KEY TAKEAWAY
Lady Deborah Chambers KC published a two-part examination of the Supreme Court in the New Zealand Herald on 17 August and 11 September. Part One praised the Court. Part Two warned that judicial activism risks becoming normal. Two days before Part Two, Roger Partridge used the same paper to argue that Parliament should stop correcting the courts one case at a time and legislate properly. The argument has gone from think tank report to enacted statute in about eighteen months, involving both Crown law officers, an emeritus professor and, as of August, Parliament itself.
Eighteen months ago, the question of who makes law in New Zealand was a think tank position paper. It is now a statute, but the debate continues.
Lady Deborah Chambers KC’s contribution arrived in two parts in her fortnightly New Zealand Herald column. Part One was praise, using Tamihere v R, decided unanimously in March, as her example of the Supreme Court working properly – convictions more than thirty-five years old quashed, a retrial ordered, and a clear demonstration of why having a final appellate court at home beats sending appeals to London.
She also credited the Court with more final appeals heard, more willingness to overturn the Court of Appeal, livestreamed hearings and a more diverse bench.
Part Two was the warning with two complaints, briefly stated. First, that in Ellis v R, Fitzgerald v R and Smith v Fonterra the Court moved into territory belonging to Parliament. Second, and more practically, that judgments carrying multiple sets of reasons leave practitioners unable to say what the law now is.
Her example is Scott v Williams, where five separate judgments produced a position she calls impenetrable, with the cost falling on litigants who cannot fund forensic accountants to find out what their rights are.
Worth stating clearly, because it keeps being got wrong, Chambers does not argue tikanga has no place in New Zealand law. Her objection, drawn from Emeritus Professor Peter Watts KC, is about how the change was made rather than whether it should have been.
The Cast
Watts shares chambers with Chambers at Bankside. Roger Partridge, chairman of The New Zealand Initiative and Bell Gully’s executive chairman from 2007 to 2014, supplied the framing in a 2024 report and returned to it in the Herald this month.
Attorney-General Chris Bishop told the Law Association on 6 August that developing statute law is Parliament’s job, not the courts’. Solicitor-General Anna Adams KC, sworn in on 11 May and a Bankside barrister before that, spoke on the same theme to the Legal Research Foundation in early September.
Judith Collins KC, whom Bishop replaced in April, now heads the Law Commission, whose tikanga review sits at the centre of the Ellis criticism.
None of which is improper. It is just the cosy community of New Zealand, where a constitutional argument that would take a decade to assemble elsewhere can be built out of one set of chambers and a few professional dinners.
Where From Here?
Parliament has already acted once. The Climate Change Response (Tort Liability) Amendment Bill passed its third reading on 18 August, 67 votes to 53, barring the climate tort claims Smith had allowed and reaching live proceedings. It did so over the objection of 578 of the 621 submitters, most citing retrospectivity and a compressed select committee process.
Partridge’s column is essentially an argument that this is the wrong way to do it. Fixing decisions one at a time is Parliament’s bluntest tool, he writes. Each correction becomes a political fight, and it repairs a single case while leaving everyone guessing which rule gets rewritten next.
His alternative is structural: define the rule of law in the Senior Courts Act so the Court is bound by Parliament’s definition rather than its own, amend the Legislation Act so a statute’s meaning is fixed at enactment, and make clear that the Bill of Rights Act permits a rights-protective reading where the words reasonably allow but not a rewrite.
Two other things to watch here include The Law Commission’s tikanga review, which remains unfinished. And Chambers’ quieter request for fewer fractured judgments, which is the one the Court can grant without anybody passing anything.
Strip back the debate and the cast is remarkably small. Watts supplies the scholarship, Chambers the platform, Partridge the draft legislation, Bishop and Adams the official blessing, and Parliament the votes.
The Supreme Court replies the way courts do, in judgments, on its own timetable. All of which means the next move in New Zealand’s argument about who makes the law will belong to whoever files the right appeal.
LawFuel covered Partridge’s earlier intervention in March 2026 in Judges vs Parliament: The Stealth Revolution No New Zealand Lawyers Dare Name.
