This report warns of a looming constitutional crisis in New Zealand, as the Supreme Court increasingly oversteps its bounds, threatening the balance of power between the courts and Parliament.
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.
"The Supreme Court's overreach is making our laws less consistent and predictable, eroding public trust in both the law and the courts." said Partridge.
"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," Partridge said.
Professor Richard Ekins KC, Professor of Law and Constitutional Government at the University of Oxford, who wrote the foreword to the report, stated, "Roger Partridge's paper is a powerful critique of the Supreme Court's new jurisprudence and sets out an intelligent, thoughtful programme of action that would help to put it right. I commend the New Zealand Initiative for publishing this paper and hope that New Zealand's parliamentarians, who are responsible for maintaining the balance of the constitution, study it closely.”
Key findings of the report include:
The Supreme Court has adopted a loose approach to interpreting laws passed by Parliament, often stretching or ignoring clear statutory language.
Judges are reshaping common law principles based on their perceptions of changing social values, despite lacking democratic accountability for such policy decisions.
This judicial overreach is making laws more uncertain and unpredictable, undermining the rule of law and the sovereignty of Parliament.
The report recommends several legislative strategies to address these issues:
Passing targeted legislation to overturn problematic court decisions.
More clearly defined statutory guardrails to stop the courts from straying beyond their proper role.
Improving judicial appointment processes to emphasise the need for judicial restraint and respect for parliamentary sovereignty.
Click here to download the two-page summary of Who Makes the Law? Reining in the Supreme Court
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team.