Opinion: New Zealand has a very simple system of government, based on the supremacy of Parliament as both the supreme lawmaker and the highest court in the land. It is a pragmatic approach, very much in tune with the “can do” attitude of our peoples.
Our single House of Representatives means governments are able to pass and enact laws without the complication of their being delayed, amended, or even rejected by an Upper House. Governments, whether by coalition or confidence and supply agreements, or, as is the case at present, sole party dominance, invariably hold a majority in the House of Representatives, meaning political stability is largely a given. The small size of our unicameral Parliament means that the executive branch (the ministers) usually has the numerical dominance within the government party or parties to ensure that its will prevails within the government. Moreover, because of a tradition of tight party discipline, the will of the executive (or the majority within it) is usually sufficient to dominate Parliament as a whole.
Citizens’ rights are nominally protected through a Bill of Rights Act, although the Bill of Rights does not prevail over other pieces of legislation, nor is the act even an entrenched piece of legislation, meaning it could be overturned by a simple majority. While most legislation coming before Parliament is vetted by the attorney-general for compliance with the Bill of Rights, it is not uncommon for governments to ignore a negative Bill of Rights vet, if they feel it gets in the way of what they are trying to do.
When aggrieved citizens or groups have gone to court challenging legislation or other government actions on the grounds of non-compliance with the Bill of Rights – such as the recent case raised by Grounded Kiwis that the MIQ system breached aspects of the Bill of Rights – the courts often rule on the case well after the issue has gone away, leaving complainants with at best only a pyrrhic victory.
This rather laissez-faire approach to government has led to regular questioning about the premises on which our current system has been built. Some previous governments have seen themselves as a legitimately elected dictatorship and Parliament no more than an irritating nuisance. Others have been so naively ignorant of sound legal principles they believed that as the government they could not act illegally and that therefore whatever they did, went.
These instances have led some to argue it is time to codify the constitutional principles on which our system is based into a single, supreme written document, or Constitution, rather than leaving them lying scattered through many different pieces of legislation as at present. Others challenge the concept of the supremacy of Parliament as limited and outmoded. They believe the courts should have greater authority to strike down laws passed by Parliament that are in breach of the Bill of Rights and the Treaty of Waitangi, or which offend constitutional principles.
This leads to a debate about judicial activism and the extent to which the courts should be involved in shaping the law, not just interpreting the law Parliament has passed. (Given there is often a gap between what Parliament intended to pass as law and what it actually passed, senior judges have been known to study closely the transcripts of Parliamentary debates when considering whether a piece of legislation does what Parliament intended.) Politicians grudgingly accept the role of the courts in interpreting the law, but most are far more uneasy at the suggestion the courts should decide what the law should, and more importantly should not, be. They, the politicians argue, are the ones elected to make the law, not the judges whom they appoint to apply and occasionally interpret it.
This debate is ongoing and its strength waxes and wanes according to the issues of the day. However, the cause of those seeking more judicial activism will not have been helped by recent events.
The decision of the US Supreme Court to overturn the nearly 50-year-old Roe v Wade decision on which America’s abortion laws have been based has sent shockwaves around the world. It seems to reflect more the ideological prejudices of a majority of the Supreme Court, rather than any groundswell of public opinion or sense that the approach that was applied following Roe v Wade was wrong in law. More worrying is the subsequent admission from one of the judges that the Supreme Court may now adopt the same approach in reviewing other progressive laws passed by US lawmakers in recent years.
The US Supreme Court is unique both in the role accorded to it by the Constitution and the inherently political way in which it is appointed. Comparisons between it and other supreme courts around the world should therefore be limited. Nevertheless, its actions highlight in a way that cannot be underestimated the capacity of an activist court through its rulings to cause severe disruptions to the generally accepted order.
There is no immediate suggestion that the New Zealand Supreme Court would embark on such an approach here, were it ever to be empowered to do so. While from to time individual judges may have strayed into territory politicians would have preferred them to keep out of, there is no tradition here of the courts being as frequently active in the political process as the US Supreme Court has been.
To date, the debate about the extent to which judicial activism should be encouraged here as a balance to potential misuse of power by the legislative (Parliament) and executive (Cabinet) branches of government has been confined to issues surrounding the interpretation of the provisions of the Bill of Rights Act or the Treaty of Waitangi. In the wake of the US Supreme Court overturning Roe v Wade the timely challenge to our politicians and judges is to ensure that focus remains, and that the courts do not end up embarking on a mission to redefine our country’s social order.