In “Democracy Briefing: Foundations of a constitutional crisis?”, Bryce Edwards has pointed to the activist behaviour of the courts. He has signalled the possibility of a constitutional crisis because of the activism of some judges of New Zealand’s senior courts.
There have always been activist judges, those who are more adventurous than others in the development of the law, who may rightly be described as legal activists. As former Australian High Court Justice Michael Kirby put it when comparing the austere Australian Justice Sir Owen Dixon with the avuncular English Master of the Rolls, Lord Denning:
There have always been in the law, as in life, Dixons and Dennings. The expositors of settled doctrine. The reformers who push doctrine forward: inventing new categories, reformulating concepts, extending the frontiers, advancing with an energy derived from the perceived needs of justice. Different ages tend to produce, and to elevate to the ascendancy, judges whose inclinations are akin to those of Dixon or those of Denning. That is why we see, in an historical review of the history of the common law, periods of creativity and energy; often followed by longer periods of consolidation and complacency.
In New Zealand now, we have something new. We have a breed of judges who are not legal activists but political activists — judges who unashamedly seek to advance political agendas. In doing so, they assume the mantle of Plato’s philosopher kings, the creed of the infallible ruling elite.
This way of thinking is contemptuous of the people of the country, the people they pretend they are serving, whom they ought to be serving. It is contemptuous also of those who represent them in our Parliament. It is a way of thinking which allows Parliament’s laws to be skirted round or even ignored by judges whose hubris permits them to think they know better than the people’s representatives and that it is perfectly permissible to supplant Parliament’s exclusive law-making power if it suits their political agendas.
Incredibly, a number of my King’s Counsel colleagues appear to think this is okay. As part of their calling on the Prime Minister and the National Party to breach a coalition agreement by refusing a first reading and referral to a select committee of ACT’s Treaty Principles Bill, they say that “even if Parliament can legislate in this way (which is uncertain),” the courts may not enforce it.
Bryce Edwards notes,
Crown Law’s advice on the bill struck a similar note, advising that if Act’s proposed principles became law after a public referendum, the courts would likely ignore them.
I come back to the KCs and their statement, “even if Parliament can legislate in this way (which is uncertain).” They need a short lesson because Parliament’ power is not uncertain.
Parliament consists of the Sovereign in right of New Zealand and the House of Representatives: Constitution Act 1986, s 14(1). Parliament has “full power to make laws,” and “a Bill passed by the House [becomes] law when the Sovereign or the Governor-General assents to it and signs it in token of such assent:” ss 15 and 16.
Joseph on Constitutional and Administrative Law, 5th ed, p 628, 17.4.3 describes the process: “The twin assents of the Crown and the House crystallise the Parliamentary will.”
The procedure, following preparation of the Bill is described on the Parliamentary web site:
An advice sheet, respectfully advising the Governor-General to assent to the Act, is signed by the Attorney-General and the Prime Minister (or another senior Minister if the PM is unavailable).
Copies of the bill and the advice sheet are sent to Government House. The Governor-General signs them to grant the Royal assent, and the bill becomes an Act.
The advice from the Attorney-General and the Prime Minister to the Governor-General to assent to the Bill conforms with the requirement for the Governor-General to act in accordance with the advice of the Executive Council or the appropriate ministers. In this way members of the executive branch of government are involved in the exercise of Parliamentary power.
The seat of sovereignty is the place where ultimate power resides. Parliament, having full power to make laws (Constitution Act 1986, s 15(1)), is that place. At least from the time New Zealand shed its vestigial colonial ties (probably 1947), ultimate power and sovereignty vested in the Parliament of New Zealand.
Parliamentary enactment is the highest source of law…. Statute prevails over all other sources of law, including judicial precedent and common law principles, subordinate legislation made under Parliament’s delegated authority, prerogative instruments issued under the Crown’s constituent power, international treaties entered into or ratified by the government, the comity of nations, and principles of customary public international law.
Joseph on Constitutional and Administrative Law, 5th edition, p582.
New Zealand has a commitment to the rule of law and the sovereignty of Parliament. The most recent acknowledgement of these fundamental constitutional principles is s 3(2) of the Senior Courts Act 2016.
All lawyers, including KCs have a fundamental obligation to uphold the rule of law. Undermining the rule of law does not uphold it. Suggesting that Parliament may not have the “full power” to make laws — when statute says it does — undermines the rule of law.
To the non-elite, “full power” means just that. To the elites who are members of the school of Humpty Dumpty, words may be manipulated to suit their purpose. See The Humpty Dumpty approach to the rule of law.
When the KCs say it is uncertain that Parliament may legislate in this way, they mean that the courts may refuse to apply the law. Using that as an argument implies acceptance of or even advocacy for defiance of Parliament and the law of the land. How is that consistent with a fundamental obligation to uphold the rule of law?
What the KCs should be saying is that judges, like everyone else, must obey the law and they have by virtue of their office a special obligation to apply it. They should be saying the judges are obliged by the oath of allegiance and the judicial oath to do so, and it would be unthinkable in a nation committed to the rule of law for them not to do so.
The essential thrust of the letter is that development of the “principles,” brought into existence by the Treaty of Waitangi Act 1975 as a fictional and undefined concept, is exclusively a matter for the courts and the Waitangi Tribunal and those who advocate before them. It is an arrogant plea for exclusion of the people and their parliamentary representatives.
The coalition agreement requires that the people be allowed to have a say through the select committee process. The KCs can advance their arguments to the select committee if they want, but it seems they prefer exclusive audiences with the courts and the Tribunal. They would rather stop the process than sully their hands by joining the hoi polloi before the committee.
It is difficult to judge what is worse: the attempt to shut down a democratic debate, the undermining of the rule of law, or the example set to members of the legal profession and others that promises do not need to be kept if members of an elite group, in thrall to what they consider to be a higher calling than democracy and the rule of law, demand the promises be repudiated.
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.
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