Comments from the country’s two senior legal officers, Attorney-General Judith Collins KC and Chief Justice Dame Helen Winkelmann, revealed opposing views on the role of judges. Their competing conceptions go to the heart of our democracy.
Collins stands firmly in the traditional corner. The Attorney-General favours “black-letter lawyers” who look to “the law as it is”. Justice Winkelmann takes a more radical view, positioning judges as society’s ultimate arbiters. She asserted that judges “take the hard decisions in society”.
These contrasting views could not better illustrate the tension at the heart of our legal system explored in a recent Herald column discussing my New Zealand Initiative report, “Who makes the law? Reining in the Supreme Court.”
The Attorney-General’s approach aligns with traditional democratic principles. Hard societal decisions should be made by elected representatives accountable to voters, not unelected judges. This commitment to democracy is reflected in Collins’ preference for judges who practice traditional, text-focused interpretation.
In contrast, the Chief Justice sees the courts as the place “where the decisions in society that can’t be worked out in other ways are taken”. This view positions judges as philosopher-kings, empowered to reshape the law to pursue their vision of social justice.
However, the Chief Justice’s view misunderstands the role of judges in our democracy. Hard societal decisions involve complex trade-offs between competing interests. Unlike Parliament, judges lack both the tools and democratic mandate to make these choices.
Judges cannot conduct broad consultation, commission research, or properly weigh competing interests across society. This forward-looking role is the job of Parliament.
The court’s role should be largely backwards looking. Judges’ primary task is to resolve specific disputes between individual litigants by applying the law as it stood when the conflicts arose.
When courts try to fill a broader role as arbiters of values, they risk imposing their own values on society at large. That politicises the judiciary and turns judges into unaccountable social engineers.
This judicial overreach also creates real-world chaos. When judges reshape the law based on their perception of social values, individuals and businesses can no longer rely on clear statutory wording or stable precedents to guide their actions. Even Parliament must second-guess its legislative choices.
The 2022 Peter Ellis case, in which the Supreme Court unilaterally decided to consider tikanga Māori despite the case having no Māori connection, illustrates the problem.
The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases.
The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.
The Chief Justice’s approach also sits uncomfortably with another observation she made at the webinar – that judges need “patience and resilience” to give parties a fair hearing. But will judges maintain the necessary detachment if they see themselves as charged with resolving every matter that they think society cannot settle democratically?
The Chief Justice speaks of judges needing “courage” to make controversial decisions “which they know will have very significant implications for the parties before them” and may attract controversy. But true courage often means showing restraint. It means respecting Parliament’s role, even when judges disagree with its choices.
This constitutional tension has not arisen solely from judicial ambition. Parliament bears some responsibility. It has occasionally ‘kicked the can’ to the courts. Most notably, Parliament left the task of developing the principles of the Treaty of Waitangi to the courts. This has doubtless encouraged judicial activism.
But Parliament’s limited delegation of a specific constitutional question should not embolden courts to become society’s self-appointed problem-solvers. The courts’ proper response to policy challenges should be to signal where Parliament’s intervention is needed. It is not to fill every legal vacuum with judicial lawmaking.
The contrasting approaches from the Attorney-General and Chief Justice bring us back to the question: Who should make the law in New Zealand? Should it be democratically elected politicians answerable to voters? Or unaccountable judges pursuing their own vision of social progress?
The Attorney-General’s emphasis on listening offers the better vision for the judicial role.
“We learn more with our ears than we do once we open our mouths,” she observes. This suggests a more humble conception of the judiciary that recognises constitutional boundaries and focuses on applying the law rather than pronouncing on society’s values.
The Chief Justice’s expansive view is clearly well-intentioned.
Yet when judges see themselves as society’s ultimate problem-solvers, they forget the first test of a good judge: understanding where the judicial role ends and where Parliament’s begins.
