OPINION
Dr Muriel Newman
“Houston, we have a problem!”
New Zealand’s Supreme Court – the highest court in our land – has been captured by activist judges.
What is heartening, is the emergence of a wide range of eminent legal voices all openly criticising the Court and calling for this problem to be addressed.
But first some background.
From the time New Zealand’s court system was established in 1841, our final court of appeal was the Judicial Committee of the Privy Council sitting in London. It was not until 1931, when New Zealand became fully autonomous through the passing of the Statute of Westminster by the British Parliament, that it became possible for the right of appeal to the Privy Council to be abolished.
In spite of many attempts, it wasn’t until 2002 that Helen Clark’s Labour Government chose to sever judicial ties with Britain.
The Supreme Court Act, which established our own court of final appeal and ended access to the Privy Council, included in its purpose: “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”
The new Court sat for the first time on 1 July 2004 with a bench of five Judges.
At the time, the main argument for retaining access to the Privy Council was that New Zealand’s Court of Appeal had been captured by judicial activists and there were concerns that if a new court was established, that too would become captured.
A submission by the New Zealand Business Roundtable to a 1995 review into the future of Privy Council access, outlined the problem:
“There has been a pattern of ‘judicial activism’ rather than ‘restraint’. In this context, ‘activism’ means constantly seeking a law-making role, which can involve the disregard or undervaluing of established rules and precedents. It also implies giving low weight to stability and predictability, and excessive weight to idiosyncratic perceptions of ‘justice or ‘fairness’.
“Our Westminster-style government being premised on judicial restraint contains few forms of judicial accountability and the judiciary is traditionally perceived as the least dangerous branch of government. Indulgence in judicial activism raises the question of accountability: Who stops the judges from replacing the rule of law with the rule of judges?”
And this is the problem now facing New Zealand: Our Supreme Court has become infected by the virus of activism.
Last month, barrister Jack Hodder KC, a former Law Commissioner and member of the Advisory Board that recommended the establishment of the Supreme Court, outlined the problem in a paper to a law conference marking the Court’s 20th anniversary. He explained how the Court, designed to replace the Privy Council and “act within the traditional judicial decision-making role”, had experienced a “remarkable level of mission creep.”
He reiterated that it is the role of our democratically elected and accountable Parliament to make the law, and that “the courts have no mandate to become the agents of societal change.”
In fact, we are witnessing the dire consequences of the Courts becoming agents of change in their decisions over Marine and Coastal Area Act claims. The Act was introduced by John Key’s National Government as a mechanism to deliver customary rights to the foreshore and seabed to what the architect of the law, Chris Finlayson, assured the public, would be a a small minority of tribal groups living in remote areas. But that’s not how the Courts have interpreted the law.
Instead of applying the law according to the intentions of Parliament, activist judges have effectively rewritten it to deliver the opposite of what Parliament intended. Not only have they lowered the bar for claims, but more tribal groups are now being encouraged to join in the claims process.
The end result is that the entire coastline of New Zealand out to the edge of the Territorial Sea will be controlled by competing Maori tribal groups pursuing their own vested interests.
The Coalition Government has said it will “fix” this problem, but to date, they have done nothing – and there appears to be no sense of urgency to do so, even as hundreds of claims are being readied for hearings and are underway in Courts throughout the country.
This matter is urgent because once the Courts have granted Maori title, fixing the law will be much more difficult. A moratorium on the claims process has been suggested to give the Coalition the breathing space it will need to change the law, but that too has fallen on deaf ears in Parliament.
The blight of judicial activism has now well and truly captured the Supreme Court, despite being set up to curb it.
Their 2022 decision quashing the historical conviction of Peter Ellis – who was deceased and not Maori – highlighted how far our senior appeal court has strayed when it used the case to suggest Maori custom or ‘tikanga’ had a place in New Zealand’s common law.
Many in the legal fraternity were shocked because they understood the introduction of ambiguous and mythical concepts undermines the predictability of the law, destabilising the Rule of Law itself.
And last month’s decision in the Smith v Fonterra climate change case, reinforced growing concerns over judicial activism in the Court.
This week’s NZCPR Guest Commentator former Judge and Law Lecturer Anthony Willy outlines the case:
“On the 7 February 2024 the Supreme Court of New Zealand issued a judgment in a dispute between Michael John Smith against seven of our largest industrial companies: Fonterra, Genesis Energy, Dairy Holdings, New Zealand Steel, Z Energy, Channel Infrastructure, and BT Mining. Mr. Smith (the man who chopped the tree down on One Tree Hill in Auckland) is an elder of Ngapuhi and the climate change spokesman for the Iwi Chairs Forum. He began these proceedings in the High Court in August 2019. He alleges that the defendants by their activities have ‘damaged and will continue to damage his whenua and moana including places of customary, historical, nutritional and spiritual significance to him and his whanau.’ He says this will cause him some unspecified loss.
“The defendants moved to strike out the proceedings on the basis that the claim rises no arguable cause of action because the claim relates to complex policy matters best addressed by Parliament. In both the High Court and the Court of Appeal the four judges accepted this argument saying the magnitude of the global warming crisis, “cannot be appropriately or adequately addressed by common law tort claims through the Courts …it requires a sophisticated regulatory response at a national level supported by international co-ordination.”
“One would have thought that to be the end of the matter involving the waste of no further court time, but not so. The judgment of the Court of Appeal was appealed to the Supreme Court. The case was argued by twenty-six lawyers, four of them for the plaintiff, including two Kings Counsel.”
Whether the claimant’s use of “tikanga” to argue his case influenced the Supreme Court to find in his favour, sending the case back to the High Court to be heard again, is unknown, but certainly the Court has attracted widespread criticism for failing to quash the case.
In an article highly critical of the Supreme Court’s actions, Roger Partridge, chairman of the New Zealand Initiative and former executive chairman of Bell Gully, concludes: “The outcome will see months of court time and millions of dollars in legal fees consumed in a symbolic trial, with the Supreme Court substituting the judiciary into a role the defendants will argue is more suited to Parliament.”
Constitutional Law expert, Professor James Allen of Queensland University, who spent a decade lecturing law at Otago University, was scathing about New Zealand’s ‘imperial judiciary’:
“What do I mean by ‘an imperial judiciary’? I refer to a country where the top judges – committees of unelected ex-lawyers if we want to deal in specifics – are giving themselves new-found power at the expense of the elected branches of government. Under the cover of purportedly applying the law they are usurping power to themselves.
“Smith is a Maori climate change campaigner who brought proceedings against seven of NZ’s biggest companies for an injunction to stop them from contributing materially to climate change. Yes, you would have thought this is purely a political matter. Wrong! Basically, Mr Smith was inviting the judges to become hero judges and inject themselves into this heated debate. And they did.”
Gary Judd KC, the former Chairman of ASB Bank and Ports of Auckland, considers the “Supreme Court undermining its own legitimacy” is one of contemporary New Zealand’s most important issues since it “threatens our constitutional framework.”
Given the growing concerns about the direction of our Courts, the question of what can be done to turn the situation around has become urgent.
One approach is for Parliament to step in.
Jack Hodder describes such a situation in his paper – when the Supreme Court ignored the intention of Parliament in a case relating to a 2016 Child Protection Act, the consequences were so dire that Parliament passed an amendment under urgency to reverse the Court’s activist interpretation and clarify their original intention.
This is the approach promised by the Coalition Government to fix the Marine and Coastal Area Act.
Jack Hodder also provides a chilling warning about where Court activism can lead:
“The courts’ legal obligation under parliamentary sovereignty is to interpret and apply every statute in a way that is consistent with Parliament’s legal authority to enact it. In a small number of cases, what is called ‘interpretation’ might be tantamount to disobedience under cover of a ‘noble lie’. But if that were to become more routine, and generally condoned by other branches of the government, Parliament would no longer be sovereign.”
That direction of travel by our highest court can be seen in the comments by Supreme Court Justice Suzan Glazebrook, who stated during a Waikato Law School lecture in 2021, “until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and Tikanga in the law is a start…”
Such comments by a member of the bench of the highest court in our land, that creates precedents for New Zealand’s justice system, have all the hallmarks of new-age judicial activism – a determination to right the wrongs of our colonial past by embedding tikanga and the Treaty into our law. Regrettably, these are not words that can be readily dismissed.
In his article How to rein in an activist Supreme Court Roger Partridge believes that as well as passing statutes to correct the wrongful decisions of activist judges, the ‘rule of law’ should be defined: “Parliament could introduce more clearly defined ‘guardrails’ in the Senior Courts Act 2016. Helpfully, the act refers to New Zealand’s ‘continuing commitment’ to both the rule of law and the sovereignty of Parliament. There is no doubt about the meaning of ‘parliamentary sovereignty. It means Parliament sits above the courts. But nowhere in the act is the term ‘rule of law’ defined. And while it has an orthodox meaning, unless defined, it is susceptible to manipulation.”
In his paper, Jack Hodder warns what could be in store if our senior Court is not brought into line:
“New Zealand has an unwritten constitution; that constitution is part of our law; the courts have the authority to declare what the law is; the courts inevitably make or ‘develop’ the law; and thus the courts can remake the (unwritten) constitution – including by redefining the rule of law, the sovereignty of Parliament and the nature of the common law. All of which may be used to constitutionalise the Treaty, to constrain the scope of statutory language and to present the Supreme Court as a sophisticated law reform agency or diviner of societal values.”
Judicial activism within our highest court is now on full display for all to see. The question is whether Parliament intends to do anything about this threat – while it still can.