Andrew Geddis: 'Stick to your knitting' principle a knotty one to apply

Dame Sian Elias. Photo / Mark Mitchell

New Zealand's constitution contains a number of rules that seem simple but are quite tricky to apply. One of these is the principle of "comity" between the various branches of government.

At its most basic, it means that each branch (the legislative, executive and judicial) should recognise and respect the others' role in our constitutional arrangements, and try not to do anything that may improperly interfere with those roles.

Reasonably straightforward, you might think.

Each branch should seek to stick to its own knitting, thereby minimising the risk that they will come into undesirable conflict. That sounds sensible. Except that what exactly "sticking to your own knitting" means is not always clear.

For example, when should members of Parliament be silenced by suppression orders issued by the courts - the issue recently wrestled with by the Privileges Committee?

And when does judicial musing on a matter of public policy cross over from being a useful contribution to societal debate, to an unwarranted meddling in the elected government's realm?

This latter point, of course, refers to Chief Justice Dame Sian Elias' recent, wide-ranging speech on matters of criminal justice policy.

It contained one section that has caught particular public attention which is worth setting it out in full, for context:

"My last suggestion may be controversial. I do not know whether it is practical or politically acceptable, but I think it needs to be considered. We need to look at direct tools to manage the prison population if overcrowding is not to cause significant safety and human rights issues.

"Other countries use executive amnesties to send prisoners into the community early to prevent overcrowding. Such solutions will not please many. And I am not well placed to assess whether they are feasible. But the alternatives and the costs of overcrowding need to be weighed."

Dame Sian got one thing right, anyway. Her suggestion has proven extremely controversial. Justice Minister Simon Power responded immediately: "This is not Government policy. The Government was elected to set sentencing policy, judges are appointed to apply it."

Prime Minister John Key then backed his minister: "Releasing the speech puts her over the line and that was really the point that the Minister of Justice [made]. There's a line there and hopefully politicians don't stray one side and the judiciary don't stray the other."

Are Simon Power and John Key correct in accusing the Chief Justice of stepping beyond the appropriate bounds of her judicial role? Is this a case where an unelected, unaccountable judge sought to impose policy on our elected representatives?

I think not, for a number of reasons.

First off, Dame Sian hardly demanded that the Government release prisoners early.

Rather, she simply pointed out that unless something like this happens, on current rates of imprisonment there's going to be overcrowding problems that will raise safety and human rights concerns - which you can bet will translate into cases before the courts under the New Zealand Bill of Rights Act.

Maybe an executive amnesty is not the best response, as Dame Sian herself acknowledged. But something is going to have to be done!

Second, it is not unheard of for judges to give elected politicians and the public the benefit of their extensive, first-hand experience of criminal justice matters, whether this advice is solicited or unsolicited.

Indeed, if judges constitutionally are barred from doing so, then how exactly are we supposed to get that information?

Third, Dame Sian herself acknowledged in her speech that it is, in the end, for elected politicians to decide what New Zealand's sentencing policies will look like.

Therefore, she says "In the last 10 years especially, there has been a change to greater prescription by Parliament [in sentencing matters].

"That is entirely legitimate."

She goes on to say of recent changes to parole policy: "there is nothing illegitimate about this prescription or the substance of the reforms."

These are hardly the words of a judicial activist seeking to supplant elected representatives in deciding how our sentencing law will work.

In fairness to Simon Power and John Key, though, I can understand why they might be frustrated with Dame Sian's intervention. News that the policy approach to criminal justice issues taken by successive governments is not working well will never be welcome.

Shooting the messenger who bears unpleasant news has a way of stopping it from spreading. And the constitutional principle of "comity" provides a useful weapon in this case.

Furthermore, they are not the first politicians to seek to slap down the judiciary when it appears to be getting a bit uppity (or inconvenient) in its views.

Back in 2004, Michael Cullen also felt the need to sharply remind Dame Sian of the constitutional fact that Parliament retains the final word on the laws of New Zealand.

This no doubt helped make up for the headache the Court of Appeal's decision on the foreshore and seabed had caused him.

Stephen Franks went even further, stating in Parliament that Dame Sian ought to have removed herself from that case altogether, as she had previously represented Maori interests when in practice. This created, Mr Franks alleged, "an apparent conflict of interest" on her part.

The point from these examples is that the boundaries inherent in the principle of "comity" are not set in stone. Instead, they are drawn in sand, subject to constant erasure and redrawing in response to the ebb and flow of events.

This latest episode is another such episode. The Chief Justice has tested the boundaries of convention.

The politicians have pushed back. Whether this interchange results in a new understanding of what "comity" involves will only be apparent in retrospect.

* Andrew Geddis is associate professor at the Faculty of Law University of Otago.