“Who Makes the Law? Reining in the Supreme Court”

First Impressions

Introduction

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. Mr Partridge comments

"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"

The report is a controversial one and has already sparked debate in the academic community although the issues it raises are not new. Jack Hodder KC raised concerns in a paper entitled “One Advocate’s Opinions – The “Least Dangerous Branch”? Predictability and Unease”  and Professor James Allen was critical of approaches by the Supreme Court using the term “judicial imperialism”

This article is an overview of Mr. Partridge’s  report and offers some observations on the issues it 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 report draws out.

The first is that of judicial overreach. The report argues 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.

Secondly 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.

Thirdly 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 paralyze decision-making for individuals and businesses, undermining confidence in the legal system.

A fourth issue is that of the tension between the legislative and judicial branches of government. The report emphasizes the need for Parliament to reassert its sovereignty and restore the proper balance between the judiciary and the legislative branch.  This includes ensuring that elected politicians, who are accountable to voters, are primarily responsible for lawmaking and rights protection.

A fifth and final issue suggests a number of reforms that could be put in place to address the problem of judicial overreach. These include:

1. Passing targeted legislation to overturn specific problematic court decisions. ​

2. Amending the Senior Courts Act to define the rule of law more clearly. ​

3. Amending the Legislation Act to constrain the judiciary's loose approach to statutory interpretation. ​

4. Repealing or amending section 6 of the New Zealand Bill of Rights Act to limit judicial rewriting of statutes. ​

5. Reforming judicial appointment processes to emphasize judicial restraint and respect for parliamentary sovereignty. ​

Judicial Overreach

The main concerns that emerge from the report about the decisions of the Supreme Court start with what is described as judicial overreach.

It is argued that the Court has overstepped 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.

The Court's expansive approach to statutory interpretation and common law development grants judges greater discretion to impose their own views and policy preferences.  This can lead to arbitrary decision-making, which is contrary to the rule of law's requirement for laws to be applied consistently and impartially.

This creates a problem in that it challenges the principle of parliamentary sovereignty by effectively rewriting legislation and making policy decisions that should be the domain of elected politicians. This was particularly so in the Fitzgerald case.

Furthermore the Court’s approach challenges some of the building blocks of law itself. It has made the law less certain and predictable.  By reinterpreting legislation and reshaping common law principles, individuals and businesses can no longer rely on clear statutory language or stable precedents, which are fundamental to the Rule of Law.

By reinterpreting legislation and reshaping common law principles based on judges' views of changing social values, the Supreme Court makes the law less clear and predictable.  This uncertainty can paralyze decision-making for individuals and businesses, who can no longer rely on clear statutory language or stable precedents to guide their actions.

Finally there is an issue of democratic legitimacy. Because judges lack the political accountability of politicians, the Court's approach undermines the democratic legitimacy of the law.  This raises serious questions about who should make the law in New Zealand—democratically elected politicians or unaccountable judges. This somewhat sweeping statement overlooks the reality that Judges do make law by interpreting statutes or incrementally developing the common law.

The Rule of Law relies on a clear separation of powers between the legislative, executive, and judicial branches of government. The Supreme Court's overreach blurs these boundaries, with judges taking on roles that should be reserved for elected lawmakers.  This disrupts the balance of power and weakens the constitutional framework.

The problem that this creates was highlighted in 1788 in The Federalist 78 in which Alexander Hamilton discussed the least dangerous branch of Government. Hamilton suggested that the Executive not only dispenses the honors, but holds the sword of the community.

The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.

As a corollary to that the judiciary rely on public confidence for their continued legitimacy. Judicial overreach can erode public trust in the impartiality and legitimacy of the courts.  When judges are perceived as overstepping their role and making political decisions, it undermines confidence in the judiciary and the legal system as a whole.

Examples of Overreach

The report discusses three cases as examples of overreach.

In Fitzgerald v R (2021) the case involved the 'three strikes' sentencing legislation, where the Supreme Court reinterpreted the clear statutory language of the Sentencing Act 2002.

The overreach in this case arose where the Court effectively rewrote the legislation to avoid what it saw as a clash with the New Zealand Bill of Rights Act 1990, despite the clear wording of the statute.  This decision was seen as the Court taking on a legislative role, which should be reserved for Parliament.

In Ellis v R (2022) the case involved the consideration of tikanga Māori in deciding whether Peter Ellis's appeal against his convictions could continue despite his death.

The overreach in this case was two-fold. First the issue of tikanga Maori was not relevant to the decision in that other avenues were open. Nevertheless the Supreme Court asked for submissions on tikanga thus opening the door for it to engage in a frolic of its own. Secondly in doing so the Court overturned longstanding rules for recognizing tikanga as law without providing a clear new framework.  This created legal uncertainty and was seen as the Court stepping into the role of lawmaker, which should be the domain of Parliament.

The third case discussed is Smith v Fonterra Co-Operative Group Ltd (2024). That was a case where a Māori elder (who had previously been convicted of cutting down the “one tree” on One Tree Hill) sought injunctions against large companies to stop them from contributing to climate change.

The Supreme Court went too far, in Mr Partridge’s opinion, in allowing the claim to proceed to trial, despite the Court of Appeal's unanimous decision that such issues are better addressed by a sophisticated regulatory response at a national level.  This decision was seen as the Court substituting itself into a role more suited to Parliament.

These three examples illustrate the Supreme Court's tendency to reinterpret clear statutory language and reshape common law principles based on judges' views of contemporary social values, thereby overstepping its constitutional role and undermining the separation of powers.

Proposed Solutions

Mr. Partridge proposes five possible solutions to the problems that he has described. A major theme in all of the solutions is the impact that the proposals 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 very briefly outline elements of judicial independence.

Judicial Independence

Primarily Judges have security of tenure and remuneration. These concepts developed as a result of the use by the Stuart monarchs of powers of dismissal of Judges who decided against the interests of the Crown.

Security of tenure and remuneration mean that Judges may be dismissed only for very limited reasons and their incomes cannot be reduced, thus ensuring that they will not be intimidated to decide cases in a particular way, especially in favour of the State.

Judges need to know that 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 that 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. Institutional independence means that 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 that 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 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. 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 of 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 that 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 loyal 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 Mr. Partridge’s proposed solutions.

Mr. Partridge’s solutions 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 to Overturn Aberrant Decisions

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 recognizes 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 Mr. Partridge may argue that it does not. It involves the Legislature placing certain constraints on the manner in which 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, limits the scope for judicial reinterpretation. This ensures that judges do not stray into legislative functions but still allows them to interpret laws within a defined framework, thus maintaining their independence. There seems to be a whiff of Justice Scalia’s “originalist” approach to interpretation in this proposal.

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.

This is a prospective solution.

Reforming the Judicial Appointment Process

This proposal emphasizes 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 awareness of a commitment to Te Tiriti. The setting of 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 when it turned out that 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 suggest a “good judicial behaviour” element into the mix. If at the ends 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 seventeenth 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 New Zealand Bill of Rights Act

The final solution offered is to amend or repeal section 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.

The amendment or repeal of section 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 section 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 Mr 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 the most 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 with judicial independence significantly although they do act as a constraint on judicial reasoning. This, of course, is the outcome that Mr. Partridge desires. Furthermore restraints on judicial decision making are not unknown, the most recent one 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 and of the two the suggestion of terms limits is extreme and in my view, whilst attractive in terms of restricting too much 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 that the criteria 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

Mr. Partridge’s paper is contentious. Although it has only been available for a few days (as at the writing of this commentary) it has attracted adverse criticism from academics and other commentators.

However the concerns raised by Mr Partridge 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 that the principles articulated by the Supreme Court are binding on lower Courts (unless the individual cases are distinguishable) the impact of what Mr 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

 Associated with that is Alexander Hamilton’s emphasis on 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.