Rule of Law – But for Whom? A Rejoinder to the New Zealand Law Society’s June 2025 Report

LawNews

The New Zealand Law Society’s new report, Strengthening the Rule of Law in Aotearoa New Zealand, runs to more than eighty pages, includes seventy-eight recommendations, and reflects a considerable investment of time and goodwill. Its aims are noble: to bolster constitutional integrity, improve access to justice, and promote respect for the rule of law. But for all its breadth, the report suffers from a staggering omission. It fails to acknowledge the one institution increasingly responsible for eroding legal certainty and upending constitutional norms: the courts themselves.

This is not a trivial oversight. It renders the report’s analysis partial and its title misleading. By ignoring the threat judicial overreach poses to the rule of law, the Law Society has missed the heart of the problem. In doing so, it has subtly reframed the rule of law as something Parliament and the executive must honour – but the judiciary, apparently, cannot violate.

What the Report Gets Right

To be fair, there is much in the report to commend. It provides a detailed account of how under-resourced legal aid, overburdened courts, and uneven digital infrastructure inhibit access to justice. It rightly criticises rushed lawmaking, the misuse of urgency, and inadequate consultation. And it highlights the growing complexity of legislation, which undermines clarity and compliance.

These are important concerns. But they are neither new nor unique to New Zealand. What sets the current moment apart is the confluence of these weaknesses with a judiciary increasingly willing to assume a quasi-legislative role.

The Judicial Blind Spot

This is where the Law Society’s silence becomes deafening. The report identifies threats to the rule of law from automated decision-making, political commentary on judicial decisions, and insufficient court funding. But it has nothing to say about courts rewriting statutes under the guise of interpretation, as in Fitzgerald v R; displacing clear legislative design, as in the Edwards case; or introducing legal pluralism without doctrine, as in Re Ellis.

It is difficult to reconcile this silence with the Society’s statutory mandate to promote the rule of law. If legal certainty, legislative supremacy, and impartial adjudication are essential to the rule of law, then judicial overreach – however well-intentioned – is a direct threat to it.

The Edwards Decision: A Case in Point

The Supreme Court’s handling of Edwards should have triggered robust commentary. It involved a test for customary marine title under the Marine and Coastal Area (Takutai Moana) Act 2011. Parliament’s test, set out in section 58, contains two distinct limbs: one requiring proof of holding the area in accordance with tikanga; the other – crucially – requiring exclusive use and occupation since 1840 “without substantial interruption,” and notably omitting any reference to tikanga.

The Supreme Court rejected the Court of Appeal’s permissive reading of “substantial interruption” – a welcome move. But it then read tikanga considerations back into the second limb, despite their exclusion from the statutory text. Worse, it issued its judgment in two stages, releasing a “first” judgment stating its interpretation of the test just as Parliament was preparing to debate an amendment to the Act.

As I wrote in these pages earlier this year, the implications are serious. The timing and format of the Court’s decision suggest an intent to pre-empt legislative clarification. If the judiciary is to maintain its legitimacy as an impartial arbiter, it cannot be seen to position itself as a participant in policy debates. Yet this is exactly the perception Edwards invites.

What Counts as a Threat?

The Law Society report is not shy in identifying threats to judicial independence: political criticism, public misunderstanding, ministerial impatience. But it is blind to the risks that arise when courts step outside their adjudicative role.

There is no mention of Fitzgerald, where the Court stretched section 6 of the Bill of Rights Act to rewrite sentencing law. No mention of Ellis, where the Court displaced settled common law doctrine and replaced it with an undefined, “values-based” relationship between tikanga and the common law.

Yet both cases, predictability and clarity – hallmarks of the rule of law – were sacrificed.

These concerns are not new. In early 2024, Jack Hodder KC delivered a comprehensive critique of the Supreme Court’s jurisprudence in his Legal Research Foundation lecture marking the Court’s 20th anniversary (now published in the New Zealand Law Review). He warned of a “quiet constitutional battlefield” and an “imperial judiciary” that increasingly asserts policymaking power through novel interpretive presumptions.

My own report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court, published by the New Zealand Initiative later that year, reached a similar conclusion: that judicial overreach – especially via the common law and section 6 of the Bill of Rights Act – threatens the constitutional balance between courts and Parliament.

These concerns now sit at the centre of our constitutional debate. Yet the Law Society offers no comment.

The Judiciary and the Rule of Law

What emerges from the report is a view of the rule of law in which the judiciary plays a supervisory role over Parliament and the executive – but not over itself. This is conceptually incoherent. The rule of law applies to all branches of government. If Parliament must legislate transparently and the executive must act within its statutory mandate, then the courts must interpret laws according to Parliament’s instructions, not their own evolving values.

The Way Forward

This silence would matter less if Parliament were able to reassert its constitutional role with confidence. It should. As I have argued elsewhere, the legislative response to Edwards, now paused pending Crown Law advice, is a necessary reaffirmation of Parliamentary sovereignty. But more is needed. Parliament should consider amending the Senior Courts Act to define the rule of law in its traditional, “thin” sense – focused on clarity, stability, and adherence to enacted law. It should reinforce the interpretive discipline expected under the Legislation Act and reconsider section 6 of the Bill of Rights Act, which the Supreme Court now treats as a licence for judicial revision.

None of this would undermine judicial independence. Quite the reverse: it would help preserve the judiciary’s legitimacy by reinforcing its constitutional limits.

The Law Society’s report aspires to strengthen the rule of law. But by overlooking the most pressing internal challenge to legal certainty – a judiciary untethered from text – it does the opposite. At a time when clarity, predictability, and constitutional balance are under strain, the Society has chosen to defend the institutions it represents rather than the principle it invokes. It is left defending the form of the rule of law while ignoring its substance.

This column was first published on 30 June 2025 by LawNews, the journal of The Law Association. To read it on the LawNews website, please click here.