Attorney-General Chris Bishop spoke to the Law Association on 6 August. Solicitor-General Anna Adams KC spoke to the Legal Research Foundation last Thursday. Both answered emphatically: making the law is Parliament’s job.
Twenty years ago, neither speech would have been needed. Yet over the past decade, lawyers have watched the Supreme Court stray further and further outside its lane. Leading barrister and former Law Commissioner Jack Hodder KC told the Legal Research Foundation’s 2024 Supreme Court conference that he watched the Court’s “mission creep” with “a troubling sense of unease.”
In his speech last month, Bishop was blunt. “Development of statute law is for Parliament, not for the courts.” And the courts, he said, had become “an attractive forum for those who have yet to persuade the public – and therefore Parliament – of the merits of their cause.”
Adams’s address built on Bishop’s comments, setting out the method Crown lawyers will follow when advising ministers and in conducting the Crown’s cases. “Parliament,” Adams emphasised, “is sovereign because it is representative and its legitimacy rests on the consent of the people, given at an election every three years.”
The Crown, she said, will read Acts as Parliament wrote them. It should not be expected to ask a court to stretch clear words, nor to find new values or new sources of law unless an Act provides for it. The Crown’s view will not always prevail, she added, since “our independent judiciary must be fearless to rule for or against the Crown on the merits.”
But the thrust of the Solicitor-General’s speech, like the Attorney-General’s before her, was clear. The Crown expects the courts to stay in their lane.
The straying has taken three forms: reading Parliament’s words to mean something other than what they say (a law that says a judge “must” impose a sentence, read by the courts as if it said “must, unless…”); rewriting judge-made law because the judges think society’s values have moved; and telling ministers they must consider matters Parliament never asked them to weigh.
All three of these forms of judicial activism lead to laws that cannot be known in advance, made by people nobody elected.
The climate change case brought by climate activist Mike Smith illustrates the second form. In 2019 he sued a group of our largest companies, Fonterra among them, alleging damage to the climate system. No court in the English-speaking world has ever recognised such a claim.
The Court of Appeal threw the claim out, saying it was a matter for Parliament, not judges. The Supreme Court reinstated it. The result would have been months of court time and millions of dollars in legal fees spent on a symbolic trial, with the Court usurping Parliament’s role. Parliament has now stepped in with legislation that stops the courts inventing new law in areas Parliament has already addressed in legislation.
The Supreme Court should not have needed two law officers to remind it who makes the law. Parliament made that clear in the 2003 Act that created it and again when it passed the Senior Courts Act in 2016. Nothing in the Act, Parliament said, affects “New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.” That is, the law is what has already been laid down and binds everyone. And the people we elect to Parliament have the last word on what it says.
Because they bind Crown lawyers rather than judges, the speeches themselves do not change the law. But they end any excuse for ignoring the criticism. The Court has been able to treat its critics as a handful of outspoken academics and King’s Counsel. It now faces both law officers and a Parliament that has twice legislated to correct aberrant decisions, first when the Court lowered the bar Parliament had set for customary title to the coastline, then with Smith’s climate change claim.
Correcting the courts’ wayward decisions case by case is Parliament’s bluntest tool. But every correction is a political fight. And it repairs one decision, leaving everyone to guess which rule might be rewritten next.
In my 2024 report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, I set out more lasting tools. Parliament could define “the rule of law” in the Senior Courts Act, so that the Court is bound by Parliament’s definition and cannot invent its own. It could amend the Legislation Act to say that a statute’s meaning is fixed when Parliament passed it, and does not shift with judges’ views of society’s changing values. And it could make clear that the Bill of Rights Act lets a court adopt an interpretation that protects rights where the words reasonably allow, but does not let the court rewrite a statute.
Last Thursday, the Solicitor-General said the Crown’s lawyers will read statutes as Parliament wrote them and will not ask the courts to find new values or new sources of law without Parliament’s say-so. What the Crown has adopted as its approach, Parliament should now enact as law.
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 sourced HERE
In his speech last month, Bishop was blunt. “Development of statute law is for Parliament, not for the courts.” And the courts, he said, had become “an attractive forum for those who have yet to persuade the public – and therefore Parliament – of the merits of their cause.”
Adams’s address built on Bishop’s comments, setting out the method Crown lawyers will follow when advising ministers and in conducting the Crown’s cases. “Parliament,” Adams emphasised, “is sovereign because it is representative and its legitimacy rests on the consent of the people, given at an election every three years.”
The Crown, she said, will read Acts as Parliament wrote them. It should not be expected to ask a court to stretch clear words, nor to find new values or new sources of law unless an Act provides for it. The Crown’s view will not always prevail, she added, since “our independent judiciary must be fearless to rule for or against the Crown on the merits.”
But the thrust of the Solicitor-General’s speech, like the Attorney-General’s before her, was clear. The Crown expects the courts to stay in their lane.
The straying has taken three forms: reading Parliament’s words to mean something other than what they say (a law that says a judge “must” impose a sentence, read by the courts as if it said “must, unless…”); rewriting judge-made law because the judges think society’s values have moved; and telling ministers they must consider matters Parliament never asked them to weigh.
All three of these forms of judicial activism lead to laws that cannot be known in advance, made by people nobody elected.
The climate change case brought by climate activist Mike Smith illustrates the second form. In 2019 he sued a group of our largest companies, Fonterra among them, alleging damage to the climate system. No court in the English-speaking world has ever recognised such a claim.
The Court of Appeal threw the claim out, saying it was a matter for Parliament, not judges. The Supreme Court reinstated it. The result would have been months of court time and millions of dollars in legal fees spent on a symbolic trial, with the Court usurping Parliament’s role. Parliament has now stepped in with legislation that stops the courts inventing new law in areas Parliament has already addressed in legislation.
The Supreme Court should not have needed two law officers to remind it who makes the law. Parliament made that clear in the 2003 Act that created it and again when it passed the Senior Courts Act in 2016. Nothing in the Act, Parliament said, affects “New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.” That is, the law is what has already been laid down and binds everyone. And the people we elect to Parliament have the last word on what it says.
Because they bind Crown lawyers rather than judges, the speeches themselves do not change the law. But they end any excuse for ignoring the criticism. The Court has been able to treat its critics as a handful of outspoken academics and King’s Counsel. It now faces both law officers and a Parliament that has twice legislated to correct aberrant decisions, first when the Court lowered the bar Parliament had set for customary title to the coastline, then with Smith’s climate change claim.
Correcting the courts’ wayward decisions case by case is Parliament’s bluntest tool. But every correction is a political fight. And it repairs one decision, leaving everyone to guess which rule might be rewritten next.
In my 2024 report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, I set out more lasting tools. Parliament could define “the rule of law” in the Senior Courts Act, so that the Court is bound by Parliament’s definition and cannot invent its own. It could amend the Legislation Act to say that a statute’s meaning is fixed when Parliament passed it, and does not shift with judges’ views of society’s changing values. And it could make clear that the Bill of Rights Act lets a court adopt an interpretation that protects rights where the words reasonably allow, but does not let the court rewrite a statute.
Last Thursday, the Solicitor-General said the Crown’s lawyers will read statutes as Parliament wrote them and will not ask the courts to find new values or new sources of law without Parliament’s say-so. What the Crown has adopted as its approach, Parliament should now enact as law.
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 sourced HERE
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