The third branch: Parliament's relationship with the courts

Asked to visualise politics in New Zealand, most picture Parliament and the Beehive - physical manifestations of government and democracy in action. But that pair of edifices is only two-thirds of the full picture. Across the road from Parliament (literally), the courts complete the trio, forming the third branch of the powers of the state.

In accordance with the Constitution Act 1986, these three branches act independently, under what is known as the "separation of powers". That independence, however, does not mean they operate in isolation. The triangular dynamic between them forms the foundation of constitutional law in New Zealand, a balance of their relative powers, with each branch overseeing the others.

Unlike some jurisdictions (eg the United States), where the word 'constitutional' explicitly refers to a written document, New Zealand has no codified written constitution, but rather a suite of statutes, judicial decisions, and conventions and principles (like the separation of powers).

One of the most important principles of our constitution is the guarantee that Parliament is sovereign and has the mandate to pass any law it wants - this underpins the basis for how the three branches of government interact with each other.

• The Executive - Government with a capital G. The government of the day, made up of ministers and led by the prime minister, proposes laws and has the onus of the everyday running of the country.
• The Legislature - The House of Representatives (Parliament), made up of MPs who pass laws and hold the government to account.
• The Judiciary - The courts and judges, who interpret the laws then apply them.

From his office in the old government buildings, Victoria University of Wellington Dean of Law Professor Geoff McLay can see all three of the branches through the window. The Beehive and Parliament are in the middle, with the Supreme Court and High Court on either side. It's a fitting setting to chat about how the courts interact with their constitutional counterparts.

"It's the court's job to interpret what Parliament has done, and often that can be in cases that Parliament hasn't imagined or situations that don't quite fit into the statute that Parliament has passed," McLay explains.

This occurrence isn't by any means new though; rather it's something we've inherited from English judging and is to be expected in any system, McLay says. "Judges are forever confronted by situations that are not necessarily governed four-square by the thing that Parliament has passed."

Occasionally when that occurs, it can be a source of tension between lawmakers and the courts, though more commonly it prompts reflection from lawmakers that perhaps the statute being interpreted isn't fit for purpose, and should be amended by Parliament.

"It's a very important part of the Constitution that, on the whole, ministers have tended to abide by the decisions of courts," McLay says.

"They (ministers) have tended not to over-egg the criticism of judges, but essentially they're bound by the interpretation of a judge that says, 'you can't do what you thought the statute said you could do, you just can't do it'."

"But obviously, the big thing that can then be done is if the judges are making decisions that you, as a minister, don't like; you can't change the law, but you have to go to Parliament and try to convince Parliament to change the law. And if you're a minister, obviously you're part of the government, so you probably have a reasonably good chance of convincing Parliament of doing that."

Each of the three branches of government has the mandate to oversee and scrutinise the other two. For the courts, the predominant avenue is judicial review. This is different from hard-form judicial review - the power to strike down legislation, which doesn't exist in New Zealand. Here judicial review allows private citizens to take a case to the High Court to challenge an action by a government entity, whether that's an entire department or a minister.

Recent high-profile judicial reviews include a challenge to the gang patch ban, and a case lodged by the 'Make it 16' campaign to declare the voting age inconsistent with the New Zealand Bill of Rights Act (NZBORA).

Review and oversight of Parliament and the Executive by the courts is not one-way traffic. "One of the important parts of the constitution is that we get to say what we think about judges within reason and within the constraints of being in a civil society. But judges are subject to a great degree of criticism in the media, through my colleagues, through activists," McLay says.

It may not always seem so, but in Parliament there is an expectation that opponents should 'play the ball, not the man'. Criticism of the judiciary follows the same rule of play.

"There's an important part of our constitution which says that while you might say that you disagree with the legal decision, you will abide by that legal decision if you're a minister. There are rules that are well understood, I think; that we shouldn't criticise the judges [themselves]. We can criticise the decisions that they have made or the state of the New Zealand law, which they have revealed."

The double agent

An amicable relationship (termed comity) between the courts and Parliament is integral to a stable legal system. The role of the attorney-general (currently Judith Collins) is critical in this regard, acting as a conduit between all three branches. One of their core remits is vetting proposed legislation for consistency with NZBORA.

"It's the attorney-general's job (as the current Attorney General has done, and as previous Attorneys General have done), to report to Parliament when particular legislation is inconsistent with the rights and freedoms in the Bill of Rights. New Zealand has, unfortunately, a bit of a record though, of Parliament just continuing nevertheless, to pass those [bills]; but it's supposed to be a warning sign," McLay says.

Activist judges: buzzword or genuine problem?

In overseas jurisdictions, particularly the United States, there are often claims of judicial activism. The term has surfaced here recently too, but what does it actually mean, and is it something to worry about?

"There was a very famous court case in America, where a judge said, 'you can't define pornography, but you know it when you see it.' I get the sense that often when people talk about activist judges, they're doing the same kind of thing - that it's very difficult to actually say what people mean by activism," McLay muses.

In simple terms, it's the perception that judges are developing the common law (built up over years of judicial precedent) with too much freedom, and setting precedents that their critics don't like. In New Zealand, some of this criticism has focused on the use of tikanga Māori in judicial decisions, something the current government has suggested removing by legislation.

McLay says the idea of judges developing the law through their decisions has always been part of the constitution, and for as long as that's been the case, there has also been criticism. "[Criticism that] some judges do too much, just as there are other people who wish judges would do a lot more in their decision-making. That's one of the balances of lawmaking and [judicial] decision-making."

Additionally, McLay says, "there has been quite a lot of criticism from some quarters that the Supreme Court in particular, is being activist in not doing what Parliament has told it [that] it ought to do. …Judges have always and always will have to interpret the words in front of them, and sometimes they will do that in a way that …the parliamentarians that passed it, or the drafters who wrote it, wouldn't have agreed with. [That's not] activist, that's just the judicial function. My understanding [of] some of the claims at the moment is there's a belief amongst some people that judges are going further than that."

In New Zealand, High Court judges are appointed by the governor-general on the advice of the attorney-general. By convention, these appointments are apolitical and invariably go to senior lawyers with a track record of service to the profession.

But what's to stop an Attorney-General from appointing politically favourable judges and "stacking" the court in the government's favour?

"What would you gain by putting people of your political views on a court?" McLay says. "If you're the attorney-general, what you want are competent judges in order to administer the justice system in New Zealand, and that's been our tradition."

McLay served as Law Commissioner from 2010 to 2015, and during his tenure the Commission was asked to consider whether there ought to be an independent body to make judicial recommendations. In the end, the conclusion was that the status quo was effective and a change was unnecessary.

Parliament and the courts: a durable relationship?

McLay believes that "argy bargy" between how people want to be governed and how they actually are governed is inevitable and part of a healthy democracy.

"We don't have to agree with everything that is done by people. New Zealand has an incredible history (since the 1890s), of having a [court] system which is perceived as being politically independent, of having very good lawyers appointed to be the judges, and on occasion having pockets of criticism directed towards the decisions. I think the difficulty has always been …when it becomes a little bit more personal."

Ultimately, McLay is optimistic that New Zealand's constitutional arrangements are resilient.

"I'm very hopeful that everybody in New Zealand wants to be in a country with the rule of law. We all agree on that. We all know that in order to have the rule of law, we need independent judges, we need people that make the law in Parliament, we need people who administer the law, and we need people who can interpret the law. And by-the-by, my sense is that judges stick to their lanes, the same way that ministers and Parliament stick to their lanes."

The reality, he adds, is that Parliament's lane is much wider. "Although we might focus on some particularly high-profile judicial decisions, the Parliament lane is much bigger than the judicial lane."

To listen to The House's full conversation with Professor Geoff McLay, click the link near the top of the page.

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