ROGER PARTRIDGE: Supreme Court Matters: Constitutional Guardians or Constitutional Threat?

When a constitutional law professor warns of “dangerous foes” threatening New Zealand’s legal system, you might expect concern about genuinely destabilising forces – political interference with judicial independence, or threats to the rule of law itself. You would be wrong.

Professor Dean Knight of Victoria University recently addressed the Institute of Public Professionals about threats to our “constitutional ecosystem.” Knight lists a number of dangers – among them civic illiteracy, rushed law-making, disdain for expertise, and institutional hollowing.

But one stands out for scrutiny. Knight warns against what he describes as “mischievous hyperbole” – critiques of judges for activism, overreach, or stepping outside their constitutional lane. In his telling, such criticisms are foreign imports, corrosive of judicial legitimacy.

According to Knight, “ill-founded attacks on our judges and other integrity institutions, claiming activism, overreach and stepping outside their constitutional lane amount, in my view, to mischievous hyperbole – a worrying playbook imported from abroad. These inflated systemic claims do not survive close scrutiny …” (p. 12).

Knight does not name his targets. But a few readers have suggested, in astonished tones, that, as author of The New Zealand Initiative’s 2024 report, Who makes the law? Reining in the Supreme Court, I may be among them. And, certainly, my use of Knight’s “lane” metaphor points the finger in my direction.

If so, I am in good company – along with Jack Hodder KC, who described statutory interpretation in the Supreme Court as creating a “constitutional battlefield”; Emeritus Professor Peter Watts KC, who characterised Ellis v R as a “revolution”; and Oxford’s Kiwi Professor, Richard Ekins KC, who warned in his foreword to my report, that the Court was “departing from long-standing, well-settled constitutional limits.”

But, if we are the source of the supposed “attacks” Knight describes, they are nothing of the sort. They are careful legal analyses by constitutional scholars and current and former senior practitioners examining whether the Supreme Court’s legal method aligns with long-established constitutional principles.

There is nothing in any of this remotely approaching an “attack”. There has been no criticism of judges personally. No threat to judicial independence. Nothing remotely within the realm of contempt of court that an “attack” on the judiciary might otherwise conjure up.

There has only been what any healthy legal system should welcome: rigorous scrutiny of judicial method and judicial reasoning.

Indeed, Knight’s rhetorical strategy is telling. By avoiding specifics, he can dismiss substantive legal argument without engaging with it. His vague references to “attacks” and “foreign playbooks” obscure what these critiques actually contain: detailed analysis of judicial reasoning, careful examination of precedent, and measured assessment of constitutional boundaries.

Knight sweeps aside all of these critiques as importing “foreign mischief.” Yet the irony is striking. His own scholarship is steeped in comparative constitutional theory, while Hodder, Watts, Ekins, and I have grounded our criticisms in New Zealand cases decided by New Zealand judges applying New Zealand law.

Knight uses a kaitiaki metaphor in relation to guardianship of the constitution. But even this is revealing. In Māori understanding, kaitiaki exercise guardianship within natural limits – responsibilities shaped by whakapapa, mana, and the balance of the natural world. Knight’s judges, by contrast, appear to recognise no limits to their guardianship.

Courts are guardians only, never destabilisers.

This sleight of hand avoids the central question: has our Supreme Court, in fact, strayed beyond its lane? The answer lies in its recent jurisprudence.

Bush-fires in the ecosystem

Constitutions evolve incrementally. But as I have written elsewhere, the Supreme Court’s decisions in Ellis v R (Continuance) (Ellis) and Fitzgerald v R (Fitzgerald) were not gentle adaptations. They were bush-fires – sudden, destabilising changes that left Parliament sidelined and legal certainty diminished.

As I wrote earlier this year in these pages, last year’s Supreme Court decision in Whakatōhea Kotahitanga Waka (the Edwards case) v Ngāti Ira O Waiowekaii (the Edwards case), too, unsettled the balance, though in a different way: not by revolutionising doctrine, but by rushing out a ruling ahead of a Parliamentary debate on the issue. It suggests a court that sees itself as a political actor.

Knight would have us believe the Ellis decision is constitutional “evolution.” He holds it up as evidence of the ecosystem adapting. But evolution suggests gradual, adaptive change. What the Court delivered in Ellis was revolution.

For more than a century, the rule for recognising custom at common law was settled by Public Trustee v Loasby (1908) 27 NZLR 801(SC). Under Loasby, Māori custom could be recognised as law where it met the usual requirements for any local custom: antiquity, continuity, certainty and reasonableness. That framework tied recognition of tikanga to a factual nexus with Māori communities and interests.

The Supreme Court in Ellis swept Loasby aside. It declared that tikanga could be relevant to any case before the courts, whether or not the parties or the facts bore any connection to Māori. But instead of articulating a principled replacement, the majority left a vacuum. Justice Glazebrook admitted she would “not attempt a reformulation of the test.” Chief Justice Winkelmann conceded the role of tikanga would depend on “the infinite variety of factual circumstances.” Justice Williams added courts “cannot authoritatively declare tikanga for general purposes.”

As Peter Watts has demonstrated, this amounted to a “revolutionary” departure from our constitutional foundations. In his analysis, the Court threw “a cloud over the entire body of existing case law and the entire statute book,” creating uncertainty, access to justice issues, and even equality concerns – since only experts from one part of society can now authoritatively testify to what the law requires. (p. 56)

If Ellis was revolution in the common law, Fitzgerald was legislation from the bench. Parliament’s “three strikes” regime in section 86D of the Sentencing Act 2002 could hardly have been clearer. For a third “strike” offence, “the High Court must sentence the offender to the maximum term of imprisonment prescribed for the offence.” Those words were absolute.

The facts of Fitzgerald were troubling. The appellant had committed an indecent assault – kissing a woman on the cheek without consent. The maximum penalty was seven years’ imprisonment. Because it was his third “strike,” the High Court was obliged by section 86D to impose the maximum sentence.

On appeal, the Supreme Court majority held that Parliament did not intend judges to impose sentences that were “manifestly unjust.” To reach that conclusion, it effectively rewrote section 86D – converting Parliament’s absolute command that courts “must” impose the maximum sentence into a discretion not to do so where the result would be grossly disproportionate.

Justice Young, dissenting, was blunt. The majority’s interpretation, he said, “is a flat contradiction” of Parliament’s words. ([324]) My report highlighted this case as a high-water mark of judicial activism.

If Fitzgerald showed judicial lawmaking, Edwards suggests judicial politics. The Marine and Coastal Area (Takutai Moana) Act 2011 (MACA) contains a careful two-limb test for recognising customary marine title. The first limb requires proof that an applicant group holds the area “in accordance with tikanga.” The second requires proof of “exclusive use and occupation since 1840 without substantial interruption.” Parliament deliberately included tikanga in the first limb but conspicuously excluded it from the second.

The High Court and Court of Appeal blurred that design, reading tikanga considerations back into the second limb. The Supreme Court was expected to restore Parliament’s intent. On one point, it did: it rejected the Court of Appeal’s view that only legally authorised interruptions counted. But it then repeated the fundamental error. It insisted tikanga must be read into the second limb, despite Parliament’s omission.

Worse was the way the Court handled its judgment. Edwards was a hugely complex case, involving 19 parties and overlapping claims across much of the Bay of Plenty coastline. The Court heard argument in November 2023. Seventeen days later, it released what it called a “first judgment” – not resolving the appeals, but “stating the test afresh.” A “second judgment” would follow later.

The timing was stark. Parliament was about to debate amendments to MACA. The Court rushed out its view of the law just in time to influence that debate. As I argued in the Herald, this was “a constitutional wake-up call.” In Law News I later described it as “unprecedented judicial activism.”

Against this record, Knight’s charge of “mischievous hyperbole” collapses. These cases illustrate why principled concerns about judicial overreach are grounded in fact, not foreign slogans.

Nor do they promote the civic literacy Knight himself values. If citizens cannot read a statute and know how courts will apply it, trust in the law collapses. When judges stretch or rewrite Parliament’s words, the law becomes less predictable, less comprehensible, and less legitimate.

Judicial adventurism destabilises the ecosystem. Scrutiny of the courts restores balance. Respect for judges does not mean immunity from critique. It means holding them to the same constitutional limits we demand of other branches.

Democratic legitimacy

Knight’s ecosystem imagery also obscures a fundamental truth. Constitutions derive legitimacy not from ecological balance but from democratic consent. When unelected judges rewrite laws enacted by elected parliaments, they undermine the very foundation of constitutional government.

The late Rt Hon Michael Cullen warned of this in 2004, when he cautioned against judges finding “higher law” to modify Parliament’s sovereignty. That, he said, would amount to “constitutional change by stealth” – change that should occur only through democratic process, not judicial decree. His warning has aged well.

A genuinely healthy constitutional ecosystem would feature courts that interpret law rather than make it, develop common law incrementally rather than revolutionarily, and adjudicate disputes rather than influence politics. Parliament would legislate, the executive would govern, and the courts would adjudicate – each staying within its lane.

Corrective legislation, too, has a legitimate role. When courts stray, Parliament can and should act to restore the balance. That is not an attack on judicial independence. It is part of the constitutional dialogue.

Ecosystems require balance, not deference. Knight’s dismissal of principled critique as “mischievous hyperbole” reveals the real threat: guardians who brook no scrutiny of their stewardship. A truly healthy ecosystem would welcome accountability.

Judicial restraint is not a partisan demand. It is the condition for legitimacy. Without it, the apex court becomes less a guardian than a threat – and the ecosystem begins to fail.

An earlier version of this column first appeared in LawNews on 27 August 2025. To read it on the LawNews website, please click here.

Roger Partridge writes at Plain Thinking