Democracy Briefing: Foundations of a constitutional crisis?

The first question in politics is “who rules?” It’s at the forefront of the debate about David Seymour’s Treaty Principles bill, which holds that the Government has the ultimate right to govern and Parliament has the full power to make laws. Te Pati Māori argues that Māori never ceded sovereignty and should hold governing power over themselves. 

But there’s another power struggle taking place in the background of this debate: a quiet but profound contest between Parliament and the courts over the power to make laws. In the week that Seymour’s bill passed its first reading, an open letter from forty-two members of the King’s Council called on the Prime Minister and the Attorney General to abandon the legislation, and it contained the aside “even if Parliament can legislate in this way (which is uncertain)…”

Crown Law’s advice on the bill struck a similar note, advising that if Act’s proposed principles became law after a public referendum, the courts would likely ignore them.

The Rise of judicial activism

New Zealand’s political system is based on the Westminster model. Parliament is supreme, and its laws cannot be challenged by the judiciary, whose role is to interpret them. This is very different from the US model of government, in which the Supreme Court can invalidate laws and executive actions that it finds to be in breach of the constitution.

Former Prime Minister Sir Geoffrey Palmer has long argued that New Zealand should move closer to the US model. In this model, New Zealand adopts a written, codified constitution that defines fundamental rights and freedoms and empowers the judiciary to invalidate legislation in conflict with the constitutional framework.

There has never been much political appetite for Palmer’s reforms. Still, some legal commentators argue that the courts have quietly moved towards this model, adopting the principles of the Treaty – which are undefined in law – as a de facto constitution. 

Lawyer and political commentator Liam Hehir has written a background piece on this topic. He identifies the eminent judge and legal scholar Lord Cooke of Thorndon as the patron saint of New Zealand’s judicial activism, citing his judgement in a case known as Taylor v New Zealand Poultry Board in which Cooke decided that some common law rights are so fundamental Parliament cannot abridge them.

Hehir writes: “And so a case about illegal egg sales ended up as an important inflection point for future questions about who governs New Zealand… Over time, Cooke’s philosophy has gained traction within New Zealand’s legal community. His influential stance has fostered a subtle yet persistent view that the courts, not Parliament, should have the final say on fundamental rights and principles. This has led to a culture within the legal profession that, consciously or unconsciously, questions Parliament’s authority, promoting a quasi-constitutional role for the judiciary.”

Who makes the law? Reining in the Supreme Court

The issue has also been taken up by Roger Partridge, chair of the New Zealand Institute who recently published a report titled “Who makes the law? Reining in the Supreme Court.” In a recent Herald column Partridge notes recent comments by Chief Justice Dame Helen Winkelmann that the courts are “where the decisions in society that can’t be worked out in other ways are taken,” because judges “take the hard decisions in society.” 

He cites the 2022 Peter Ellis case, in which the court cited Tikanga Māori as being applicable in its decision as a form of common law, finding it to be “the first law of New Zealand and not secondary to the colonial common law”, despite it having no apparent relevance to Ellis or his case.

Partridge writes: “The Court bypassed ongoing work by the Law Commission on this very issue and overturned established rules for recognising tikanga as law. It did this without providing a clear new framework. The result is a quagmire. Neither judges nor lawyers now know when or how tikanga should be considered in future cases. The Ellis decision reveals a court more captivated by the allure of making grand symbolic gestures than concerned with the careful, methodical development of the law. Such judicial activism creates precisely the sort of uncertainty and confusion that proper legal development should avoid.” 

Geoffrey Palmer has persuasively argued that New Zealand’s Executive branch is too powerful, leading to poor-quality legislation and poor governance. Successful democracies have checks and balances that constrain the branches of government.

It’s possible that Palmer’s proposals would be beneficial to New Zealand, although progressives looking at this form of government to advance their politics should consider the current state of the US Supreme Court. But, as Partridge points out, the current judiciary has no democratic mandate to take on a political role. Nobody voted for them. And the Treaty is not a constitution.

Hehir notes in this regard, “If the Treaty of Waitangi is law, it bears many of the hallmarks of the worst law making. It is sweeping, vague and open to extensive interpretation, which can lead to inconsistent application and unpredictable judicial outcomes.”

He warns, “Such a system would paralyze decision-making, forcing policy into a state of perpetual review, litigation and delay. We have had a foretaste of this following the election of the current government, where it feels like almost every initiative has been called a Treaty breach, regardless of campaign promises.” 

How a Constitutional crisis plays out

What would happen if a New Zealand court directly refused to implement a law passed by Parliament? This would undoubtedly provoke a constitutional crisis.

Parliament has the right to remove judges for misbehaviour or incapacity, but it is a lengthy process. Although judges in New Zealand have resigned, none have ever been removed.

We’re more likely to see the courts continue to offer expansive interpretations of laws that alter their effect rather than refuse them. The likely consequence of this will be the politicisation of the judiciary, which will also bring us closer to the US model.

In Westminster systems, the courts are supposed to act as apolitical arbiters of existing laws. However, if the courts themselves insist on functioning as political actors, politicians will respond by appointing judges who advance their policies and values. Even though it will not pass, David Seymour’s Treaty Principles Bill has highlighted a profound tension at the heart of our democracy. 

Dr Bryce Edwards

Political Analyst in Residence, Director of the Democracy Project, Victoria University of Wellington

Note to Media: This analysis can be published by any media outlets for free under a Creative Commons copyright-free license. Attributions should include a link to the Substack page.

Key Sources

David Harvey (Listener): Law & society: Should our Supreme Court address societal issues where Parliament has failed to do so? (paywalled)

Liam Hehir (Blue Review): KCs and the Courtroom Bands (paywalled)

Roger Partridge (Herald): Attorney-General and Chief Justice reveal contrasting visions of judicial power (paywalled)