A new report from The New Zealand Initiative, “Who Makes the Law? Reining in the Supreme Court”, highlights this growing power struggle. I am the report’s author. Oxford University’s constitutional law professor, Richard Ekins KC, wrote the powerful foreword.
The report finds our highest court straying beyond its rightful bounds, blurring the line between its primary job of settling disputes and Parliament’s law-making role. In the words of Professor Ekins, “The Supreme Court’s recent jurisprudence is liable to unsettle the balance of the constitution.”
This constitutional tug-of-war undermines trust and confidence in the judiciary, harms the democratic legitimacy of the law, and makes the law less certain and predictable. When courts rewrite laws and reshape settled rules, people and businesses can no longer trust clear wording or consistently applied case law to guide their actions.
As Ekins observes, the proper constitutional role of the courts is sharply debated in many parts of the common law world. The United States Supreme Court provides a “cautionary tale” we would be wise not to ignore. The activist approach of the US Supreme Court has led to distorted legal reasoning, politicisation of the legal system and loss of public trust in the judiciary.
Unfortunately, our Supreme Court seems blind to these risks.
The report zeros in on two troubling trends. One is the Supreme Court’s loose approach to interpreting and applying laws passed by Parliament. The court is increasingly stretching or even ignoring clear wording to reach outcomes it likes better. The other is the court’s reshaping of longstanding common law rules based on what the judges divine to be “changing social values”.
The “three strikes” case, Fitzgerald v R, illustrates the first problem. Despite clear statutory language requiring judges to impose maximum sentences for third-strike offences, the Supreme Court effectively rewrote the law in a majority decision to avoid what it saw as an unjust outcome. While the three strikes law was widely disliked, it was unquestionably Parliament’s prerogative to pass it. The court should have applied it as written. Yet only one of the Supreme Court judges – Justice William Young – showed the restraint needed to see it this way, and he has now retired.
The Peter Ellis case exemplifies the second trend. Despite the case having no Māori connection, the court considered tikanga Māori in deciding that Ellis’s appeal against convictions could continue after his death. Three judges went further, indicating that any issue of law before the courts might need to be addressed in the light of tikanga.
This decision overturned longstanding rules for recognising tikanga as law without setting out a new framework. The result is a legal vacuum that undermines the certainty and consistency required by the rule of law.
Remarkably, the court made this decision even though the Government had tasked the Law Commission with studying the role of tikanga in our legal system. By rushing ahead, the court sidestepped this careful, democratic process.
These and other recent Supreme Court decisions are upending the careful balance between judges and Parliament that underpins our system of government.
This power struggle between the courts and Parliament is not new. When setting up the Supreme Court in 2003, Parliament affirmed its “ongoing commitment to the rule of law and the sovereignty of Parliament”. This principle means our elected Parliament has the ultimate authority to make or unmake any law, while the courts are meant to interpret and apply these laws, not modify them based on judges’ preferences.
At the time of the court’s creation, then-Deputy Prime Minister Michael Cullen warned of the risk of “constitutional change by stealth” if judges sought to find a “higher law” modifying Parliament’s standing. His insight now seems prophetic.
Others have also expressed the concerns raised in our report. In a lecture earlier this year marking the Supreme Court’s 20th birthday, former Law Commissioner Jack Hodder KC warned of “unprecedentedly sharp political debate” about the role of the court.
Former Otago University law professor James Allan has gone further, describing an emerging “imperial judiciary ... where the top judges ... are giving themselves newfound power at the expense of the elected branches of government. Under the cover of purportedly applying the law, they are usurping power to themselves.”
Critics might say an activist court shields rights and checks bad laws. But this argument misconstrues the way we govern ourselves. It would enable unelected judges to override the will of voters expressed through Parliament. This would undermine our democracy and the rule of law.
The report argues we are at a turning point. Will we keep sliding towards rule by judicial decree? Or will Parliament restore the right balance between judges and elected lawmakers?
The report suggests several ways for Parliament to reassert its standing and rein in judicial overreach. These include passing targeted laws to overturn problematic rulings, clarifying the meaning of “rule of law”, tightening rules for how courts interpret statutes passed by Parliament, and reforming how senior judges are appointed.
These recommendations give Parliament several complementary ways of tackling judicial overreach without threatening judicial independence. In the tug-of-war over who makes our law, it is time for Parliament to dig in its heels and ensure law-making power stays firmly with voters’ chosen representatives, not unelected judges.
