Picture a country where unelected judges, not elected politicians, make the laws. Where courts rewrite statutes they do not like and reshape long-standing legal rules based on their views of ‘society’s changing values.’ Sound far-fetched? The New Zealand Initiative’s latest report – of which I am the author – shows this scenario is becoming a reality in New Zealand.  

“Who Makes the Law? Reining in the Supreme Court” examines how our Supreme Court has strayed beyond its proper constitutional role. The report argues that the Court has adopted a dangerously loose approach to interpreting statutes, sometimes even ignoring Parliament’s clear language. More and more, it is also reshaping common law principles to align with judges’ views of society’s changing values. 

The report argues that the Supreme Court has lost sight of basic constitutional principles - the separation of powers, parliamentary sovereignty, and the rule of law.

This judicial activism has serious consequences. It weakens the democratic legitimacy of our laws and makes them less certain and predictable. When courts reinterpret legislation and reshape common law principles, people and businesses can no longer rely on clear statutory wording or stable precedents. That strikes at the heart of the rule of law. By blurring the line between the courts’ role of judging disputes and Parliament’s role of making law, the Court also risks politicising the judiciary. 

A growing chorus of legal scholars echoes these concerns. In his foreword to the report, Oxford University’s Kiwi Professor of Law and Constitutional Government Richard Ekins KC warns that the Supreme Court’s new legal method risks unsettling the balance of our constitution. 

To address this troubling trend, the report recommends several options for Parliament to reassert its constitutional authority and rein in judicial overreach. These include targeted legislation to overturn problematic court decisions, amendments to key statutes to impose ‘guardrails’ against judicial overreach, and reforms to judicial appointment processes. 

Critics may argue that an activist judiciary protects rights and acts as a check on bad laws. But that argument misconstrues the nature of our democracy. It would enable unelected judges to overrule the will of voters expressed through Parliament. That would weaken our democracy and make the law less certain. 

The report argues we face a constitutional crossroads. Will we allow rule by judicial decree, or will Parliament restore the balance between judges and elected lawmakers?  

The tools to restore balance exist. Parliament should use them. 

Roger Partridge’s research report, Who Makes the Law? Reining in the Supreme Court, was published 15 October.