Court marshal

by Gordon Campbell / 20 November, 2004

Even in Wellington, the winds of constitutional change are a mighty rare event, and Deputy Prime Minister Michael Cullen is keen not to raise our hopes - or fears - too high about what is in the air. Yes, an all-party select committee will soon be considering the relative status to be given to the Treaty of Waitangi and key statutes within our constitution in future, and will be launching a public debate about when and whether New

Zealand should become a republic.

A constitutional project of this sort - once launched - is almost bound to head in unexpected directions. If we really are going to take the Treaty and define its relative ranking to various key statutes and redefine the Queen's role within the new framework, etc, etc, this will require some linking document that defines the relationships, and sets priorities between the items. Couldn't that process end up with a written constitution, as happened in Australia? Cullen smiles and shakes his head. Don't expect the select committee, he indicates, to be operating at that level.

Partly a genuine process, partly window- dressing. It feels a bit like the strange debate on judicial activism that has raged all year between Cullen on one hand and Chief Justice Sian Elias on the other. Given the conventions, it has not been possible - or desirable - for the politician and the judge to deal directly with each other, but the issues could hardly be more momentous: the sovereignty of Parliament, the independence of the courts, and the nature of the restraints, if any, on their respective realms.

Not that the tone has always been so lofty. Terms such as "shop steward" and accusations of "profound ignorance about judicial independence" have been flying back and forth, in breach of the usual enjoinders to suffer one another's foibles in silence. Ironically, the new Supreme Court was the brainchild of senior

Labour politicians who acted to free New Zealand's highest court from its ties to the Privy Council, but who now seem nervous about what the court's ultimate intentions may be.

Are such concerns merely the teething problems, the Listener suggested to Cullen, of bedding in a truly independent judiciary of our own, and defining its boundaries? Last year, during his Hamlyn lectures

on judicial activism, the distinguished Australian High Court judge Michael Kirby referred to a changed climate after 1986, once the country's highest court ceased "looking over its shoulder" to the Privy Council. "No, [this debate] is not related to that at all. I don't think the Privy Council was seen as some kind of restraint," Cullen says.

At times, the Cullen/Elias spat has felt more like a turf war between two competing theories of jurisprudence, than anything rooted in how the courts actually do, or plan to do, their business. The sole example of judicial activism that Cullen offers me is a High Court decision (on the collection of GST after bankruptcy) that found against the IRD - in flagrant disregard of the will of Parliament, in Cullen's view - but which was promptly overturned on appeal.

Hardly cause for panic in the realm. Does Cullen think he holds a very different view of parliamentary sovereignty than the Chief Justice? Apparently, yes. "In practice, I think there is quite a strong difference in view. We would accept many of the same statements perhaps, but in practice I think her views would lead to a much greater area of judicial activity."

Might, if, would, perhaps. The feared extremes - a rampantly activist judiciary or an elected dictatorship in Parliament - still seem largely the stuff of fever dreams.

The spark that ignited the current kerfuffle was a speech by Elias in Melbourne in March last year. In tit-for-tat turn, Cullen sounded the alarms about judicial activism - citizens, watch out for the "creeping erosion of the sovereignty of Parliament to make laws" and "a half-pie Americanisation of our judicial system" - in a speech this year marking Parliament's 150th anniversary. He has since elaborated his warnings in a Law Journal article, and in a more conciliatory speech to the Public Law Conference late last month.

One can search in vain through the Elias speech, however, for the seeds of judicial rebellion. True, she says, that senior judges in the UK and New Zealand have questioned the idea of a Parliament with unlimited power. Yet, to say so is not to deny that Parliament is sovereign - but to suggest that its actions are routinely constrained by certain entrenched freedoms and notions of due process, including the need to make laws in a lawful fashion and to honour past commitments that include the Treaty of Waitangi. Elsewhere in her speech, Elias gives ample deference to Parliament in the making of laws and executive policy, but invites us to consider various new pressures upon the real and imagined freedoms of the courts and Parliament.

In essence, the charge of "judicial activism" smacks of overkill. As Kirby says, this is most often a term of abuse, meant to wound rather than enlighten, and is most often levelled by those who oppose the courts acting to protect the human rights of minorities. Judicial activists, it is often alleged, do not obey the simple time- honoured dictum: "Judges apply the law, they do not make the law." Reason being, making law is the sole province of Parliament, for good democratic reasons.

Which would be a fair cop if the dictum were entirely true. Judges, however, do make law and always have done so, as constitutional expert Philip Joseph of Canterbury University points out. "The entire common law - the law that most approximately affects us as individuals - is judge-made law," he says. "The common law in every sense preceded legislation. So if you look at most areas of law" - Joseph cites contract law, the sale of goods law, mercantile law, criminal tort law, partnership law, administrative law and judicial review - "all of these are areas that developed historically by judges, as a matter of common law." Even when Parliament intervenes from time to time to codify the rules, it doesn't toss out the common-law principles. "What it does is meld them and adapt them to ever-changing situations as needs require."

Judicial activism, in other words, is a matter of degree, not of kind. Conceding that point, Joseph agrees, does not mean that New Zealand judges are about to hive off with a personal agenda to correct some perceived mistake or oversight by Parliament, or to wilfully frustrate its will. "What Dame Sian Elias has done," Joseph says, "is question the justification of what she calls supremacist language - and the doctrine of parliamentary supremacy is couched in supremacist language."

So, the key question is not whether Parliament is the top dog in the constitutional pack. (A true democrat would probably say that it is the electorate that is sovereign.) It is more the case that banging the table and insisting on primacy may not be the best way of enhancing Parliament's own role, or of fostering a positive relationship with the courts. As Elias suggested eloquently in her Melbourne speech: "A fixation with parliamentary sovereignty, and the relative democratic merits of Parliament and the courts to the exclusion of a wider perspective, is impoverishing our constitutional thinking. I want to avoid the labels of supremacy and activism and protestations of democratic legitimacy. I want to suggest that our own political institutions and community expectations have moved on from a monolithic and absolute view of the fundamentals of the law as a quest for the power that trumps. And I want to suggest that it is time we, too, moved on to consider our constititional arrangements, without distorting them through the lens of command."

Politics also enters the frame. Arguably, the government has blamed the courts for some of the political fallout from its own remedy to the seabed and foreshore issue. Other opportunities for collision are looming over the Ahmed Zaoui case. Already, the Supreme Court is considering evidence for a risk threshold that might allow Zaoui out on bail, and the court will also soon decide whether the upcoming review of the SIS classified evidence must be wide-ranging, and encompass Zaoui's human rights.

Cullen's concerns are deeply held. He seems genuinely upset at any suggestion that Parliament's power is not absolute. But some would say that the number of sightings of activist judges on the march hardly justifies the alarms that he has been sounding. Though Cullen sincerely opposes the politicisation of the judiciary, his remarks have done much to create the public impression that this has already occurred. So, to test-drive the old dictum again: judges interpret law, but do not make it, and making laws is the business of Parliament. Is that exactly how it is?

That's only a "first order" statement, Cullen replies. "The realities are that statutes have to be interpreted, Parliament can't specify every circumstance, therefore there is always an area for interpretation. Judges have to fill in lacunae in the law." So, is that a creative process, or mere-ly a mechanical function of checking the letter of the law? "Well, what I can say is there is less reason," Cullen begins, "for some of the creativity than there might have been two or three hundred years ago."

Parliament, he suggests, has been busier, and has been plugging many of the gaps in the law. Leaving judges with more reason for creativity now than previously, or less? "I'm saying there's more in one respect, and less in another. You can't spell out every circumstance ..."

It is also a myth, he agrees, that judges do not make law. "The issue is what extent judges should make law over and above what Parliament sets. To what extent do judges feel free to say, 'We'll find reasons why that is not going to be the case.'" Which could, the Listener suggests, be seen as a paranoid way of looking at the normal situation whereby judges apply the general rule to the specific case, in what is inherently a creative process - and Parliament then re-intervenes if it has problems with the direction that emerges. "No, no, no," Cullen replies. "It would be entirely undesirable to have most of our time spent in overturning judicial interpretation."

The fact that it doesn't might suggest that the system generally works. Yet, for those chronically wary of judicial activism, the bogey tends to be the international human rights conventions that successive New Zealand governments have freely signed. Ironically, the same people who strongly fear these globalising trends in justice - the UN treaties, etc - tend to be the same people who loudly applaud the advent of the global economy, its WTO rules and trade pacts. "Yes," Cullen says, "and vice versa. Those people very keen on environmental and civil-rights agreements hate them in the area of commerce and trade. I'm peculiar, in that I tend to favour both."

To quite a liberal extent, on occasions. Long delays can occur between when the executive signs an international treaty and Parliament finally passes it into law. The 1951 UN Refugee Convention, for instance, only became part of our domestic law with the passage of the 1998 Immigration Act. In the interim, does Cullen think it legitimate for judges to base interpretations on international treaties that the executive may have signed, but that have not been incorp orated into domestic law? Apparently. "I think they can do that, but approach it with caution. I think that judges should take them into account, but not [use them] to override the clear intent of statute."

The sticking point, for Cullen, remains whether Parliament's power is unlimited - as he believes - or subject to higher fundamental norms. "To think the latter," he freely concedes, "is a perfectly legitimate theory. Idon't happen to agree with it. If we want to go down that track, it shouldn't be achieved by judges deciding so and applying it. It should occur as part of a conscious debate."

A debate that Elias, arguably, was trying to inspire. Wasn't she merely saying that Parliament is hedged by restraints such as natural justice, freedom of speech, etc? "No, I don't acknowledge those restraints necessarily at all," Cullen replies. "Those are self-imposed restraints that Parliament imposes, and Parliament defines what those restraints are and we are accountable every three years. Judges aren't ..."

Parliament reigns, right or wrong, in his view. Unless, surely, the case involves something that Parliament has signed up to, or where it has passed contradictory statutes? "No, because judges cannot override New Zealand statute. It is not for judges to determine," he concludes, "that Parliament has got it wrong."

As Cullen concedes, neither Parliament nor the courts are currently acting in an extreme fashion, so no crunch point is being reached. "But here's the key point. We interpret the rules, right?"

Such insistence seems extreme. Is he saying, for example, that the ancient right of habeas corpus exists in New Zealand only at the will of the current Labour-led government? So it would seem. "Well, it has suspended it in the past," he replies, citing wartime emergency measures, such as the Defence of the Realm Act. "And," he concludes, banging the table repeatedly, "it is not for Sian to determine that Parliament can't pass that statute!"

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