Stephen Franks: Former ACT MP and Lawyer on the NZ Initiative report into the Supreme Court

There’s an argument in favour of setting a maximum term for Supreme Court Judges.

A report from New Zealand Initiative suggests the Supreme Court is getting an exaggerated view of its role and straying into Parliament's domain.

Former ACT MP and lawyer Stephen Franks says there's been grumblings about it among some lawyers.

He told Ryan Bridge that at the 20th anniversary of the Supreme Court this year, a leading KC presented a paper aligned with this belief.

He says it read that the law is ceasing to be predictable as the Supreme Court's changing it according to their social values.

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Episode Transcript

Speaker 1 (00:00):
As a Supreme Court justices getting a bit big for
their boots, do we think? An new report from the
New Zealand Initiative the think tank suggests a time limit
for judges of the Supreme Court would help to guard
against them getting quote an exaggerated view of their role.
It says the Court is straying into Parliament's domaine and
is granting itself the power to rewrite legislation and essentially
that it doesn't like. The report suggests a bit of

(00:22):
a rotation system. Stephen Franks is a lawyer at Frank's
Ogilvy and is a former act MP. He's with me
this morning. Good morning Stephen, Good morning Ryan. Good to
have you on the show. Are they too big for
their boots? Do you reckon?

Speaker 2 (00:36):
I think the report makes a very compelling case and
there's been a lot of sort of vot grumbling about
it amongst lawyers for some time. There was a celebration
of its twentieth anniversary earlier this year where one of
the probably the most eminent QKC present of the paper

(00:57):
where he said they're making the law, not the law.
It's ceasing to be predictable because they've decided they can
change it, to develop it in accordance with their view
of social values. But it didn't really get a lot
as much attention as you'd expect. It was addressed to
a lot of lawyers, but for a major business organization
to desplants is pretty unprecedented.

Speaker 1 (01:19):
Yeah. I remember a friend of mine showing me that
article saying this is important. I think it is for
most people. It's like a judge's court, Supreme Court. But
what they're doing were their two issues right, loosely interpreting
the laws that Parliament makes and then getting a little
bit activist on common law.

Speaker 2 (01:39):
Yes, yeah, they're both part of the same thing though,
and a view that their role isn't to apply the
law as it is. Their role is to develop the
law in accordance with their view of where New Zealand
should be going and their social values, which is exactly
what democracy is to control. So the problem for a

(02:04):
country when your institutions don't stay in their lane can
be quite dire, and Israel was really stuck in that
until the attacking year ago. Israel was paralyzed by their
Supreme Court doing a similar thing. And so these aren't unprecedented,
but they can lead to very long periods of chaos.

Speaker 1 (02:26):
How do you put judges back in their place?

Speaker 2 (02:30):
Well, the report suggests five different ways of doing it,
and one of them basically just a reminder of what
the rule of law is. That it's a rule of
rules that you can find out in advance and read
and understand, and you don't have to go to the
court to find out what the law is. It's for
most cases except the boundary cases, it's easily found out.

(02:52):
So they suggested that they could write a description of
what they called a thin rule of law. The court's
been talking about thick rule of law which allows them
to proceed with decolonization, which no one knows what that means,
but they apparently think they know, and that teakhanger is

(03:13):
an original part of MW Zealand law. Custom has always
been important in making decisions where customs relevant. But one
of the things pointed out in this report is that
in the Alis decision, which didn't involve Mari, the courts
decided to bring in tea hunger as a factor, and

(03:37):
then one of the judges said that the court can
declare tea kanger, but it can't change it, which is
sort of very odd. Because they only discover it by
asking Mario old is what it is or what it was?
And the idea that it's then more immutable than than

(04:01):
something that they say is very peculiar. Anyway, they just
confused everyone. No one knows what it is now and that.

Speaker 1 (04:08):
Is part of the problem is and it is the
confusion and who's who has who should have final say?
I mean, if Parliament makes a law, even think you
know it's the court stob to just you know, interpret it,
follow it. Stephen, thank you very much for joining us
this morning. We do have to leave it there. Stephen
Franks and Wellington lawyer at Frank's Ogilvy. The report is
by the New Zealand Initiative. It's up on their website.

(04:28):
I do employee to go and have a look for
more from early edition with Ryan Bridge. Listen live to
News Talks it be from five am weekdays, or follow
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