Beware an Unbound Judiciary

The Judiciary in New Zealand

Ardern's Most Important Decision as PM

Matthew Hooton
NZ Herald

The appointment of a new Chief Justice to replace Dame Sian Elias is the most important personal decision Jacinda Ardern may ever make as Prime Minister.

This will be the first time a Prime Minister has simultaneously chosen someone to be head of both the judiciary and New Zealand's court of final appeal.

When Prime Minister Jenny Shipley appointed Dame Sian Chief Justice in 1999, the court of final appeal was still London's Privy Council. Beyond the obvious symbolism, Helen Clark's Government replaced it with the new Supreme Court in Wellington to encourage the evolution of a distinctly New Zealand jurisprudence.  It was time, Clark's Attorney-General Margaret Wilson told Parliament in 2003, for our country to enter the 21st century and New Zealanders to take responsibility for our legal system and destiny.

The issue facing New Zealand is a fundamental one.  Either the rule of law is mediated through the legislature, or it comes via the judiciary--which by its very nature is an elite, non-representative institution.  The present Chief Justice has pushed for a more intrusive judiciary--wrestling wider and higher powers for the judiciary at the expense of Parliament.

Under Dame Sian's leadership, the Supreme Court has obliged, developing a distinctive New Zealand role. Part of that is an inevitable assertion of its authority vis-a-vis Parliament.  To some extent, this predated the Supreme Court. Dame Sian ruled in R v Pora (2001) that the courts could ignore legislation if they thought Parliament had "misfired".

More recently, in Buchanan v Jennings (2004) and Attorney-General v Leigh (2011), the courts tried to extinguish aspects of parliamentary privilege, forcing Parliament to override them with the Parliamentary Privilege Act 2014.  For better or worse, the Supreme Court sought to set policy over pay for home carers and voting rights for prisoners, previously thought to the preserve of the executive and Parliament.

The Supreme Court seems to believe there should be more of this type of thing.

This has all the trimmings and dangers of an elite assuming powers and controls and inflicting them on, not just Parliament, but the people--for the legislature is the people's assembly.  When judges think they know better than the people, tyranny lurks in the corridors of power.  This situation has been allowed to develop because of the removal of the UK Privy Council as our highest court of appeal.  This action has left us with a NZ Supreme Court that has very little in the way of checks, controls, and balances. 

We are still far from the American system where the Supreme Court can overturn legislation it says is unconstitutional. But it is also clear the Chief Justice's role has developed beyond what it was when Dame Sian was appointed.  In 1999, there was no suggestion the Chief Justice and her colleagues could actually make law because the Court of Appeal could always be overturned by the Privy Council.

But no longer, because the right of appeal to the Privy Council has been removed. 

Who now appoints the Chief Justice?  Well, it is the current Prime Minister and the legal elite.  Consequently, since this is the first post Privy Council appointment, it is essential that Prime Minister Ardern does the "right thing".   The process as it is presently lays out smacks of elitist privilege far, far from the people and Parliament.

[The choice] is limited to Ardern and the existing legal elite, will be conducted in secret, and has no role for the public, Parliament or even the Opposition. Solicitor-General Una Jagose will hold secret talks with unnamed "people experienced in the law" about potential candidates.  A panel will generate a confidential shortlist which Ardern will discuss secretly with Dame Sian and unidentified "ministerial colleagues".

Ardern promises that before she makes a recommendation to the Governor-General, which Dame Patsy Reddy must accept, she will consult the Opposition.  In practice, this means the final decision will be made by a secret handshake between Ardern and Simon Bridges.

But a secret appointment process that involves only the legal elite, executive and judiciary, and excludes the legislative branch except for Ardern having a private chat with Bridges, is wholly unsatisfactory in the 21st century, especially with the court seeking a bigger policy role.

Hooten argues that there needs to be more advice and consent in the process that breaks it out of an elite huddle and brings it into the wider domains of government by the parliament.

Canada may have an answer. There, the ultimate decision remains with the Prime Minister.  But, being the most important branch of government as representative of the people, Parliament has some role, with its justice and human rights committee holding a question and answer session with nominees before the final decision.

In a New Zealand context, this could see Labour's David Parker and Andrew Little,
National's Chris Finlayson and Amy Adams, NZ First's Winston Peters and the Greens' Golriz Ghahraman conducting a public discussion with nominees about the limits to parliamentary supremacy, the proper policy-making powers of the courts and the constitutional place of the Treaty of Waitangi.

It would ensure that not just Ardern and Bridges, but everyone else has those insights before the Prime Minister makes her final decision.  And it would help the public develop a better understanding of the importance of the judiciary as one of the three branches of government.

Bridges should insist Ardern reconsiders her planned process.

Matthew Hooton is managing director of PR and corporate affairs firm Exceltium.