Comments from the country’s two senior legal officers, Attorney-General Judith Collins KC and Chief Justice Dame Helen Winkelmann, revealed fundamentally opposing views on the role of judges. Their competing conceptions go to the heart of our democracy.
Collins stands firmly in the traditional corner. The Attorney General favours “black-letter lawyers” who look to “the law as it is.” Chief Justice Winkelmann takes a more radical view, positioning judges as society’s ultimate arbiters. Winkelmann asserted that judges “take the hard decisions in society.”
These contrasting views could not better illustrate the fundamental tension at the heart of our legal system explored in a recent Herald column discussing my New Zealand Initiative report, “Who Makes the Law? Reining in the Supreme Court.”
The Attorney-General’s approach aligns with traditional democratic principles. Hard societal decisions should be made by elected representatives accountable to voters, not unelected judges. This commitment to democracy is reflected in Collins’s preference for judges who practice traditional, text-focused interpretation.
In contrast, the Chief Justice sees the courts as the place “where the decisions in society that can’t be worked out in other ways are taken.” This view positions judges as philosopher-kings, empowered to reshape the law to pursue their vision of social justice.
However, the Chief Justice’s view fundamentally misunderstands the role of judges in our democracy. Hard societal decisions involve complex trade-offs between competing interests. Unlike Parliament, judges lack both the tools and democratic mandate to make these choices.
Judges cannot conduct broad consultation, commission research, or properly weigh competing interests across society. This forward-looking role is the job of Parliament. The court’s role should be largely backwards looking. Their primary task is to resolve specific disputes between individual litigants by applying the law as it stood when the conflicts arose.
When courts try to fill a broader role as arbiters of values, they risk imposing their own values on society at large. That politicises the judiciary and turns judges into unaccountable social engineers.
This judicial overreach also creates real-world chaos. When judges reshape the law based on their perception of social values, individuals and businesses can no longer rely on clear statutory wording or stable precedents to guide their actions. Even Parliament must second-guess its legislative choices.
The 2022 Peter Ellis case, in which the Supreme Court unilaterally decided to consider tikanga Māori despite the case having no Māori connection, illustrates the problem. The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases.
The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.
The Chief Justice’s approach also sits uncomfortably with another observation she made at the webinar – that judges need “patience and resilience” to give parties a fair hearing. But will judges maintain the necessary detachment if they see themselves as charged with resolving every matter that they think society cannot settle democratically?
The Chief Justice speaks of judges needing “courage” to make controversial decisions “which they know will have very significant implications for the parties before them” and may attract controversy. But true courage often means showing restraint. It means respecting Parliament’s role, even when judges disagree with its choices.
This constitutional tension has not arisen solely from judicial ambition. Parliament bears some responsibility. It has occasionally ‘kicked the can’ to the courts. Most notably, Parliament left the task of developing the principles of the Treaty of Waitangi to the courts. This has doubtless encouraged judicial activism.
But Parliament’s limited delegation of a specific constitutional question should not embolden courts to become society’s self-appointed problem-solvers. The courts’ proper response to policy challenges should be to signal where Parliament’s intervention is needed. It is not to fill every legal vacuum with judicial lawmaking.
The contrasting approaches from the Attorney-General and Chief Justice bring us back to the fundamental question: Who should make the law in New Zealand? Should it be democratically elected politicians answerable to voters? Or unaccountable judges pursuing their own vision of social progress?
The Attorney-General’s emphasis on listening offers the better vision for the judicial role. “We learn more with our ears than we do once we open our mouths,” she observes. This suggests a more humble conception of the judiciary that recognises constitutional boundaries and focuses on applying the law rather than pronouncing on society’s values.
The Chief Justice’s expansive view is clearly well-intentioned. Yet when judges see themselves as society’s ultimate problem-solvers, they forget the first test of a good judge: understanding where the judicial role ends and where Parliament’s begins.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was first published HERE
These contrasting views could not better illustrate the fundamental tension at the heart of our legal system explored in a recent Herald column discussing my New Zealand Initiative report, “Who Makes the Law? Reining in the Supreme Court.”
The Attorney-General’s approach aligns with traditional democratic principles. Hard societal decisions should be made by elected representatives accountable to voters, not unelected judges. This commitment to democracy is reflected in Collins’s preference for judges who practice traditional, text-focused interpretation.
In contrast, the Chief Justice sees the courts as the place “where the decisions in society that can’t be worked out in other ways are taken.” This view positions judges as philosopher-kings, empowered to reshape the law to pursue their vision of social justice.
However, the Chief Justice’s view fundamentally misunderstands the role of judges in our democracy. Hard societal decisions involve complex trade-offs between competing interests. Unlike Parliament, judges lack both the tools and democratic mandate to make these choices.
Judges cannot conduct broad consultation, commission research, or properly weigh competing interests across society. This forward-looking role is the job of Parliament. The court’s role should be largely backwards looking. Their primary task is to resolve specific disputes between individual litigants by applying the law as it stood when the conflicts arose.
When courts try to fill a broader role as arbiters of values, they risk imposing their own values on society at large. That politicises the judiciary and turns judges into unaccountable social engineers.
This judicial overreach also creates real-world chaos. When judges reshape the law based on their perception of social values, individuals and businesses can no longer rely on clear statutory wording or stable precedents to guide their actions. Even Parliament must second-guess its legislative choices.
The 2022 Peter Ellis case, in which the Supreme Court unilaterally decided to consider tikanga Māori despite the case having no Māori connection, illustrates the problem. The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases.
The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.
The Chief Justice’s approach also sits uncomfortably with another observation she made at the webinar – that judges need “patience and resilience” to give parties a fair hearing. But will judges maintain the necessary detachment if they see themselves as charged with resolving every matter that they think society cannot settle democratically?
The Chief Justice speaks of judges needing “courage” to make controversial decisions “which they know will have very significant implications for the parties before them” and may attract controversy. But true courage often means showing restraint. It means respecting Parliament’s role, even when judges disagree with its choices.
This constitutional tension has not arisen solely from judicial ambition. Parliament bears some responsibility. It has occasionally ‘kicked the can’ to the courts. Most notably, Parliament left the task of developing the principles of the Treaty of Waitangi to the courts. This has doubtless encouraged judicial activism.
But Parliament’s limited delegation of a specific constitutional question should not embolden courts to become society’s self-appointed problem-solvers. The courts’ proper response to policy challenges should be to signal where Parliament’s intervention is needed. It is not to fill every legal vacuum with judicial lawmaking.
The contrasting approaches from the Attorney-General and Chief Justice bring us back to the fundamental question: Who should make the law in New Zealand? Should it be democratically elected politicians answerable to voters? Or unaccountable judges pursuing their own vision of social progress?
The Attorney-General’s emphasis on listening offers the better vision for the judicial role. “We learn more with our ears than we do once we open our mouths,” she observes. This suggests a more humble conception of the judiciary that recognises constitutional boundaries and focuses on applying the law rather than pronouncing on society’s values.
The Chief Justice’s expansive view is clearly well-intentioned. Yet when judges see themselves as society’s ultimate problem-solvers, they forget the first test of a good judge: understanding where the judicial role ends and where Parliament’s begins.
Roger Partridge is chairman and a co-founder of The New Zealand Initiative and is a senior member of its research team. He led law firm Bell Gully as executive chairman from 2007 to 2014. This article was first published HERE
9 comments:
How can tolerate a Chief Judge who does not know what the role of the judiciary is?
Parliamnet makes hard decisons based on what will preserve them in power. The judiciary makes hard decisons based on what will maximise ongoing paid activity for the profession.
Hmmm - what makes you think the Chief Justice is well-intentioned? When I read Plato as an under-graduate, I thought the philosopher king was the leader to be aimed for. Now I'm not so sure. Adversary politics is exhausting, and by no means always productive of the right outcome. All I can say as I contemplate the line-up of Supreme Court judges is 'philosopher kings they are not!'
NZ urgently needs to reinstate access to the Privy Council. The Ellis case is a Trojan horse. Tikanga is NOT law.
FOUNDATIONS OF THE CONSTITUTION by P. A Joseph, Barrister and Solicitor of the High Court, Senior Lecturer in Law, University of Canterbury.
https://ir.canterbury.ac.nz/server/api/core/bitstreams/544be97a-5cc2-4c90-8107-32a65adbd1b8/content
Extract from above article
Devolution of legal authority from Britain began in 1852, and ended when the Constitution Act 1986 passed into law on 13 December 1986. Although declaratory rather than the source of New Zealand's state instruments and authority, this Act gave full expression to our national sovereignty, and brought to a close 135 years of piecemeal legal development.
The Constitution Act 1986 was an “attempt” to devise a modern Act appropriate to New Zealand circumstances.
“New Zealand's constitutional discourse no longer reminisces on Imperial unity and Empire but recognizes New Zealand as a South Pacific nation, apprised of its regional obligations, whose social compact is between Maori and fifth generation Anglophiles. Accompanying the replacement of imposed British forms is a new commitment to “principles of partnership” under the Treaty of Waitangi. Their recognition under the State-Owned Enterprises Act 1986, together with the retrospective jurisdiction of the Waitangi Tribunal from 1840, have elevated the Treaty in the social contract”.
“In New Zealand Maori Council v. Attorney-General! Richardson J. reflected on the concept of the honour of the Crown, that it captures the crucial point that the Treaty is a positive force in the life of the nation and so in the government of the country".
The Constitution Act 1986 invites the analogy of the axeman who, positioned on the bough of a tree, severs the limb at the trunk. Does the axeman fall to the ground with the branch? Or can he defy gravity and remain suspended, though he has lost his means of support? The 1986 Constitution Act repealed New Zealand's sources of legislative powers (namely, the 1852 Constitution Act, the Statute of Westminster 1931 and the 1947 Constitution Amendment Act), yet nevertheless declared "The Parliament of New Zealand continues to have full power to make laws". Like the axeman who loses his only means of support, do Parliament's powers likewise fall to the ground? Can there exist, in law, a power without a source? To declare the continuance of powers does not constitute or create them. Such declaration premises their existence and, perforce, their source. Perhaps, on this view, the Constitution Act is New Zealand's ultimate proclamation of autochthony*?
*Autochthony refers to the fact that a constitution is, legally speaking, 'home grown' or rooted in native soil. By this it is meant that the constitution owes its validity and authority to “local legal factors”, rather than to the fact of enactment by a foreign legal process.
Ian Wishart in his article, TIME TO ADDRESS NZ’S SECRET 1986 COUP D’ETAT, pointed out that in Ireland in the 1930s, the Dail (parliament) declared independence from England, but it had to be ratified by a public vote. In this manner, the Irish parliament swiftly found fresh constitutional authority for its existence and powers – from the Irish people. It’s a legal process known as ‘autochthony’, which loosely translates to finding a new constitutional source of power once you unplug yourself from the original power source.
This never happened in New Zealand in 1986. The local NZ media did not understand the implications of the Constitution Act, and the Lange government never told them. The public awoke the morning after, not realizing New Zealand’s parliament had just seized absolute power and enthroned itself as “the Crown”. It never went to a public vote.
https://theoutdoorphonestore.com/175489/a-very-kiwi-coup/
"Parliament bears some responsibility"...for kicking the legislative can towards the Judiciary!
I suggest Parliament, "our" legislature, has almost forced the courts to "fill in the blanks" in our statutes, by increasingly churning out law that is full of undefined, vague terminology, intended presumably just to express sentiment rather than established rules for the conduct of a civilized society. The Resource Management Act, 1991, proposed by a Labour government, but foolishly enacted in haste by an incoming National government was a prime example of what might be termed sentimentality, rather than serious rule making. (It can also be criticized for other sins and omissions which cause it to weaken the "Rule of Law" which arguably forms the foundation of a truly democratic society)
This statute and many others that followed , based on wonderfully woke purposes, contain many terms that they fail to define.
No wonder the legal industry have delightedly made fortunes in bringing cases which need the courts to figure out what, precisely, that Parliament might have intended, by words like..."take into account",....protect, "significant" this or that. Let alone consider the "Principles of the Treaty!"
Parliament has been hugely lax, under several governments. It has churned out too many statutes, sometimes under "urgency", and obviously lacks a proper law drafting mechanism with suitably qualified staff who can actually understand the English language, and who have the balls to say to their masters..."and what the heck do you mean by this tosh!"
Never too late - please send to Seymour ASAP.
Guess who was in charge of writing this “New Constitution” for New Zealand whose social compact is between Maori and fifth generation Anglophiles with a new commitment to “principles of partnership” under the Treaty of Waitangi?
Mr Palmer. The very same man who allowed claims to date back to 1840, created ‘five principles’ for crown action on the treaty, made the treaty into a ‘partnership’ between maori and the crown, and wrote the majority of New Zealanders out of our legislation when Chief Justice Prendergast had ruled the treaty a ‘simple nullity’ and the Law Lords of the Privy council had stated that the TOW was not a legally binding document.
Like a lot of politicians. Mr G Palmers ego far outweighed his knowledge and ability, and power went to his head. Surely the 186 Constitution Act is unlawful as the people were not consulted. Why can it not be repealed and reworked, with a referendum? I like the Privy Councils view on the TOW. We should take it on board and also have a referendum on that!!.
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