The case is Fitzgerald v Muldoon, a judgment now fifty years old. Prime Minister Robert Muldoon had announced, without asking Parliament, that New Zealanders could stop paying into the previous Labour government’s compulsory superannuation scheme. A man named Fitzgerald took Muldoon to court and won. Chief Justice Wild ruled that a Prime Minister cannot switch off a law by announcing it. Only Parliament can do that.
Wild relied on the English Bill of Rights 1688, passed when Parliament had had enough of kings setting aside laws they disliked. Three centuries on, it still bound a New Zealand Prime Minister.
Bishop quotes the case for a wider reason. Just as a Prime Minister cannot set aside a statute, neither can an unelected judge invent one Parliament has not.
Recent decisions of the Supreme Court, our highest court, have put that principle under strain. Climate activist Mike Smith sued six New Zealand companies, asking the courts to order them to cut their emissions. No court in the English-speaking world had done that.
The Court of Appeal threw the claims out before trial. Climate change, it held, was for Parliament and for treaties between countries, not for courts to settle one case at a time.
Yet the Supreme Court revived the claim. It did not decide that Smith would win, only that his case could go to trial. So, who is legally responsible for greenhouse gases, a question reaching every business and household, was left to years of court cases.
Parliament has now stepped in. The Climate Change Response (Tort Liability) Amendment Bill will bar all such claims, including Smith’s.
But Bishop went further than defending the Bill. Parliament, he said, has been “too passive” about court decisions, taking the law in an “unhappy direction”. It should write laws more clearly and, when the law takes a wrong turn, pass a new one saying so.
Clearer drafting would help. But it might not be enough. As I argued in my 2024 report, Who Makes the Law?, Parliament must also correct the courts when they overstep.
The Bill shows one way. My report set out others: guardrails in key statutes and changes to how judges are appointed.
Parliament makes the law. It is encouraging to hear the Attorney-General say so.
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
Bishop quotes the case for a wider reason. Just as a Prime Minister cannot set aside a statute, neither can an unelected judge invent one Parliament has not.
Recent decisions of the Supreme Court, our highest court, have put that principle under strain. Climate activist Mike Smith sued six New Zealand companies, asking the courts to order them to cut their emissions. No court in the English-speaking world had done that.
The Court of Appeal threw the claims out before trial. Climate change, it held, was for Parliament and for treaties between countries, not for courts to settle one case at a time.
Yet the Supreme Court revived the claim. It did not decide that Smith would win, only that his case could go to trial. So, who is legally responsible for greenhouse gases, a question reaching every business and household, was left to years of court cases.
Parliament has now stepped in. The Climate Change Response (Tort Liability) Amendment Bill will bar all such claims, including Smith’s.
But Bishop went further than defending the Bill. Parliament, he said, has been “too passive” about court decisions, taking the law in an “unhappy direction”. It should write laws more clearly and, when the law takes a wrong turn, pass a new one saying so.
Clearer drafting would help. But it might not be enough. As I argued in my 2024 report, Who Makes the Law?, Parliament must also correct the courts when they overstep.
The Bill shows one way. My report set out others: guardrails in key statutes and changes to how judges are appointed.
Parliament makes the law. It is encouraging to hear the Attorney-General say so.
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
4 comments:
Sir Geoffery Palmer didn't doesn't?) agree in 187 when introducing Treaty principles into legislation. Deliberately didn't define them so as to let his Judiciary mates inflict their opinions onto the public. In a recent? interview, he still thought the judiciary should have more power to make laws, and override Parliament when they thought Parliament was wrong. I could never understand all the opposition to the Treaty Principles Bill, when it was only trying to clear up the mess G Palmer deliberately set up
I agree with Mr Bumble about most of the laws we are supposed to tolerate:
"If the law supposes that ... the law is an ass"
I would add, same goes for how the pandemic response was handled.
- Charles Dickens' Oliver Twist (1838)
Mr Bumble's grammar was lousy too. He actually said, "the law is a ass."
At first it puzzled me that Parliament would enact laws containing references to the principles of the Treaty of Waitangi without defining what those principles were.
Then I realised the government of the day did it because it was politically convenient.
They didn't just create a mess for others to deal with; they made a goldmine for the treaty grifters.
The grifters and their lawyers don't want the principles defined. That way, they can argue about it in the courts forever.
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