaker 3 (38:59):
Okay, So you know, not every country is going to
be a federal system pretty much. You're looking at countries
that are geographically big. So when I size Australia, I'm
criticizing how federalism has gone. Other things have been quite good.
New Zealand is just you know, captured the essence of

(39:20):
British parliamentary sovereignty. It is unicam well, let's be honest.
Since the early nineteen hundred, its nineteen eleven anyway, Britain
has effectively been unicamera. They have an upper House, it's appointed.
They don't really do anything. They can slow laws down,
but they never they never block them really, whereas in
Australia the Upper House blocks laws all the time, and
they particularly block laws if it's passed by a right

(39:43):
of center conservative government. So what you see with a
setup like New Zealand's is you get swings. You get swings.
You know, when the conservatives are in they'll do stuff,
and then when the lefties get in they'll do stuff,
and the right hes do stuff in the lefties and
you get to sort of back and forth. In the US,
it's really hard to pass laws. It's hard, really even

(40:05):
to pass a budget, because not only do you have
an unbelievably powerful upper House that is elected not on
a sort of majoritarian basis, or at least it's a
watered down majoritarian basis that helps the little smaller states,
and the president's elected through an electoral college. Again it's

(40:25):
not a French you know, who got the most of
the popular vote system. So that is all designed to
make it hard to do things. That was the intent,
That was you know, James Madison's goal, and it has
stood the test of time. Now both systems sort of work.
In New Zealand Britain, you're expecting swings between the left

(40:48):
and the right, and the left and the right, and
the swings go around a sort of medium that runs
through the middle. And the American system just makes it
hard to do stuff period. And I should add in
the US, not only do you have incredibly difficult to
get things for the Senate, the Senate has been also
and this isn't in the constitution, but they've sort of
evolved or just made up this filibuster thing, so you know,

(41:12):
you have two senators from each state, but if you
get fifty one senators to vote for a bill, that's
not enough now because they run filibusters, which now require
sixty senators. So you have a incredibly high super majoritarian
bar to getting anything done now. Of course, the Republicans
tend to cave in to the Democrats and and you know,
vote for things that the other party passes, whereas you know,

(41:35):
the Democrats never cave into anything the Republicans are trying
to do. Right now, looking at the US, it's incredible
that the Republican Senate will not pass a law to
make you have ID to vote. It's nuts, it's nuts,
and you know this is the Republican sort of establishment.
Senators won't do it, and it's incredible if it were

(41:58):
the Democrats. They do without even blinking it on. And
they're not even asking them to remove the filibuster. They're
just asking them to make You know, the old evolved
basis of a philibuster, you had to stand up and speak,
and you had to keep speaking, and the minute you
stop speaking, the bill would pass. And they've turned that
into a pro forma thing where you just say this
is a filibuster, and then you can't you can't pass

(42:19):
the law. So all people are asking is that you
go back to the practice they had back in the
nineteen you know, I think it was as recently as
nineteen sixties or seventies where you actually have to speak
because at some point the philibuster collapses. They just can't
keep talking long enough. So, you know. But my overall
point is the American system is one where you just

(42:40):
don't expect anything to get done, including passing budgets, whereas
New Zealand things get done and then the new you
have an election and you get a massive swing the
other way. And this was more true before the nineteen
ninety six election that brought an MMP. I've never liked MMP.
I still don't like MMP, but you have to admit

(43:03):
that under first pass the post you got even wilder
swings because now you get a little dipstick, little parties
that can block things that the majority party of the
coalition wants to do. That may that may well have
been one of the reasons some people voted for m MP.

Speaker 2 (43:18):
I don't know this not about it for m MP
because they am sorry. They wanted to bring politicians to heal.
That's really really what it was.

Speaker 3 (43:28):
They just that's because they didn't understand that with m MP.

Speaker 2 (43:30):
They didn't have a clue.

Speaker 3 (43:32):
Power they have more, but they make the lists. Half
the people get into almost half the people get into parliament.
You've never voted for them, it's just the party leader
likes them. And you know, if anything, MMP has made
the lives of politicians easier and given them more power.
So you know, the thing I liked about first past
the post is and this was the philosopher of science,

(43:55):
Carl Popper, who always said, the thing about first past
the post is that it allows you to throw the
bums out. Whereas proportional voting systems A they don't make
it easy to The party leaders never lose because they
put themselves at the top of the party lists, so
they never lose. And all of the bargaining happens after
the election. You know, it doesn't matter what manifesto or

(44:19):
what set of promises that political parties go to the
voters with, because nobody will win the majority and everyone
knows that, and then they have their all their negotiating
happens away from the voters. After the election and it's
just a stitch up by the politicians. So again, you know,
every in life, we are all choosing the least bad option,

(44:41):
from your partner, to your job, to the kind of
voting system you like. So of course there are problems
will first past the post. There are problems with Australia's
preferential voting, but there are more problems with I think
proportional systems. They favor an inside or elitist cast, and
they come up with answers after the voters have spoken,

(45:02):
and there's really nothing the voters can do about it
because the politicians just say, well, you know, to get
this co together, I had to sacrifice the first four promises.
I made all of your story guys, and you know
you know that's going to happen going in. I would
like to see the little parties in Australia hold the
National Party a bit more, hold their feet to the fire,

(45:23):
are a bit more on all the.

Speaker 2 (45:26):
All right, well we're going to come to that the
Liberal Party in a minute. But we've got this far.
But I don't believe we've mentioned reasonable law.

Speaker 3 (45:38):
Well again, that's one of the many tools you're referring to.
One of the ways in which the Israeli Top Court
has decided that they will rewrite legislation or invalidate. They
bring this this sort of administrative law type standard to

(45:58):
the table and ask themselves if some statutory provision is
you know, extremely unreasonable or is it reasonable enough? And
you ask, you know, reasonable according to what?

Speaker 2 (46:11):
And well, according to the judges, well, of.

Speaker 3 (46:15):
Course, I mean, it's like the test in torte law.
They always when you hear a loss, if any of
people listening are lawyers or law students, when you when
you first start law school and you take tort law
and now it's different in New Zealand these days because
you got rid of negligence. But the normal test in
tort law is you ask what the reasonable person on
the it's the suburban lendon i sad knee something on

(46:38):
the bus. What would the average person on the bus think?
What's reasonable? And the problem with anybody who points to
a test of reasonableness is there is a spectrum of
reasonable outcomes. You know, if you think of all of
the possible answers on a spectrum, there's going to be
a huge number of them towards that are that we
would say well, that's a reasonable one. I don't agree

(46:58):
with it, but it's reasonable. And so the test for
reasonableness always collapses into the test for you know, the
answer that the person who's deciding the case would go with,
because we all, all of us think that our own
answers are the most reasonable answers. It's it's by definition.
And so the problem with the judges bringing a test

(47:23):
to bearer that's not linked to any law or any
statutory text or any legal text at all. It's just
a sort of free floating what do I think is reasonable?
You know, I've sort of licked my finger and stuck
it up in the air to see which way I
think that. You know, the wind's blowing. Well aa, judges
aren't very good at that. B They always think their

(47:43):
own views are the most reasonable. See, they don't have
access to information. I mean, there are institutional problems. Judges
decide cases based on the two parties in front of them.
Legislatures have massive resources. They you know, they do green papers,
white papers, people come in and testify. They have access
to information, they know. You know, the problem with running

(48:04):
social policy making through the courts, especially on big ticket
public or constitutional cases, is that there's lots of points
of view that aren't in front of the court. If
you want to think of it in a non constitutional context,
imagine someone who's a quadriplegic who fell off a school
playground and you know, and the school did everything they properly,

(48:26):
the kids snuck in after school and fell and so
you're suing some multinational insurance company. And the only way
that this kid can win is that you have to
say the school, you know, was negligent, they weren't reasonable,
and the steps they took to look after the playground
something like that. Well, everyone knows the school was reasonable.

(48:46):
But on the same at the same time, you've only
got two parties in front of you. What kind of
a heartless have to be not to want this poor,
you know, twelve year old kid to get lots of
money because he's quadriplegic. And is a bad way to
make social policy decisions, because all of the kids who
won't be able to play on school playgrounds because you're
going to have to close them down because you can't

(49:08):
allow schools have to pay so much money, they can't
allow any risk taking. In the end, we're all worse off.
But if all you have, are the two parties in
front of you, Well, you can totally understand why judges
make bad decisions. So there's not only are there democratic
problems with what they're doing, and not only are there
problems with they don't have a clue what the average

(49:30):
person thinks about anything, because they're a cocooned bunch of
elitists surrounded by bootlicking your eye heat types. And I'm
putting that strongly gist of it. There's also an institutional
competence problem, which is that they don't get access to
very much information. Now sure they allow third parties to
sort of send in briefs, but nobody's cross examining them

(49:51):
on that. And if you go back in the US,
they call them brandeis brief. If you go back and
look at the sort of sociological evidence that they used
to put into court in the US in the nineteen fifties,
it's laughable. It is laughable. The last thing we want
is some NGO or doing activist group putting in evidence
which the judges treat as true. It's almost always not true.

(50:16):
So there's all sorts of problems and the Israeli judges
what they have done is they've just invented this. We
will ask ourselves what we think is reasonable, and we'll
use that to invalidate laws. I mean, if you made
it up, no one would believe it. So in a
way you have to warren reader or listeners that this
Jonitan Green book is not a work affection. It's hard

(50:39):
to is it is?

Speaker 2 (50:41):
It really is? It really is difficult to believe it.

Speaker 3 (50:44):
It is hard to believe.

Speaker 2 (50:45):
Now there's some there's a similarity between the system in
Iran and the system in Israel. Similarity.

Speaker 3 (50:54):
Well, well, he starts one of the chapters Joniton Green
by citing I can't remember, I haven't got the book
in front of body, but he cites either a retired
judge or retired law professor who says, what the Israeli
judges have done is create a system that doesn't look
a million miles different to what you see in Iran.
And he means that as a biting criticism. But you

(51:16):
have a group of unaccountable people who purport to have
their you know, a direct pipeline to God on moral issues.
You know, have to have moral antennae that vibrate at
some godly frequency, and they will override every other institution
in the country. And you know, it's a biting criticism,

(51:39):
and he means it to be biting. And of course
there are differences between Iran and Israel, obviously, but in
terms of the way these Israeli judges have positioned themselves,
there is an analogy to what you what, I can't
even remember. They call them in Iran the Guardian, the
Guardian Council. That's right, and so it's not Jonitton greens claim.

(52:04):
He just cites a one of the skeptics. I think
it was a retired top charge, but it might have
been a professor law professor and you know that if
you read that, you surely think out out. But yeah, no,
that was that was quite a that starts one of
the chapters, and it's very biting.

Speaker 2 (52:24):
Well, you've used quite a bit of colorful language describing
what's going on in in Israel, well with the with
the Supreme Court, I mean colorful. But there's one there's
one word that that you didn't use, and I'm going
to inject it, and that is, how do you describe
the the judicial supremacy of the Israeli Supreme Court? Incestuous?

(52:50):
Is the answer?

Speaker 3 (52:52):
Yeah? Yeah, So you know, if you're not an Arkansas,
that's not a good thing. Being facetious. Yeah, so it
is because they're picking their own successors. They've given immense power.
And you know, the US has more experienced with very
powerful judges and any democratic country on earth until you know,

(53:15):
the nineteen fifties sixties, there are only two countries in
the democratic rule that had a bill of rights France
and the US, and the French one you couldn't strike
down laws. So we you know, for most of democratic
history it's only been the Americans, and so the American
judge have always been seen as political actors. Nobody thinks

(53:37):
that they are articulating uncontestable moral truth. And they are
appointed in an openly political way. The winning president picks
the top judges with the caveat that his The president's
nominee has to get voted up or down by the

(53:57):
US Senate, and sometimes the Senate is controlled by a
party that's different to the president, and the Senate will
just say no, and that has happened many times. And
so but it's an openly political you know, the president
is trying to pick people who are good lawyers. They
always want people are good lawyers, but he also wants
to pick someone who brings to the table since they

(54:18):
are basically deciding political and moral issues. I mean, those
of rights are not legal documents, really, they're moral documents,
and you want to pick someone who more or less
shares your worldview. And you know that is also true
in Britain and New Zealand. It's just that they are
relying on all of all of the pre Bill of

(54:40):
Rights world when the judges weren't making big ticket political decisions,
that was what the legislator we saw them as highly independent.
Well they're trading off that, and they did that in
Canada for you know, the first thirty years of the
Charter of Rights. But no one in Canada now thinks
of the judges as sort of impartial a political actors,

(55:01):
because when they start deciding who can get married, and
who can have abortions, and whether you're going to have
an asia and you know what kind of speech is allowable,
everyone sees these aren't really legal questions. And when on
court starts going off on some ridiculous tangent about how
if you don't let sixteen year olds vote, you're not
rights respect based on another statute even more laughably. Well,

(55:25):
you know, this is not a legal argument that they're making.
It's just here's our view of the world. We would
prefer to let sixteen year old vote, to which the
answer is, who gives a darn? I could be more colorful,
but I won't be who gives a darn? What judges
think is the best age to let people vote? Nobody cares.

(55:45):
That's not a legal question. You have no extra expertise
on those issues, and so you should really shut up.
And so that's the sort of world we live in now.
I mean, I'm hoping that we're going to soon hit
the point where the political class starts pushing back against
the sort of incredible rise in judicial power over the

(56:06):
last thirty or forty years.

Speaker 2 (56:08):
Let me ask you a couple of quick questions before
we run out of There's not such a thing as
running out of time, but there's a there is a limit.

Speaker 3 (56:18):
Well, there is in my kitchen.

Speaker 4 (56:19):
Late.

Speaker 3 (56:20):
I'm sorry, you can run out of time in my kitchen.
But it's a different spelling.

Speaker 2 (56:27):
Out of all the Anglo countries at Britain, America, Canada, Australia,
New Zealand, maybe one country that is doing really really.

Speaker 3 (56:38):
Well, well, it depends are we talking economically socially judges
who are still a bit deferential to the legislature. In
terms of judges who still are a little bit deferential
to the politicians, well, that would be the Australian High Court.
I mean, they have made a mess of federalism, but
at least with federalism you're deciding between two elected legislatures.

(57:03):
So you know, the judges when they're deciding federalists cases
aren't imposing their own views, or at least not directly.
They might. They're just picking between two legislatures, the central
one or the state one. And on the rates related stuff, well,
sure in Australia they have made up and implied freedom,
but they've only ever struck down laws I think about
nine times.

Speaker 2 (57:24):
That's not great, But extend extend it to everything, the
state of the country, the state of the people, et cetera.
Or I'll pose you the question if you like, and
that is basically, why are all of those countries, with
the possible exception of America for the moment, why are

(57:45):
all those countries really in trouble?

Speaker 3 (57:49):
Yeah, well they're in trouble, and it's obvious that if
you want any optimism as a sort of right of
center person, then that optimism is coming to you from
the US. No, there are many people in New Zealand,
Austraia who are completely deranged about Trump. But you know,
he finished his first year in office with what four growth,
inflation down to two point four believe it or not.

(58:11):
The murder rate is now the lowest about nineteen hundreds,
so one hundred and twenty five years ago, and that's
because about three million illegals have been pushed out of
the country, either they've voluntarily left or they've been deported,
and he sent the National Guard into these crazily dangerous
Democrat run cities like Memphis, like Washington, DC, all time

(58:34):
high stock market, the most secure of the US border
has ever been. But what I really like is in
the latest jobs reports. I don't know how many, like
tens of thousands of government jobs have been lost in
the eighty thousand, but private sector jobs have gone way up.
I don't know a couple hundred thousand. This is off
top of my head, I can't really remember. And so

(58:55):
you have in the US you have a private sector
led recovery, and of course the Kings and economists, which
I think Kings has made many mistakes. One of them
is that you see the world in terms of gross
domestic product, which is one of the factors that goes
into that is how much government spending there is. And

(59:16):
the more people you import into your country, the more
GDP goes up. Australia has had what seven of the
last nine quarters or nine of the last twelve, I forget,
have shown GDP per person decline. We're all getting we're
all getting poorer at the individual level, but the economy,
this fictional thing they call the economy, has gotten bigger,

(59:38):
well sure gotten bigger because we've imported a record number
of people who are you know, the transportation system can't
handle them, the housing can't handle them, and and you know,
so GDP is a terrible measure. And the idea that
government spending in and of itself is a good thing

(59:58):
it completely bonkers. So the Americans have GDP per person
going up at the same time as they have net
negative migration. I think if you're an American as in
you know, let's say you were born in America or
you've been there for a while and becoming you are
getting much wealthier. The average American has seen their paypacket

(01:00:19):
go up two percent, and under Biden it went down
for it. And Trump has done that in the face
of the most costle legacy media that anyone has seen
since maybe the closing years of Richard Nixon. Maybe, I mean,
so you struggle to find I mean that the legacy
media hates the man. They've done studies at a Yale

(01:00:41):
showing that he gets ninety five ninety six percent negative
coverage on the legacy outside of Fox. I mean literally,
Kim Jung whatever the current Kim Jung is, Kim Jong un,
kenjun el I forget in North Korea, he gets better coverage,
and that has actually hurt them because now at least
half of Americans just paying no attention to the legacy media.

(01:01:04):
CNN has lost what two thirds of its audience just
because Trump, because you know, why would you watch CNN?
They never wrote a good story about him, no matter what,
nobody remotely thinks they're balanced. Even rents have gone down
in the US, so every so, if you're just an
average working class person, you know, call it the working
class if you want. Trump has done more for them

(01:01:25):
than any left wing politician and the rest of the anglosphere.
And the answer is just, well, he's uncouth, he's boris,
he's got an insane sort of sense of massive ego.
Who cares. I'm a results guy. I've got lots of
friends who are sort of you know, right wing, but
I think they're deranged about Trump and they all like

(01:01:48):
the outcomes. But they go yeah, but you know, I
can't stand the man. Something wrong.

Speaker 2 (01:01:55):
Yes, there is Angus Taylor. Just quickly, can Angus Tyler
free Australia of the green energy nightmare? It's it's amazing
at the moment to see the headlines and the stories
from all over the Western world about the collapse of
the attitude toward green energy.

Speaker 3 (01:02:16):
Well, let's put it this way. For New Zealand listeners,
they just got rid of the incredibly left wing, woke
Susan Lee who had been leading what was supposed to
be a right of center Liberal Party in coalition with
the National Party. And the real problems in Australia probably

(01:02:37):
go back to twenty fifteen when the Liberal Party room
the caucus and in Australia they still have the power
to pick the leader. They ditched Tony Abbott for Malcolm Turnbull.
And since then the party has been split down the middle.
The so called wets they call themselves moderates, but it
would be more accurate to call them labor light types.

(01:02:59):
They completely buy into the whole net zero climate catastrophism
and so you know they it's a bit like the
Tories in Britain who were in office for fourteen years
and you know they just delivered a labor set of outcomes.
So that's why they're in so much trouble with the

(01:03:19):
Reform Party. Well, this is happening in Australia. I mean
the nine years of coalition government. The university's got woker.
It was Scott Morrison, a Liberal Prime minister, who committed
Austria to net zero, even though he'd gone to the
previous election saying he wouldn't do it. And so what
has happened is they've just sold their voting base over

(01:03:41):
here in Australia the same way that the Tories did.
And what's happened is that this tiny little protest party
called One Nation started lacking a sort of Nigel Farage pigger.
In the last three months it's gone by rocketed in
the polls. It's ahead of the Liberal Party, it's ahead
of coalition, it's leading in the polls in the state

(01:04:03):
of Victoria. This is the Pauline Hanson Party. And that
scared the Beji Jesus out of the Federal Liberal Party
and they got rid of Susan Lee and they brought
in Angus Taylor. Now Angus Taylor, Rhodes scholar, smart guy.
I wouldn't say he was particularly brave. I mean during
the thuggish coalition lockdowns, he didn't resign and say I

(01:04:25):
want to be a part of this illiberal thuggishness. But
then neither did anyone else. So you have to pick someone.
And they have been voting under Susan Lee. They voted
for some but I think are terrible speech inhibiting laws
and the you know often the laws were designed by
the Liberal Party. So that has also driven voters to

(01:04:45):
the One Nation Party. But Taylor is going to be
good on renewable energy.

Speaker 2 (01:04:50):
I mean he's already he's already stucky Styke in the
ground on that.

Speaker 3 (01:04:55):
Yeah. But the problem is over half of the party
room and they picked the leader. Over half of the
party room are moderate and they are people who like
the They like the sort of renewable energy subsidies, They
like all this stuff. So the real question is can
Angus Taylor impose his will on them? And you know,

(01:05:16):
as long as one nation's high up in the polls,
maybe because they're scared. I mean on the present poll
in South Australia, they're coming up to a state election.
The Liberal Party will not have a single seat in
the legislature. So with those kind of polling numbers, maybe,
But again, you know the problem is he can say
one thing, but if his own party refuses to do

(01:05:38):
it after the election, and this is what happened to Abbott.
He said he would repeal the horrible hate speech flaws
and his own party balked and then they removed him.
And so he's going to have to convince voters that. Now.
You know, again you can show there's some weakness because
when he reshuffled the shadow cabinet, he put in Andrew
Bragg as the Environment shadow Minister, the man who said

(01:06:01):
under Susan Lee that he'd quit her shadow cabinet if
she pulled out of that zero. So you know, he's
a he's a climate alarmist. Now maybe that's a compromise
Taylor had to make. Now I think Taylor's own instincts
are good. He's a you know, he's a he's an
ex Mackenzie's kind of guy, and he sees the world

(01:06:22):
like consultants do, so smart. I wouldn't characterize anybody in
the current coalition ranks as brave except for Alexantik very
brave and Matt Cannevan, neither of whom are in the
shadow cabinet. So yeah, I mean, Taylor's obviously better than
Susan Lee, and I think he's obviously better than anyone

(01:06:44):
we've had.

Speaker 2 (01:06:46):
Well, whether it doesn't mean he can get anything done,
Whether whether he succeeds or not depends on one thing.
What's that Whether or not he listens to his wife.

Speaker 3 (01:07:00):
Yes, she's good, although you know, by my standard she's
she's a bit soft on a few things. But I know,
I know, I know Louise, and she's she is smart,
and she's good and she's conservative, and uh, you know
that's my I want to I want to coin something
called Allen's law, which is that you know, any male
politician or judge who has a guardian reading wife will

(01:07:22):
move left. And Louise is not a guardian reading wife
because you know, it's it's not one hundred percent rule,
but it's pretty close to one hundred percent rule. That
these male politicians, male judges who have wives, who are
you know, pretty left wing, they don't seem to hold
the line on anything.

Speaker 2 (01:07:42):
It's true, it's true. It's true the world, it's true.

Speaker 3 (01:07:46):
The whereas you know, Louise is good, I mean, Angsteel
is good. The question is the party so broken and
that doesn't have so many sort of rhino left the
Conservative really and name only people who have been elected
as MP's and they control the faction in New South Wales.
What can he do about that? I don't know. We'll

(01:08:07):
see at least there's hope. But I think the real
problem right now is that Susan Lee retired. She resigned
immediately in a fit of peak, and there's a by
election and she's got a sort of suburban rural constituency.
It's quite possible that one Nation could win her seat
in the by election, which would be, you know, not

(01:08:29):
the way that Tangus Taylor wants to start his time.

Speaker 2 (01:08:31):
No, but he'd have to deal with it. On that note,
I want, I do want you to just do one
more thing for me. Rogue Justice The Rise of Judicial
Supremacy in Israel by Jonatan Green Who who would appreciate
that book? What sort of people?

Speaker 3 (01:08:52):
Anybody who's interested in law or politics. So not everybody,
but if you're interested in law in policy, do you
want to see how off the Rail's judges can go
by becoming convinced of their own moral self worth, a
sort of you know, reveling in their own sanctimony, to
the point where they don't even require you know, they
don't require a legal text. They just you know, I'm

(01:09:16):
being a little fist, but they basically point to the
writings of Emmanuel coun or something like that, and uh,
and they honestly seem to believe that they can do
a better job than the elected polity, even though they're
completely unaccountable. If you don't like decisions they make, there's
nothing you can do about it. If you don't like

(01:09:37):
what politicians do and they make lots of bad decisions,
you vote them out. And so I mean, and it's
it's it's of course, there are some dissident lawyers and judges,
and ISRA point this out, but you know, the Bar
Association and the Law society, they're all on board with this,
just the way they would be in New Zealand. We
know they are, and so that's a problem. And you know,

(01:10:00):
it goes right back to this I've said many times,
goes right back to the universities and the law schools,
which are the most left wing places you'll ever visit
in your life.

Speaker 2 (01:10:08):
Indeed.

Speaker 3 (01:10:09):
But I would buy the fuck. I mean, he's I
sent my review to him. He seems like an interesting guy.
He's actually working at President in the US, I think
at Georgetown Law School. You want it's in green, I
asked him. I asked him in an email, would be
allowed to go back to Israel? And he just laughed.

Speaker 2 (01:10:30):
I get it all right. Listen on that note, we
we've excelled. Uh, you've excelled anyway, and we appreciate it.
And I can only say thank you again. And we're
going to get to Brisbane this year.

Speaker 3 (01:10:45):
Yes, she did that.

Speaker 2 (01:10:46):
Let me know we will go for coming. It's in
the it's in the pipeline. So thank you, thank you,
and we'll see we'll talk to you again sometime in
the not too far away.

Speaker 4 (01:10:58):
Bye bye.

Speaker 2 (01:11:14):
I went to the mail room for podcast three hundred
and seventeen. This is producer. You're looking well today.

Speaker 5 (01:11:21):
Three hundred and seventeen, isn't that crazy?

Speaker 3 (01:11:24):
Latent?

Speaker 5 (01:11:25):
Have these years gone?

Speaker 2 (01:11:27):
Everything is crazy, everything is start. I've even got an
email here somewhere. I think that indicates that the world
is crazy.

Speaker 5 (01:11:35):
Oh. I think you have those every week, don't you?
Either that or you're writing them yourself. I've never thought
of that, you know, Oh, I bet you have. This
is from Gary in January twenty twenty six. The whole
geopolitical world rapidly changed and moved forward when US President
Donald Trump made in order to invade and capture Dictator Maduro.

(01:11:58):
What fascinates me is not about Donald Trump. It is
about New Zealand's citizen, the level of the lack of
understanding they have for the whole geopolitical issue. They believe
the US is mainly for oil. Is it true? Maybe?
But also China and Russia building up potential threats to
the USA backyard, and that's also a major concern for

(01:12:20):
the Trump administration. China has funded Venezuela to the tune
of six hundred billion US dollars to build their infrastructure.
As this corrupted government will result in ninety percent of
the oil being imported to China, paying off as paid
off the debt. Russia has planned to build a weapons
facility in this South American country. So if you are

(01:12:42):
the US president, if somebody puts a knife to your backyard,
what would you do? Our fellow kiwis need to understand
that this is a Cold War II scenario and it's
already started since Trump was elected. The battle between China
and the USA to see who is the leader of
the world. Yes, it's all about money and power.

Speaker 2 (01:13:04):
That's from Gary, Gary observant The Internet is a wash.
With testimony from medical practitioners of the efficacy of ivermecton
in the early treatment of COVID nineteen, then underlined doctor
found guilty of misconduct over prescribing ivermectin, but says Graham,

(01:13:26):
ivermectin is a long standing, safe and inexpensive medication. There's
no money unit for big farmer. There's huge money for
big farmer, however, in the exclusive use of vaccines to
treat a pandemic, and big money for politicians who do
big Farmer's bidding.

Speaker 5 (01:13:45):
Leyton Tony says, a good interview with a very interesting man,
and he talks about Mike Schmidt. He said, I thought
his dismissal of Luxeon as a leader was damning.

Speaker 2 (01:13:55):
Well, we're all entitled to our interpretations, of course, and
it's intriguing the reaction that has appeared after that discussion. Tony.
Thank you. Now there's still a number of congratulations that
haven't been recognized, and I don't think we're going to
be able to go through them all. But here's one

(01:14:18):
that is a cover all if you like, just a
quick word to wish you a massive and well deserved
congratulations for the appointment of the New Zealand Order of Merit.
That was from James in Neilson. There was another one
that I thought I should make comment on run across
the Tasman. I wish to congratulate you on your m

(01:14:40):
n z M award. It reflects well on your work
and your influence in the community over the years. Appreciate that.
I'm very kind of you, and I just wonder if
it's not an exaggeration.

Speaker 5 (01:14:55):
And relating to the same topic, Rayven says, I took
a much break from technology over the silly season. I'm
embarrassed to say that I had absolutely no idea of
your recent recognition and over the new year. I generally
take no notice of these awards because of the people
they generally nominate, particularly over the last couple of years.

(01:15:17):
What surprises me is that you've never received one before.
How amiss that they have taken this long to recognize
your work and intelligence. And there's more, But Raymond, thank
you so much, really appreciate it.

Speaker 2 (01:15:31):
Now. This one is a little more involved related. Congrats
on your well deserved honor. An anxious year ahead, I've
indicated to friends that if the unthinkable occurs, with an
incoming labor Greens government inflicted on this long suffering little country,
I shall sell up and move to Noosa or somewhere similar.
At the age of eighty five, I could not endure

(01:15:54):
the daily agony of three years of mismanagement ruining my
remaining declining years. What a miserable prospect. Indeed, reading the
Herald Daily is bad enough, with generally negative or slarted
inputs toward the cold. Attached are just two recent examples.
Bruce Cottrell's article was a welcome respite, but the editorial

(01:16:16):
clowns have almost immediately highlighted a lefty reader's supposed rebuttal.
Mister Kenny's attempted defense of Hipkins and Adrian Or is
wrong on so many fronts Now. I haven't seen this.
I don't know, but I could only say this should
be no great surprise. The cartoons are particularly biased. I
recalled one of your contributions. I recall one of your

(01:16:39):
contributors recently referred to Herald's communist cartoonists are pretty justified.
Emerson is vicious in depicting pleasant faced Winston grotesquely as
an evil looking fellow. A cartoon in Sunday Herald two
weeks ago was one I meant to save and sends
you as illustrative. I don't like that word. Illustrative. Letters

(01:17:03):
from climate catastrophists are almost daily. I wish someone with
credentials would respond, oh, well, we opponents of the unthinkable
just need to battle on. Well that's a better attitude
at the end, battling on than surrendering and scarpering off
the NUSA. Although, while you're looking around, see if you
can find someplace for me.

Speaker 5 (01:17:25):
That didn't go down well. Leidon Nadia says, I saw
in the Herald today that you've received the Order of
Merit award for services to broadcasting. I'm sure, I'm one
of many many people saying this, but I genuinely believe
this is well deserved. I listen to your podcast when
I go for a longer run each week. I look
forward to it. I value the many different perspectives and

(01:17:46):
think as you bring, and not just around climate, the economy,
and COVID related but even topics like gold. So thank
you for your time and efforts. It's genuinely appreciated. That's
from Nadia.

Speaker 2 (01:17:58):
Nadia, that is genuinely appreciated. Now, I'm just looking for
one last one that I thought I would include. I
pondered it. Now this is one comment with a difference,
but there is one line in it that I wanted
to include. It toward us, the last one Leo. I
noted today's gospel account of Jesus encountered with Satan during

(01:18:21):
his forty days in the desert, his prototype of our Lent.
I particularly noted the devil's temptation of Jesus with material
wealth and power. Satan showed Jesus the principalities of the
world over which he claimed control and which control authority
power he offered Jesus if Jesus would worship him. I'm

(01:18:42):
familiar with the forty days in the desert, but I'm
unfamiliar with so much detail. On one hand, it's unlikely
the devil would claim in the face of Jesus that
he had control of all the worldly powers if it
were not so. On the other hand, Jesus did not
challenge that claim. Simply Jesus told Satan to shove off

(01:19:05):
on the basis that we must worship only the law
our God. So Satan had control over nations approximately two
thousand years ago. He comes to the line, is there
any reason to think that's changed? And my interpretation is
that the world's been a mess for a hell of
a long time and it's still messing up. So you know,

(01:19:29):
nothing's nothing's changed. That's all this is, Producer, Thank you,
thank you so much for being here. I look forward
to seeing you again next week now, missus producer. Having
just slipped out, this is the second of two at
least two emails that we got during the week with

(01:19:51):
regard to the doctor being convicted, Alan writes, after listening
to your podcast with doctor Pier Corey and now reading
his book The War on Ivermecton, I was very disturbed
to read this article in the Nelson mail on eighteen
February this year. I think doctor Caroline Wheeler needs some

(01:20:12):
assistance in dealing with the misconduct charge and her legal team.
Given the facts, the facts surrounding the efficacy of ivermecton
and the background to its use during the COVID nineteen pandemic,
what do you think? Well, my response can only go
this way. I don't have enough information. And what I

(01:20:36):
mean by that is that the report pointed out some things,
or at least she was charged convicted whatever of some
things like not writing a proper prescription or something like
that and not doing this or not doing that, rather
than there were backups really for the prosecution so that

(01:20:56):
it wasn't just one charge on ivermecton. Because if that
was the case, I have a feeling that she wouldn't
have been convicted. Could be wrong. I'm only guessing. But
when you add these other little things in, you see, well, okay,
so she's okay to prescribe the ivermectin because of what
we know now, but she didn't follow the routine in

(01:21:20):
doing it properly, et cetera, so therefore guilty.

Speaker 3 (01:21:23):
Now.

Speaker 2 (01:21:23):
I might have been fancifying there a little bit, but
I think there needs to be a bit more information.
I think there should be a retrial, to be honest,
but I don't know how that would come about at
this point anyway. So to the author, Alan, thank you
appreciate it, and we covered it off as best we could.

(01:21:45):
Now in a moment, we'll have a very lengthy submission
with regard to politics, and so too the contribution of

(01:22:05):
the former National Party who is known to me but
as retaining anonymity, And this is the lengthiest that that
individual has submitted. And it goes like this, very thought
inspiring guests for your first two podcasts of the year.
There was an intriguing juxtaposition between Shane Jones, the somewhat

(01:22:28):
mercurial understudy to Winston Peters, and doctor Mike Schmidt, who
skillfully characterized the self serving nature of the bureaucracy and
the relationship they hold with their political masters. Both guests
set out some of the cornerstone issues that have caused
increasing political paralysis in New Zealand over the past quarter

(01:22:48):
century or so. The question I would oppose, somewhat rhetorically,
is whether the combination of three year terms MMP and
the apparent self fulfilling prophecies of the bureaucracy has become
a monster that is more than the sum of its parts.
Probably the best way to unpack my question is to

(01:23:09):
use one of mister Jones's own examples, when he discussed
the fact that New Zealand lacks the ability, as the
US do, to have CEOs of government departments stand down
at the time of a change of government, in other words,
contracts that are contingent on terms of government. The rationale

(01:23:29):
is something that doctor Schmidt alluded to being the nature
of bureaucracy as a self serving, at agenda led machine,
capable of surreptitiously surviving through appeasing governments that clash with
their worldview while maintaining their underlying agenda, all while they
await a more accommodating or inept replacement to take the

(01:23:53):
reins of power. The bureaucracy doesn't care which it is.
The point being either an agenda aligned government or one
that is led by ministers who lack institutional knowledge and
real world experience are equal fully malleable to a bureaucracy
bent on driving its own agenda. So it is that

(01:24:13):
Shane Jones, not for the first time, talks about championing
the US model where CEOs within the bureaucracy are contracted
for terms of government so that a new government that
wants to change direction can appoint a chief executive that
will drive that through the department. And this is where
mister Jones, as an excellent exponent of MMP politics, thrives

(01:24:38):
in the third year of the election cycle. He raises
an eminently sensible and populist idea that he wants to champion. However,
it won't be lost on your listeners that mister Jones
has been a minister in both New Zealand First and
Labor governments on a number of occasions. No one can
seriously think that it's only now that he's decided that

(01:24:59):
this is something we need to do to control the
bureaucracy more effectively. Of course not, He has mentioned it
a number of times over the years. This is a
perfect working example of how MMP politicians play the game,
the game being to get re elected, not to change
the fundamentals of the machine that provides their power. What

(01:25:21):
mister Jones was doing was deflecting to the bureaucracy as
the encumbrance on policy outcomes and progress, despite the fact
that he has on many occasions been in a position
to do the very thing that he wants again, Champions.
But why you ask, well, as because all savvy politicians
what to be able to point the finger of blame

(01:25:43):
elsewhere when progress in their own policy agenda is invariably
slower than they would want, or as the price they
pay for talking about the problem rather than fixing it,
which often comes with inherent challenges and risks. Its counterintuitive,
but removing the impediments they're essentially pointing to with a

(01:26:03):
policy idea like this would give them nothing to deflect
to that on its own is not the sole pawn
in the game. However, the other key strategy within our
current political paradigm is the need for differentiation for the
minor parties. For one year out of every three when
they're in power. New Zealand First has been crushed time

(01:26:25):
and time again when it shares the government benches and
seeks a second term of government. They must differentiate themselves
to avoid this again and survive. They must blame their
partners for not achieving their election promised policy agenda. This
is why Winston Peters fought so hard and of course
won to have his stint as Deputy PM in the

(01:26:48):
first half of this term so that he could start
pointing out all the faults and weaknesses of his coalition
partners in government, which brings us to the next pawn
in the re election game, the so called concessions that
coalition parties make during coalition negotiations. Evidence of this is

(01:27:09):
already appearing with all three leaders as they espouse a
foe vexed frustration how they couldn't achieve policy A or
objective B because they have to compromise as part of
forming a coalition. That's how our democracy works. Quite they
keep telling us with a gas lighting tone in their voice.

(01:27:30):
In other words, they have another default, primer facie justification
for not achieving their bold promises that they campaigned on.
All three governing parties have a perpetual hamster wheel of
justification to anchor their failure to get their big bold
promises over the line. Now, this isn't an exclusive domain

(01:27:52):
of New Zealand. First of course actor doing the same
right now, Albeit David Seymour will be more stifled in
his efforts as it's not becoming of the Deputy PM
to criticize the government he is leading. I'd only insert
here at this point that that apply or as applicable.
As mister Jones pointed out, I believe up to the

(01:28:14):
time that the campaign gets official, and then all the
harnesses are off. The author goes on. Winston, Winston and Jonesy,
on the other hand, will be unrelenting and I'm picking
ruthless in their finger pointing, matched only by their bold
promises of what they will bring to the Huskings this election.

(01:28:35):
For example, Winston has already trotted out the abolition of
the Mary seats. This is something he has already blamed
the National Party in this term for not achieving the
same thing he did with the Labor Party from his
previous stint in government. Does that all sound familiar? Does
that all sound familiar? What's easier and arguably better than

(01:28:58):
having to do the hard things that you promise as
part of your midfull power Blaming the parties you want
to differentiate yourself from in order to take their party
vote for hindering your ability to deliver it in the
first place. It's politics one oh one in its purest form.
What would disrupt this perennial process of finger pointing at

(01:29:18):
the bureaucracy and coalition partners for not getting your big
ticket promises over the line longer parliamentary terms. So is
it any wonder that all three governing parties and labor
for that matter, have all championed the idea of four
year terms, yet no one has actually put a referendum
together or simply put the legislation forward to do it.

(01:29:41):
Turkeys are never going to vote for Christmas, are they?
So what are we to make of the nexus between
MMP three year terms and growth and growth of bureaucratic
power and overreach, all of which I believe, says the
author are slowly grinding the gears of our country's engine
to a halt. In my view, it's akin to a

(01:30:02):
political Munchausen by proxy parasitic relationship between government parties and
the bureaucratic system that is supposed to serve them. This
is glued in place by the three year terms. At
its origin and ongoing existence can be sheeted home to MMP.
They are inextricably linked to one another and each draws

(01:30:23):
life and survival from each other. I'm confident that we
will see this paradigm play out in the lead up
to November's election, and more bold and ambitious promises will
be made, and more finger pointing will occur. But the
sad reality is that parasitic behavior comes at the cost
of its host, in other words, our nation and us

(01:30:45):
as its citizens. While it makes for interesting political theater,
it is our future and prosperity that is slowly decaying
as a result, sadly in the absence of real political
leadership that could and would transcend our very own political swamp.
Our vote as the one piece of power we can

(01:31:06):
exercise in a free and democratic society, in many ways
fuels the fire that could ultimately burn us as a
country to the ground the end. Now, as I say,
I've read numerous comments from this former National Party MP
who shall remain anonymous. Now, having said all that and

(01:31:28):
read that very long quote, if you're a politician and
you would like to have your own say, then go
for your life. Will I will share it? Not something
we normally do, but this being an election year, had
a very very important election year, I think it's appropriate to,
shall we say, open the email and utilize it wherever

(01:31:49):
we can. So again, if you want to comment, as say,
put pen to paper might be difficult, sit down at
the keyboard and bash away and let's have ab it
as the saying goes. So that will take us out
for podcasts three one seven. If you would like to correspond,
late at Newstalks at be dot co dot and z

(01:32:10):
or Carolyn at Newstalks at beat dot co dot n Z.
We love your male, whether we agree with it or not.
Go for your life back in a few days with
three one ete. Until then, as always, thank you for
listening and we will talk soon.

Speaker 1 (01:32:33):
Thank you for more from News Talks B Listen live
on air or online, and keep our shows with you
wherever you go with our podcasts on iHeartRadio

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Leighton Smith Podcast #317 - February 25th 2026 - Jim Allan

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Leighton Smith Podcast #317 - February 25th 2026 - Jim Allan