The battle of the judges versus the law-makers

Matthew Palmer, dean of law at Victoria University, thinks people are looking for signs of difficulty with the Supreme Court mostly because it is new.

Tensions between the judiciary and the Executive are to be expected in the circumstances, Victoria law school Professor Matthew Palmer talks to the Herald about the relationship.

Were the tensions that publicly emerged between the judiciary and Executive a surprise?

I think it disclosed the sort of institutional tension you can expect to happen when you set up a new court that's at the top of the chain and that is going to be, in some sense, a competitor to the Executive and to the legislature in terms of the exercise of power.

The sorts of tensions we've seen in the public arena have always existed between the judiciary and the Executive irrespective of who is in Government and who is in the judiciary.

Do you think the tension was more intense because of some recent decisions that the Government believed was activist?

I don't think there has been too much of a shift. There is probably more publicity about it than there used to be because of the increased public focus on the existence of the Supreme Court and all the controversy about its creation, so people are looking at it now and looking for signs of difficulty.

But there is some rise in tension because it is a New Zealand court and it will be exercising power, so in that sense it is a bit of both.

Do you think Chief Justice Sian Elias is activist?

Not particularly. If you look at courts in any jurisdiction there is a sort of ebb and flow to the extent to which a court involves itself with questions which have a political or a policy element. And some courts will be more inclined to be involved with those questions and some will be less inclined. That changes from court to court. It is partly dependent on who is there but it is part of the natural ebb and flow of history.

But what does happen, sub-consciously, when our highest court suddenly locates on the other side of Molesworth St rather than on the other side of the world is that the inherently political and policy aspects of judgments the court has to make are more obvious.

Because the decision-makers are here, it is easier to see that it is actually people making those decisions rather than some anonymous court somewhere else, which we don't really understand anyway.

Some who say the foreshore and seabed judgment was activist believe it would not have been delivered 10 years ago, that the court would have said, "This is where the law needs addressing, this is where the law is failing".

I think that is a bit of a myth. If you go back to the 80s, for example, there was concern among policy-makers about the activist nature of the then President of the Court of Appeal, Lord Cooke, then Sir Robin Cooke.

If you look over a long enough period, those sorts of concerns will always exist depending on who is around at the time. There may be more awareness that courts actually do make decisions with political implications but in the foreshore and seabed decision, don't forget that case occurred because the Government put some questions to the Court of Appeal and the court answered them.

That should not necessarily reflect on the type of judgment that comes out?

No, but the question they were asking - is it possible for an argument about this issue to be made in the Maori Land Court - is exactly the sort of question that is least likely to get a "no" from the court. The thing any court is always most concerned about is to preserve access to courts. And that, constitutionally, is entirely appropriate.

Do you think it absolutely flows that if New Zealand were to go down the path of a written constitution, judges would get a lot more power and that that in itself would make it less likely in this current environment to be supported by the Parliament?

It depends on the nature of the written constitution. You could have a written constitution which definitely gives judges more power.

You could have a written constitution which tries not to do that. You can also have an unwritten constitution where judges take more power. The United States constitution is written and judges do have a lot of power, but the ability of judges to strike down legislation there is not written in the constitution. It was made up by the judges at an early stage, in the early 19th century, when they decided it was the implication of the document.

Judges here have found they are able to declare that legislation is inconsistent with the Bill of Rights Act. Given what the Bill of Rights Act says, they have also noted that that has no effect on its validity.

But at a certain level, declaring that something is inconsistent with an act itself has an effect.

But that's not the same as striking it down, though.

Probably not, but you can conceive of how those two things could merge at a certain point.

Do you think judges have the right now to strike down legislation that contravenes, say, an international convention New Zealand has signed?

No. But I think - and this point is not yet established but I think it will become established in the next few years - it will become clear that judges are entitled to ask that if Parliament wishes to depart from fundamental constitutional principles or perhaps international human rights instruments, and act inconsistently with them, it may do so but it has to do so very clearly.

Do you think there is an inordinate amount of concentration on this power or not for courts to strike down laws when there has been no test case in New Zealand?

It is an important aspect of who interprets your constitution but it is not the only one and it does tend to obscure attention on other aspects of the question. Other office-holders in our constitutional system have significant constitutional effect in interpreting our constitution.

Do you support a written constitution?

No. I think an unwritten constitution is just as strong and better suited to New Zealand's constitutional culture and more flexible.

Given that we have got MMP and that we have got a Bill of Rights Act, I think an unwritten constitution is just fine.

You mean MMP and a Bill of Rights Act are constraints on unbridled power?

Yes.