Judicial independence and constitutional balance: a response to David Harvey

Roger Partridge

David Harvey’s thoughtful critique in Law News of my report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court,[i] highlights the importance of addressing judicial overreach.[ii]

The retired District Court judge agrees with the report’s conclusions that recent Supreme Court decisions raise legitimate concerns. However, he expresses concerns about the implications of some of the report’s proposed solutions for judicial independence.

Harvey’s perspective as a former judge brings valuable insight to this debate. He acknowledges that cases like Fitzgerald (on three strikes sentencing)[iii] and Ellis (on tikanga)[iv] are “examples of judicial overreach” that seem “part of an agenda by some members of the Supreme Court to realign the court within the constitutional structure”.[v]

As Oxford’s Professor of Law and Constitutional Government, Richard Ekins KC, observes in his foreword to Who makes the law, these decisions reflect a court that has “departed from long-standing, well-settled constitutional limits”.[vi]

To redress the constitutional balance, Who Makes the Law recommends five options for Parliament: targeted legislation to overturn problematic decisions, defining the rule of law in the Senior Courts Act 2016, amending the Legislation Act 2019 to constrain loose interpretation, reforming s 6 of the New Zealand Bill of Rights Act 1990 and reforms to judicial appointments, including introducing term limits for Supreme Court judges.

The report carefully considers judicial independence in developing these recommendations. None should prevent courts from performing their vital role in protecting rights and upholding the rule of law within established constitutional limits. Indeed, by providing clearer constitutional boundaries, the reforms would strengthen judicial independence.

Nevertheless, Harvey’s critique of each proposal deserves careful examination.

 

Targeted legislation

Harvey agrees that Parliament can and should pass legislation to correct problematic court decisions. As he notes, this is Parliament’s “least controversial” response and has “no judicial independence implications”.[vii]

Recent examples validate this approach. A Labour-led Parliament passed urgent legislation to reverse the Supreme Court’s decision in D v Police regarding the Child Sex Offender Registration Act 2016.[viii] The current coalition government is also preparing legislation to address concerning interpretations of the Marine and Coastal Area Act 2011.

As Ekins observes in his foreword, while Parliament should evaluate such legislation carefully and be slow to strip litigants of the fruits of litigation, it is “without question constitutionally legitimate” for Parliament to conclude a court has misinterpreted legislation and to restore its intended meaning.[ix]

 

Defining the rule of law

The report’s second recommendation addresses a more systemic issue. The Senior Courts Act refers to New Zealand’s “continuing commitment to the rule of law” but nowhere defines this concept. This gap has allowed some judges to advocate for an expansive “thick” conception that includes substantive social justice outcomes.

Justice Susan Glazebrook’s 2021 Waikato Law School lecture illustrates the risk. She argued for expanding the rule of law to include “redress for historical disadvantage” and claimed that “until we complete the process of decolonisation, the rule of law can only be considered a work in progress”.[x]

Harvey is concerned that defining the rule of law would amount to “the legislature dictating to the courts how they should decide cases”.[xi]  However, on close examination, Harvey’s concern faces significant difficulties.

Parliament has already referenced the “rule of law” in legislation. Clarifying Parliament’s intended meaning cannot amount to improper dictation. Harvey’s position, if taken to its logical conclusion, would prevent Parliament from defining any statutory terms, an outcome difficult to reconcile with parliamentary sovereignty.

Moreover, Harvey’s objection reveals a deeper confusion between defining terms and dictating outcomes.

A “thin” definition of the rule of law focusing on formal characteristics like clarity and predictability does not tell judges how to decide cases. It simply provides the constitutional framework within which they exercise their judgment. Far from constraining independence, it protects it by preventing courts from being drawn into political controversy through an ever-expanding conception of the rule of law.

 

Amending the Legislation Act

The report’s next recommendations target two distinct problems with statutory interpretation: the courts’ ‘ambulatory’ approach to statutory interpretation and their expansion of the so-called principle of legality.

The ambulatory approach suggests a court may interpret a statute based on the ‘contemporary context’ rather than the context when Parliament enacted it. However, this approach effectively transfers lawmaking power from Parliament to the courts.

It contemplates judges reshaping legislation based on their perception of evolving context – including their perception of societal values – without parliamentary involvement. Some judges, including Glazebrook writing extra-judicially,[xii] endorse this approach, as do the authors of Burrows and Carter.[xiii]

The report recommends amending s 10 (1) of the Legislation Act to address this concern.

Section 10 (1) directs the courts that, “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.” The amendment would insert the words “at the time of its enactment” after the word “context”. This would restrain the courts from taking an ambulatory approach to deciding the intended meaning of Parliament’s words.

The Supreme Court’s approach to the principle of legality has significantly expanded the judiciary’s power to read down or even disregard clear statutory language. Effectively, the courts now treat the principle of legality’s interpretive presumptions as ‘trump cards’ rather than ‘tiebreakers’.

To address this concern, the report recommends further amending s 10 by adding a subclause expressly limiting the courts’ use of the principle of legality. A new subsection would make clear that the courts cannot use common law presumptions to displace or qualify clear statutory words or adopt unreasonable interpretations of them.

As Ekins argues in his submissions to the UK Parliament recommending similar reforms, the principle of legality should aid “a process of inference about the meaning of the statutory text and, thus, about the meaning Parliament intended to convey”.[xiv] It should not be a licence for judicial revision of clear legislation.

Harvey expresses concern that these two proposed amendments – addressing the ambulatory approach and the principle of legality – would unduly restrict judicial interpretation. He suggests they would “limit or restrict the ability of the judge to arrive at a properly reasoned outcome” and represent “the legislature dictating to the courts how they should decide cases”.

More tellingly, he suggests judges might find ‘creative ways’ around such restrictions. This candid observation, coming from a respected former judge, inadvertently strengthens the case for reform.

His acknowledgement that judges might seek to work around Parliament’s clear intent demonstrates why providing clear direction about when context is relevant and restoring the principle of legality to its proper role is necessary.

The recommended changes would preserve judicial independence by establishing clear constitutional boundaries within which judges can exercise their interpretive function. Far from restricting properly reasoned outcomes, the reforms would enhance them by ensuring interpretation focuses on Parliament’s intended meaning.

 

Section 6 of the Bill of Rights Act

The report’s fourth recommendation addresses what may be the most concerning example of judicial overreach. Section 6 requires courts to prefer rights-consistent interpretations of statutes where possible. In Fitzgerald, Chief Justice Helen Winkelmann explicitly abandoned the more restrained approach of the Supreme Court in Hansen,[xv] which had limited s 6 to “reasonably available” interpretations.[xvi]

The report recommends either repealing s 6 entirely or amending it to restore the Hansen approach.

Harvey acknowledges the reform “seeks to ensure that courts respect the clear intent of Parliament while still protecting rights within the bounds of the law”. Nevertheless, he expresses concern the reform would “introduce a constraint upon judicial decision-making”.

More significantly, he suggests judges might still find “creative ways” around such restrictions, observing that “One should not underestimate the creativity of the judicial mind when faced with a problem posed by this proposal.’[xvii]

Once again, this candid acknowledgement inadvertently strengthens the case for reform. If judges would seek to achieve through alternative means what Parliament has explicitly ruled out, this suggests judicial independence has become unmoored from proper constitutional principles.

The reform proposal once again aligns with Ekins’ recommendations for reforming the UK’s equivalent provision in s 3 of the Human Rights Act (UK). In Thoughts on a Modern Bill of Rights,[xviii] Ekins argues there is a strong case for either repealing s 3 entirely or specifying a more constrained interpretive rule to stabilise the statute book and prevent judicial overreach.

 

Judicial appointments

The report’s final recommendations concern judicial appointment processes and tenure. They propose emphasising judicial restraint and respect for parliamentary sovereignty in appointment criteria and introducing fixed, non-renewable terms for Supreme Court judges.

Harvey considers these recommendations to be the subject of his strongest criticisms, likening fixed terms to pre-Glorious Revolution attempts to control judicial behaviour. However, this historical analogy overlooks a crucial distinction: pre-Glorious Revolution judges faced dismissal or renewal pressures that would compromise independence. A single non-renewable term creates no such pressure.

Harvey also warns about politicisation. But he has simultaneously advocated in a recent column in the New Zealand Listener for judges to “address societal issues where Parliament has failed to do so”.[xix]

However, deciding which “societal issues” need addressing and how to address them is inherently political. His position presents two conflicting positions – warning against politicisation while promoting exactly the kind of judicial activism that politicises courts.

 

The deeper divide

Harvey’s Listener column also reveals a fundamental misunderstanding of our constitutional arrangements. His position raises three significant difficulties.

First, it would make judges the arbiters of parliamentary performance, effectively placing unelected courts above Parliament in our constitutional hierarchy.

Second, it assumes judicial intervention is the appropriate response to perceived parliamentary inaction when our democratic system provides political solutions through the electoral process.

Third, and most fundamentally, it would inevitably draw courts into political controversy, undermining the very judicial independence he seeks to protect.

The United States Supreme Court’s experience shows how judicial intervention in perceived legislative failures inevitably leads to politicisation of both court and appointments. We risk a similar outcome if we follow Harvey’s prescription here.

 

The fiction of parliamentary ‘failure’

Harvey’s position about courts addressing societal issues where Parliament has “failed to act” rests on two assumptions that deserve closer examination.

First, he suggests issues like climate change and indigenous rights justify special judicial intervention. But parliaments have historically addressed existential challenges – from world wars to economic depressions – through democratic processes. The challenges in cases like Ellis do not justify departing from established constitutional principles.

Second, and more fundamentally, Harvey’s concept of parliamentary “failure”[xx] misunderstands the nature of parliamentary sovereignty. When Parliament chooses not to legislate on an issue or to legislate in a particular way, that is itself a political decision that deserves respect under our constitutional arrangements.

To suggest courts should step in when they perceive Parliament has “failed to act” would effectively give courts the power to override Parliament’s choices – an approach difficult to reconcile with basic constitutional principles.

These difficulties reveal broader implications for parliamentary sovereignty. If citizens want action on any issue – whether climate change, indigenous rights, or other matters – our constitution provides for this through political engagement, not judicial intervention.

When courts step in to fill perceived gaps in legislation, they risk overriding Parliament’s deliberate policy choices about both whether and how to legislate. They also undermine the rule of law and the law’s democratic legitimacy.

 

The way forward

Harvey’s thoughtful critique raises important questions about protecting judicial independence. Yet his position contains internal contradictions: warning against politicisation while advocating judicial intervention in societal issues; defending independence while supporting an expansive role that would draw courts into political controversy.

The reforms proposed in Who makes the law would restore proper constitutional boundaries while preserving the courts’ vital role in protecting rights. The real threat to judicial independence comes not from maintaining these boundaries but from courts assuming political functions.

Parliament has the tools to address this challenge. Concerns about judicial independence should not prevent it from using them.

 

Roger Partridge is chair and a senior fellow of The New Zealand Initiative. He is a former Bell Gully litigation partner and chair. He is an honorary fellow and former executive director of the Legal Research Foundation and a former member of the New Zealand Law

 

 

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[i] Roger Partridge Who Makes the Law? Reining in the Supreme Court (The New Zealand Initiative, October 2024).

[ii] David Harvey Reining in the Supreme Court must not compromise judicial independence LawNews (21 October 2024).

[iii] Fitzgerald v R [2021] NZSC 131.

[iv] Ellis v R [2022] NZSC 114.

[v] Ibid.

[vi] Richard Ekins, Foreword, in Roger Partridge, Who Makes the Law? Reining in the Supreme Court op. cit. 4.

[vii] David Harvey Reining in the Supreme Court must not compromise judicial independence op. cit.

[viii] D v New Zealand Police [2019] NZSC 31.

[ix] Richard Ekins, Foreword in Roger Partridge, Who Makes the Law? Reining in the Supreme Court op. cit. 5.

[x] Justice Susan Glazebrook The Rule of Law: Guiding Principle or Catchphrase? (2021) 29 Waikato Law Review 2.

[xi] David Harvey Reining in the Supreme Court must not compromise judicial independence op. cit.

[xii] Justice Susan Glazebrook Mired in the past or making the future? in Richard Ekins (ed), Judicial Power and the Balance of Our Constitution (Policy Exchange, London, 2018) 79, 86-87.

[xiii] Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021).

[xiv] Richard Ekins How to Reform Judicial Review (Policy Exchange, London, 2021).

[xv] Fitzgerald, per Winkelmann CJ [58]-[60].

[xvi] R v Hansen [2007] NZSC 7.

[xvii] David Harvey Reining in the Supreme Court must not compromise judicial independence op. cit.

[xviii] Richard Ekins Thoughts on a Modern Bill of Rights (Policy Exchange, London, 2022).

[xix] David Harvey Should our Supreme Court address societal issues where Parliament has failed to do so? New Zealand Listener (7 November 2024).

[xx] Ibid.