• The Supreme Court started work in 2004, replacing the London-based judicial committee of the Privy Council as NZ’s court of final appeal.
• Recent decisions have raised alarm across the legal and political spectrum, says a new report.
• Five measures are suggested to address the shift in power between Parliament and the courts.

A time limit for judges of the Supreme Court would help to guard against them getting “an exaggerated view of their role”, a new research paper suggests.

It says the court is straying into Parliament’s domain and is granting itself the power to rewrite legislation it does not like.

It says Parliament needs to reassert its sovereignty and to stop the current drift towards “judicial supremacy”.

The paper is written by the chairman of the think-tank The NZ Initiative, Roger Partridge, who is also a lawyer and occasional Herald columnist.

One of the measures proposed is imposing a term of five to seven years on the Supreme Court before them returning to the Court of Appeal and promoting other Court of Appeal judges to the vacated Supreme Court positions.

“Such a rotation system could help prevent our most senior judges from becoming too detached from practical realities,” says the paper.

“It’s an ivory tower issue,” Partridge told the Herald. “We’ve created a palace for the Supreme Court judges in Wellington and with open-ended term limits, they are there for a long time.

“My suggestion is really aimed to try to make the court a little more grounded.”

His paper is highly critical of how the Supreme Court has developed in its first 20 years.

The court had embraced a very loose or liberal approach to interpreting laws passed by Parliament.

“This approach involves the court narrowly interpreting, “stretching” or even ignoring clear statutory language the court does not like,” the paper says.

“Through this process, the court has essentially granted itself the power to rewrite laws made by Parliament.”

The report says constitutional change was usually slow and thoughtful.

“However, the urgency of the situation means Parliament must act quickly and decisively. It must stop the current drift towards ‘judicial supremacy’.”

The report echoes concerns this year by senior barrister Jack Hodder KC in a conference paper on the Supreme Court in which he expressed a troubling sense of unease about a “remarkable level of mission creep” in the court’s role.

“In our democracy, the courts have no mandate to become agents of societal change,” Hodder wrote.

And he said the interpretation of statutes had become “a quiet constitutional battlefield”.

Both commentators, who are holding a webinar today on the issues, stressed that the elements of certainty and predictability were fundamental to the rule of law and suggested they were being eroded.

Both expressed concerns about the court assuming a role of “development” of the law to respond to changes in societal values, saying that was essentially the role of a democratically elected legislature, not the courts.

Partridge said the Supreme Court did not appear to recognise its overreach.

Roger Partridge, chairman of The NZ Initiative and a former litigation partner at law firm Bell Gully, says urgency is needed. Photo / Supplied

“The Supreme Court seems blind to the risks that will come from path it is taking us down,” he told the Herald. “It is leading us into the same sort of territory as the US Supreme Court and no one wants to politicise the judiciary and the resulting loss of trust in judicial impartiality.”

His report was directed at Parliament “but I sincerely hope it will be received constructively and it will cause some of the senior judges, some of whom I was at law school with, to think about the current course”.

The paper sets out options for Parliament to rein in what it calls the court’s activist tendencies.

a. Greater use of targeted legislation to overturn specific aberrant decisions;

b. Amending the Senior Courts Act 2016 to provide a formal definition of the “rule of law”;

c. Amending the Legislation Act 2019 to introduce stricter guidelines to the courts when interpreting statutes;

d. Amending or repealing section 6 of the New Zealand Bill of Rights Act 1990; and

e. Reforming judicial appointment processes, such as term limits on the Supreme Court.

In making the case that change was required, the paper cites several controversial decisions, including the Make it 16 case, in which the court found the voting age of 18 to be discriminatory, and Smith vs Fonterra, allowing a case against seven large greenhouse gas emitters to proceed. It uses two other judgments of the Supreme Court to illustrate “overreach”.

One case was the Ellis continuance case – an adjunct to the substantive Peter Ellis judgment quashing his convictions – which changed the common law test for when tikanga was considered in cases.

“An obvious concern is that the judiciary’s views of ‘changing societal values’ may simply be the judges’ own values,” the paper says.

“Yet such an approach is contrary to the rule of law’s requirements for certainty and consistency.

“It also conflicts with the expected impartiality of the judicial role. A court that imposes the values of its judges is not impartial. Consequently the approach politicises the judiciary.

“Yet the courts lack democratic legitimacy or accountability for political decision-making. That is the role of Parliament.”

Another consequence of the tikanga decision was that it had failed to articulate a clear and coherent framework for recognising tikanga as law and had created a vacuum that was the very antithesis of the rule of law.

The paper suggests the Supreme Court was “captivated by the allure of making a grand symbolic gesture”.

Hodder’s paper also canvasses the Ellis continuance decision centred on tikanga and the references to the Treaty of Waitangi used by the majority in its decision.

Jack Hodder KC said the interpretation of statutes has become a "quiet constitutional battlefield". Photo / Dean Purcell

The court’s references included the statements that article two of the Treaty, regarding tino rangatiratanga, imported Maori rights to live by and benefit from tikanga; and that article three guaranteed to Māori the protection of the law , and the common law must therefore serve Māori.

He discussed moves by the courts to “constitutionalise” the Treaty, saying it was a profoundly political topic. The White Paper in 1985 proposing that the Treaty be part of the supreme law of New Zealand had failed after wide opposition.

“Attempts to achieve a comparable outcome by judicial decisions involve significant issues for the political reputation and legitimacy of the courts.”

The other key case used in the NZ Initiative paper was the Fitzgerald case involving an appeal against a third strike sentence under the so-called Three Strikes law.

Although the offence of kissing a woman without consent was widely regarded as a low-level indecent assault, the Three Strikes part of sentencing required the High Court to sentence the offender to the maximum term prescribed for that offence (seven years), no matter what any other law said.

Partridge said while Three Strikes was not a good law, it was unquestionably within Parliament’s prerogative to have passed it.

The majority of the Supreme Court disagreed, citing the Bill of Rights Act and said they had not accepted that Parliament could have intended to impose sentences that were so grossly disproportionate “that they shock the national conscience”.

The NZ Initiative paper said courts had constitutionally appropriate means of addressing perceived legal problems without overstepping.

“They can, for instance, point out in their decisions where Parliament might need to step in.”

Recent Supreme Court decisions had raised alarm across the legal and political spectrums.

“If Parliament does not act, there will be an ongoing erosion of the foundations of the legal system.

“Parliament must act with purpose to restore the constitutional balance and maintain the integrity of our legal system for future generations.”

Audrey Young is the New Zealand Herald’s senior political correspondent. She was named Political Journalist of the Year at the Voyager Media Awards in 2023, 2020 and 2018. She has been writing about power struggles between Parliament and the courts for 20 years.