The United States offers a stark warning of the consequences of an activist judiciary. The outsized role of the U.S. Supreme Court has led to distorted legal reasoning, a troubling politicisation of the legal system, and a dangerous loss of public trust in the impartiality of the judiciary. This erosion of trust poses a grave threat to the rule of law and the stability of democratic institutions in America.
In New Zealand, we see much less debate about the growing role of the judiciary. But a similar tug-of-war between Parliament and the courts is emerging here. Cases like Fitzgerald v R [2021] NZSC 131, Make It 16 Inc v Attorney-General [2022] NZSC 134, Ellis v R [2022] NZSC 114, and Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5 reveal a Supreme Court increasingly claiming authority in areas traditionally reserved for Parliament.
While our constitutional framework differs from that of the United States, the dangers this struggle presents are no less severe. Left unchecked, judicial overreach in New Zealand could undermine the principles of parliamentary sovereignty, blur the separation of powers, and ultimately shift the balance of our democracy away from elected representatives towards unaccountable judges.
Perhaps more importantly for practising lawyers, the Supreme Court’s new jurisprudence is undermining the rule of law’s requirements that the law is clear, certain and predictable. The quagmire created by cases like the Supreme Court’s decision in Ellis is the very antithesis of this.
Concerns about judicial overreach form the core of my recent report for The New Zealand Initiative, Who makes the law? Reining in the Supreme Court.[1] The report builds on the incisive critique of the Supreme Court’s jurisprudence offered by Jack Hodder KC in his paper One Advocate’s Opinions: The ‘Least Dangerous Branch’? Predictability and unease, delivered at the Legal Research Foundation’s conference marking the Supreme Court’s 20th anniversary earlier this year.[2]
The concerns are echoed in Who makes the law’s powerful foreword from Oxford’s Professor of Law and Constitutional Government, Richard Ekins KC. In Ekins’s words, “the Supreme Court’s recent jurisprudence is liable to unsettle the balance of the constitution.”
The Supreme Court’s overreach is most evident in two key areas: its approach to statutory interpretation and its restated common law method.
Subverting Parliament – statutory interpretation
In recent years, the Supreme Court’s methodology for interpreting Parliament’s words has deviated significantly from the Court’s traditional approach. This shift is evident in three key areas. First, the application of presumptions to aid interpretation. Second, the Court’s expanded view of the licence granted by section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA) to adopt NZBORA-compliant meanings. Third, the adoption of an ‘ambulatory’ approach to statutory interpretation, particularly when it comes to the presumption of compliance with international law.
Historically, courts have used presumptions to help interpret ambiguous statutes. This careful approach, known as ‘the principle of legality’, was traditionally seen as a tiebreaker to resolve unclear statutory language. However, recent decisions of the Supreme Court have dramatically expanded the scope of this principle, using these presumptions not as tiebreakers but as ‘trump cards’ to override even clear statutory language.
The Court has adopted a similarly expansive approach to section 6, which requires courts to prefer rights-consistent interpretations of statutes where possible. The Court is now using this section to justify substantial departures from clear statutory language.
Fitzgerald v R [2021] NZSC 131 provides a stark example of the first two trends in action. Despite clear statutory language requiring judges to impose maximum sentences for third-strike offences, the Supreme Court majority effectively rewrote section 86D of the Sentencing Act 2002, citing both the principle of legality and section 6 to justify its approach.
In doing so, the Court abandoned the more restrained approach to section 6 laid down in R v Hansen [2007] NZSC 7. In Hansen, the Court had limited section 6 to ‘reasonably available’ interpretations. However, Winkelmann CJ in Fitzgerald explicitly rejected this constraint, stating: ‘I do not consider that s 6 is limited to meanings that are “reasonably available” on the text.’ Instead, the Chief Justice endorsed a much broader approach, allowing for substantial reinterpretation of statutory language as long as it did not amount to refusing to apply or invalidating the legislation.[3]
In a powerful dissent, Young J criticised the majority’s approach. Young J described the decision of the majority as interpreting section 86D as if it included the italicised words below:[4]
“Despite any other enactment (but not including the New Zealand Bill of Rights Act 1990), if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence but must not do so if this would result in disproportionately severe punishment under s 9 of the New Zealand Bill of Rights Act.”
Young J held that the first (italicised) exception “is a flat contradiction to the generality of the words ‘Despite any other enactment’.” His Honour said, “The expressions ‘Despite any other enactment’, ‘on any occasion’ and ‘the High Court must’ seem to me to admit of no ifs and no buts.” It is hard to disagree.
While the ‘three strikes’ legislation was undoubtedly controversial, as Professor Ekins observes in the foreword to the report, it was indisputably within Parliament’s prerogative to enact such a law.
The Supreme Court’s decision to circumvent clear statutory language represents a significant overreach of judicial power and a concerning departure from established principles of statutory interpretation.
The Court’s use of the presumption of compliance with international law highlights the third problem: the Court’s ‘ambulatory’ approach to statutory interpretation. If the meaning of domestic laws changes over time as international laws change, this effectively transfers lawmaking power from Parliament to the courts. As courts reinterpret laws to align with evolving international standards or norms, they are changing the law without Parliament acting.
The authors of Burrows and Carter, Statute Law in New Zealand, suggest the ambulatory approach could be adopted more broadly by the courts when considering “context” in section 10 of the Legislation Act.[5]
This is an unquestionably radical suggestion. It would allow the Court to reinterpret statutes based on its perception of contemporary values rather than adhering to the intent of Parliament at the time of enactment. It would represent a significant departure from traditional principles of statutory interpretation and raise serious questions about the balance of power between the judiciary and the legislature. Yet, writing extra-judicially, Justice Glazebrook has endorsed this very approach.[6]
Legislating from the bench
The Supreme Court’s approach to the common law method is equally concerning. The extent to which judges ‘declare’ or ‘make’ the common law has long been a subject of debate among legal scholars. However, expansive views of the common law method tend to recognise the need for judicial restraint.
In his well-known essay in honour of Lord Cooke of Thorndon, presented at another Legal Research Foundation conference in 1997, Lord Bingham articulated a more relaxed but still circumscribed common law method.[7] Lord Bingham outlined five situations where most judges would hesitate before making new law. First, where right-minded citizens have legitimately ordered their affairs based on a certain understanding of the law. Second, where a defective legal rule requires replacement by a detailed legislative code. Third, where the question involves an issue of current social policy on which there is no consensus. Fourth, where the issue is currently being addressed by Parliament. Finally, where the issue is far removed from ordinary judicial experience.
Despite these widely accepted constraints, our Supreme Court has veered off here, too, and developed a radically unconstrained approach to the common law. Both in recent judgments and in their extra-judicial writings, Supreme Court judges have repeatedly described their role as ‘developing’ the common law to match the Court’s views of contemporary ‘social values’.
This approach is deeply troubling. Judges are ill-equipped to discern and interpret ‘societal values,’ lacking both the democratic mandate and the necessary tools to make such assessments.
As Jack Hodder astutely observes in his critique of the Supreme Court, “By what logic or training or experience and by which evidence do the courts identify and weigh inconsistent ‘values’ in applying and developing the common law?”[8]
The Ellis case
The Ellis case serves as a stark illustration of the Supreme Court’s self-proclaimed approach - and of its pitfalls. Despite the case having no particular Māori connection, the Court took into account tikanga Māori considerations in deciding that Peter Ellis’s appeal against convictions could continue after his death. Three judges went further, indicating that any issue of law before the courts may need to be addressed in light of tikanga.
This decision overturned longstanding rules for recognising tikanga as part of the common law laid down over a century ago in Loasby.[9] And it did so without setting out a clear new framework. The Court’s failure to specify a new ‘rule of recognition’ for tikanga has created a vacuum of principle regarding the recognition of tikanga within the common law.
Remarkably, the Court took this course even though Parliament had already tasked the Law Commission with studying the role of tikanga in our legal system. By rushing ahead, the Court sidestepped this careful, democratic process, offending at least two of Lord Bingham’s five ‘no-go’ zones for the courts.
The Court’s judgment also shows complete indifference to the status Parliament conferred on the common law New Zealand inherited from England in the 19th century. In the leading judgment, Glazebrook J held that the common law rules for the incorporation of tikanga “import notions of ‘judging’ tikanga and operate on the mistaken assumption of the superiority of Western values and a view that the common law inherited from the United Kingdom should be presumptively dominant.”[10]
Glazebrook J’s reasoning here is flawed. The dominance of the English common law is not based on a “view’ or a “presumption.” It is based on legislation passed by Parliament: the English Laws Act 1858 and its successor statute, the Imperial Laws Act 1988, which deem the English common law as of 14 January 1840 to be in force in New Zealand.
Troubling implications
These and other recent decisions show the Supreme Court has lost sight of key principles that shape how we govern ourselves: the separation of powers, the supremacy of Parliament, and the rule of law.
As Professor Finnis puts it,[11] within our constitutional framework, the role of judges is primarily backward-looking. It is to adjudicate historical disputes between parties about their existing legal rights and obligations. Judges do this by applying the law as it stood when the dispute arose to the facts agreed by the parties or found by the court.
In contrast, Parliament’s role is primarily forward-looking. The legislature is responsible for making new laws and amending existing ones to shape our legal commitments for the future.
What we are witnessing at present is a court playing tug of war with this established order. By blurring the lines between judging and lawmaking, the Court has stepped into Parliament’s role. This shift weakens the democratic standing of our laws and makes them less consistent and predictable. When courts rewrite laws and reshape settled rules, people and businesses can no longer trust clear wording or steady case law to guide their actions. This strikes at the heart of the rule of law.
Critics might say an activist court shields rights and checks bad laws. However, this view misses a key feature of New Zealand’s constitutional order. It means unelected judges can override the will of voters expressed through Parliament. This waters down our democracy and makes laws less clear and steady.
To address these concerns, Who makes the law proposes five options for Parliament to restore the balance to our legal system:
Targeted Legislation
Targeted legislation is Parliament’s most blunt response to judges overstepping their bounds. In the legal hierarchy, Parliament is supreme, and it can pass statutes to ensure the courts give effect to its wishes. Professor Ekins notes in his foreword, “it is without question constitutionally legitimate for Parliament…to legislate to legislate to make the law that which Parliament thinks it ought to be.”
Parliament is generally reluctant to interfere in court proceedings because of principles relating to the separation of powers. Consequently, past interventions have not been common. But that is because erroneous court decisions have historically been more accidental than consciously radical. A court that adopts a ‘transformative’ role can expect more frequent correction.
The Labour Government’s response in 2021 to the Court’s decision in D v The Police [2019] NZSC 31 provides a clear example of Parliament pushing back against judicial overreach.[12] More recently, the current government has proposed to take this course in response to troubling court rulings on the Marine and Coastal Area Act 2012.
Parliament should not hesitate to ‘correct’ other court decisions that go too far and overturn the worst of them. This approach would send a clear message to the courts about the limits of their role and reinforce Parliament’s supremacy in lawmaking.
Defining the Rule of Law
Parliament should also pass legislation defining what it means by the ‘rule of law’. This would introduce more clearly defined “guardrails” in the Senior Courts Act 2016 to help keep the courts in their lane.
Under the orthodox approach, the rule of law relates to the ‘formal’ characteristics of laws and the legal system. These aspects include laws being publicly accessible, predictable, stable, coherent and impartially applied.[13]
However, some legal theorists argue for a ‘thick’ version of the rule of law that extends beyond these formal components to include substantive entitlements like social, political, and economic rights. This controversial perspective suggests judges should interpret and apply laws to promote substantive values such as social justice.
At least one member of New Zealand’s Supreme Court has publicly advocated for this ‘thick’ approach. In a 2021 lecture, Justice Glazebrook claimed the rule of law is “a work in progress,” arguing it should include “redress for historical disadvantage” and that “until we complete the process of decolonisation, the rule of law can only be considered a work in progress.”[14]
It should be obvious that there are serious dangers with this ‘thick’ approach. It risks politicising the judiciary and blurring the line between law and politics. And while Glazebrook J’s expansive view may be well-intentioned, it was plainly not Parliament’s intent when referring to the “rule of law” in the Supreme Court Act 2003.
Parliament introducing a traditional, ‘thin’ definition of the rule of law into the Senior Courts Act would moderate the Supreme Court’s interventionist tendencies and clarify the limits of judicial interpretation in this area. This would help ensure that substantive policy decisions remain the domain of elected lawmakers, not appointed judges.
Tightening Statutory Interpretation Rules
Parliament could also tighten its instructions to the Courts when interpreting statutes. Parliament’s existing instructions are in section 10 of the Legislation Act 2019. This instructs the courts that the meaning of legislation should be “ascertained from its text and in the light of its purpose and its context.”
Who makes the law recommends amending section 10 to make clear that when considering the context of a statute, courts should only look at the context at the time the legislation was enacted. This would prevent courts from taking the ‘ambulatory’ approach to statutory interpretation, where the meaning of laws changes over time with changes in the courts’ perceptions of ‘societal attitudes and values.’
The report also recommends adding a subclause to the Legislation Act expressly limiting the principle of legality. This amendment would clarify that courts cannot use common law presumptions to displace or qualify clear statutory words, adopt meanings inconsistent with statutory purpose, or adopt unreasonable interpretations.
Professor Ekins has made similar recommendations to “discipline the misuse of the principle of legality, affirming the priority of legislative intent in statutory interpretation” in submissions to the U.K. Parliament in his paper “How to Reform Judicial Review”.[15] These proposals offer valuable comparative insights for addressing judicial overreach in New Zealand.
Reforming NZBORA
Parliament should also consider amending or repealing section 6 of NZBORA. Section 6 requires courts to prefer rights-consistent interpretations of statutes where possible. The Supreme Court’s approach to this section has evolved significantly, culminating in the radical approach adopted in the Fitzgerald decision.
In Fitzgerald, the Court abandoned the more restrained approach set out in R v Hansen [2007] NZSC 7, which had limited section 6 to “reasonably available” interpretations. Chief Justice Winkelmann explicitly rejected this constraint, stating: “I do not consider that s 6 is limited to meanings that are ‘reasonably available’ on the text.” Instead, she endorsed a much broader approach, similar to that taken by U.K. courts, where “the only limits on the interpretation arrived at are that it cannot amount to a refusal to apply the enactment, and nor can it amount to treating the enactment as invalid, ineffective, impliedly repealed or revoked.”
This shift allows courts to make substantial changes to statutory meaning, potentially overriding clear legislative intent. It represents a significant threat to the sovereignty of Parliament and to the rule of law’s requirements of certainty and predictability.
While section 6 might have been justified for Acts passed before 1990, any Act passed in the nearly three-and-a-half decades since then has been reviewed by the Attorney General for consistency with NZBORA, making such judicial rewriting less necessary and more problematic. This raises the question of whether section 6 can now safely be repealed. At the very least, Parliament should clarify that courts cannot adopt meanings inconsistent with statutory purpose or adopt unreasonable interpretations, effectively reinstating the approach in Hansen.
Encouragingly, Professor Ekins has proposed similar reforms to section 3 of the U.K. Human Rights Act, the equivalent to our section 6. Ekins likewise argues there is a strong case for repealing the U.K.’s section 3 entirely or at least specifying a more constrained interpretive rule. These parallel recommendations in the U.K. context lend weight to the proposal for reforming section 6 to restore a proper balance between judicial interpretation and legislative intent.
Reforming Judicial Appointment Processes
Finally, Who makes the law recommends changes to judicial appointment processes to prioritise candidates for appointment to the appellate courts who have demonstrated judicial restraint and respect for Parliament. This does not mean appointing judges based on partisan political views. Rather, it means ensuring that appointees, especially to the senior courts, demonstrate a commitment to orthodox constitutional principles.
The report also suggests introducing fixed terms for Supreme Court judges – perhaps 5-7 years – before returning to the Court of Appeal. This rotation system could help prevent our most senior judges from becoming too detached from practical realities and guard against them gaining an exaggerated view of their role.
Conclusion
These options give Parliament several ways of tackling judicial overreach. None of them threaten judicial independence or the rule of law. Instead, they aim to protect these fundamental values. They will help make sure the courts stay within their proper bounds.
Parliament reasserting its rightful place will strengthen the rule of law and our democracy. It leaves the courts to play their key role in settling rights and dealing out justice within the framework of established common law principles and laws made by Parliament.
The wider choices about the scope and balance of rights should be reclaimed by elected politicians, answerable to voters.
*Roger Partridge is chair and a Senior Fellow of The New Zealand Initiative. He is a former Bell Gully litigation partner and chair. He is an Honorary Fellow and former executive director of the Legal Research Foundation and a former member of the New Zealand Law Society Council.
[1] Roger Partridge, “Who makes the law? Reining in the Supreme Court” (Wellington: The New Zealand Initiative, 2024) and available online
[2] Jack Hodder, “One Advocate’s Opinions – The ‘Least Dangerous Branch’? Predictability and Unease,” in Michael Littlewood (ed), The Supreme Court – The Second Ten Years (Wellington: LexisNexis, 2024).
[3] Fitzgerald v R [2021] NZSC 131 at [58]-[60] per Winkelmann CJ.
[4] Ibid. at [323] per Young J.
[5] Ross Carter, Burrows and Carter Statute Law in New Zealand 6th edition (Wellington: LexisNexis, 2021), 354.
[6] Justice Glazebrook, "Mired in the past or making the future?" in Richard Ekins (ed), Judicial Power and the Balance of Our Constitution, op. cit. 79, 86-87.
[7] Lord Bingham, “The Judge as Lawmaker: An English Perspective” in Paul Rishworth (ed), The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon (Auckland: Butterworths,1997), 3.
[8] Jack Hodder, “One Advocate’s Opinions – The ‘Least Dangerous Branch’? Predictability and Unease,” op. cit. 19.
[9] The Public Trustee v Loasby (1908) 27 NZLR 801 (SC).
[10] Ellis, at [115] per Glazebrook J.
[11] John Finnis, “Judicial Power: Past, Present and Future,” op. cit. 35-36.
[12] (17 March 2021) 750 NZPD at 1530.
[13] See for example, A.V. Dicey, Introduction to the Study of the Law of the Constitution 10th edition (Macmillan, 1959), 188-196, Joseph Raz, "The Rule of Law and its Virtue," in The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979), 210 and 214-217 and Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004), 91-101.
[14] Justice Glazebrook, “The Rule of Law: Guiding Principle or Catchphrase?" (2021) 29 Waikato Law Review (Taumauri) 2.
[15] Richard Ekins, How to Reform Judicial Review (London: Policy Exchange, 2021), 20.