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Dr Muriel Newman

The Dangers of Judicial Activism

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The process by which Judge Brett Kavanaugh was elected to the US Supreme Court was a travesty of decency – and a troublesome display of ‘street’ justice. The Democrats had sought to destroy his reputation to delay the appointment and keep the vacant seat open until they were in a position to control the selection.

And they very nearly succeeded.

As a result of the influence of the #MeToo movement, it appears that all it takes these days is a mere accusation by a woman against a man for there to be an assumption of guilt. The presumption of innocence has been overturned by mob rule.

While politicians are also responsible for the appointment of judges in New Zealand, the selection process largely avoids controversy. The main reason, of course, is the nature of our constitution and the different role of the judiciary.

Since the US has a written constitution, Supreme Court Judges have the power to not only interpret the law, but to make the law. They can declare laws invalid if they conflict with their interpretation of the constitution. And while that eighteenth century document does not refer to many of today’s challenging political and moral issues, judges nonetheless are at liberty to write new laws providing they refer to the words of the constitution or its ever-evolving ‘intention’.

That’s why the membership of the US Supreme Court is so important. Those judges, who are appointed for life, are able to act as politicians, without the constraint of having to seek a public mandate.

In comparison, New Zealand has an unwritten constitution, which means our Parliament is supreme. Our law-makers are Members of Parliament, who are elected to represent the public interest – and can be sacked at the ballot box if they fail to do so. The role of the judiciary is largely restricted to interpreting the law.

The main responsibility for the choosing judges in New Zealand lies with the Attorney General – with assistance from the Solicitor General, the Chief Justice, the Secretary of Justice, as well as the Principle Judges of the other Courts. Appointments are made by the Governor General.

When it comes to the Chief Justice, however, who presides over the Supreme Court and is required to occasionally stand in for the Governor General as Head of State, it is the Prime Minister who traditionally makes the choice from recommendations provided by the Attorney General.

The six-member Supreme Court was established by Helen Clark’s Labour Government in 2004 after abolishing access to the Privy Council in London. The next court in the hierarchy is the ten-member Court of Appeal, followed by the country’s 19 High Courts, and 58 District Courts. In addition, there are a range of specialist courts – including the Family Court, Youth Court, Employment Court, Environment Court, the Maori Land Court, and the Maori Appellate Court – along with a multitude of tribunals, including the Waitangi Tribunal.

The current Chief Justice, Dame Sian Elias, is due to retire next March on her 70th birthday, which is the compulsory retirement age for New Zealand judges. When she was first appointed in 1999 by former Prime Minister Jenny Shipley, she only expected to stay in the role for 10 years.

During her time in the top job she has been a highly controversial figure. There have been numerous calls for her resignation – mostly relating to her challenge to the separation of powers between Parliament and the judiciary, and to her radical activism over Maori rights.

According to Crown Law’s Judicial Protocol guide, “The separation of powers between the legislature, executive, and judiciary is a fundamental principle of democratic governments such as that of New Zealand.  Each branch of government has a role in balancing the power of the other two branches. For instance, the judiciary examines the actions of the executive through the process of judicial review. Conversely, the executive is principally involved in the selection of Judges, and both the executive and Parliament would be involved in the dismissal of Judges in the event of misconduct.”

In his article “Interventionist Judges”, this week’s NZCPR Guest Commentator, retired Judge and University Law Lecturer Anthony Willy, explains that when judges swear their oath of office to do right according to the laws and usages of New Zealand, they commit to upholding the separation of powers:

“The requirement to do ‘right’ as distinct from ‘wrong’ is tightly circumscribed by the requirement that it be within the ‘laws of usages of New Zealand’. It is these few words which describe and limit the role of a Judge, and which absolutely prohibits a Judge from deciding cases according to his or her own views or conscience, or from encroaching on the role of Parliament as the supreme law making body.

“Crucially a Judge must leave his or her own opinions on the issues of the day at the court door and should never while a sitting Judge air them publicly.”

Ill-advised comments by senior judges can have a profound and long-lasting impact. We saw this in the 1987 Lands Case between the New Zealand Maori Council – represented by Sian Elias – and the Attorney-General over section 9 of the State Owned Enterprises Act, when the President of the Court of Appeal, Sir Robin Cooke, used the word ‘partnership’, saying the Treaty signified a partnership between races.

Since it is constitutionally impossible for the sovereign Crown to enter into a partnership with any of its subjects, the Judge’s use of the word clearly meant the Crown and Maori owed each other duties akin to those of partners in any commercial transaction. Nevertheless treaty activists seized on the Judge’s words to claim that since the Court had ruled that Maori were partners with the Crown, they were entitled to all manner of race-based privileges and co-governance rights at central and local government level.

While the Chief Justice does not believe the ‘partnership’ concept has any legal status, she considers the Treaty is ‘constitutional’ saying, “Constitutional documents are always indeterminate; they have to leave room for societies to grow. They’re all made with aspirations of their day, and they have to expand to fit the different society that evolves…”

But expanding legal interpretations at the discretion of a judge is a radical shift that gives activist judges an opportunity to make rulings based on personal opinion, rather than existing law.

The Chief Justice appears to have frequently ventured into the realm of opinion rather than law.

In the early years of Helen Clark’s Labour Government, she claimed the Prime Minister lacked “understanding about judicial independence”. In response the PM said judges should “stick to the bench” and not get involved in politics. The Deputy PM Michael Cullen called the Chief Justice a “judicial activist”. 

And indeed, that’s what her 2003 Court of Appeal decision in favour of Maori rights to the foreshore and seabed exemplified, since it overturned settled law and an earlier Court of Appeal ruling that had affirmed Crown ownership under common law.

In essence, Sian Elias’s judicial activism created a constitutional crisis. By declaring that customary title might still exist in the foreshore and seabed, and that claims should be determined by the Maori Land Court – which had the jurisdiction to privatise customary title – she set the scene for the wholesale privatisation of New Zealand’s coastline.

At the time there were suspicions that the Chief Justice, had ‘swung’ the other four more ‘orthodox’ Court of Appeal Judges to ensure a unanimous judgment. 

There was also a view that Sian Elias should have recused herself from the case, given that in the 1980s she had argued in the Waitangi Tribunal for tribal control of the Manukau Harbour and seabed, and was clearly biased in favour of Maori rights to the coastal marine area. 

The Court of Appeal’s finding, which triggered such a flood of claims for the whole coastline, that the Government felt forced to legislate, resulted in the passage of the 2004 Foreshore and Seabed Act. This led to the fracturing of the Labour Party and the formation of the Maori Party. It was their influence, that caused National to repeal the 2004 law and replace it with the disastrous Marine and Coastal Area Act, to enable tribal groups to gain ownership and control of the rich natural resources of the coast.

In his Guest Commentary, Anthony Willy explains that one of the key requirements of a judge is that they do not express personal views in public, and he criticises Judge Matthew Palmer for a public lecture he gave in July, where he stated that courts should have more power to protect Maori rights:

“The learned judge proceeds with the theme of his address which is that the existing constitutional arrangements of separation of powers between the judiciary and a sovereign Parliament are no longer serviceable when it comes to the place and interpretation of the Treaty of Waitangi in our jurisprudence. He argues for the balance between the courts and Parliament to be altered in favour of the courts having more power to protect the rights of indigenous people…”

He goes on to say, “The topic of indigenous rights and the Treaty of Waitangi chosen by Justice Palmer in his paper on the one hand, and the sanctity of the rule of law on the other has a particular current significance in New Zealand and has been the subject of much litigation. But of more concern is the fact there are before the High Court in excess of two hundred claims by Maori litigants in which are sought proprietorial interests in the foreshore and coastal waters denied other New Zealanders.

“I cannot recall a more sensitive and divisive social issue and one so fraught with disruption to the existing generally harmonious state of race relations in New Zealand. It will require the most rigorous and impartial application of the relevant legislation to the facts of each individual case without fear or favour, affection or ill will. The respondents to these claims must have complete confidence in the impartiality of the chosen judge, none of which is possible if the judge has publicly declared views which call for a reordering of the constitutional balance in a way that can only be intended to favour indigenous people above all others. In giving this paper the Judge has disqualified himself from dealing with any of these cases thereby imposing an added burden on fellow judges.”

Indeed the High Court’s first ‘priority’ claim under the Marine and Coastal Area Act – see CIV-2011-485-789 HERE – is now underway. It is for an area of coastline in the southern Hawke’s Bay near Porangahau.

The applicants, Kaylene Clarkson and her whanau, are claiming that they have used the area from Whangaehu to Poroporo and including Cape Turnagain exclusively and continuously from 1840 to the present day.

Since the Attorney-General has recently advised that he does not consider it is his role “to oppose applications in the public interest”, and with 200 over-lapping claims covering the entire coastline, it appears that it is going to be up to us the public – to refute the claims.

Accordingly, we would urgently like to hear from anyone who believes the Clarkson claimants have not used that area of the Hawke’s Bay coastline “exclusively” since 1840. If you, or your family or friends have lived or visited the area, or know its history and would like to help with our research, please contact us at claims@nzcpr.com  

This is very important. Remember that these claims are coming to your beaches too, and since the outcome of this first claim could set a precedent for the rest, if you have any information at all that could be useful in helping to show that the applicants cannot have used the area exclusively since 1840, please don’t hesitate to get in touch.

And as we battle to defend our beaches in the months and years ahead, we should never forget that we are in this mess, not only as a result of judicial activism, but also because of irresponsible law-making by MPs as well.  


Do you believe judicial activism should be subject to a public complaint and censure process?

*Poll comments are posted below.


*All NZCPR poll results can be seen in the Archive.


Click to view x 120


Judges are entitled to their own opinion but should not broacast that opinion. As judge they are supposed to judge and nothing else Johan
He may now be a ‘learned judge’ but this man spent his youth as a drunken idiot. It is very much the ‘Cambridge Syndrome’. A man who was such a fool as a student should not now be presiding over the highest court of the land. Judge Clarence Thomas – a.k.a Long Dong Thomas- should also not have reached that the Supreme Court. These men show hypocrisy . Time for them to pay for their mispent youth. Peter
Yes! And the sooner the better. Much damage has already been instigated in New Zealand by activist members of the judiciary. A legal decision based on opinion or political bias is nothing short of an abomination and flies in the face of everything that the law stands for. Its unbiased, fair, non political, non racist application must be promoted and upheld at all costs if we are to have a worthwhile future in this country. Judicial activism should, of course, be snuffed out, but, unfortunately, too many NZ citizens are unbelievably apathetic and apolitical, and this disinterest allows the consequences of what can only be described as appalling, behaviour by our political and judicial “leaders” to float by, largely unseen, unheard and unapposed by the majority.. The “she’ll be right” attitude of so many “kiwis” will surely be the death of us all. Les
Who disciplines the Judges? Jeremy
One law for all nzers not racial specific laws Barry
Judges in NZ are empowered to administer the laws set by Government. In doing so, they have the privilege of applying their interpretation to new cases put before them and/or overturning previous decisions that may have been interpreted incorrectly. It is not their role or jurisdiction to make law. When a Judge makes comment within their official capacity as a Judge that is could be interpreted as ‘judicial activism’ then they should definitely be subject to a public complaint. If found guilty, they must be severely censured or even disbarred from New Zealand’s judiciary. Unfortunately that will not happen within these privileged fraternities! Martin
The reason Justice Brett Kavanaugh was able to persevere to the Supreme Court was because US President Donald Trump never gave up on his nominee. The President has enormous courage, vision and backbone unlike the so-called leaders of NZ where we have a stupid little Marxist girl and a paranoid, politically correct boy of the 2 main political parties. When will we ever get rid of the toxic, racist Palmer family from NZ politics? I hope the revolting, racist ideas of Sian Elias die with her when she leaves. Monica
Absolutely necessary! Donald
Judge Elias has upturned race relations because of her bias, which could detrimentally affect our younger generations access to beaches in the future. NZ beaches belong to all, equally. Peter
This goes back to the Marxist Helen Clarke and the independent Privy Council. The subsequent racial bias of MPs, in particular Geoffrey Palmer, Chris Finlayson and the voters and political parties who elected them. With the abolition of access to the Privy Council by Helen Clarke the public lost its last method (other than revolution) of resistance against racial bias. Don’t expect better from the current mob of incompetents and sycophants. Rex
Comments by Judges can be misread !!!! Ross
There should be no such thing as judicial activism. This would appear to be a case of over zealous individuals endeavouring to make a name for themselves so that their comrades can debate the issue. Get one up on your mate rather that looking at a rule of law for the common people. Allan
It is a very difficult thing to deal with but in recent years certain judges have done a great deal of harm with their ‘quite illegal’ activism from the bench. I suppose most of us ordinary citizens feel powerless to criticise such apparently mighty people and feel our Minister of Justice, or the local MP or the opposition in Parliament should raise the matter when one of the judiciary oversteps his or her mark but really each one of us has the right and duty to complain. Rob
I’d go a step further, and require that all lawyers – including judges at all levels – should be subject to annual re-certification, just as all of our doctors are. This, in turn, would result from compulsory attendance at ‘continuing education’ events, and also peer evaluation. It’s not as difficult as it sounds, for the medical profession has been handling it, without difficulty, for years. No=one should be above peer scrutiny, and that includes the likes of senior radicals, such as Justice Elias. On the subject of the Treaty, I strongly recommend reading the ‘Thesis of Supersession’ by this country’s greatest philosopher, and world expert on the law and philosophy of ownership, possession, and agreements, Jeremy Waldron. In brief, he argues very convincingly that the Treaty of Waitangi is now redundant. No wonder he prefers to work overseas! Graham
There is a great deal of danger in judges making a political decision instead of one based solely on legality. Carol
As the Treaty was judged a “simple nullity”, a judgement that still stands, in 1877 by Chief judge Prendergast; it stands to reason Maori activist judges cannot plead ignorance of this in a court of law because if ignorance of the law was excusable our prisons would be empty. Our true founding document is Queen Victoria’s Royal Charter of 16-11-1840, ratified at Russell on 03-05-1841, the day we should all celebrate as our true founding date. Available from Archives NZ, Wellington and don’t believe when they deny having a printed version, I have a copy of it. George
yes. we accept far too much importance being placed on the personal leanings of these very highly remunerated legal operatives who are exceeding their terms of reference when displaying them. Gordon
Judicial opinions should not be allowed to swing the exercise of their judicial responsibilities, no matter how strongly or genuinely they hold those views Anthony
We are all equal under the law. No one race should be treated differently to any other race. Any activist Judge should be permanently removed from the Justice system. We have a First World Justice system in New Zealand. We do not want a Racist Third World Justice in New Zealand. Marshall
As Helen. Clark said they should stick to the bench Bev
The Legal system must be neutral and must have no place for personal opinions. We must create a fair and humane constitution covering only one race, the human race. Leonard
Because some could well have political agendas when making there decisions as we have seen already Ian
Of course if they have breached their job description. Just like any other employee. Robert
Judges should be there to administer the law not make there own rules it is through judges making there own treaty of Waitangi that we have this mess we do not have any indigenous people in NZ or many Maori that would be more than 50% Maori so they are a watered down race Russell
The judiciary, as time has shown, does not always get it right. The public ability to respond to such discretions would act as an appellant in such circumstances. A very necessary requirement in any true democracy. Chris
Totally Barbara
Absolutely. Otherwise Kiwis are at the mercy of activist judges and pressure groups – and the law be damned. KG
They are there to uphold the law NOT make it Peter
Absolutely yes – we are in for racial disharmony from which no side will win. – It is just foolishness and degrades democracy and the courts. Maurice
Proves beyond doubt that this country is run by the biggest pack of wankers the world has ever seen. Sam
Yes, judicial activism should not only be subjected to complaint and censure, the judge concerned should be suspended from their position while the relevant case is being processed or even better, suspended permanently and replaced by someone who understands the job and sticks to the rules. Helen Clark’s outrageous action to deny New Zealanders’ access to the Privy Council should be rescinded. She had no right to substantially alter our constitutional arrangements without reference to the electorate. It’s obvious why she did it. Globalization! or more properly the advancement of Agenda 21. i.e. the control of the many by the “academic elite.” Dianna
Absolutely no public figure should lean towards one side or the other, they should be totally impartial Jeffrey
Distrust and despair of the judiciary and politicians who clearly take no responsibility in creating the Racial division in our society today. Public opinion matters not if no-one is listening. Sam
Most definitely. RNS
Judges must be seen to be impartial and Matthew Palmer is more than likely to have misplaced opinions which he doesn’t hesitate to express along with his father. Chris
Until we have such a process we are at the mercy of self opionated activists such as Sian Elias. Look at the damage she has already caused. Ronmac
Yes, if like some of your correspondents they cannot tell the difference between to INTERPRET and to interrupt the law. !!! Perhaps some of us should learn our basis English before we start throwing rocks? Interpretation of the law seems to be rather loosely applied at times????????? Mabel
What a wonderful legacy of entrenching APARTHEID previous NATIONAL governments have left. There is a byelection coming up in the BOTONY electorate. TIME TO SELECT AN HONEST RIGHT WING PARTY.. A.G.R.
There is no place in the judicial system for anyone to impose their own prejudicial views on the public at large. Ron
Why should 15% of the total NZ population have control of the future. David
WHY have,nt judges been pulled up BEFORE for giving THEIR opinions when its PLAIN THEY ARE NOT ALLOWED TO.Labour & greens will love the judges Cindy
with judges like Elias in senior positions it isimperative John
As has been proved ill-advised comments from Judges can be used to ill-effect on all the peoples of NZ. Murray
absolutely Jeff
Judges are human and subject to influence so the public should be aloud to protest and censure the process. They are to prone to support Maori and their cause. Ken
Judges are not there to make law, and should not consider themselves politicians. Robbie
This mess must be sorted out Jim
judges are not elected so have no public mandate or authority, so must be stopped from making political or social judgments John
Judges should judge purely current laws not create them. When they do it becomes enforcement of their personal views which is wrong legally. Nick
Many of these People in “High Places” have no idea what the ordinary person or Joe Public is thinking. Since 1984, successive governments have made absurd laws that that leave most of us scratching our heads. Some of these laws have been passed by conscience vote to appease the minority public groups in the hope of attaining their votes come next election. Governments know that if these law changes were put to referendum, they wouldn’t have a dogs show in passing. I believe that topical proposals should be put to referendum at each election. That way the incoming government would know exactly what Joe is thinking, and changes could (unless wayward) not have the finger pointed at government for introducing bad whatevers. Of course governments job would be to fine tune any proposal. What does it matter to the likes of Judge Elias, I bet she doesn’t enjoy going down to the sea for a day and fishing of the rocks or gathering some shellfish lighting a fire and having a cook-up. Ray
I think we have had more than enough of people poking there noses in what does not concern them What do we have to do to remedy the ongoing nonsense Peter
Why has it taken this long to be bought to public[ and voters ] attention — Where is the ‘Independent Press’ John
Yes, though it is a loaded question. Peter
Judges should not make decisions, or proclamations, unilaterally. Jo
Appears obvious to me !! David
I hope NZ gets behind this and why aren’t the media all over this ? Simon
So even our judges are becoming deceitful and encouraging apartheid, if they can’t hold to their Oath they they must be removed from office. Brian
Anybody viewing the debacle in the USA recently appointing what is essentially a politically biased supreme court judge based on who is in government at the time, that this is a life-time appointment and effectively determines whether a liberal or conservative agenda holds court must surely shake their heads in wonder. We cannot have this absurd situation in New Zealand. Judges must be independent of politics. Charles
Absolutely! BUT– the big problem lies with the fact that this judicial activism has set developments in motion which have grown into a massive problem. We as a nation are on the brink of being transformed into an Apartheid state with all that it implies. And the very fact that the general populace are kept in ignorance about these matters are instrumental to the Tribal elite’s agenda to de- Europeanise ( according to a letter written by Tamati Kruger) New Zealand by 2040. Any political attempt to sensibly reverse the process of institutional decay will be met with political aggression and Maori radicals in goose step with the Antifa and their ilk will carry the issue out onto the streets when the time is right. To unscramble scrambled eggs is impossible. One can only throw out this mess and start from scratch. But this will require resolute and reckless action and I assure you this is non existent amongst our current stock of politicians. They are much too infested and corrupted by political correctness and only to keen to maintain the status quo. Michael
As we are seeing, our political and judicial system has long been ‘broken.’ The 1840 Treaty of Waitangi documents do not mention ‘partnership’ and never will! Paul
You can’t expect academic morons like Mathew Palmer (son of that other academic moron, Geoffrey Palmer) not to use their position to try and unjustly further the cause of the descendants of our early settlers by a bit of judicial activism. It’s imperative that the NZ public can call for judges to be censured or removed if acting in this way. After all, Palmer appears not to even understand the word ‘indigenous’ – there were no indigenous people of this country, only settlers. I’m afraid that in hearing the foreshore claims our activist judiciary is likely to abandon the usual rules of evidence and make their determinations on the basis of hearsay. Alan
Push back now! This is encroachment by stealth. We need to wake up before it’s too late. Robert
If we can’t have faith in the Judiciary who can we have faith in Laurel
Judges must not have the ability to create law, only to apply it as written. Graham
There must be some method of censure with the effects of judges offering up decisions based on personal opinion promulgated that are more effective than can seen over the effects of their past activism. Richard
There must be some control over some of the more zealous Judges trying to get their viewpoints adopted by using the Judicial system to get ensure that it happens. Thank Got there is a 70 year age limit so that Justice Elias In gone shortly Colin
Judges must be, and be seen to be, impartial Mark
Should be nipped in the bud Catherine
What we see and have seen is totally unacceptable – it results in many injustices but the most important point is that it is leading to racial division in our society . Hylton
My disgust and despair of the judiciary and of our elected ‘public servants’ grows daily. Neither have earned an ounce of respect from me. Grant
Judges should stick to interpreting the law and bring their personal opinions into the courtroom Arthur
Yes. But what can be done to halt and reverse the damage done. Remember, our cause does not have the billions that the “maoris” have to thwart any efforts. If I had the money, I would gladly put it forward. Neil
Definitely because in terms of natural justice so many of our rights are being removed. The government, Nats or the progressives accounts to itself the rights and interests of the “crown” but that does not mean we ordinary people who do not understand the law about land ownership for example get any real practical right to land access. For example, the various groups that argue their rights and that we have no right of passage to beaches unless we are Maori or belong to a tribe etc. are attempting unjustly to steal our rights to land and water access. Ray
Nobody should be above the law, this includes judges. They are there to decide on law not make it. Dennis
we need more transparency for our democracy here in NZ/ Denise
By his comments, it would appear that even esteemed people like Judge Willy have come to accept the idea that our Maori people are indigenous! You can’t “migrate” here in “the Great Migration” of around 1350 AD and be indigenous! There is plenty of evidence others have been here earlier than that, beside you can’t “migrate” to a place and at the same time be indigenous! Ted
More & more are becoming too radical in themselves. They should answer to someone. Graeme
The courts are there to interrupt the law not to make it. We are in the mess are in as regards many things Maori because of the activism. Roger
So many of Sian Elias’ stances were determinably subjective when the position she held demanded that she be solely and totally objective. Jim
it is unfair Donal
How can we call ourselves a democracy if the law is not impartial? Susan
Racist once again Cutty
Absolutely yes.Elias is well known as a radical activist and has no place in the judicial world.She is a good mate for Ardern ,another radicle activist. Don
Enough of the separatist Maori wanting their handouts – it’s been going way too long !!! Kevin
Absolutely JON
Absolutely! Maddi
Absolutely – rogue Judges should be censured before they do more damage.  Bruce
It seems that more and more radical judges are being appointed, which is a very worrying trend – especially those pushing Maori rights. Christopher
The public should have the right to have a say on the appointment of Judges as well, as some of the appointments are diabolical. Dan
Yes, if a Judge goes off the rails we should not have to put up with them until they turn 70 and are forced to retire. Anita
The damage caused by activist judges is too great not to have a system to censure them. And the problem is likely to get much worse in the future, so bring it on! Stewart