Recent Supreme Court decisions that have sparked concern among legal scholars, practitioners and politicians are the subject of a report by Roger Partridge, chair of pro-market think-tank the New Zealand Initiative.
“Who Makes the Law? Reining in the Supreme Court” is controversial and has already sparked debate, although the issues are not new. King’s Counsel Jack Hodder raised concerns in February at a conference marking the court’s 20th anniversary and now-Queensland-based academic James Allan wrote in March of NZ judges acting as an “imperial judiciary” and “usurping power to themselves”.
Partridge’s complaint is that the senior courts, especially the Supreme Court, have overstepped constitutional bounds by adopting a loose approach to interpreting laws passed by Parliament and reshaping common law based on judges’ views of changing social values. This undermines the separation of powers and the democratic legitimacy of the law.
As a result, the law is less certain and predictable. This unpredictability can paralyse decision-making for individuals and businesses, undermining confidence in the legal system.
This all gives rise to a tension between the legislative and judicial branches of government. The report emphasises the need for Parliament to reassert its sovereignty and restore the proper balance between the judiciary and the legislative branch. This includes ensuring elected politicians, who are accountable to voters, are primarily responsible for lawmaking and rights protection.
The report cites three cases of “overreach”. One dealt with a clearly unjust outcome of the previous Three Strikes Law dealing with sentencing. The Supreme Court held that Parliament could not have intended that the law would override the Bill of Rights Act prohibition against disproportionately severe penalty or punishment.
In the second case, regarding the late Peter Ellis, the court overturned longstanding rules for recognising tikanga as law without providing a clear new framework.
The third case was one where iwi leader Mike Smith sought injunctions against large companies to stop them from contributing to climate change. The court held that such a case could proceed without making any finding as to outcome.
Partridge proposes five solutions that would restrain judicial decision-making. Four of them, despite his claim to the contrary, would involve varying levels of interference with judicial independence.
But there is a deeper issue: are senior courts under our constitutional structure entitled to act in this way? The Three Strikes Law – repealed by Labour but which the coalition government plans to reintroduce with even tougher thresholds – was an egregious piece of legislation designed to slake the thirst for revenge and retribution.
The Law Commission had delivered a paper on the applicability of tikanga principles to the law, many of which are already present in case law and statute. Is the Supreme Court entitled to adopt the findings of that report?
Is the court entitled to develop remedies where large corporates contribute to climate change, especially when there seems to be political reluctance to grasp this particular nettle?
Finally, is the court justified in addressing societal issues where Parliament has failed to do so?
The last government was big on announcements but slow on delivery. The current one is wedded to a number of quarterly key performance indicators, but is it addressing some of the wider societal problems? And if it is not, why shouldn’t the courts engage in developing remedies for these problems?
David Harvey is a retired district court judge.
