Sir Geoffrey Palmer’s critique in the December New Zealand Law Journal of my report, Who Makes the Law? Reining in the Supreme Court,i is remarkable in what it fails to address.ii Rather than engaging with the substantive constitutional arguments about concerning trends in our highest court’s jurisprudence, his response amounts to ‘nothing to see here, trust the judges.’ More remarkably still, he resorts to ad hominem argument, suggesting critics can be dismissed as simply serving business interests.
This approach does little to advance our constitutional discourse. The concerns raised in my report, and in Jack Hodder KC’s careful analysis of the Supreme Court’s first two decades,iii go to the heart of democratic legitimacy and the rule of law.
When courts stretch statutory language beyond breaking point or reshape common law principles based on judges’ perceptions of “’ontemporary values,’ they undermine both parliamentary sovereignty and legal certainty.
When laws become subject to judicial rewriting based on judges’ views of contemporary values, individuals and businesses cannot reliably predict legal outcomes. This uncertainty hampers decision-making and undermines confidence in our legal system.
Take the Supreme Court’s decision in Fitzgerald.iv The majority rewrote clear statutory language in the ‘three strikes’ legislation. They inserted qualifications that Parliament had deliberately omitted. As Justice Young observed in dissent, the majority’s interpretation involved reading words into the statute that flatly contradicted Parliament’s express direction that the provision apply “Despite any other enactment.”v
Palmer attempts to minimise this constitutional overreach by referring to “senior politicians’ intentions.” This misses the point entirely. The law was passed by Parliament - our supreme lawmaking body. The Court’s role is to apply Parliament’s words, not divine the intentions of individual politicians.
In Make It 16,vi the Court chose to wade into politically sensitive territory regarding voting age, fundamentally misinterpreting the Bill of Rights Act. The majority overlooked the significance of section 12(a) of the Act explicitly guaranteeing voting rights only to those “of or over the age of 18 years.” This specific provision necessarily qualifies the general right to freedom from age discrimination in section 19. As Professor James Allan has observed, “if the facts in this Make it 16 case are not sufficient to push judges to… forebear from treating this as a justiciable (rather than solely political) matter, then no plausible set of facts will suffice.”vii
The Family Firstviii decision provides another troubling example. There, the Court sidestepped the Charities Act’s clear focus on charitable purposes by reading a novel ‘charitable activities’ requirement into the statutory scheme through a footnote. It then used this judicial rewriting of Parliament’s words to deregister a charity advocating traditional values, explicitly justifying its approach as ‘developing’ the law to reflect changing social conditions and values. This represents judicial social engineering masquerading as statutory interpretation.
Palmer’s treatment of Ellisix is particularly misleading. His description of the Court merely “maintaining” tikanga’s recognition in the common law overlooks the Court’s radical departure from established principle. By overturning longstanding rules for recognising tikanga without providing any alternative framework, the Court created a legal vacuum. Some commentators suggest this may have actually diminished tikanga’s status in our legal system.x
The Court’s recent decision in Edwardsxi provides perhaps the most concerning example of judicial overreach. The Court departed from normal appellate practice by issuing a hurried ‘first judgment’ just as Parliament was preparing to consider amendments to the Marine and Coastal Area Act. The Court’s unprecedented timing and approach suggests a court more focused on influencing legislative deliberations than resolving disputes.
Palmer’s argument that New Zealand’s small Parliament somehow justifies greater judicial activism than in the UK fundamentally misconceives the constitutional issues at stake. It conflates two distinct matters. Yes, courts play a vital role in checking executive power through judicial review. This involves ensuring public bodies act within their statutory powers and follow proper process.
But Who Makes the Law? addresses something quite different - the courts’ relationship with Parliament itself. Our constitutional arrangements, including the Senior Courts Act’s explicit affirmation of parliamentary sovereignty, do not envision activist courts checking Parliament’s power. That’s what elections are for. Our three-year term and MMP system provide robust democratic accountability.
Palmer attempts to discredit these constitutional concerns by equating them with historical opposition to creating the Supreme Court. This is mischief-making. The legitimacy of having our own final court of appeal is entirely distinct from concerns about that court exceeding its proper bounds. Indeed, Hodder KC, who critiques the Court’s recent activism, was a member of the then Attorney-General’s 2002 Advisory Group recommending the Court’s formation.xii¹¹
Palmer may welcome the current Court’s activist direction. But constitutional principles cannot depend on judicial ideology. One wonders how he would view such activism from a court with different political leanings - as the United States experience powerfully demonstrates. The proper constitutional question is not whether we agree with particular outcomes, but whether courts are staying within their proper bounds.
Who makes the law? proposes several measured reforms to address these concerns.xiii These include targeted legislation to overturn problematic decisions. They also include amendments to the Senior Courts Act providing a formal definition of the rule of law. And they propose changes to the Legislation Act introducing stricter guidelines for statutory interpretation. None of these proposed reforms would threaten judicial independence or the rule of law. Instead, they would help ensure courts stay within proper constitutional bounds. They would also preserve the courts’ essential role.
Indeed, similar reforms have been proposed in other jurisdictions facing comparable challenges. In the United Kingdom, Oxford’s Professor Richard Ekins KC – who wrote the foreword to the report – has recommended legislation to “discipline the misuse of the principle of legality, affirming the priority of legislative intent in statutory interpretation.”xiv
Rather than address these recommendations, Palmer offers diversions. He makes sweeping claims about executive power while ignoring that Parliament comprises democratically elected representatives accountable to voters. He cites Martin Wolf and the Financial Times on matters irrelevant to judicial overreach. Most tellingly, he fails to engage with the specific constitutional problems documented in the report.
The legitimacy of our legal system depends on proper boundaries between judicial and legislative power. When those boundaries blur, we all lose - regardless of our particular ‘interests.’ The issues raised in Who makes the law? deserve serious analysis, not dismissive hand-waving or attacks on the motives of those criticisng the Court’s radical jurisprudence.
*Roger Partridge is chair and a senior fellow of The New Zealand Initiative. He is an honorary fellow and former executive director of the Legal Research Foundation and a former member of the New Zealand Law Society Council