OPINION: Roger Partridge.<\/p>\n\n\n\n
Critics of judicial overreach face an odd challenge. The most sophisticated response is not to defend the decisions \u2013 it is to deny that constitutional limits exist at all. If courts made the rules, the argument runs, courts can remake them. Last month\u2019s column, An Inheritance Worth Defending<\/u><\/em>, drew that response, among others.<\/p>\n\n\n\n Four arguments recur. On the surface they are distinct \u2013 one concerns the foundations of parliamentary sovereignty, one the proper limits of common law development, one a comparison with Australian constitutional law, and one concerns the lessons to be drawn from two landmark cases on judicial review and constitutional supremacy.<\/p>\n\n\n\n But they share a common premise: that courts are entitled to determine for themselves the scope of their own authority. Each challenge, examined closely, is a variation on that theme. And the theme does not survive scrutiny.<\/p>\n\n\n\n Parliamentary Sovereignty Is Not a Common Law Invention<\/strong><\/p>\n\n\n\n The most sophisticated objection runs as follows. Courts created parliamentary sovereignty as a common law rule; they can therefore modify or limit it. The argument has academic pedigree. In obiter dicta in Jackson v Attorney-General<\/u><\/em>[2005] UKHL 56<\/u>, Lords Steyn and Hope went further, suggesting that parliamentary sovereignty is a common law construct created by judges.<\/p>\n\n\n\n Lord Steyn stated that it is \u201ca construct of the common law\u201d and that \u201cthe judges created this principle\u201d; Lord Hope agreed that the principle \u201chas been created by the common law.\u201d In Taylor v New Zealand Poultry Board<\/em> [1984] 1 NZLR 394, Cooke P. mused that some common law rights might \u201clie so deep\u201d that no Parliament could abrogate them \u2013 and that courts might refuse to give effect to legislation that tried.<\/p>\n\n\n\n The implication is stark: the claim that the Supreme Court is exceeding its constitutional role becomes incoherent. A court that sets its own limits has no limits.<\/p>\n\n\n\n But the claim is self-defeating. If parliamentary sovereignty is grounded in the common law, and courts made the common law, then grounding parliamentary sovereignty in the common law simply returns authority to the courts \u2013 which is precisely what the argument was trying to establish. It bootstraps judicial authority from itself.<\/p>\n\n\n\n A yet deeper challenge asks: If the courts did not create parliamentary sovereignty, what grounds it?<\/p>\n\n\n\n \u201cIt is turtles all the way down,\u201d said one commentator, invoking the classic image for infinite regress: every foundation rests on another, and the regress never ends. If that is right, the claim that any court has overstepped its constitutional role is equally groundless. There is no foundation for it.<\/p>\n\n\n\n Fortunately, however, the tortoise stands on firm ground.<\/p>\n\n\n\n Parliamentary sovereignty emerged not from judicial decree but from centuries of political struggle \u2013 the Case of Proclamations<\/em> (1610), the Civil War, the Bill of Rights 1689 \u2013 in which Parliament asserted authority over both Crown and courts. When courts articulated that settlement in their judgments, they were acting as witnesses to a constitutional fact<\/em>, not its authors.<\/p>\n\n\n\n As Oxford\u2019s Emeritus Professor John Finnis has explained<\/u> in his magisterial essay, \u201cJudicial Power and the Balance of Our Constitution,\u201d judicial recognition of that settlement was retrospective, not creative. Courts did not invent parliamentary sovereignty \u2013 they recognised it.<\/p>\n\n\n\n Jeffrey Goldsworthy demonstrated in The Sovereignty of Parliament<\/u><\/em> and The Myth of the Common Law Constitution<\/u><\/em> that parliamentary sovereignty rests on the convergent practice of courts, Parliament, and Crown treating Parliament\u2019s authority as foundational \u2013 not because Parliament declares it so, but because every institution behaves consistently as though it is true.<\/p>\n\n\n\n That convergent practice is what H.L.A. Hart, in The Concept of Law<\/u><\/em>, called a rule of recognition: the foundational norm from which all other legal validity flows. Attempting to derive it from something deeper \u2013 the common law, natural law, popular will \u2013 does not solve the regress. It is the regress.<\/p>\n\n\n\n But even setting this aside, the argument does not arise in New Zealand. Here, the common law itself exists by parliamentary authorisation. The Supreme Court Ordinance 1841 conferred on New Zealand courts the jurisdiction to apply English common law. The English Laws Act 1858<\/u> and the Imperial Laws Application Act 1988<\/u> confirmed and continued that foundation.<\/p>\n\n\n\n As Emeritus Professor Peter Watts KC showed in his New Zealand Law Review analysis<\/u>, courts derive their authority to apply and develop the common law from Parliament\u2019s legislation, and exercise that authority within the limits Parliament has set \u2013 not the other way around. Consequently, courts in New Zealand do not stand in a position of co-equal constitutional authorship with Parliament. Their authority to apply and develop the common law is itself conferred by Parliament. That makes the claim that courts may use the common law to limit Parliament conceptually inverted.<\/p>\n\n\n\n The Limits of Common Law Development<\/strong><\/p>\n\n\n\n A second challenge is more general. Courts have always developed the common law \u2013 that is what common law courts do \u2013 so why should the Supreme Court\u2019s recent jurisprudence be any different?<\/p>\n\n\n\n But consider a thought experiment. The Supreme Court\u2019s next decision announces that it has reassessed the enforceability of contracts. The doctrine of consideration, it finds, is a historical relic ill-suited to contemporary values of fairness and social solidarity. Henceforth, agreements will be enforceable on broader equitable principles to be developed case by case.<\/p>\n\n\n\n Would that be legitimate? After all, courts created the law of contract. On the critics\u2019 logic \u2013 courts may unmake it too. Yet every lawyer reading this would recoil. The question is why.<\/p>\n\n\n\n Not because courts cannot change the law. They can and do. But because some changes are of a kind and magnitude that place them outside what courts are institutionally authorised to make. The law of contract is not merely a judicial preference<\/em> revisable by the next bench. Its revision belongs to Parliament.<\/p>\n\n\n\n The values embedded in the common law \u2013 certainty, voluntary obligation, protection of persons and property, the confinement of judicial discretion \u2013 were not invented by judges. They accumulated through centuries of consistent practice. They are what the common law is, not a preference judges are free to revise.<\/p>\n\n\n\n As Oxford\u2019s John Finnis has explained<\/u>, the declaratory theory \u2013 the principle that courts find and apply the law as it already is, rather than create it anew \u2013 is not the fairy tale Lord Reid famously dismissed. Properly understood, it is a disciplined constitutional responsibility.<\/p>\n\n\n\n Courts are not free to update those values to reflect contemporary preferences. Their task is narrower: to identify what the law already requires, correcting only errors inconsistent with the law as a whole \u2013 an internal standard of coherence with existing doctrine, not a licence for judicial renovation.<\/p>\n\n\n\n Two cases examined in an earlier column<\/u> in this series illustrate how that standard operates in practice \u2013 and where courts have crossed it. Donoghue v Stevenson<\/em> [1932] AC 562 falls on the right side of the line: legitimate method, albeit imperfectly executed. Lord Atkin\u2019s handling of some precedents and his extension of the duty across both English and Scots law without adequate justification attracted criticism for years. For all that, Lord Atkin reasoned upward from existing duty categories to the principle already implicit in them \u2013 the neighbour principle was deduced, not conjured up.<\/p>\n\n\n\n Bowen v Paramount Builders (Hamilton) Ltd<\/em> [1977] 1 NZLR 394 falls on the wrong side: crossing a boundary the existing cases had consistently respected. As Watts demonstrated in \u201cTaxonomy in Private Law \u2013 Furor in Text and Subtext,\u201d<\/u> the Bowen<\/em> line deployed the Donoghue<\/em> tort to protect a wholly different interest \u2013 bare economic loss \u2013 substituting judicial policy for a principled limit.<\/p>\n\n\n\n R v<\/u><\/em><\/a>Ellis<\/u><\/em><\/a>[2022] NZSC 114, discussed in detail below, represents an altogether different register \u2013 not imperfect execution, nor crossing a doctrinal boundary, but what Watts shas called<\/u> a revolution.<\/p>\n\n\n\n Even Lord Bingham, who took a broader view of judicial lawmaking than Finnis, identified five categories of question that belong to Parliament in his essay \u201cThe Judge as Lawmaker: An English Perspective\u201d<\/u>: where citizens have ordered their affairs in reliance on settled law; where reform requires detailed legislative work beyond judicial competence; where the issue involves contested social policy; where Parliament is actively engaged; and where the matter is far removed from ordinary judicial experience. The classical liberal values embedded in the common law \u2013 autonomy, voluntary obligation, protection of persons and property \u2013 were not invented by judges but drawn out of a tradition that had always embodied them. Once principles acquire centuries of consistent application, changes of that magnitude require democratic deliberation only Parliament can provide.<\/p>\n\n\n\n The distinction between these three categories \u2013 imperfect execution, crossing a doctrinal boundary, and overturning the jurisdictional settlement itself \u2013 is not a theoretical refinement. It is the difference between judicial development that remains answerable to the law and judicial action that places itself beyond it.<\/p>\n\n\n\n Ellis<\/em><\/strong> Is Not <\/strong>Mabo<\/em><\/strong> \u2013 It Is the Revolution <\/strong>Mabo<\/em><\/strong> Was Not<\/strong><\/p>\n\n\n\n Perhaps the most pointed objection draws on Mabo v Queensland (No 2)<\/em> (1992) 175 CLR 1. Just as the High Court of Australia recognised Indigenous land rights in that landmark decision, the argument runs, the Supreme Court was entitled \u2013 even obliged \u2013 to give tikanga its proper place in New Zealand\u2019s common law in Ellis<\/em>. Some even treat the two cases as essentially alike.<\/p>\n\n\n\n But the comparison does not survive scrutiny \u2013 and that is so even granting Mabo<\/em> anything Ellis\u2019s<\/em> defenders may claim. In Mabo<\/em>, Brennan J, delivering the majority decision, insisted the Court was \u201cnot free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.\u201d<\/p>\n\n\n\n Mabo<\/em> attracted serious black-letter criticism \u2013 Dawson J dissenting, and Dyson Heydon AC QC later identifying<\/u> it as a case where courts entered terrain better handled by Parliament.<\/p>\n\n\n\n But whatever one makes of Mabo<\/em>\u2019s methodology, what Brennan J said the Court was doing was recognising a narrow, historically grounded doctrine \u2013 native title \u2013 governing rights in land that pre-existed colonisation. The High Court asked what the common law, properly understood, already required. It did not reach outside that framework to install a new general source of law.<\/p>\n\n\n\n Ellis<\/em> made no such claim to restraint. Tikanga was already part of New Zealand\u2019s common law in certain circumstances \u2013 cases involving customary property rights and matters intrinsically connected to M\u0101ori affairs, where courts had always required a specific M\u0101ori connection to the facts. Nobody seriously disputed that.<\/p>\n\n\n\n What the Ellis<\/em> majority did was categorically different from the majority in Mabo<\/em>: it declared tikanga an independent and general source of law, applicable to any issue of common law or statutory interpretation regardless of any M\u0101ori connection to the parties or facts.<\/p>\n\n\n\n As Watts demonstrates<\/u> in his New Zealand Law Review analysis, the majority did not merely extend tikanga\u2019s existing role \u2013 it installed a parallel legal order alongside the common law, without any rule of recognition, without any M\u0101ori connection requirement, and without parliamentary authorisation.<\/p>\n\n\n\n Watts calls Ellis<\/em> a revolution. The description is precise. Mabo<\/em> at least claimed the constraint of the common law\u2019s existing framework and a defined subject-matter. Ellis<\/em> claimed neither \u2013 no subject-matter limits, no rule of recognition, no democratic mandate. If New Zealand wishes to establish a bijural legal system incorporating tikanga alongside the common law, that is a legitimate constitutional choice. But it is Parliament\u2019s choice to make, not the courts\u2019.<\/p>\n\n\n\n Drawing the Wrong Lessons: <\/strong>Anisminic<\/em><\/strong> and <\/strong>Marbury<\/em><\/strong><\/p>\n\n\n\n Two further objections invoke landmark cases as authority for expanded judicial power. Each draws the wrong lesson from the case it cites.<\/p>\n\n\n\n Anisminic Ltd v Foreign Compensation Commission<\/em> [1969] 2 AC 147 is invoked as authority for a broad judicial power to supervise and override Parliament. The objection misreads the case \u2013 and in doing so, misreads what made it an unexceptional decision.<\/p>\n\n\n\n Lord Reid asked what Parliament actually meant when it provided that a determination \u201cshall not be called in question in any court of law.\u201d He concluded that a determination infected by jurisdictional error was not a \u201cdetermination\u201d within the meaning of the clause at all. That is orthodox construction. Like Donoghue v Stevenson<\/em>, Anisminic<\/em> reasoned from within the existing legal framework to a conclusion already latent in it. Far from supporting judicial supremacy, it is a model of the interpretive discipline this series has been advocating.<\/p>\n\n\n\n The cautionary tale is what later courts made of it \u2013 and here the parallel with Bowen<\/em> is apposite. Lord Reid\u2019s carefully premised conclusion was generalised into a near-constitutional entitlement that Parliament cannot remove by ouster clause. That severs the conclusion from the premises that made it sound. The self-contradiction is direct: Lord Reid\u2019s reasoning rested on Parliament\u2019s presumed intent not to exclude review; the expanded version makes that presumption irrebuttable even against Parliament\u2019s expressed intent. A doctrine that defeats Parliament\u2019s expressed intent on the ground of Parliament\u2019s presumed intent has abandoned the premise it built on. It is not a development of Anisminic<\/em>. It is its inversion.<\/p>\n\n\n\n Marbury v Madison 5 US 137 (1803) <\/em>\u2013 the great case in which Chief Justice Marshall established the power of American courts to strike down legislation \u2013 is invoked as a further precedent for expanded judicial authority. If Marshall CJ could claim that power, why should New Zealand courts not exercise equivalent authority?The answer should be obvious. Marbury<\/em> depended entirely on a specific constitutional premise: the existence of a written, entrenched constitution expressing supreme law that Congress was bound to observe. Judicial review under Marbury<\/em> is not a power courts claim for themselves; it is a power the Constitution confers on them, because that Constitution is the higher law they are bound to apply.<\/p>\n\n\n\n Without such an instrument, there is nothing for courts to enforce against Parliament \u2013 and no basis for substituting judicial judgment for parliamentary will. Remove that premise, and Marshall\u2019s reasoning has nothing to attach to. New Zealand has no such instrument. The New Zealand Bill of Rights Act 1990<\/u> is explicitly non-supreme \u2013 section 4 preserves Parliament\u2019s power to enact inconsistent legislation.<\/p>\n\n\n\n The Common Law Is Not Infinitely Plastic<\/strong><\/p>\n\n\n\n Each of these challenges, examined closely, is a version of the same claim: that courts may determine for themselves the scope of their own authority. That claim, if accepted, would leave nothing stable. It would license courts to dismantle every settled principle on the ground that judges shaped it and may therefore reshape it.<\/p>\n\n\n\n When courts substitute their policy judgments for Parliament\u2019s, citizens lose the ability to read the law and plan accordingly. Contracts become unpredictable. Investments go unmade. Democratic accountability disappears \u2013 the institution that made the law cannot be voted out. The building consent crisis \u2013 ratepayers bearing over a billion dollars in liability for a judicial policy choice Parliament never made \u2013 is only the most documented example of what follows. And courts, deciding cases on the facts before them, with no submissions process and no capacity to canvass wider consequences, are poorly equipped for the social policy choices they are increasingly making. These are not theoretical concerns. They are the documented consequences of the decisions this series has been examining.<\/p>\n\n\n\n Constitutional change of the kind these challenges implicitly advocate is legitimate. But it requires a democratic choice \u2013 made openly, by those accountable for it, through institutions the public can hold to account. What is not legitimate is constitutional change by judicial increment, case by case, without mandate and without the possibility of correction. The inheritance is worth defending. So is the understanding of why.<\/p>\n\n\n\n This column was first published in LawNews<\/u>, the journal of The Law Association, on 13 April 2024. Roger Partridge writes at Plain Thinking.<\/u><\/em><\/p>\n","protected":false},"excerpt":{"rendered":" OPINION: Roger Partridge. Critics of judicial overreach face an odd challenge. The most sophisticated response is not to defend the decisions \u2013 it is to deny that constitutional limits exist at all. If courts made the rules, the argument runs, courts can remake them. Last month\u2019s column, An Inheritance Worth Defending, drew that response, among<\/p>\n","protected":false},"author":1,"featured_media":9838,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[45],"tags":[383,113,255],"coauthors":[401],"class_list":{"0":"post-12093","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-opinion","8":"tag-court","9":"tag-new-zealand","10":"tag-opinion"},"_links":{"self":[{"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/posts\/12093","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12093"}],"version-history":[{"count":1,"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/posts\/12093\/revisions"}],"predecessor-version":[{"id":12094,"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/posts\/12093\/revisions\/12094"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=\/wp\/v2\/media\/9838"}],"wp:attachment":[{"href":"https:\/\/cvnznews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12093"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12093"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12093"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/cvnznews.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcoauthors&post=12093"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}