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ROGER PARTRIDGE: HOW TO REIN IN AN ACTIVIST SUPREME COURT

My earlier column this month, New Zealand’s highest court could be facing a turning point, prompted a flood of feedback from business readers and lawyers alike. A common query was what Parliament can do to restrain an overreaching judiciary. This week I discuss two steps Parliament should not hesitate to take.


But first a quick recap.


The earlier column drew on a lecture by barrister and former Law Commissioner Jack Hodder KC at a conference marking the Supreme Court’s 20th anniversary.


Hodder delivered a polite but devastating critique of a court he helped create.


Hodder suggested the licence taken by the court when interpreting Acts of Parliament undermines both the sovereignty of Parliament and the rule of law.


He also criticised the Supreme Court’s belief that its role is to “develop” the law in response to “changing societal values”. Hodder explained that the court lacks the tools to discern these values. And it lacks the democratic legitimacy and accountability to respond to them. The court’s approach politicises the judiciary. It also harms the rule of law by making the law less stable and predictable.


So, what can be done to restrain an overreaching court?


Parliament’s most blunt response to judges overstepping their bounds is statutory. In the legal hierarchy, Parliament is supreme. And it can pass statutes to ensure the courts give effect to its wishes.


An example of this approach is Parliament’s amendment to the Child Protection Act 2016 discussed in my earlier column.


Another is the commitment in the coalition agreement between National and New Zealand First to amend the Marine and Coastal Area Act to “make clear Parliament’s original intent”. The act enables iwi to claim “customary” marine or coastal title. Parliament stipulated that to succeed, iwi must establish “continuous” and “exclusive” use of a marine or coastal area since 1840.


A majority of the Court of Appeal held that overlapping exclusive use sufficed and that continuity of exclusive use from 1840 should not be taken literally.


A statutory amendment is likely to “clarify” that when Parliament said “exclusive” it meant exclusive, and that when it said “continuous” it meant continuous.


Parliament also has a more direct option. In the words of Professor Paul Rishworth KC in a presentation to Parliament’s Legislative Design and Advisory Committee, “there is no legal impediment to enacting a law to validate an action held by a court to be invalid ... ” The same is also true of Parliament invalidating an action a court has held to be valid.


Parliament is generally reluctant to interfere in court proceedings because of principles relating to the separation of powers. Consequently, past interventions have been rare.


But that is because historically, erroneous court decisions have been more accidental than consciously radical. A court that adopts a “transformative” role can expect more frequent correction.


Less confrontationally, Parliament could introduce more clearly defined “guardrails” in the Senior Courts Act 2016.


Helpfully, the act refers to New Zealand’s “continuing commitment” to both the rule of law and the sovereignty of Parliament.


There is no doubt about the meaning of “parliamentary sovereignty”. It means Parliament sits above the courts. But nowhere in the act is the term “rule of law” defined. And while it has an orthodox meaning, unless defined, it is susceptible to manipulation.


Under the orthodox approach, the rule of law relates to the “formal” characteristics of laws and the legal system. These aspects include laws being publicly accessible, predictable, stable, coherent and impartially applied. These qualities describe the characteristics that laws must possess to guide conduct effectively, without making judgments about the laws’ moral or substantive content.


However, it has become fashionable to argue the rule of law should extend beyond “formal” components to include “substantive” entitlements, including social, political and economic rights.


This expanded approach, sometimes described as the “thick” version of the rule of law, contrasts with the traditional “thin” version. And at least one member of the Supreme Court has advocated publicly for this thick approach in New Zealand.


In a 2021 Waikato Law School lecture, the Supreme Court’s Justice Susan Glazebrook claimed the meaning of the rule of law was still evolving.


In advocating its expansion, Glazebrook concluded, “ … until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and Tikanga in the law is a start ... The rule of law is a guiding principle as long as it includes human rights, access to justice, and I would add, redress for historical disadvantage. If that is the case, it is also an appropriate catchcry for a better and more just world.”


Glazebrook’s sentiments are doubtless well-meaning. But the judge’s expansive approach was not Parliament’s intention when referring to “New Zealand’s continuing commitment to the rule of law … ”


What is more, Glazebrook’s formulation is a recipe for the sort of judicial activism Hodder eloquently critiqued in his lecture. A court that believes it can discern “changing societal values” will not hesitate to impose them under the guise of upholding a “thick” version of the rule of law.


The rule of law then becomes whatever the Supreme Court wants it to be. That is the antithesis of the law. And it turns the judicial role into a political one. Yet judges lack the democratic mandate or accountability necessary to exercise political power.


By politicising itself, the judiciary also encourages politicisation of the judicial appointment process. This risks further undermining respect for the law.


Parliament introducing a traditional, “thin” definition of the rule of law into the Senior Courts Act would moderate the Supreme Court’s interventionist tendencies.


Together with legislative reversal of aberrant decisions, it would send a clear signal to the court not to stray from its constitutional bounds.



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


This article was published at The New Zealand Initiative

2,690 views88 comments

88 Comments


Surely we are to small to have our supreme Court selected from a tiny population, comparatively speaking. This is exactly what was expected when I first heard we were walking away from the PC. No independence. All this playing with words, ... regardless, the over arching authority rests with parliament and it's already firmly established they hold the pen when it comes to writing and passing law. It (P) should intervene for what is a clear breach of the judiciary's excess of authority into matters political. From my lay point of view, it seems there's already a pretty clear remedy, with a powerful signal to stick with the knitting. The law is meant to be written sufficiently clear in Eng…

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Whilst I agree with what you say the Over riding court is that of the electorate who are effectively muzzled after an election so the remedy is Binding Citizens referenda with power of recall of Politicians and judicary. I despise the Helen Clark Govt and Margaret Wilson for imposing this corrupt and corrupting body on NZ the reason wilson abolished the right of appeal to the UK Privy Council was becasue their decisions frequently ruled that NZ courts did not understand NZ Law. The experience and knowledge of the Privy Council was greater than the entire brain power (brain farts) of NZ Judiciary.

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The sad thing is that Susan Glazebrook chaired the Institute of Judicial Studies, the body responsible for judicial education in New Zealand, from 2007 to 2012. How much damage has she already done?

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Apparently none

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I suppose that "mana" is something you can carry around in a sugar bag on your back,and open it when needed! The good folk of his area already know what he's like,so his "mana" will not be affected. If he has any?

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Methinks I smell a rat….,, or two in our judiciary.

The Mr Green case of a road accident on the Taupo / Napier road beggars belief - deemed to be unfairly treated if his Maori mana was humiliated by a guilty verdict, his conviction was over turned in the Rotorua High Court by Justice Andrews.

Precedence set?

Maoriness an exoneration?

Two tiered justice system?

Rot in the judiciary?

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Have you heard the one where a Police Officer was refused a urine test by a local Iwi chap down on East Coast? He claimed the TOW partnership principles meant that nobody could take the piss out of Maoris…

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winder44
winder44
Mar 22

A reasonable analogy to the Supreme Cour'ts action in law modifications would be:


A police officer pulls up a driver and tells the driver, that, "I'm going to give you a speeding ticket."

"But officer, I was only doing 90kmh. and it's 100km limit." replied the driver.


The officer then replied, "Correct, but I consider this piece of highway too dangerous to exceed 80kmh, so the speeding ticket stays."

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