Our highest court is overstepping its bounds, reshaping laws in ways that challenge Parliament’s
authority. This judicial overreach undermines our democracy. It also means individuals and businesses can no longer trust clear statutory wording or established common law principles to guide their actions.
But identifying the problem is only half the battle. The New Zealand Initiative’s new report, “Who Makes the Law? Reining in the Supreme Court,” outlines potential solutions.
It offers Parliament a toolkit to reassert its role as our primary lawmaker. This column examines these tools and argues how they would help restore the constitutional balance.
When judges overstep, Parliament’s most direct response is with targeted legislation. The Government has recently taken this approach with its proposal to ‘clarify’ the Marine and Coastal Area Act.
The proposal responds to controversial court rulings that have stretched the meaning of “exclusive” and “continuous use” beyond Parliament’s original intent. It sends a clear message: Parliament is still the supreme lawmaker in New Zealand.
But targeted legislation overturning wayward decisions is just the beginning. The Senior Courts Act refers to New Zealand’s “continuing commitment to the rule of law” but does not define what the rule of law means. Traditionally, the rule of law refers to the ‘formal’ or ‘thin’ characteristics of laws. These include laws being publicly accessible, predictable, stable, coherent and impartially applied.
However, some legal theorists argue for a ‘thick’ version of the rule of law – one that extends beyond these formal components to substantive social, political, and economic entitlements.
This controversial perspective suggests judges should interpret and apply laws to promote the judges’ views of social justice. Critics argue this risks politicising the judiciary and blurring the line between law and politics.
Parliament should introduce a traditional ‘thin’ definition of the rule of law into the Senior Courts Act. This would moderate the Supreme Court’s interventionist tendencies. It would also help ensure that substantive policy decisions remain the domain of elected lawmakers, not appointed judges.
Parliament should also tighten the rules the courts use when interpreting laws made by Parliament. The Legislation Act 2019 provides guidelines for how courts should approach this task. But these guidelines are broad, giving judges significant leeway. Our report suggests tightening these rules in two key ways.
Firstly, Parliament should specify that courts must interpret statutes based on their context at the time of enactment. This would prevent judges from reinterpreting laws based on their views of changing social attitudes or international norms.
Secondly, Parliament should restrict the ‘principle of legality’ – a judicial doctrine that protects purported ‘rights’ from being overridden by general or ambiguous statutory language. While valuable, courts have misused this principle to disregard even clear statutory wording. Parliament should explicitly prohibit courts from using this principle to ignore unambiguous statutory language.
Reforming the Bill of Rights Act is another crucial step. Section six of the act requires courts to prefer rights-consistent interpretations of statutes where possible. This sounds reasonable. However, in practice, it has become a tool for judicial overreach, allowing the courts effectively to rewrite clear statutory language.
Our report suggests either repealing section six entirely or at least clarifying that courts cannot use it to adopt unreasonable interpretations or meanings inconsistent with a law’s clear purpose.
Finally, our report recommends reforming the judicial appointment processes. Appointments to senior appellate courts should favour candidates who have demonstrated judicial restraint and respect for Parliament’s role. This recommendation is not about judges’ political views. It is about ensuring that appointees respect the proper constitutional balance.
We also suggest introducing fixed terms for Supreme Court judges – perhaps five to seven years – after which they would return to the Court of Appeal. This rotation could help prevent our most senior judges from becoming too detached from practical realities or developing inflated views of their role.
The steps outlined in our report offer a path to reassert parliamentary sovereignty while preserving judicial independence within proper bounds. This would help ensure our laws are clear, predictable, and democratically legitimate.
Critics might argue that these measures could weaken judicial independence or the protection of rights – but that argument is flawed. It ignores the fundamental role of Parliament in our system of government.
In modern New Zealand, rights are robustly protected through the democratic process and by other statutory measures. We do not need judicial amendment of legislation to secure adequate rights protection.
Judges would still play their crucial role in interpreting laws and protecting rights in specific cases. But the broader choices about the scope and balance of rights would remain with elected politicians, answerable to voters.
We stand at a constitutional crossroads. Will we allow our Supreme Court to continue its drift towards judicial supremacy? Or will Parliament act to restore the proper balance? The choice is clear.
In our democracy, voters - through their elected representatives – should have the final say in shaping our laws, not unaccountable judges. It is time for Parliament to act.
