Her Donoghue v Stevenson example illustrates the point. The courts developed the modern law of negligence because Parliament had not comprehensively legislated in that field. But that does not mean judges possess an unlimited licence to create new legal duties whenever they consider them desirable.[1]
There is a crucial distinction between developing established common-law principles and creating new obligations in areas where Parliament has legislated — or deliberately chosen not to legislate.
ACT is not proposing to abolish common law or prevent judges interpreting legislation. Its policy is aimed at the point where judicial interpretation can move beyond Parliament's enacted words. ACT proposes that clear statutory language should not be overridden by judge-made presumptions or interpretations based on contemporary values. It also proposes that Parliament should clearly specify Treaty interests, who they apply to and what obligations they create, rather than leaving gaps for courts and officials to fill.[2]
That is not an attack on judicial independence. It is an argument about institutional boundaries.
Coddington asks where the line lies between interpretation and “expansive interpretation”. That is precisely the constitutional issue. If judicial interpretation effectively creates a new legal rule that Parliament did not enact, the unavoidable question is: who is making the law?
The issue becomes particularly important with tikanga.
Coddington is correct that tikanga has a long history of appearing in New Zealand law. But historical examples do not settle how far tikanga should influence the modern common law.
In Ellis v R in 2022, the Supreme Court confirmed that tikanga can be relevant to the development of New Zealand's common law. The Court also held that it is not relevant whether all parties in a proceeding are Māori. Its relevance is determined according to the circumstances of the particular case.[3]
That makes the constitutional question more, not less, important.
Coddington asks why all New Zealanders should not be able to “access tikanga” if everyone is equal before the law. But if tikanga can influence the development of common law applicable to everyone, the issue is no longer simply whether Māori custom can be considered in an appropriate case. It becomes a question about the content of New Zealand law for the entire population.
That is precisely where Parliament has a legitimate interest in setting the boundaries.
The question is not whether judges should interpret the law. Of course they should. It is where the boundary lies between interpreting law and making new law.
Parliament is elected to make laws applying to the population as a whole. Judges are appointed to interpret and apply those laws. Judicial independence is essential, but it does not give judges a parallel mandate to determine major questions of public policy.
If a new legal obligation is considered necessary, the democratic answer is for Parliament to enact it.
That is the principle behind ACT's proposal: Parliament makes the law, government is bound by it, and every New Zealander stands equal before it.[2]
There is another revealing point in Coddington's conclusion. She argues that New Zealand's constitutional “smorgasbord” should be consolidated into “one supreme work”. That raises a much bigger question: what would that constitution actually say?
New Zealand's constitutional arrangements already include the Treaty. The Ministry of Justice describes it as “widely accepted” as a constitutional document, while acknowledging that its status in New Zealand law remains “less than settled”.[4]
Before advocating one supreme constitutional document, therefore, New Zealanders would need a serious debate about what it should guarantee: parliamentary sovereignty, equality before the law, individual rights and democratic accountability — and what constitutional status, if any, should be given to Treaty principles, co-governance or any concepts that have developed through later interpretation.
Those are not academic questions.
Coddington's proposed “one supreme work” could open a constitutional debate far larger than the one ACT is currently proposing.
Before embracing a single supreme constitution, New Zealanders should ask a simple question:
Supreme constitutional authority for what — and on whose terms?
That debate is worth having before, rather than after, such a constitution is written.
References
1. Donoghue v Stevenson [1932] UKHL 100, House of Lords, 26 May 1932.
2. ACT New Zealand, One Law for All. One Future Together, August 2026.
3. Supreme Court of New Zealand, Peter Hugh McGregor Ellis v R [2022] NZSC 114 and [2022] NZSC 115, 7 October 2022.
4. New Zealand Ministry of Justice, Te Tiriti o Waitangi — Treaty of Waitangi.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
That is not an attack on judicial independence. It is an argument about institutional boundaries.
Coddington asks where the line lies between interpretation and “expansive interpretation”. That is precisely the constitutional issue. If judicial interpretation effectively creates a new legal rule that Parliament did not enact, the unavoidable question is: who is making the law?
The issue becomes particularly important with tikanga.
Coddington is correct that tikanga has a long history of appearing in New Zealand law. But historical examples do not settle how far tikanga should influence the modern common law.
In Ellis v R in 2022, the Supreme Court confirmed that tikanga can be relevant to the development of New Zealand's common law. The Court also held that it is not relevant whether all parties in a proceeding are Māori. Its relevance is determined according to the circumstances of the particular case.[3]
That makes the constitutional question more, not less, important.
Coddington asks why all New Zealanders should not be able to “access tikanga” if everyone is equal before the law. But if tikanga can influence the development of common law applicable to everyone, the issue is no longer simply whether Māori custom can be considered in an appropriate case. It becomes a question about the content of New Zealand law for the entire population.
That is precisely where Parliament has a legitimate interest in setting the boundaries.
The question is not whether judges should interpret the law. Of course they should. It is where the boundary lies between interpreting law and making new law.
Parliament is elected to make laws applying to the population as a whole. Judges are appointed to interpret and apply those laws. Judicial independence is essential, but it does not give judges a parallel mandate to determine major questions of public policy.
If a new legal obligation is considered necessary, the democratic answer is for Parliament to enact it.
That is the principle behind ACT's proposal: Parliament makes the law, government is bound by it, and every New Zealander stands equal before it.[2]
There is another revealing point in Coddington's conclusion. She argues that New Zealand's constitutional “smorgasbord” should be consolidated into “one supreme work”. That raises a much bigger question: what would that constitution actually say?
New Zealand's constitutional arrangements already include the Treaty. The Ministry of Justice describes it as “widely accepted” as a constitutional document, while acknowledging that its status in New Zealand law remains “less than settled”.[4]
Before advocating one supreme constitutional document, therefore, New Zealanders would need a serious debate about what it should guarantee: parliamentary sovereignty, equality before the law, individual rights and democratic accountability — and what constitutional status, if any, should be given to Treaty principles, co-governance or any concepts that have developed through later interpretation.
Those are not academic questions.
Coddington's proposed “one supreme work” could open a constitutional debate far larger than the one ACT is currently proposing.
Before embracing a single supreme constitution, New Zealanders should ask a simple question:
Supreme constitutional authority for what — and on whose terms?
That debate is worth having before, rather than after, such a constitution is written.
References
1. Donoghue v Stevenson [1932] UKHL 100, House of Lords, 26 May 1932.
2. ACT New Zealand, One Law for All. One Future Together, August 2026.
3. Supreme Court of New Zealand, Peter Hugh McGregor Ellis v R [2022] NZSC 114 and [2022] NZSC 115, 7 October 2022.
4. New Zealand Ministry of Justice, Te Tiriti o Waitangi — Treaty of Waitangi.
Geoff Parker is a passionate advocate for equal rights and a colour blind society.
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