The Debate Continues

An Answer

In my article “The Debate” which I posted to Substack on 18 January I concluded by saying “And in case you are asking – yes, there will be an answer to Mr. Partridge’s latest commentary.”

The article that follows is “an answer”. It will probably annoy some readers but it demonstrates the principle that the law must always be speaking and there are occasions where Judges must take the lead in crafting remedies where Parliament has been silent.

The article was published on 21 January in the Law Association publication “Law News” and can be found here.

The article which started the debate “Reining in the Supreme Court” can be found here. My first response can be found here. Mr. Partridge’s reply can be found here.

The debate continues below.

This is an answer to Mr. Roger Partridge’s response to a critique I made of an article he wrote and which was published in Law News. I hasten to state that it is not THE answer and in the debate in which we have been engaged it is unlikely that there will ever be THE Answer. Probably the most reasonable outcome, as it often is, is a compromise.

Rather than go through Mr. Partridge’s response item by item (which would be tedious for readers) I shall adopt a different approach and use some examples to demonstrate my point that in many cases the law as stated by the legislature is absent or deficient and that it is up to the Judiciary to provide a solution to the problems posed by a developing society.

My first example deals with aspects of substantive law and how the Courts were able to tailor a solution in the absence of specific legislative guidance.

In 1990 it was proposed that the Crimes Act be amended to include crimes involving the use of a computer. Similar legislation had been enacted in England and in Singapore. But nothing came of it and the Crimes Act as enacted in 1961 and which contained certain offences about the dishonest use of documents remained untouched.

Fast forward to 1998. The Internet has gone commercial. The World Wide Web is in full swing. Google has just been developed. File sharing via Napster is all the rage. One Andrew Garrett advises journalist Chris Barton that he has hacked the servers of Telecom’s ISP arm Xtra and provides passwords to prove his “credentials”. Shortly thereafter Garrett appears on the Holmes show on TV and boasts of his exploit and that the law cannot touch him.

The Police become involved and execute search warrants on Garrett’s property and seize evidence. Garrett is charged not with computer crimes – because the legislation is silent on such things – but with charges involving the dishonest misuse of documents, forgery and wilful damage.

There was a problem. When the definition of a document was enacted in the Crimes Act, the paper and ink model of a document was envisaged. The documents involved in Mr. Garrett’s case were digital artefacts containing password information. In addition there was an issue about whether or not accessing a computer in the circumstances of the case amounted to damage.

In 1999 around the time that Mr. Garrett was charged the Court of Appeal heard a case involving the definition of a document and whether digital artefacts could fall within the scope of the definition. The case was R v Misic [2001] 3 NZLR 1 and Anderson J referred to the rule of statutory interpretation that the law must be seen as always speaking and thus the definition of a document included digital artefacts.

Mr. Garrett’s case went to trial in 2001. By this time the Law Commission had produced a report on computer crimes and the Legislature had introduced the computer crimes amendments to the Crimes Act although they were not enacted (for reasons to be discussed) and would not have been applicable.

He was found guilty with the foundation of that decision being the definition of a document in Misic.

If Mr. Partridge’s proposed amendment to section 10 of the Legislation Act had been in force – that is that “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context at the time of its enactment.” – it would have been difficult for Anderson J to have arrived at the conclusion that he did.

The problem with the proposed change to s. 10 is that it introduces an atrophying effect to the law, making it difficult for a rule to be adapted to change – particularly technological change where continuing disruptive change is a reality of the Digital Paradigm.

The other problem is that the proposed amendment suggests an originalist approach to the interpretation of a statute and would act as a significant clog on judicial independence in that it would compel Judges to decide cases retrospectively rather than in light of current, contemporary or developing standards.

It has long been accepted – as Anderson J observed in Misic - that the law must always be speaking. That phrase is a principle of statutory interpretation that means laws should be applied to current circumstances. This principle is based on the idea that laws are not momentary, but rather are ongoing and apply to everyone who comes into contact with them. Partridge’s proposal would turn that principle on its head.

As a sidebar to the Garrett Case it turned out that Mr. Garrett did not “hack” Xtra’s servers. He employed what is called a “Trojan horse” program which was attached to emails that he sent to Xtra customers. By executing the “Trojan Horse” – a mouse-click was all it took – Garrett gained access to the computer of the unsuspecting victim including its stored passwords.

Mr. Garrett was no Odysseus. He didn’t write the code for the “Trojan Horse” but lifted it off the Internet from a hacker site known as The Cult of the Dead Cow. The program was called “Back Orifice”.

The computer crimes provisions of the Crimes Act 1961 were finally enacted in 2003. The reason it took so long was that there were a number of other legislative steps that needed to be taken. Section 252 was the problem. It criminalised unauthorised access to a computer system.

The problem was that agencies like the SIS and the GCSB needed to be able to access computer systems in the course of their intelligence activities. And the GCSB didn’t “officially” exist in 1999. It had to be given statutory existence to harmonise its activities with section 252. And that took time. Years in fact. Which probably demonstrates and contrasts the slow-footed (dare I say clumsy) nature of legislation with the agility of a judicial solution.

A further fast-forward. Some years after the enactment of the computer crimes provisions of the Crimes Act which included the offence of obtaining property by the misuse of a computer, the issue of whether a digital file could amount to property for the purposes of the Act. It wasn’t clear from the definition of property but the Supreme Court resolved the problem in Dixon v R [2015] NZSC 147 when Arnold J held for the Court that a computer file was property.

The legislature took no steps to amend the definition of property to include digital files and information. It was up to the Courts to resolve the problem and the cases of Henderson v Walker [2019] NZHC 2184 (Thomas J) and Ruscoe and Moore v Cryptopia [2020] NZHC 728 (Gendall J) clarified the issue and expanded the concept of property to include digital information.

An example of the situation where the Courts were required to craft a remedy where Parliament had decided to remain silent on the issue may be found in the history of the development of the New Zealand Bill of Rights Act 1990. Mr Partridge suggests a legislative statement of the principle in Hansen where “reasonably available” interpretations using section 6 were preferred. But it could well be that the way that the Courts approached the provisions of the Bill of Rights Act might have been unduly constrained had that been the position when the Act came into force.

I recall those days. They were exciting times to be a lawyer and a Judge. A new piece of legislation that enabled rights to be considered and to be accorded stronger recognition than had been the case prior. It was always a mystery – perhaps a disappointment – that the majority of cases in which the rights were interpreted – detention pursuant to an enactment, what constituted detention, the right to consult and instruct a lawyer without delay (the “in private” was a judicial add-on) – were within the context of breath and blood alcohol cases but at least in the District Court we dealt with what came before us.

NZBORA was silent on remedies but ubi ius ibi remedium ("where there is a right, there is a remedy" - a fundamental legal principle that states that if a person's legal rights are violated, the law must provide a way to fix the situation) as the Court of Appeal said in developing the exclusionary rule which meant that where that evidence was obtained where there was a breach of NZBORA that evidence would prima facie be excluded.

The exclusionary rule was developed exclusively by the Courts as were a number of other NZBORA remedies such as Simpson v Attorney General [Baigent's case] [1994] 3 NZLR 667 which established Police liability for damages in cases of an unreasonable search.

In 2002 the Court of Appeal reconsidered the exclusionary rule in R v Shaheed [2002] 2 NZLR 377 (CA), which replaced the prima facie exclusion rule with a balancing test.

All of this was done without any legislative provision. Indeed it was not until 2006 that the Shaheed test was adopted (belatedly again) by the Legislature in section 30 of the Evidence Act 2006

There are other cases where the Courts have taken a lead in interpretating and applying the broad language of legislation. It perhaps illustrates the fact that both the Legislature and the Judges make the law in their own way. The Legislature in legislation states the strategy – the will of Parliament. The Courts engage in the tactics – working out how the strategy operates on the ground, case by case.

Legislation does not cover every contingency of human behaviour, the relationships between citizens and their various shifting obligations, although I wonder from Partridge’s emphasis on Legislative supremacy if he would have it so.

The common law remains the province of the Courts where often the Legislature is silent. The legislature was not involved in the development of the duty of care or the law of negligence. That was the province of the Courts, and was a continuing evolution.

Were these all examples of judicial creativity? In a sense the answer must be “yes” in each case. The cases demonstrate a recognition of the fact that the law must always speak and adapt to new technologies and new technological realities as well as making new legislation work effectively. And as I have earlier argued in my Listener piece judges have addressed societal issues where the legislature has failed to do so.

Perhaps Mr. Partridge was surprised at some of the comments that I made about the judicial role and suggests that Judges should not step in where Parliament is silent (or has chosen to remain so). He says:

“Second, and more fundamentally, Harvey’s concept of parliamentary “failure” 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.”

This statement ignores a number of important propositions that have implications for the respective roles of the Courts and the Legislature.

1. Parliament may choose to remain silent and not address a particular problem by legislation. This does not mean that the problem does not exist or has disappeared. If the matter comes before the Court and the Court can find a remedy in the law it should apply it rather than let an injustice continue.

2. If citizens want action on an issue it is true – they may require the legislature to craft a solution. That, as Mr. Partridge observes, is political engagement. If a citizen wants action on an issue he or she is entitled to petition the Court for a remedy. That is not political engagement. That is legal engagement. If the Court declines to hear the matter or provide a resolution it may note that it may more appropriately be dealt with by legislation. But if there is a remedy at law the Court should not shrink from making it available.

3. Gaps in legislation – I think the discussion above and the case studies I have considered provide an answer to this complaint. I do not see nor imagine Mr Partridge to suggest that the Courts should NOT have crafted remedies for NZBORA breaches. If he did then all we have on the statute books, in such a situation, are comfortable words.

4. Finally, the Legislature does not always get it right. The Legislative process, as we have seen, is slow, clumsy and cumbersome. It is, these days, cluttered with ideological imperatives. Gone are the days when legislators legislated for the common weal. It is a process that requires “politicking” in the worst sense of the word – where deals are made, favours exchanged, compromises reached that may not be ideal. Such is life in the MMP system. But the opportunities for error are enhanced. It is for the Courts to identify the error and for the Legislature to correct it – which goes to my agreement with Mr. Partridge’s proposition 1 in his original paper.

I should like to close by addressing procedural change and make some observations about judicial creativity and the crafting of solutions for societal ills within the framework of the law, and where the Courts and Judges may bring their mana to bear in addressing social problems.

I saw these moves develop in my time on the Bench from slow beginnings to a development of therapeutic systems. In some cases there was scant legislative support for these initiatives (such as the Oranga Tamariki Act, formerly the Children and Young Persons and their Families Act). In one other case legislative sanction was given to a process that was already well established even without legislation.

I applauded what I saw happening. I admired the creativity of those Judges who had developed the specialist Courts and programmes that were designed to address problems for which the black letter of the law provided no solutions.

These solutions flowed from the ability of the Courts to adapt their processes to meet contemporary problems.

The outstanding work of Judges Fred McElrea and Stan Thorburn in the 1990’s in developing the restorative justice framework progressed over many years before the Legislature picked it up and provided for Restorative Justice Conferences in the Sentencing Act but long after the original sentencing legislation was originally enacted in 2002.

The work of Youth Court Judges, especially Judges Ida Malosi and (now) Chief Judge Heemi Taumanu in adapting Youth Court processes for Pasifika and Rangitahi speaks to meeting and adapting to emerging needs.

The work of Judges Lisa Tremewan, John Walker and Tony Fitzgerald in developing therapeutic justice outcomes in Courts where defendants are beset by dependency or need a new beginning have had a significant impact upon Court processes and procedures.

Chief Judge Taumanu’s Te Ao Marama Court provides a different approach to the rather sterile processes of the criminal court and explores different opportunities to encourage rehabilitation and offer a different path for offenders in the future.

These initiatives arose from the Judicial creativity that seems to concern Mr. Partridge but which are recognised innovations that in the main have arisen from an adaptation of existing processes to meet changing and developing needs within the community. They are procedural shifts and derive from the inherent power of the Court (or a Judge) to regulate process. But the programmes have been Judge devised and have been Judge driven and seek alternative processes that will hopefully lead to a more just outcome.

I don’t think that Mr. Partridge would have it any other way.

To conclude – Mr. Partridge and I are in agreement on some matters he has raised. I agree there have been examples of judicial overreach, especially in the case of Fitzgerald. But a generalised solution is not going to solve the problem that he identifies.

A strong and independent judiciary is an essential element of the Rule of Law and I wonder if Partridge may, by attempting to define “Rule of Law” may run up against a stumbling block if he is to retain the vital element of an independent judiciary.

Like Mr. Partridge I may dislike the direction that the Courts in some cases have seen fit to travel. But this may be seen as something of an aberration. My former colleague and good friend John Cadenhead wrote an internationally renowned doctoral thesis on the cyclical development and nature of the law of obligations. A similar cyclical process may apply to elements of judicial activism.