On Judicial Imperialism

why judges must ‘stay in their lane’

This article with minor differences was published by The Law Association’s Law News on 15 March 2024

Provoked by the Supreme Court’s decision in Smith v Fonterra and others [2024] NZSC 5, Professor James Allan, Garrick Professor of Law at the University of Queensland, a Canadian who taught law at Otago University for 11 years before moving across the ditch, has published “New Zealand’s imperial judiciary Who gave them the power? They did” in Spectator Australia on 2 March. He says:

What do I mean by ‘an imperial judiciary’? I refer to a country where the top judges – committees of unelected ex-lawyers if we want to deal in specifics – are giving themselves new-found power at the expense of the elected branches of government. Under the cover of purportedly applying the law they are usurping power to themselves. 

After discussing earlier decisions, he gets to the Smith case.

Smith is a Maori climate change campaigner who brought proceedings against seven of NZ’s biggest companies for an injunction to stop them from contributing materially to climate change. Yes, you would have thought this is purely a political matter. Wrong! Basically, Mr Smith was inviting the judges to become hero judges and inject themselves into this heated debate. And they did (and this in a country that has enacted an emissions trading scheme).

Allan has raised an issue which may be one of contemporary New Zealand’s most important as it involves the Supreme Court undermining its own legitimacy. This threatens our constitutional framework.

Evidence to support Allan’s case may be found in various places. Consider this:

[110] It is worth saying something more about values. It is the function of this Court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity. We share some of these values with other nations, especially those founded on the common law tradition. Other relevant values may be unique to our nation’s history and circumstances. Tikanga and kaupapa Māori belong to this latter category and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law. The consideration of common values is important when applying the common law to new or novel situations or when considering the need (or otherwise) to develop or modify the common law.

This remarkable statement is in Justice Glazebrook’s judgment in the Supreme Court’s Ellis appeal continuance case, [2022] NZSC 114. It largely speaks for itself in support of Professor Allan’s arguments. It is echoed with less eloquence and directness in other judgments in Ellis, and in other cases.

It is not often that judges go so far as to actually admit imperialist pretensions, but to say that it is the function of the Supreme Court “to declare the law” betrays a conceit which amply justifies Professor Allan’s comments in his Spectator article.

Declaring the law is no part of the function of any New Zealand judge. The judicial oath they take before entering office is to “well and truly serve His [or Her] Majesty … according to law,” which does not encompass declaring or making it. That is a matter for Parliament which our Constitution declares to be sovereign (see now s 3(2) of the Senior Courts Act 2016 — “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”)

The first of these continuing commitments is to the rule of law. The judiciary is the branch of government which ought to be the most scrupulous about observing this commitment. At its core, the rule of law is to be understood by contrasting it with the rule of men. When judges start declaring or making law to reflect their own values, or values they have chosen to promote, they step aside from abiding by the rule of law and substitute the rule of men — rule by the women and men of the judiciary.

This contrasts with Parliament’s role which is to make law. That function is circumscribed by the people’s control. In our free and democratic society the people can throw the government out if we don’t like the laws they are making.

The Supreme Court’s specific role is to hear appeals by parties to proceedings against the decisions of lower courts. That means, its role is to decide cases, not to engage in wide-ranging (and in the Peter Ellis case, Supreme Court instigated) pronouncements which arrogate to the judges the law-making powers vested in Parliament by our Constitution.

Sometimes it becomes necessary in dealing with a specific case to make difficult decisions about the boundaries of a particular legal principle or rule and in these cases, it is often difficult to distinguish between deciding according to law and making new law. But judges who are conscious of the restraints the constitutional importance of their office imposes on them, and have the humility befitting their appointment, will be exceedingly careful to go no further than is required by the case they are deciding.

The remainder of Justice Glazebrook's paragraph [110] exemplifies another point made by Allan when he said:

Or again it might involve infusing and substituting their own judicial moral sensibilities for those of the elected politicians, often using the notion of ‘the principle of legality’ to do so.

Most judges are aware that their personal beliefs and values, their own judicial moral sensibilities, must be put to one side when exercising their judicial function. But sometimes some forget. Regrettably, in this issue, that’s what seems to have happened.

Professor Allan may not be a fan for bills of rights, but section 13 of New Zealand’s gets it absolutely correct when it says that “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.”

When the Supreme Court proclaims, as a revelation from on high, that tikanga and kaupapa Māori belief systems are relevant values for all New Zealanders, and that tikanga is part of the values of the New Zealand common law, the Supreme Court demands of all our courts that they traduce the human rights and fundamental freedoms affirmed and protected by section 13. A person coming before the courts is entitled to do so without any risk that the court will impose on that person the thought, conscience, religion or belief of another person or group. That is what it means to have the right to adopt and to hold opinions without interference.

This is especially so when the precepts involved are of a spiritual nature, as those within tikanga and kaupapa Māori are, because they then directly trench upon the right to freedom of religion (including the right to believe and practise none). Kaupapa is a “medium for intercourse with an atua [God, demon, supernatural being, ghost] or wairua [Spirit, unsubstantial image, shadow]” (definitions of kaupapa, atua and wairua are from Williams, Dictionary of the Maori Language, 7^th Ed).  

Most Christian religions have the Holy Trinity (the belief with variations that there is one God who eternally exists as three distinct Persons — the Father, Son, and Holy Ghost), the sacrament (a religious ceremony or ritual regarded as imparting divine grace, such as baptism, the Eucharist and -- in the Roman Catholic and many Orthodox Churches -- penance and the anointing of the sick) and other doctrines associated with other aspects of the faith. Other religions have other ways of appealing to the supernatural.

The dark ages, which started with the fall of the Roman Empire in the fifth century AD and continued some say right through the Middle Ages, was characterised by ignorance, superstition, social chaos and repression.

Religious beliefs produced laws reflecting the prevailing culture, as still occurs today in some places. The Taliban’s repression of women (to conform with purdah and Sharia law), in the news again just a few days ago, is a topical example. Heresy laws in England still saw people burned at the stake as recently as 1612 (Edward Wightman for his anti-Trinitarian speculations).

The Enlightenment of the 1700s, emphasizing the use of reason to analyze and often reject previously accepted orthodoxies, saw the rise of secularism, and the gradual rejection of the previous orthodoxy that it was okay for the law to impose beliefs and opinions on the community.

in the modern world the courts should be mindful of this. It is therefore extraordinary that judgments of our highest court should solemnly tell the community that tikanga and kaupapa Māori should inform New Zealand’s common law. I doubt anyone today would suggest that the religious beliefs of Catholics or Anglicans (or Baptists or Mormons, or Hindus, or Muslims – one could go on) should be used to “to develop or modify the common law” of New Zealand.

Tikanga is said to be “of particular importance as [it] is the first law of Aotearoa/New Zealand and Māori are tangata whenua.”  As I have explained elsewhere, here and here, tikanga is not “first law,” because it is not law at all. Being here first is no justification for anything, as I explained here. Tikanga is a set of beliefs of a mystical nature exemplified right at the start of its description by the first and second paragraphs of The Nature of Tikanga (in the Statement of Tikanga appended to the Ellis judgment):

It is the law that grew from and is very much embedded in our whenua (land) [which in] some traditions merged with that already present [i.e., before “Tikanga Māori came to the shores of Aotearoa with our Māori ancestors, starting with Kupe and those on board the waka (canoe) Matahourua”].

Despite the obvious non-legal nature of tikanga, members of the Supreme Court tell the country that it is New Zealand’s first law, expect the country to embrace a set of beliefs that are not the beliefs of almost all of us, and that it should be used to “declare the law” of New Zealand.

It means that the Supreme Court judges' views, informed by persons professing to speak for one part of the community on matters of thought, conscience, religion, and belief, will prevail over the views of others, and that those views will be imposed on others when a case comes before the courts and a party or parties or the court itself (as in Ellis) wishes to do so. This means that the thoughts, conscience, religion, or belief, including the right to adopt and hold opinions without interference, of the individuals who do not subscribe to the judges’ views are suppressed and overridden, for no better reason than the judges' belief in their own infallibility when judging the values the community should adhere to.

Writing about censorship but nevertheless as a valuable insight about believed infallibility, the great John Stuart Mill (1806-1873) said,

[T]he opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility."

Using judges' or one section of the community's values to modify or develop the common law, does not directly suppress the opinions of others, but it does so indirectly by elevating these judicial values when judicial decisions are made. Discussion may not be silenced, but it is made to be ineffectual in the judicial forum by what Professor Allan colourfully describes as judicial imperialism. In breach of section 13 of the Bill of Rights, it interferes with the rights of others to hold their own opinions without interference.

John Stuart Mill added, a few lines later, that "[persons] who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects." Probably no sector of our society is more accustomed to unlimited deference than the judiciary. It becomes more pronounced the further up the hierarchy one gets until the pinnacle of the Supreme Court whose decisions can be undone only by Parliament.

It is of course essential that deference be accorded to judicial decisions, and proper respect shown to the decision-makers, because the judiciary is one of the bulwarks against anarchy and tyranny. Nevertheless, judges too have responsibilities. They must not overstep the proper boundaries of their office, and they ought to remember that genuine respect is accorded only to those who earn it. They lose respect, undermine the office they hold and threaten the courts’ constitutional place in the system of government, when they make judicial pronouncements based on “their own judicial moral sensibilities”. It is perhaps even worse when in doing so they prefer the values of one section of society or perhaps more accurately the views of the few who profess to know what they are, over the values of the bulk of the community. When they do that, they may provoke outrage and disrespect.

There is a place for tikanga. In one aspect, its place is much the same as other spiritual beliefs and may be relevant when judging or explaining a person’s conduct.

In other aspects it may give rise to behaviour which becomes customary and matures into a customary law which needs to be established for the purposes of, e.g., customary title to property. In this case it is the continuing conduct, not the underlying beliefs, which establish it as law.

Sweeping declarations which would put belief systems at the forefront of the development of New Zealand’s law are an entirely different matter.

It is to be hoped that our judges will step back from the brink and affirm and, yes, declare, the judicial value of restraint -- that curbing the desire to set the country aright according to one’s own view of what is right is a judicial virtue – and lack of restraint is dangerous.