Last month’s Legal Research Foundation conference commemorating the Supreme Court’s 20th anniversary could mark a turning point for New Zealand’s highest court. Or at least it should if the Supreme Court justices were listening.
A highly hierarchical legal profession rarely speaks out on concerns about the courts. Contempt of court laws and rules requiring lawyers to respect the dignity of the judiciary also restrains public commentary.
Against this background, senior barrister and King’s Counsel Jack Hodder’s comments at the conference were remarkable.
Hodder is a former Law Commissioner and was a member of the Attorney General’s 2002 Advisory Group recommending the Supreme Court’s formation to replace the Privy Council. His paper on the court he helped create, One Advocate’s Opinions – The Least “Dangerous Branch”? Predictability and Unease, was couched in exceedingly polite language.
But the respectful tone masks a searing critique of a court that has misunderstood its role and overstepped its bounds.
The Supreme Court was created by the Supreme Court Act 2003. As a creature of Parliament, the Court derives its powers from Parliament. In the legal hierarchy, Parliament sits above the Supreme Court and is ‘sovereign.’
The 2003 Act made clear that the court’s creation would not affect “New Zealand’s ongoing commitment to the rule of law and the sovereignty of Parliament.”
Consequently, you might expect the court’s primary duty would be to give full and fair effect to laws passed by Parliament. And, indeed, that is the orthodox view.
Yet, as Hodder explains, the Supreme Court has been at the vanguard of a departure from this convention. Sometimes described as ‘the principle of legality,’ the Supreme Court favours a tempering role for the court when interpreting Parliament’s words.
The approach involves the Court navigating around the words of a statute if they conflict with what the Court considers to be ‘fundamental rights.’
Parliament has expressly enabled the courts to do just this for rights protected by the New Zealand Bill of Rights Act 1990. Section 6 of that Act states, "Wherever an enactment can be given a meaning consistent with the… Bill of Rights, that meaning shall be preferred to any other meaning.”
But section 6 does not permit the courts to take the same licence with Acts of Parliament that do not encroach on the Bill of Rights. Nor with statutory language that is not susceptible to a Bill of Rights-compliant meaning.
Nevertheless, successive Supreme Court decisions have interpreted Parliament’s words in a remarkably cavalier way. This has sparked what Hodder describes as “small stirrings of legislative irritation”.
In one instance relating to the Child Protection Act 2016, Parliament passed legislation under urgency reversing the Court’s analysis as inconsistent with Parliament’s original (and continuing) intent.
But, this is just one example of a growing trend. As Hodder puts it, “Governments and legislators could justifiably query the cumulative effect of the relatively modern presumptions that legislation will not be interpreted according to its plain meaning unless it passes a series of [court imposed] presumptions of compliance…”.
When those judge-made presumptions include compliance with Te Tiriti principles, it is easy to understand why Hodder says the Court’s approach has escalated statutory interpretation into a “constitutional battlefield.”
At stake in the contest are predictability – a cornerstone of the rule of law – and the sovereignty of Parliament, both of which the Court is bound by statute to uphold.
But Hodder raises an even bigger problem. The Supreme Court has repeatedly asserted that the Court’s role is (somehow) to divine “changing societal values” and use them to “develop” the common law.
The Court’s decision in the Ellis case is the most well-known and perhaps most controversial. Despite the case having no particular Māori connection, the Court – at its own instigation – took into account tikanga Māori considerations in deciding that Ellis’s appeal against convictions could continue despite his death.
Three justices went further, indicating that any issue of law before the courts may need to be addressed in the light of tikanga.
Putting aside the uncertainty created by the introduction of tikanga into the common law, Hodder explains why the legal method the Court adopted in Ellis is erroneous.
First is the idea that the Court’s role is to ‘develop’ the law.
The Supreme Court Act does not refer to ‘development.’ Rather, as noted earlier, it refers to a continuing commitment to the rule of law and parliamentary sovereignty. As Hodder says, “together, those references connote values of stability and predictability of the law…” and not some preconceived, court-led “development” or “journey.”
More concerning is the presumption that in developing the law the Court can be guided by ‘changing societal values.’ As Hodder questions, “By what logic or experience, and by what criteria, do the courts identify and weigh inconsistent ‘values’ in applying and developing the common law?”
This raises the obvious concern that changing societal values simply means the judges’ own values.
A court that imposes its values politicises the judiciary. However, the courts lack the democratic legitimacy or political accountability needed for political decision-making. That is the role of Parliament.
As Hodder observes, acceptance of judicial decisions depends on their legitimacy. But “in large part, [the courts’] legitimacy depends on [them] remaining within areas where they have institutional competence, and where democratic legitimacy and accountability are not expected.”
Against this standard, it is hard not to conclude that the Supreme Court is departing from its compass.
Hodder’s comments were expressed as “one advocate’s opinions.” But his disquiet about the Supreme Court has widespread support among lawyers, the business community, and politicians.
His paper concludes with the prediction that the Court is on course to trigger “unprecedentedly sharp political debate.” Recent comments by Minister Shane Jones on the Court’s decision in the Smith case on climate change suggest Hodder is not wrong.
The Legal Research Foundation will publish Hodder’s conference presentation as a chapter in a book to commemorate the Court’s anniversary. If their Honours missed the implications of Hodder’s critique, this will provide an opportunity for further reflection.
But Hodder’s commentary is not just food for thought for the Supreme Court. Its messages will embolden others to question the Supreme Court’s approach - including members of a sovereign Parliament, sitting above the court, with the power to correct the Court’s course.
To read the full article on the NZ Herald website, click here.