David Harvey
The report Who Makes the Law? Reining in the Supreme Court authored by Roger Partridge, Chair and Senior Fellow at The New Zealand Initiative, examines recent Supreme Court decisions that have sparked widespread concern among legal scholars, practitioners and politicians.
As Partridge puts it:
The Supreme Court’s overreach is making our laws less consistent and predictable, eroding public trust in both the law and the courts.
When unaccountable judges rewrite clear statutory language or reshape common law principles based on their perception of social values, they’re not just interpreting the law – they’re making it.
This shift risks pushing our Supreme Court down the same path as the US Supreme Court, where judicial activism has led to a troubling politicisation of the judiciary and a dangerous loss of public trust in the courts.
Partridge’s paper is controversial and has already sparked debate in the academic community although the issues it raises are not new. Earlier this year, Jack Hodder KC raised similar concerns in a paper entitled One Advocate’s Opinions – The “Least Dangerous Branch”? Predictability and Unease.
This article is an overview of Partridge’s paper and offers some observations on the issues he raises within the context of judicial independence. It is very much a “first impressions” overview and is not written as an academic piece.
Matters arising
There are five issues that the paper draws out.
The first is that of judicial overreach. The report claims that the Supreme Court of New Zealand has been overstepping its constitutional bounds by adopting a loose approach to interpreting laws passed by Parliament and reshaping common law based on judges’ views of changing social values.
This undermines the separation of powers and the democratic legitimacy of the law.
Second, the report highlights specific cases, such as the Fitzgerald decision on the “three strikes” law and the Ellis decision on tikanga Māori, to illustrate the Supreme Court’s overreach and the need for legislative intervention to correct these judicial missteps.
Third, there are the consequences of such overreach. The report argues that the court’s actions have made the law less certain and predictable, which is fundamental to the rule of law. This unpredictability can paralyse decision-making for individuals and businesses, undermining confidence in the legal system.
A fourth issue is the tension between the legislative and judicial branches of government.
The report emphasises the need for Parliament to reassert its sovereignty and restore the proper balance between the judiciary and the legislative branch. This includes ensuring elected politicians, who are accountable to voters, are primarily responsible for lawmaking and rights protection.
A fifth and final issue suggests several reforms to address the problem of judicial overreach. These include:
- Passing targeted legislation to overturn specific problematic court decisions;
- Amending the Senior Courts Act to define the rule of law more clearly;
- Amending the Legislation Act to constrain the judiciary’s loose approach to statutory interpretation;
- Repealing or amending s 6 of the New Zealand Bill of Rights Act to limit judicial rewriting of statutes; and
- Reforming judicial appointment processes to emphasise judicial restraint and respect for parliamentary sovereignty.
A major theme in all the proposed solutions is the impact they may have on judicial independence.
I outline the proposed solution followed by a brief discussion of the judicial independence implications. Before embarking upon that discussion, I shall briefly outline elements of judicial independence.
Independence and accountability
Primarily, judges have security of tenure and remuneration. These concepts developed because the Stuart monarchs used powers of dismissal of judges who decided against the interests of the Crown.
Security of tenure and remuneration mean judges may be dismissed only for very limited reasons and their incomes cannot be reduced, thus ensuring they will not be intimidated to decide cases in a particular way, especially in favour of the State.
Judges need to know they’ll remain in their positions as long as they’re performing their duties ethically and competently. This means they can’t be arbitrarily removed or threatened with dismissal for making unpopular decisions. With security of tenure, judges can focus on applying the law impartially, without fearing repercussions from powerful entities or the government itself.
Ensuring judges have adequate and secure salaries eliminates financial manipulation as a tool of influence. When judges don’t have to worry about their livelihoods being compromised, they’re better positioned to make unbiased decisions. It’s not about making them wealthy; it’s about shielding them from financial coercion.
There are other elements to judicial independence. One of these is that of institutional independence.
This means the courts manage their own affairs, from administrative functions to procedural rules, without interference from the legislative or executive branches. It’s the practical application of the separation of powers doctrine, ensuring checks and balances within the government.
A further element of judicial independence lies in the appointment process.
Judges should be appointed and promoted based on merit, not political affiliations or pressures. Transparent selection criteria and processes help maintain public confidence in the judiciary. When people trust that judges are chosen for their competence and integrity, they’re more likely to respect and accept judicial decisions.
There must be freedom from external pressures.
Whether it’s the media spotlight, public opinion or political agendas, judges need insulation from outside influences. This means safeguarding them from lobbying, personal critiques from Cabinet ministers, demonstrations meant to intimidate or any form of harassment. It’s about creating an environment where the rule of law prevails over the rule of man or mob.
Associated with the freedom from external pressures must be the provision of adequate resources. Adequate funding, access to legal resources and sufficient administrative staff ensure judges can perform their duties efficiently.
Accountability is essential. Independence doesn’t mean judges are untouchable. There must be systems in place to hold judges accountable for misconduct or incompetence. This includes ethical codes, disciplinary bodies and the possibility of appeal or review.
Accountability ensures that independence doesn’t become impunity. The Judicial Conduct Commissioner provides an avenue for accountability, although the JCC’s powers do not extend to reviewing the decisions of a judge. That is for the appeal process.
Finally, as elements of judicial independence, laws and regulations governing judicial functions should be clear, stable and rooted in the constitution or foundational legal documents.
Judicial restraint
This legal framework acts as a shield against arbitrary changes that could undermine judicial independence. It provides a consistent reference point for judges to interpret and apply the law.
All this is important because it reinforces the societal belief in the importance of an independent judiciary. When a culture values the rule of law, it reinforces all other elements of judicial independence. Public support can act as a buffer against attempts to undermine the judiciary.
However, as noted above, judicial independence does not mean judges may decide cases how they like.
There are two principles that are important. The first is that of judicial restraint where judges should refrain from deciding legal issues, and especially constitutional ones, unless the decision is necessary to the resolution of a concrete dispute between adverse parties. Furthermore, judges should defer to the views of the elected branch.
The second lies in the wording of the judicial oath which is probably as succinct a mission statement for the judiciary as may be desirable. The relevant wording (after the loyalty oath) is “I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.”
I shall now turn to Roger Partridge’s proposed solutions.
These fall into two main categories. Retrospective solutions are those that deal with an incident of judicial overreach and use legislative power to provide a remedy.
Prospective solutions are anticipatory in nature and seek to prevent incidents of judicial overreach occurring in the future.
Depending on the nature of the solution, it is more likely than not that a prospective solution will have an impact on judicial independence. Retrospective solutions are less likely to have such an effect.
Targeted legislation
This approach involves Parliament passing laws to clarify or reverse specific court decisions that are seen as overreaching.
While it asserts parliamentary sovereignty, it does not interfere with the judiciary’s ability to interpret laws in other cases. It maintains judicial independence by allowing courts to continue their interpretive role within clearer legislative boundaries.
This does not have any judicial independence implications. The proposal recognises legislative supremacy. It does not threaten judicial independence and acts as a corrective where the legislature may see that the courts have misinterpreted the will of Parliament.
If a decision involves a common law development, the legislature may step in and address the problems that may arise in a particular decision or line of decisions. Similarly, there are no judicial independence implications in this proposal.
This is a retrospective solution.
Defining the rule of law in the Senior Courts Act
This proposal would introduce a “thin” definition of the rule of law which focuses on formal characteristics like clarity, predictability and impartiality.
This helps constrain judicial activism without dictating specific outcomes in cases. It suggests that it preserves judicial independence by ensuring judges adhere to established legal principles while interpreting laws.
This proposal has implications for judicial independence although Partridge may argue that it does not. It involves the legislature placing certain constraints on the way judges may go about making their decisions on the law.
Although the proposal seems limited to statutory interpretation, the way in which the proposal may be worked out would involve the identification of criteria that would limit or restrict the ability of the judge to arrive at a properly reasoned outcome.
In essence, there is an element of the legislature dictating to the courts how they should decide cases.
This is a prospective solution.
Amending the Legislation Act 2019
This proposal involves setting stricter guidelines for statutory interpretation, such as requiring courts to consider the historical context of legislation which limits the scope for judicial reinterpretation.
This ensures judges do not stray into legislative functions but still allows them to interpret laws within a defined framework, thus maintaining their independence.
Once again, despite the suggestion that judicial independence is maintained, it would nevertheless limit or restrict the ability of the judge to arrive at a properly reasoned outcome.
Once again there is an element of the legislature dictating to the courts how they should decide cases. Do I detect a whiff of Justice Scalia’s “originalism” lurking beneath this proposal?
This is a prospective solution.
Reforming judicial appointments
This proposal emphasises the need for judicial restraint and respect for parliamentary sovereignty in the criteria for judicial appointments. It would ensure that judges are selected based on their commitment to constitutional principles.
Introducing fixed terms for Supreme Court judges could prevent detachment from practical realities.
These reforms aim to foster a judiciary that respects its constitutional role without compromising its independence.
Although this is a prospective solution, it specifies criteria necessary for a candidate to be considered for judicial appointment. There are already some criteria specified, such as an understanding of te Tiriti. Setting criteria for appointment has little impact on judicial independence.
Although it seems to have elements of an American appointment process, it does not involve public hearings and, depending on the criteria, is likely to be more apolitical than the US system.
In setting such criteria one must be careful for what one wishes. President Eisenhower regretted appointing Earl Warren and William Brennan to the Supreme Court of the United States when it turned out they were more judicially liberal than was first thought.
The introduction of fixed terms for higher court judges drives some serious inroads into judicial independence.
In essence, it seems to inject a “good judicial behaviour” element into the mix.
If, at the end of the term, a Supreme Court judge has demonstrated a tendency to be more activist, their appointment may not be renewed. If a judge on the other hand demonstrates a “black letter” tendency, their warrant may be renewed.
This is something of a return to the situation that existed in the 17th century before the Glorious Revolution and is an example of a prospective solution that involves a substantial interference with judicial independence.
Amend/repeal section 6 of NZBORA
The final solution offered is to amend or repeal s 6 of the New Zealand Bill of Rights Act 1990.
This is the section that directs, where possible, a Bill of Rights-friendly interpretation of statutes. The aim of this solution is to prevent the judicial rewriting of statutes, as was the case in Fitzgerald.
It seeks to ensure that courts respect the clear intent of Parliament while still protecting rights within the bounds of the law. Judicial independence is preserved by focusing on reasonable interpretations rather than expansive reinterpretations.
Amending or repealing s 6 is prospective in that it introduces a preventative solution to expansive interpretations. Nevertheless, it introduces a constraint upon judicial decision-making.
One should not underestimate the creativity of the judicial mind when faced with a problem posed by this proposal.
Although a statutory direction such as s 6 may be removed, a judge might still interpret legislation from the perspective of a rights-friendly position, elevating the significance of the Bill of Rights to a quasi-constitutional level.
The proposed change may not be as effective as Partridge might think.
Ranking the proposals
The targeted legislation proposal is retrospective and has the least impact of all the proposals on judicial independence and is therefore preferable.
In addition, it is an accepted solution to circumstances where, in the opinion of Parliament, the courts have got it wrong.
Of the prospective solutions, the amendments to the Legislation Act or the Bill of Rights Act do not interfere significantly with judicial independence although they do act as a constraint on judicial reasoning. This, of course, is the outcome Partridge desires.
Furthermore, restraints on judicial decision-making are not unknown, the most recent being the limitation of mitigating discounts for sentencing to 40%.
It is difficult to see how defining the rule of law would be of assistance and indeed it would be a bold legislature that undertook such an exercise. As a prospective solution that impacts upon judicial independence, it ranks with the other legislative proposals.
The issues of judicial appointments and terms limits for members of the Supreme Court are perhaps that most dangerous forms of interference with judicial independence.
Of the two, the suggestion of terms limits is extreme and, in my view, while attractive in terms of restricting activism, constitutes a retrograde interference with the fundamental principles of judicial independence.
Criteria for appointment are not unknown but care must be taken to ensure they do not become politicised.
The fundamental test is whether the candidate as a judge will interpret and apply the law impartially, ensuring justice is administered fairly and consistently and whether the candidate has demonstrated such a knowledge and understanding of the law and legal method to do that.
Conclusion
Partridge’s paper is contentious. Although it has been available for only a few days (as at the writing of this note), it has attracted adverse criticism from academics and other commentators.
However the concerns Partridge raises are justified. The cases that have been cited are examples of judicial overreach and seem to be a part of an agenda by some members of the Supreme Court to realign the court within the constitutional structure.
Given that precedent and stare decisis mean the principles articulated by the Supreme Court are binding on lower courts (unless the individual cases are distinguishable), the impact of what Partridge calls judicial overreach will filter down and become part of the New Zealand legal system.
The constitutional and systemic implications are significant and of course must interest other arms of government, especially the legislature.
In deciding how to approach and resolve whatever problems there are – and some commentators consider the process undertaken by the Supreme Court is legitimate and unremarkable and therefore there is no problem – care must be taken to ensure the preservation of judicial independence.
And, associated with that, there is the issue of public confidence in the fairness and impartiality of the court system as a means of adjudicating disputes and providing a just outcome according to accepted principles of law.
David Harvey is a retired District Court judge, a member of Sangro Chambers and a member of The Law Association’s Public & Administrative Law committee
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