The curmudeonly Edmund Wilson in 'Oo, Those Awful Orcs' (1956) offered a slapdown - presumably unpersuasive to Tolkien fans - of The Lord of the Rings.
Orcs are less scary than 'judicial activists', assailed in 'Who Makes The Law? Reining in the Supreme Court' by Roger Partridge (The NZ Initiative) ... 'a Wellington-based think tank supported primarily by major New Zealand businesses'.
The 40 something page polemic echoes traditional claims in Australia and elsewhere during the 1980s about the perniciousness of 'activist', 'unaccountable', 'unrepresentative' judges, explored for example in Michael Kirby, 'Judicial Activism' (Hamlyn Lectures, 2004) and 'Judicial activism: power without responsibility? No, appropriate activism conforming to duty' (2006) 30(2) Melbourne University Law Review 576 or Dyson Heydon, 'Judicial Activism and the Death of the Rule of Law' (2004) 10 Otago Law Review 493.
'Who Makes The Law' states that
Recent decisions from New Zealand’s Supreme Court have sparked widespread alarm. They show a court that has misunderstood its role and overstepped its bounds.
The Court’s approach raises a very serious question for voters: Just who makes the law in New Zealand? Is it democratically elected politicians or unaccountable judges? At the heart of our legal system is a delicate balance of power between the three branches of government: Parliament, the courts and the executive. This balance is anchored in the idea of the ‘separation of powers’. This idea assigns distinct responsibilities to each branch.
The role of judges is primarily backward-looking. It is to adjudicate historical disputes between parties about their existing legal rights and obligations. Judges do this by applying the law as it stood when the dispute arose to the facts agreed by the parties or found by the court. In contrast, Parliament’s role is forward-looking. The legislature is responsible for making new laws and amending existing ones to shape our legal commitments for the future. In our legal pecking order, Parliament is also ‘sovereign’ or ‘supreme’, sitting above even the Supreme Court. When each branch of government stays in its lane, the country’s constitutional machinery operates smoothly. But when these boundaries are crossed, the engine of government begins to falter.
In recent cases, the Supreme Court has been actively stepping out of its lane, blurring the traditional separation between the roles of judges and Parliament. This shift represents a significant departure from the Court’s proper constitutional function.
The Supreme Court’s overreach is having serious consequences. By mixing judging and lawmaking, the Court has strayed into shaping policy. This is properly the role of Parliament. Because judges lack the political accountability of politicians, the Court’s approach undermines the democratic legitimacy of the law.
The Court’s approach has also made the law more uncertain and unpredictable. As the Court reinterprets legislation and reshapes common law principles, individuals and businesses can no longer rely on clear statutory language or stable precedents. Yet, certainty and predictability are fundamental requirements of what lawyers call ‘the rule of law’.
The Supreme Court’s departure from these fundamental principles shows up in two key areas. First, the Court has adopted a loose approach to interpreting laws passed by Parliament. Increasingly, it is stretching or even ignoring clear statutory language. Effectively, the Court has granted itself the power to rewrite legislation it does not like. This oversteps Parliament’s rightful role. Second, the Supreme Court has changed how it handles the ‘common law’. Common law is the body of rules judges have made through court rulings over centuries. However, the Supreme Court now acts more like Parliament in this area. It has dropped the traditional approach of gradually adjusting the common law to fix mistakes or handle novel situations. Instead, the Court favours a radical new approach of reshaping common law rules to match its views of today’s ‘social values’.
The Supreme Court’s ruling in the ‘three strikes’ case of Fitzgerald shows the first of these two problems. Regardless of what one thinks of the ‘three strikes’ law, it is obvious to any independent observer that the Court rewrote clear statutory language to avoid what it saw as a clash with the New Zealand Bill of Rights Act 1990.
The Supreme Court’s decision in the Peter Ellis case is a good example of the second problem. The Ellis case had no Māori link. Yet, the Court took it upon itself to consider tikanga Māori in deciding that Ellis’s appeal against his convictions could carry on despite his death. This decision overturned longstanding rules for recognising tikanga as law. And it did so without providing a clear new framework. This has created a legal vacuum undermining the certainty and consistency required by the rule of law.
The Ellis decision shows the problem with a Court that sees its role as ‘developing’ the law to reflect changing societal values. At the time, Parliament had asked the Law Commission to study tikanga’s role in our legal system. By rushing ahead, the Supreme Court sidestepped this careful, democratic process. There could hardly be a clearer example of a court overstepping its bounds – and with unfortunate consequences.
The Supreme Court’s overreach challenges the proper constitutional balance between the judicial and legislative branches. If left unchecked, it will turn the judiciary into a powerful policymaking body, unaccountable to voters. This would represent a fundamental shift in how we run our country, one that Parliament has not sanctioned and the public has not approved.
As the highest lawmaking body, Parliament needs to act. It must reassert its sovereignty by redrawing the lines that hold up our way of governing. To address these concerns, this report proposes five options to restore the balance to our legal system.
First, Parliament could use targeted legislation to clarify what the law means. It could also overturn the Court’s worst decisions, misinterpreting the law. This has been done before. Not long ago, Parliament passed legislation under urgency to reverse the effect of the Supreme Court’s decision regarding the Child Protection (Child Sex Offender Registration) Act 2016. It is not surprising that the current Government is thinking about taking this course in response to troubling court rulings on the Marine and Coastal Area Act 2011. This shows how timely and practical this recommendation is.
Second, Parliament could change the Senior Courts Act 2016 to set out more clearly what it means by the ‘rule of law’. Setting out a narrow or ‘formal’ meaning of the rule of law would help restrain the courts from judicial overreach.
Third, Parliament could change the Legislation Act 2019 to include tighter rules for the courts when interpreting statutes. These changes would rein in the judiciary’s loose approach to interpreting Parliament’s words. They would require judges to stick more closely to the text and purpose of legislation passed by Parliament.
Fourth, Parliament could consider amending or repealing section 6 of the New Zealand Bill of Rights Act 1990. The courts have used this section to justify big shifts from clear statutory language. Fixing this could help stop judges from rewriting laws.
Finally, changes could be introduced to how senior appellate judges are selected. New criteria could favour candidates who show judicial restraint and respect for Parliament. Parliament setting fixed terms for Supreme Court judges could also help. These changes could help guard against our most senior judges gaining an exaggerated view of their role.
These options give Parliament several ways of tackling judicial overreach. None of them threaten judicial independence or the rule of law. Instead, they aim to protect these fundamental values. They will help make sure the courts stay within their proper bounds. When the judiciary oversteps its role and takes over Parliament’s job, it harms the foundations of the rule of law it is meant to uphold.
Parliament reasserting its rightful place will strengthen the backbone of our democracy. It leaves the courts to play their key role in settling rights and dealing out justice within the framework of laws made by Parliament. This ensures courts continue to protect rights in specific cases. But the wider choices about the scope and balance of rights stay with elected politicians answerable to voters.
Constitutional change tends to be slow and thoughtful. However, the urgency of the situation means Parliament must act quickly and decisively. It must stop the current drift towards ‘judicial supremacy’.
The Supreme Court’s recent decisions have raised alarm across the legal and political spectrum. Public trust in the impartiality and legitimacy of the courts is at stake. By taking the measures outlined in this report, Parliament could start to address these concerns and restore the proper balance.
The alternative is a slow but steady erosion of our constitutional foundations. An activist judiciary will gradually supplant the democratic process. This is not the system of government our constitution envisions. Parliament must act now to maintain the integrity of our legal system for generations to come.
