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ROGER PARTRIDGE: Has the Supreme Court lost its way?

With age comes wisdom – or so it is said. Yet exceptions abound. A notable reflection from leading lawyer Jack Hodder on the Supreme Court’s 20th anniversary suggests the Court is a case in point.


Hodder, a barrister and senior King’s Counsel, spoke at last week’s Legal Research Foundation conference to commemorate the Court’s anniversary.


His paper, One Advocate’s Opinions – The Least “Dangerous Branch”? Predictability and Unease, was couched in the politest terms. But it delivered a withering critique of a court with fundamental misconceptions of its role gravely exceeding its bounds.


The Supreme Court derives its authority from an Act of Parliament, the Supreme Court Act 2003. This means Parliament is ‘sovereign’ and sits above the Court.


It might be expected that one of the Court’s tasks would be to give full and fair effect to laws passed by Parliament. And certainly, that is the orthodox view.


But as Hodder points out, the Supreme Court has increasingly favoured a more activist approach. Sometimes called “the principle of legality”, this involves the courts

interpreting their way around the words used by Parliament if they believe a statute conflicts with what the Court perceives to be ‘fundamental rights.’


It doesn’t take much wisdom to realise this approach is a slippery slope. And when successive court decisions on highly political issues have gone against the apparent wishes of Parliament, this, in Hodder’s words, “demonstrates inconsistency with wider public assumptions about just who does (and should) make the law.”


But Hodder’s paper reveals an even bigger concern. The Supreme Court now considers it is the Court’s role to divine changing societal values and then use them to ‘develop’ the common law. (For example, in the Ellis case, by deciding the time had come for the courts somehow to “weave” tikanga Māori into every aspect of the law.)

Yet, the Supreme Court Act does not refer to ‘development’ of the law. Rather, it expressly refers to the ‘rule of law.’


Two critical requirements of the rule of law are the law’s accessibility and predictability. The idea of 'developing’ the law to reflect the court’s view of changing societal values torpedoes both requirements.


More troublingly, the court is ill-equipped to discern societal values. In practice, the words are just code for the values of the judges.


Inevitably, this politicises the judiciary. Yet, the courts lack the democratic legitimacy or accountability needed for political decision-making.


Hodder’s paper ends by predicting a time of “unprecedentedly sharp political debate” about the role of the Court.


Sadly, that would be wise.



Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team.


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95件のコメント


Bill Casley
Bill Casley
3月03日

The Judicial system is, thankfully, evolving in step with social progress. It has moved away from being retributive and punitive, to a more enlightened therapeutic jurisprudence. There will of course, be those who remain out of step with these changes.

いいね!

Compared to the Privy Council our Supreme Couts judges are judicial Pygmies.

いいね!

It seemed to me that when Clark created the Supreme Court, she stocked it with people with similar political leanings. Since then, they have just promoted other like minds on to their bench.


So, we're stuck in a loop and need to break out of it. How can the government get rid of judges? Because that's what it's going to come down to.

いいね!

Thanks, Roger.. You've encapsulated and expressed a complex matter very well.

いいね!

caarnott
caarnott
2月25日

Finally a good use for AI - using that we might receive some real, "blind justice" for a change.

いいね!
Mik'e D
Mik'e D
2月25日
返信先

Except AI can also be skewed, you used to be able to get a joke about jesus but not mohammad, not sure if you can get a picture of a white family now as all have to be diverse or coloured.


いいね!
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