NZ Initiative Chair Roger Partridge has written an excellent report, called Who Makes the Law?
It deals with how the Supreme Court has gone from interpreting law to making law, and how we can change this.
If I could pick any one report for Parliament to act on, then this would be the report out of the many good ones they have done. It is about fundamental democracy.
Partridge notes the following ways in which the Supreme Court has acted unconventionally:
The Court has embraced a very loose or ‘liberal’ approach to interpreting laws passed by Parliament. This approach involves the Court narrowly interpreting, ‘stretching’ or even ignoring clear statutory language the Court does not like. Through this process, the Court has essentially granted itself the power to rewrite laws made by Parliament.
The Supreme Court has changed its approach to the ‘common law’ – the body of law developed by judges over many centuries. The Court now thinks its role is to reshape or ‘develop’ the common law’s legal principles to give effect to what it thinks are contemporary social values. This means that unelected judges are making policy decisions that would traditionally have been left to Parliament.
There are many examples in the report. But what I like is that the report doesn’t just whinge about this. It proposes concrete actions Parliament can take to improve things. They are:
Passing legislation to overturn aberrant judicial decisions and ensure the courts give effect to Parliament’s wishes, such as the Ellis tikanga ruling to be over-ruled and replaced with a comprehensive statutory framework for how and when tikanga should be considered by courts.
Adding ‘guard rails’ in the Senior Courts Act by defining the meaning of the rule of law to limit the Court’s activist tendencies.
Amending the Legislation Act 2019 to constrain the Court’s loose approach to statutory interpretation and to require judges to adhere more closely to statutory text.
Make it clear that the courts cannot use common law presumptions to displace or qualify clear statutory words, adopt meanings inconsistent with statutory purpose or adopt unreasonable interpretations.
Repealing or amending provisions like section 6 of the Bill of Rights Act that invite judicial rewriting of statutes the courts do not like.
Supreme Court judges could serve for a set period (say, 5–7 years) before returning to the Court of Appeal. This would be balanced by promoting Court of Appeal judges to fill the vacated Supreme Court positions. Such a rotation system could help prevent our most senior judges from becoming too detached from practical realities, emphasise judicial restraint and respect for the sovereignty of Parliament and the rule of law.
It is no surprise that some legal academics have reacted negatively to the report. They are no doubt delighted to have a progressive Supreme Court implementing a policy agenda they agree with.
This is from an Associate Professor on Twitter.
I actually like much of what he says in other areas, but here I have to laugh at the reference twice to how informed commentators say there is no real concern about the Supreme Court. This is probably the case in university law schools, but let me say that amongst lawyers and politicians on the centre-right there is huge concern that has been growing for some time.
The Supreme Court decision on the Three Strikes Law was such an act of blatant defiance, that it is no surprise there has been a backlash.
This post was first published at Kiwiblog