Supreme Court matters: Why lawyers need to speak out

Roger Partridge

Imagine a system in which those who understand it best see a problem developing – slowly, incrementally, case by case – but choose not to say so publicly. Not because they are forbidden to speak. Not because they are ignorant. But because speaking carries personal cost, while silence is professionally safer.

The system continues to function. No single failure is dramatic enough to force action. Each adjustment can be defended on its own terms. Outsiders assume that if something were seriously wrong, those closest to it would say so.

Over time, the problem becomes structural. By the time it is widely acknowledged, it is no longer easy to reverse.

This is not a hypothetical. It describes the slow unravelling of New Zealand’s constitutional order – not by outsiders, but by one of the institutions charged with upholding it. New Zealand inherited constitutional arrangements that took centuries to develop – from Magna Carta through the Bill of Rights 1689: the separation of powers, parliamentary sovereignty, and the rule of law.

These institutions arrived here through a contested and often unjust history, shaped by colonisation and the unresolved legacy of Te Tiriti o Waitangi. But they also became the framework within which those grievances were argued, recognised, and – however imperfectly – addressed.

The separation of powers, parliamentary sovereignty, and the rule of law each impose discipline. Parliament makes law, looking to the future. courts apply law to resolve disputes, looking to the past. The executive governs within the authority Parliament confers in the present. Individuals and businesses can plan their affairs knowing that Parliament’s words will be applied as enacted, not reshaped according to judicial preference.

In recent decades, however, New Zealand’s senior courts – particularly the Supreme Court – have departed from the traditional understanding of the judicial role. Regular readers of this column over the past two years will be familiar with the argument. The common law is being reshaped by the Supreme Court to reflect judges’ perceptions of changing social values. Ellis v R (Continuance) [2022] NZSC 114 is the high-water mark – described by Emeritus Professor Peter Watts KC as “revolutionary.” But Jack Hodder KC has catalogued other instances in his magisterial paper for the Legal Research Foundation’s 20th anniversary Supreme Court conference.

Meanwhile, the Supreme Court’s approach to statutory interpretation stretches or ignores clear legislative commands. In Fitzgerald v R [2021] NZSC 131, the court rewrote sentencing law under the guise of the New Zealand Bill of Rights Act. In Re Edwards [2024] NZSC 164, it read tikanga back into a statutory test from which Parliament had conspicuously excluded it. In Attorney-General v Family First New Zealand [2022] NZSC 80, the Court reworked the Charities Act’s scheme so that registration turns on judges’ perceptions of “contemporary values.” In Nikora v Kruger [2024] NZSC 130, it treated Parliament’s definition of “beneficial ownership” as including ownership by the dead.

Judicial review completes a trifecta of devices that an activist Supreme Court is using to undermine the separation of powers. The most recent example is the Court’s expansion of the so-called “mandatory relevant considerations” doctrine in Climate Clinic Aotearoa v Minister of Energy and Resources [2025] NZSC 197 to require ministers to consider climate change impacts under a statute that made no such demand.

The question is not whether this activism is happening. It is. The doctrinal analysis has been done – here and abroad. Hodder has warned of a “quiet constitutional battlefield.” Drawing on his analysis and that of Watts, my report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court documented the pattern and proposed reforms.

Oxford’s Kiwi professor of Law and Constitutional Government, Richard Ekins KC, who wrote the foreword to that report, examined similar trends in decisions of the United Kingdom Supreme Court in Judicial Power and the Balance of our Constitution. In the same collection, Emeritus Professor John Finnis directly engaged Justice Susan Glazebrook’s extra-judicial defence of expansive statutory interpretation – and dismantled it (at 111-128). The exchange was refreshingly direct: the kind of reasoned scholarly debate our constitutional order needs, but too rarely receives.

The question is not whether this activism matters, either. It does. A system in which courts rewrite statutes to accord with judges’ views of what Parliament should have enacted is different from one in which Parliament’s words bind. A system in which the common law is reshaped according to judicial perceptions of social values is different from one that evolves incrementally within settled bounds. A constitution in which the separation of powers is a flexible guideline is different from one in which it is a binding constraint.

Since writing Who Makes the Law, I have received a steady stream of correspondence from legal practitioners describing the day-to-day confusion the Supreme Court’s approach has caused – especially in the lower courts and tribunals.

Perhaps the most striking example is the gang patch case I wrote about in this column last year, where a District Court judge ruled that a Mongrel Mob vest “forfeited to the Crown” should be returned to its owner. The judge invoked tikanga – without evidence – and treated Parliament’s mandatory language as discretionary. If “forfeited to the Crown” can now mean “returned to the defendant,” Parliament’s words have ceased to anchor the law.

These are not technical distinctions of interest only to lawyers. When Parliament’s words bind, individuals and businesses can read a statute and plan accordingly. Contracts can be written. Investments can be made. People know where they stand. When courts reshape law according to preference, that predictability disappears. Every settled question becomes unsettled. Productivity, prosperity and rights and freedoms suffer.

When law is made by Parliament, it is made by those we elect and can remove. Ministers answer to voters. Bad laws can be changed at the next election. When law is made by courts, it is made by those we did not choose and cannot remove. There is no democratic corrective.

When the separation of powers is respected, no branch dominates. Each checks the others. Power remains accountable. When courts assume legislative authority and Parliament hesitates to respond, that balance collapses. Power concentrates in the institution least accountable to the public.

These arrangements are what distinguish successful democracies from dysfunctional ones. They are why New Zealand has been stable, prosperous, and free – not by accident, but by institutional design.

Why lawyers stay silent

One might expect lawyers to defend the constitutional order. They understand it. They see doctrinal shifts as they occur. They have the training and standing to explain what is happening.

Formally, nothing prevents them from doing so. Criticising judicial reasoning is not contempt. Analysing the courts’ legal method is lawful. Arguing that a court has exceeded its constitutional role is part of ordinary legal discourse. Rule 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules requires lawyers not to act in ways that undermine the integrity or dignity of the courts. But that obligation does not prohibit reasoned criticism of doctrine or method. The path is open.

The constraint is not legal. It is cultural and institutional. New Zealand’s legal profession is small. Reputations endure. Barristers appear repeatedly before the same judges. Professional relationships matter – not for corrupt favour, but for respect. Hierarchy and deference are deeply ingrained in our judicial system.

Appointments amplify these incentives. Senior roles – judicial office, silk, public appointments – are drawn from the same professional pool. The criteria emphasise collegiality and temperament. No conspiracy is required for restraint to prevail. The structure speaks for itself.

The result is asymmetric risk. In all but the extreme case, judges do not answer to public criticism. But lawyers who speak bear the consequences. For any individual practitioner, silence is a rational calculation. Caution is rewarded and visibility is not. A small number of senior practitioners and retired judges have refused that calculus. But they are the exceptions, not the norm – and their very visibility confirms the underlying point.

When silence becomes assent

Constitutional arrangements depend on mutual restraint – and on each branch responding when another oversteps. Parliament has the authority to correct judicial overreach; that is the constitutional design. Who Makes the Law proposed specific reforms to the Senior Courts Act and the Legislation Act to restore interpretive discipline and reinforce the separation of powers.

But correction requires political will, and political will requires awareness. Most politicians are not experts in constitutional doctrine. They take cues from those who are. When the profession remains silent, that silence is read as assent – or at least as evidence that the problem is not serious enough to demand attention.

In a recent essay for Persuasion’s “Why Liberalism?” series, I argued that liberal democracy does not defend itself. Drawing on John Stuart Mill and Karl Popper, I suggested that open societies endure only when those who benefit from them accept the burden of their defence. The mechanisms exist – but they must be activated. Mill was not moralising when he observed that the greatest harm arises from the inaction of those who understand what is happening. He was describing a calculation.

The same is true here. Parliament can act. But if the profession remains silent, there is little reason for Parliament to treat the problem as urgent. When that silence persists, erosion follows. Each accommodation can be defended in isolation. But exceptional departures become precedents. Precedents harden into principles. The original understanding fades from view.

The cost of speaking is real but limited – especially for those with established careers, secure reputations, or positions outside active practice. The cost of silence, by contrast, is borne collectively and compounds over time.

Defence of constitutional principle does not require heroics. It requires clarity. It requires senior practitioners, academics, and those no longer constrained by office to say publicly what many acknowledge privately: that something important is changing, and that the change matters.

If those best placed to see and explain the shift remain silent, the silence itself becomes part of the transformation. The question is whether enough will speak.

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