Two ships passing in the night might share the same destination yet follow very different courses. So it seems with David Harvey’s latest response to my report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court. 

Harvey and I share the same destination - maintaining an effective judicial system that can respond to changing circumstances while respecting constitutional boundaries. Yet his critique of my recommendations for addressing judicial overreach suggests he may have taken a bearing from the wrong star. 

It is certainly clear Harvey’s navigation has changed tack. In his first response to my report, he raised important concerns about judicial independence. Having addressed those concerns in my reply, Harvey now charts a different heading. His latest column focuses on the need for judges to adapt statutes to circumstances Parliament could not have foreseen.  While these concerns share common ground with his earlier arguments, they reflect a critical misunderstanding of the reforms proposed in Who makes the law? 

Harvey’s primary concern is that the reforms would prevent courts from applying statutes to circumstances Parliament could not have contemplated when enacting legislation. He argues this would hamstring courts from dealing with technological change - like applying fraud laws written in the pre-digital era to computer crime. 

This would be a legitimate one if it were well-founded. However, the criticism misses its mark. It confuses two fundamentally different approaches to statutory interpretation that my proposed reforms carefully distinguish between. 

The first approach - applying existing statutory concepts to new circumstances - is expressly preserved by section 11 of the Legislation Act 2019. This section ensures legislation “applies to circumstances as they arise.” The proposed reforms would not affect this provision. 

The second approach - which the reforms target - involves courts effectively rewriting legislation based on their perception of evolving social values. This ‘ambulatory approach to statutory interpretation has no basis in section 11. Yet it has gained concerning traction in our highest court. 

Harvey’s own examples demonstrate why his concerns are misplaced. He cites cases like R v Misic, where courts interpreted “document” to include digital artefacts.i This represents exactly the kind of legitimate adaptation section 11 permits - and that my reforms would not prevent. The interpretation: 

• Applied the existing statutory concept to new technological circumstances 

• Maintained Parliament’s fundamental policy choice to criminalize document-based dishonesty 

• Did not alter the core meaning of the statutory provisions 

This distinction between legitimate application of existing concepts and impermissible judicial revision becomes clearer when we examine the Supreme Court’s recent jurisprudence. The Court has shown concerning tendencies toward both strained interpretations of clear statutory language and suggestions that statutory meaning should evolve with contemporary values. 

Take the Court’s decision in Fitzgerald regarding three strikes sentencing.ii There, the majority did not merely apply existing statutory concepts to new circumstances. Instead, they effectively rewrote clear statutory language through an expansive interpretation of section 6 of the Bill of Rights Act. While troubling, this was not an example of interpreting Parliament’s words to meet changed circumstances. Rather, it involved the Court straining statutory language beyond breaking point. 

The so-called ambulatory approach represents a different but equally concerning form of judicial overreach. This approach suggests that courts should interpret statutory terms based on evolving social values and contemporary circumstances rather than Parliament’s intent at the time of enactment. While this view has gained some academic support and has been favoured in some extra-judicial commentary, it has no foundation in section 11 of the Legislation Act. 

As Oxford’s Professor John Finnis explains in his magisterial Gray’s Inn lecture, section 11 has a narrow, technical meaning about construing the present tense as including the future tense.iii It does not justify interpreting statutes based on judges’ perceptions of contemporary social values. 

Harvey’s position contains a deeper confusion about constitutional boundaries. He argues that courts must have flexibility to deal with Parliament’s “inability” to foresee future circumstances. However, this misunderstands both section 11’s scope and Parliament’s role. 

Section 11 already provides the flexibility courts need to apply existing statutory concepts to new circumstances. What it does not provide - and should not provide - is a licence for courts to assume Parliament’s role in determining how the law should respond to changing social values. 

The distinction becomes clearer with examples. A law referring to “documents” can legitimately be applied to digital files - they fall within the same category of recorded information Parliament intended to regulate when it enacted the statute. Similarly, consumer protection laws written before the internet can properly apply to online transactions. But courts cannot legitimately ‘update’ statutory terms simply because they think social attitudes or values have evolved.  

This means values-laden words (for example, terms like ‘marriage,’ ‘family’ and ‘obscene’) should be interpreted based on Parliament’s intended meaning when they were enacted. It is not for the courts to change the meaning of Parliament’s words based on judges’ views of society’s changing values. Making social policy choices is the job of our democratically accountable Parliament.  

Courts that attempt to “update” statutory meaning based on their perception of contemporary values usurp Parliament’s proper function. 

This is not mere constitutional theory. When courts adopt an ambulatory approach to statutory interpretation, they introduce profound uncertainty into the law. Voters cannot reliably determine their legal obligations by reading Parliament’s words. Instead, they must try to anticipate how judges might reinterpret those words based on the particular judges’ perceptions of evolving social values. 

This uncertainty undermines the rule of law’s fundamental requirement that laws be clear and predictable. It also threatens democratic accountability by transferring effective lawmaking power from elected representatives to unaccountable judges. 

The reforms proposed in Who makes the law? would help restore proper constitutional balance. They would preserve courts’ ability to apply laws to new circumstances within their original scope. They would ensure interpretation remains focused on Parliament’s intended meaning. And they would maintain judicial independence while establishing clear constitutional boundaries. 

Far from restricting legitimate judicial interpretation as Harvey suggests, these reforms would simply ensure courts respect both the letter and spirit of section 11 while maintaining their vital role in our constitutional framework. 

Harvey’s response also reveals concerning implications for judicial independence. His candid acknowledgement that judges might seek ways around clear statutory language suggests judicial independence has become unmoored from proper constitutional principles. 

True judicial independence requires courts to operate within established constitutional boundaries - not the freedom to override Parliament’s clear words. When courts claim power to rewrite legislation based on their perception of contemporary values, they politicise themselves and ultimately undermine their independence. 

Oxford’s Professor Richard Ekins powerfully articulates this point in his foreword to the report.iv Courts that depart from established constitutional limits inevitably draw themselves into political controversy. This threatens both their perceived impartiality and their ability to perform their vital role in upholding the rule of law. 

Section 11 provides courts with the necessary latitude to apply statutes to new circumstances, much like a well-drawn chart guiding ships through changing waters. What it does not do - and should not do - is authorise courts to redraw those charts based on their own assessment of changing social tides. 

Parliament should act to prevent courts from adopting an ambulatory approach to statutory interpretation, while preserving their ability to apply existing statutory concepts to new circumstances under section 11. This would restore proper constitutional balance while protecting both judicial independence and the rule of law. The alternative poses risks to our constitutional framework that neither Judge Harvey nor I would welcome. 

To read the full article on the Law News website, click here.