What Senior Lawyers Are Concerned About
A new report from The New Zealand Initiative has taken aim at the Supreme Court, warning of a looming constitutional crisis in New Zealand, as the Supreme Court increasingly oversteps its bounds, threatening the balance of power between the courts and Parliament.
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The report, “Who Makes the Law? Reining in the Supreme Court,” authored by former Bell Gully Chair Roger Partridge, the Chair and Senior Fellow at The New Zealand Initiative is seriously concerned about the top court’s overreach and its increasing judicial activism.
His report echoes some of the comments made by leading KC Jack Hodder who made some scathing (but politely formed) criticism of the Court in the report earlier this year in One Advocate’s Opinions – The Least “Dangerous Branch”? Predictability and Unease.
And of course Gary Judd KC has frequently written about the Supreme Court’s ‘judicial imperialism’ and the like in different comments made in his writings.
Judicial Overreach by Supreme Court
“The Supreme Court’s overreach is making our laws less consistent and predictable, eroding public trust in both the law and the courts.” said Partridge.
“When unaccountable judges rewrite clear statutory language or reshape common law principles based on their perception of social values, they’re not just interpreting the law – they’re making it. This shift risks pushing our Supreme Court down the same path as the US Supreme Court, where judicial activism has led to a troubling politicisation of the judiciary and a dangerous loss of public trust in the courts,” Partridge said.
Professor Richard Ekins KC, (pictured) the New Zealand born Professor of Law and Constitutional Government at the University of Oxford, who wrote the foreword to the report, saw the report as a “powerful critique of the Supreme Court’s new jurisprudence”.
“I commend the New Zealand Initiative for publishing this paper and hope that New Zealand’s parliamentarians, who are responsible for maintaining the balance of the constitution, study it closely.”
Key Findings in Supreme Court Report
The Supreme Court has adopted a loose approach to interpreting laws passed by Parliament, often stretching or ignoring clear statutory language.
- Judges are reshaping common law principles based on their perceptions of changing social values, despite lacking democratic accountability for such policy decisions.
- This judicial overreach is making laws more uncertain and unpredictable, undermining the rule of law and the sovereignty of Parliament.
The report recommends several legislative strategies to address these issues:
- Passing targeted legislation to overturn problematic court decisions.
- More clearly defined statutory guardrails to stop the courts from straying beyond their proper role.
- Improving judicial appointment processes to emphasise the need for judicial restraint and respect for parliamentary sovereignty.
The Supreme Court has certainly changed the way it has approached major issues facing the country with the Ellis Case being perhaps the key indicator of the changes.
Lawyer of the Year Natalie Coates Coates, who lead the successful advocacy in the case for Peter Ellis, has been a vocal proponent of tikanga, the Māori customary rights and their inclusion in the legal system.
Her expertise in indigenous rights and human rights has positioned her at the forefront of the debate over the role of tikanga and the Treaty within New Zealand’s legal framework.
It is just these issues that have lead observers and commentators to watch carefully the way the Supreme Court handles major cases involving tikanga.
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