Supreme Court judges aren’t known for their political activism. Nor are former Solicitors General. So when a man like retired Justice McGrath uses his final sitting to challenge a Bill before Parliament, you can know it’s worth a listen.
So what is my concern? It is that this statutory provision affirming our nation’s commitment to the rule of law will soon disappear from the statute book. It will be repealed if the Judicature Modernisation Bill, which recently received its second reading in the House of Representatives, is enacted in its present form. If that happens, in the new statute providing for senior Courts, we will no longer have this meaningful statutory recognition of both the judicial and the legislative roles. It has been suggested that provisions such as section 3(2) of the Supreme Court Act might be better located in a revamped Constitution Act. Fair enough. But that outcome will take time to achieve, possibly a very long time. In the meantime there is a risk that an important recognition of constitutional principle will disappear from the statute book.
That is, the main reference to the rule of law in our statutes to date is set to be removed if and when the Judicature Modernisation Bill passes its third reading, receives royal assent, and is enacted into law. In fact, as far as I can tell, it is the only reference in our statute to rule of law outside the Lawyers and Conveyancers Act, which obliges the Law Society and lawyers to “assist and promote” and “uphold” the rule of law respectively, but says nothing about its broader place in the separation of powers.
I’m not mad enough to suggest that this is some deliberate ploy to abandon the rule of law, but it is extraordinarily concerning. The Judiciary have already filed a submission raising this concern. Yes. The Judiciary submitted:
A key concern is omission of section 3 of the Supreme Court Act 2003 from the bill. The submission says the judicial function includes interpreting and applying the law made by Parliament and the common law to actual disputes and ensuring that the rule of law is observed.
“These principles of the constitution are recognised in section 3 of the Supreme Court Act 2003 but are omitted in the Bill which will repeal that Act. Since it is inconceivable that constitutional commitment either to the sovereignty of Parliament or the rule of law is intended to be undermined in the Bill, perhaps it has been thought that these statements go without saying,” the submission says.
“Given the findings of the Constitutional Advisory Panel that the elements and values of the New Zealand constitution are not well understood, such assumption may be unwise. More dangerously, there is a risk that deletion of reference to these elements will be seen to be a legislative choice of significance.”
Yet last month, the Bill passed its second reading with this giant hole still there. The rule of law is too important to be left unsaid or taken for granted. It is the fundamental principle that underpins any legal system of rights.
There is one more reading to go. Let’s plug this gap.