Neil Sands
Attorney-General Chris Bishop has issued a blunt warning for the judiciary to stay out of politics and respect parliamentary supremacy, saying the courts lack the democratic mandate and institutional expertise needed to develop public policy.
In his first major address to the legal profession since becoming Attorney-General in April, Bishop advised the judiciary against allowing the courts to be used as a forum to “relitigate” policy decisions that Parliament had clearly set out in legislation.
And he said that if the courts do take the law in an “unhappy direction” that contradicts Parliament’s intent, he will advise his colleagues in the legislature to impose their will “clearly and deliberately, through legislation”.
“Parliament expects the courts to apply clear legislation. Development of statute law is for Parliament, not for the courts,” he told a lunchtime function in Auckland on Thursday organised by The Law Association.
“Changing social values and mores are reflected in the democratically elected legislature, not an unelected – and by definition unrepresentative – judiciary.”
Bishop said his core philosophy is that “Parliament is supreme and sovereign”, giving it the sole power to make significant policy decisions.
“This position used to be uncontroversial and long-standing,” he said. “But I think the time has come for a robust assertion of the traditional, orthodox view that Parliament is our country’s supreme law-making body.”
While Parliament is elected and represents the views of the people, Bishop said “the courthouse remains an attractive forum for those who have yet to persuade the public – and therefore Parliament – of the merits of their cause”.
“It is, therefore, worthwhile setting out why such choices belong to Parliament, and why the judiciary must continue to protect its processes against attempts to use the courts to relitigate Parliament’s choices.”
Attorney-General Chris Bishop
‘Leave policy to Parliament’
In a wide-ranging speech that traced the development of constitutional principles from 17th Century England through to modern day New Zealand, Bishop said: “The rule of law and parliamentary sovereignty does seem to be unfashionable at the moment. We dismiss our heritage at our peril.”
He said the courts have an important role in interpreting legislation and developing common law, as well as a long tradition of upholding individual and human rights.
“But let me say this,” he added. “There is a difference between adopting a reasonably available, rights-consistent interpretation and interpreting a statutory provision to advance a public policy choice that the legislature has not adopted.”
In addition to a democratic mandate, Bishop said Parliament also has access to the institutional expertise needed to develop sound policy that deals with complex issues.
“If you want to address any big social problem – whether that’s housing, the environment, or infrastructure – you need to be able to foresee issues across a number of different sectors,” he said. “You’ll need access to a range of expertise, and you’ll probably need to make difficult trade-offs. You may want to consult with the stakeholders who will be applying the legislation.
“These are things Parliament is good at, or at least better at than the courts. In short, it has the necessary institutional capacity.”
In contrast, he said the courts tend to deal with discrete disputes, “which means that judge-led developments in the law are necessarily piecemeal and incremental”.
“Nor are courts likely to have access to the breadth of expertise and resources necessary for addressing complex public policy or making radical systemic change.”
Bishop cited the Smith v Fonterra case, when the Supreme Court allowed an environmental activist to sue six large New Zealand businesses over greenhouse gas emissions, prompting the government to introduce legislation to override the court and ensure climate policy was set by Parliament.
He said the government faced a dilemma over the case, act decisively or let a years-long legal process play out.
“There would be ongoing anxiety about the possible development of the law and flow-on effects for regulatory certainty in a market economy. Despite what some may say, that matters,” he said.
‘Punch-ups in the lobby’
While vigorously promoting parliamentary sovereignty, Bishop conceded that the legislature has its flaws.
“The select committee system could work better. There is a case for a Parliamentary Budget Office. The asymmetry of resources and information available between the opposition and government makes sensible opposition work difficult. We legislate too much and probably too quickly,” he said.
“MPs misbehaving is nothing new… There have been punch-ups in the lobby. Pens thrown across the chamber, one-fingered salutes, and so it goes.”
He said a key area where Parliament can lift standards is producing well-drafted legislation that sets out the legislature’s intent unambiguously, leaving no room for alternative interpretations.
“The judiciary cannot be expected to show self-restraint and respect Parliament’s choices if Parliament fudges the hard questions… I worry that Parliament has lost sight of the importance of legislating clearly.” he said.
“Often we do use, to adopt [former Chief Parliamentary Counsel] George Tanner’s words, a ‘mass of words’ when fewer would be better. Or political compromises result in imprecise and difficult drafting. MMP has probably made that more, not less, likely.”
Underlining the need for judges to be independent and apolitical, Bishop cited Judicial Conduct Panel proceedings against District Court Judge Ema Aitken, who disrupted a NZ First fundraiser in Auckland in November 2024 by shouting and calling party leader and then-Deputy Prime Minister Winston Peters a liar.
The panel found that while Aitken had breached comity, her conduct fell just short of the very high bar needed to remove a judge from the bench.
“But the panel also emphasised that comity goes both ways: judges need to exercise self-restraint and avoid commenting on political issues,” Bishop said.
“They are both protected from political interference and obliged to avoid politics. A judiciary that is both independent and apolitical promotes public confidence in the courts as an institution.”
Read the speech here:
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