Roger Partridge: NZ Initiative Chair on the report into New Zealand's Supreme Court

Is a shake-up needed for the Supreme Court? 

That's the question posed by a New Zealand Initiative report, which suggests the court may be straying into Parliament’s domain by granting itself the power to rewrite legislation it deems unfavourable. 

It believes Parliament needs to reassert its sovereignty, to stop what it sees as the current drift towards judicial supremacy. 

Author, Roger Partridge proposes a maximum judge term of five to seven years, which will see them returned to the Court of Appeal and rotated around. 

He told Mike Hosking it’s Parliament’s prerogative to intervene when the court steers out of its lane. 

Partridge says the report is a call to Parliament that it’s their job to set the law straight. 

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Episode Transcript

Speaker 1 (00:00):
We've got a warding this morning from the New Zealand Initiative.
A constitutional crisis is looming now. The issue is the
interventionism of the Supreme Court. Decisions have come into question
with legal scholars, practitioners and politicians raising concerns. So what
are we going to do? New Zealand Initiative chair and
senior fellow Roger Partridge is well, it's Roger, very good
morning to you.

Speaker 2 (00:19):
Good morning.

Speaker 1 (00:19):
I'm glad somebody's finally got on to this because this
has been concerning me for absolutely ages. Is it the
individual group of judges currently at the Supreme Court level
that we just happen to have got some sticky beaks
or is it the court itself or is it a movement?

Speaker 2 (00:37):
Well, it's a little bit three. It's more. It's more
the current judges. We've always had activist judges within our
senior courts. That the movement has gained momentum over the
last few years and so we're seeing a court that's

(00:58):
much more active, activist and to the point where we're
out at the big point.

Speaker 1 (01:05):
Right, does the government being the top court ultimately at
the end of the day, not counter whatever they may
or may not do well.

Speaker 2 (01:14):
The report is a call for them to do that.
Parliament's most blunt response where it sees the court's taking
the law off in a direction that's not consistent with
what Parliament intended, or is in a direction Parliament doesn't
agree with. It's mostly instruments to pass legislation, getting the
law back on track, and it's unquestionably within Parliament's mandate

(01:40):
to do that, and it should do.

Speaker 1 (01:41):
Do you think Parliament's afraid? I refer to yesterday's interview
with Christopher Luxen and the Solicitor General, and he ran
and it's not the first time he's done it. He's
run for the hills. He argues, they're independent, I can't
touch them. Are they afraid in that sense?

Speaker 2 (01:55):
Well, I think there's a bit of feeling out about
the boundaries, elements, prerogative to intervene when the court goes
off in what steers out of this vein. I suppose
it's a good metaphor and the report is a pull
to Parliament. It's your job to set the law straight.
Is our constitution, democratically elected Parliament is the supreme Court. Really,

(02:23):
it's above the court in our legal hierarchy and it's
absolutely Parliament's prerogative to determine the direction of the law,
and Parliament should intervene when it sees the courts very
away from what's Parliament's inter headed do.

Speaker 1 (02:38):
How much of what they're doing interventionally speaking is race
based versus legally generally, I.

Speaker 2 (02:46):
Think it's legally generally. It's a misguided view that well
at first gets the excessive license they've granted themselves to
reinterpret partance words. That's the first concern, And up until
the mid two thousands, our Supreme Court was exercising more
constraint than other sub courts to the world. That's been

(03:07):
thrown aside over the last few years. So that's the
first thing. And the second thing is they've decided that
the proper approach to the common law the body of
principles made up by decided cases over centuries. They've decided
it's their prerogative to take the common law on a
journey to match the current judges viewser society's changing values.
Now that politicizes the judiciary, it means they're substituting their

(03:32):
own values the riskers they're perceived as substituting their own
values for those of the common law, and it's obvious
that they're not equipped to do that and they're not
democratically accountable for those decisions in the way that Parliament is.
And so it's Parliament's job to step in and to

(03:54):
ensure that the court's exercise restrained. And we've set out
a menu of five things that the Parliament can do,
including passing specific legislation overturning adant court decisions, but also
setting in place some guardrails against judicial overreach, and then
some institutional reforms to the way judges are appointed.

Speaker 1 (04:14):
Also, we had Gary Judd earlier on this morning in
case he was going to a Select committee today and
he's worried about Tea Kanger being put into law studies.
If those sort of things come through, If you get
a thing like Tea Hunger and law studies and then
people graduate having studied Tea Kunger, and it's open to
a tremendous amount of interpretation. That open to interpretation approach
goes into more courts than up through to I mean,
you're asking for endless amounts of trouble, aren't you.

Speaker 2 (04:36):
Well, there's always been a place for tit hunger in
our law, and so I don't think the problem is
so much tea hunger. It's the Supreme Court's approach to it.
In the common law custom and tea hunger is a
form of custom, has always been a source of law.
So I don't think the issue is so much tea hunger.

(04:57):
It's the issue is the court's approach.

Speaker 1 (05:00):
The rational And my question is that if your open
seas I mean, if you deal with guilty not guilty,
it seems to be relatively black and white. But once
you start interpreting the law, the more interpretational mechanisms of
interpretation you allow yourself, the looser you can become if
you're an interventionist. Isn't that fair?

Speaker 2 (05:17):
That's right? And a critical requirement of laws is that
they're consistent and predictable. That's the fundamental requirement of the
rule of law. That and impartial courts. So yes, the
common law has developed quite good tests sort of determining when
customs have the status and certainty necessary to be recognized

(05:38):
as law. In the Elst case, the court throughout the
common law test and has left us for this quagmile.

Speaker 1 (05:45):
We've now got you seem to have well, not you,
we seem to have a couple of problems. One, do
we accept that what the Supreme Court doing is unacceptable
or acceptable? If we accept it as being unacceptable, then
who does something about it?

Speaker 2 (05:57):
I e.

Speaker 1 (05:57):
The Parliament? And then your second problem, do they have
the wherewithal the gonads or the spine to actually look
at your suggestions and do something about them?

Speaker 2 (06:06):
Well? I think unquestionably they do, and I would expect
some of the recommendations and hopefully all of them to
be implemented.

Speaker 1 (06:15):
Jeez, I hope you're right, Roger, appreciate you. Sign Roger Partridge,
New Zealand Initiative chair and senior Vella. So it's a
very important report that gets released today and the Latensmith podcast,
by the way, I can allert you to this now
he looks at length and talks with Roger at length
because the report is by Partridge, the chairman of the
New Zealand Initiative of course, over the overreach, the activism

(06:39):
and so on, and so Layton looks into this in
this latest podcast. So I would recommend if you want
an extended and more detailed view of it than we've
been able to provide this morning, then that's the place
you should.

Speaker 2 (06:50):
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