Neil Sands
Attorney-General Judith Collins KC has warned the judiciary to focus on its core role and not usurp other branches of government, while also slamming “lazy” lawmakers who fail to do their job properly by drafting vaguely worded legislation.
Collins said comity – the mutual respect that allows the judiciary, executive and parliament to work together smoothly – was going through “a slightly interesting phase” in New Zealand that she wanted to address.
“If the delicate balance that keeps the executive, parliament and the judiciary operating well together is disturbed, it is extremely difficult to restore,” she told a breakfast function in Auckland hosted by The Law Association. “This balance helps us to be strong, both individually and collectively as institutions of government.”
Asked by LawNews if the balance between government institutions was “off”, Collins said: “There’s potential for it to be. I think it’s going through a slightly interesting phase, which is why I’m talking about it. I wouldn’t be talking about it if I didn’t think it was an issue.
“It’s also really important for the judiciary to be cognisant of their role… the judiciary cannot be policymakers, nor can they allocate funding …. that’s our role.”
TLANZ CEO Clayton Kimpton, Attorney-General Judith Collins KC and TLANZ President Tony Herring
‘Surprise and shock’
Discussing concerns expressed by some in the legal profession about judicial activism, Collins asserted her preference for black-letter law, favouring legal certainty set down in legislation by parliamentarians over interpretations by judges which sometimes result in shock decisions.
“It’s very important that everyone stays in their lanes because otherwise we don’t get respect being shown,” she said. “It is important that the judiciary considers under our common law system, how perhaps the law can be developed in a way that doesn’t surprise and shock.
“Surprise and shock is not good, and if that happens, it can invite a response from Parliament that may well be seen as necessary. It’s really important that everyone respects each other’s positions and understands them. I’m a black-letter lawyer. I believe the law needs to be very certain, because otherwise people don’t know whether they can invest, they don’t know what they’re supposed to do.
“[The law] needs to be accessible and it needs to be certain. I just think we need to be very careful.”
Collins said the independence of the judiciary was a cornerstone of democracy and judges’ ability to interpret the law in a measured way should be protected.
“New Zealand is not best served when courts just rubber-stamp decisions. However, the judiciary cannot also usurp the executive and legislature, which undermines the system for everyone,” she said.
“While our common law method, of course, allows judicial development of the law, it has to be done very carefully, incrementally and being alert to the need to preserve certainty, stability and coherence in the law.
“We all need to respect the roles each branch of government plays, even when, in fact especially when, it’s inconvenient to do so.”
Tikanga ‘uncertainty’
Collins said one of the judgments most commented on in recent times was Ellis, in which the Supreme Court laid out where it saw the place of tikanga in New Zealand law.
“That was seen by some people as coming out of, they don’t know where,” she said. “But then again that’s an opportunity for Parliament to clarify the law as we see it.”
On tikanga, Collins said she was concerned it created uncertainty. “The law needs to be certain, and if tikanga is to be part of the law then it needs to be codified, so people know what all this means,” she said.
“Also, this hasn’t been through Parliament. It would be wrong to consider that every iwi or hapu’s tikanga is the same as someone else’s. Laws need to be universal in our country. So to me, it does cause some concern, particularly for litigants who don’t know what this means.”
‘Make a decision’
Collins said part of the problem was poorly drafted legislation, which put judges in a difficult position.
“I don’t think the judiciary is racing around trying to make laws,” she said. “The thing is, if we leave gaps… don’t be surprised if the judiciary interprets it the way a judge might see it.”
Collins revealed she had raised the issue forcefully with her ministerial colleagues.
“Those of us involved in creating the policy underpinning the laws of New Zealand need to ensure the resulting law is precise, clear and not open to significant debate about its meaning,” she said.
“One of the comments I’ve said to my colleagues is ‘do not have laws that invite the judiciary to interpret what you might think about something’.
“No minister should ever write on their papers ‘we’ll just let the courts decide this one’ which is one [comment] that came up this year. I’ve said to them ‘don’t be lazy, make a decision, or someone else will make a decision for you’.”
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