Cullen on Judges

Michael Cullen made a speech about the Judiciary to the Legal Research Foundation in his capacity of Attorney-General (the speech itself is online here). Despite the Herald's reporting, most of the speech is about the history and role of the Attorney-General in New Zealand. Only in the last third of the speech does he start talking about Judges and how he thinks they should behave.

He begins the last third:

Undoubtedly the most closely observed aspect of my role as Attorney-General has been my relationship with the judiciary. Expectations that sparks would fly across Molesworth Street have so far been disappointed.

This is a reference to the period over a year ago when the Government and the Chief Justice were hissing and spitting at each other. Although Cullen was a leading critic of the Chief Justice in that period, I didn't expect relations with the judiciary to worsen when he became Attorney-General because only the Chief Justice was at fault and she has since learned the virtues of prudence and discretion. After stressing that he intends to uphold the independence of the Judiciary, Cullen then fires a shot across the bow:

However, such a role does not limit the ability of the Attorney-General to engage in discussion with the judiciary on constitutional principles. Regarding the issue of parliamentary sovereignty, I am happy for the public exchange of views that occurred in the last couple of years to continue if that is necessary.

Although the Government was already angry at the Judiciary over the Foreshore and Seabed appeal (which overturned fifty years of legal precedent to create a massive headache for the government), public friction with the Chief Justice had begun after she made a remarkably unwise speech that declared that the sovereignity of parliament was a doctrine that had not been "authoritatively determined".

He then explains his view of the independence of judiciary:

As I have said, I believe very strongly in the need for an independent judiciary. In the New Zealand context, however, that is independence to apply the law to particular fact situations and to make decisions accordingly. It is not independence in the sense of an American-style separation of powers, whereby the Courts can scrutinise legislation in the light of some higher law and strike it down, or alter it, if it is found wanting.

I'm a bit disturbed by Cullen's explanation as it conflates two concepts. The American-style ability of the Courts to strike down unconstitutional law does not arise from the concept of independence of the judiciary but from the concept of judicial review. Although Cullen might be forgiven for blurring the two, surely his Parliamentary Private Secretary Russell Fairbrother, Barrister and Solicitor, must have known the difference?

Cullen then admits that Parliament was partly to blame for origins of Judicial Activism that he had been attacking the Chief Justice for promoting.

Where I think the recent debate has been helpful is that it has highlighted the duty of legislators to pass law that is unambiguous in its intent and clear in its expression.

There is something to be said for the view, articulated by the Solicitor-General previously and in a forthcoming law journal article, that successive New Zealand governments have been responsible for promoting legislation which effectively requires the courts to be “judicially active”, or at least to see themselves as involved with Parliament in what some have called a 'collaborative enterprise', involving, at least in some cases, the development of over arching principles, capable of being applied in individual cases.

The Solicitor-General traced these attitudes to passing of legislation in 1977 and 1979 - this helpfully enables Cullen in a discussion of the 1987 Lands case to avoid blaming his colleague in the Fourth Labour Government, one Geoffrey Palmer, for the mess given that Palmer placed all the references to the undefined Treaty of Waitangi principles in the legislation. Instead Cullen blames parliament (like society) for asking the courts to take up the role of identifying these treaty principles.

After making the concession that some judicial activism is good, Cullen goes onto state:

However, nor is it a sign that Parliament intends the courts to undertake the same task [as it did for the Lands Case] of for all legislation.

In the scheme of things, these instances are relatively few. Parliament does not, as a rule, deliberately leave loose ends in legislation for the courts to tidy up.

I have to admire that "deliberately. Parliament did not deliberately leave a loose end in the legislation of the Lands case for the courts to tidy up. Instead the leading lawmaker of that period negligently allowed the loose end to appear in his legislation. But this then raises the question - what should the courts do when they uncover a deficiency in future legislation? Cullen's answer is that they "point those deficiencies out" but not to fix them as it's Parliament's job to remedy the flaws in its legislation.

Cullen then finishes a summary from an article that he wrote about the parliament's relationship with the courts. All-in-all, its a pretty moderate summary that's generally in line with what most people believe our system of government should operate. Cullen rather spoils the effect by quoting himself - he would have been far wiser quoting some learned authority as lawyers respect precedence far more than they respect genius.