How to rein in an activist Supreme Court

Roger Partridge
NZ Herald
21 March, 2024

My earlier column this month, New Zealand’s highest court could be facing a turning point, prompted a flood of feedback from business readers and lawyers alike. A common query was what Parliament can do to restrain an overreaching judiciary. This week I discuss two steps Parliament should not hesitate to take.

But first a quick recap.

The earlier column drew on a lecture by barrister and former Law Commissioner Jack Hodder KC at a conference marking the Supreme Court’s 20th anniversary.

Hodder delivered a polite but devastating critique of a court he helped create.

Hodder suggested the licence taken by the court when interpreting Acts of Parliament undermines both the sovereignty of Parliament and the rule of law.

He also criticised the Supreme Court’s belief that its role is to “develop” the law in response to “changing societal values”. Hodder explained that the court lacks the tools to discern these values. And it lacks the democratic legitimacy and accountability to respond to them. The court’s approach politicises the judiciary. It also harms the rule of law by making the law less stable and predictable.

So, what can be done to restrain an overreaching court?

Parliament’s most blunt response to judges overstepping their bounds is statutory. In the legal hierarchy, Parliament is supreme. And it can pass statutes to ensure the courts give effect to its wishes.

An example of this approach is Parliament’s amendment to the Child Protection Act 2016 discussed in my earlier column.

Another is the commitment in the coalition agreement between National and New Zealand First to amend the Marine and Coastal Area Act to “make clear Parliament’s original intent”. The act enables iwi to claim “customary” marine or coastal title. Parliament stipulated that to succeed, iwi must establish “continuous” and “exclusive” use of a marine or coastal area since 1840.

A majority of the Court of Appeal held that overlapping exclusive use sufficed and that continuity of exclusive use from 1840 should not be taken literally.

A statutory amendment is likely to “clarify” that when Parliament said “exclusive” it meant exclusive, and that when it said “continuous” it meant continuous.

Parliament also has a more direct option. In the words of Professor Paul Rishworth KC in a presentation to Parliament’s Legislative Design and Advisory Committee, “there is no legal impediment to enacting a law to validate an action held by a court to be invalid ... ” The same is also true of Parliament invalidating an action a court has held to be valid.

Parliament is generally reluctant to interfere in court proceedings because of principles relating to the separation of powers. Consequently, past interventions have been rare.

But that is because historically, erroneous court decisions have been more accidental than consciously radical. A court that adopts a “transformative” role can expect more frequent correction.

Less confrontationally, Parliament could introduce more clearly defined “guardrails” in the Senior Courts Act 2016.

Helpfully, the act refers to New Zealand’s “continuing commitment” to both the rule of law and the sovereignty of Parliament.

There is no doubt about the meaning of “parliamentary sovereignty”. It means Parliament sits above the courts. But nowhere in the act is the term “rule of law” defined. And while it has an orthodox meaning, unless defined, it is susceptible to manipulation.

Under the orthodox approach, the rule of law relates to the “formal” characteristics of laws and the legal system. These aspects include laws being publicly accessible, predictable, stable, coherent and impartially applied. These qualities describe the characteristics that laws must possess to guide conduct effectively, without making judgments about the laws’ moral or substantive content.

However, it has become fashionable to argue the rule of law should extend beyond “formal” components to include “substantive” entitlements, including social, political and economic rights.

This expanded approach, sometimes described as the “thick” version of the rule of law, contrasts with the traditional “thin” version. And at least one member of the Supreme Court has advocated publicly for this thick approach in New Zealand.

In a 2021 Waikato Law School lecture, the Supreme Court’s Justice Susan Glazebrook claimed the meaning of the rule of law was still evolving.

In advocating its expansion, Glazebrook concluded, “ … until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and Tikanga in the law is a start ... The rule of law is a guiding principle as long as it includes human rights, access to justice, and I would add, redress for historical disadvantage. If that is the case, it is also an appropriate catchcry for a better and more just world.”

Glazebrook’s sentiments are doubtless well-meaning. But the judge’s expansive approach was not Parliament’s intention when referring to “New Zealand’s continuing commitment to the rule of law … ”

What is more, Glazebrook’s formulation is a recipe for the sort of judicial activism Hodder eloquently critiqued in his lecture. A court that believes it can discern “changing societal values” will not hesitate to impose them under the guise of upholding a “thick” version of the rule of law.

The rule of law then becomes whatever the Supreme Court wants it to be. That is the antithesis of the law. And it turns the judicial role into a political one. Yet judges lack the democratic mandate or accountability necessary to exercise political power.

By politicising itself, the judiciary also encourages politicisation of the judicial appointment process. This risks further undermining respect for the law.

Parliament introducing a traditional, “thin” definition of the rule of law into the Senior Courts Act would moderate the Supreme Court’s interventionist tendencies.

Together with legislative reversal of aberrant decisions, it would send a clear signal to the court not to stray from its constitutional bounds.

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