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Speaker 1: We've got a warding this morning from the New Zealand Initiative.

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Speaker 1: A constitutional crisis is looming now. The issue is the

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Speaker 1: interventionism of the Supreme Court. Decisions have come into question

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Speaker 1: with legal scholars, practitioners and politicians raising concerns. So what

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Speaker 1: are we going to do? New Zealand Initiative chair and

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Speaker 1: senior fellow Roger Partridge is well, it's Roger, very good

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Speaker 1: morning to you.

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Speaker 2: Good morning.

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Speaker 1: I'm glad somebody's finally got on to this because this

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Speaker 1: has been concerning me for absolutely ages. Is it the

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Speaker 1: individual group of judges currently at the Supreme Court level

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Speaker 1: that we just happen to have got some sticky beaks

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Speaker 1: or is it the court itself or is it a movement?

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Speaker 2: Well, it's a little bit three. It's more. It's more

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Speaker 2: the current judges. We've always had activist judges within our

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Speaker 2: senior courts. That the movement has gained momentum over the

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Speaker 2: last few years and so we're seeing a court that's

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Speaker 2: much more active, activist and to the point where we're

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Speaker 2: out at the big point.

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Speaker 1: Right, does the government being the top court ultimately at

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Speaker 1: the end of the day, not counter whatever they may

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Speaker 1: or may not do well.

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Speaker 2: The report is a call for them to do that.

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Speaker 2: Parliament's most blunt response where it sees the court's taking

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Speaker 2: the law off in a direction that's not consistent with

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Speaker 2: what Parliament intended, or is in a direction Parliament doesn't

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Speaker 2: agree with. It's mostly instruments to pass legislation, getting the

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Speaker 2: law back on track, and it's unquestionably within Parliament's mandate

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Speaker 2: to do that, and it should do.

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Speaker 1: Do you think Parliament's afraid? I refer to yesterday's interview

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Speaker 1: with Christopher Luxen and the Solicitor General, and he ran

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Speaker 1: and it's not the first time he's done it. He's

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Speaker 1: run for the hills. He argues, they're independent, I can't

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Speaker 1: touch them. Are they afraid in that sense?

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Speaker 2: Well, I think there's a bit of feeling out about

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Speaker 2: the boundaries, elements, prerogative to intervene when the court goes

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Speaker 2: off in what steers out of this vein. I suppose

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Speaker 2: it's a good metaphor and the report is a pull

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Speaker 2: to Parliament. It's your job to set the law straight.

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Speaker 2: Is our constitution, democratically elected Parliament is the supreme Court. Really,

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Speaker 2: it's above the court in our legal hierarchy and it's

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Speaker 2: absolutely Parliament's prerogative to determine the direction of the law,

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Speaker 2: and Parliament should intervene when it sees the courts very

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Speaker 2: away from what's Parliament's inter headed do.

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Speaker 1: How much of what they're doing interventionally speaking is race

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Speaker 1: based versus legally generally, I.

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Speaker 2: Think it's legally generally. It's a misguided view that well

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Speaker 2: at first gets the excessive license they've granted themselves to

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Speaker 2: reinterpret partance words. That's the first concern, And up until

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Speaker 2: the mid two thousands, our Supreme Court was exercising more

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Speaker 2: constraint than other sub courts to the world. That's been

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Speaker 2: thrown aside over the last few years. So that's the

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Speaker 2: first thing. And the second thing is they've decided that

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Speaker 2: the proper approach to the common law the body of

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Speaker 2: principles made up by decided cases over centuries. They've decided

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Speaker 2: it's their prerogative to take the common law on a

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Speaker 2: journey to match the current judges viewser society's changing values.

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Speaker 2: Now that politicizes the judiciary, it means they're substituting their

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Speaker 2: own values the riskers they're perceived as substituting their own

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Speaker 2: values for those of the common law, and it's obvious

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Speaker 2: that they're not equipped to do that and they're not

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Speaker 2: democratically accountable for those decisions in the way that Parliament is.

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Speaker 2: And so it's Parliament's job to step in and to

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Speaker 2: ensure that the court's exercise restrained. And we've set out

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Speaker 2: a menu of five things that the Parliament can do,

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Speaker 2: including passing specific legislation overturning adant court decisions, but also

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Speaker 2: setting in place some guardrails against judicial overreach, and then

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Speaker 2: some institutional reforms to the way judges are appointed.

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Speaker 1: Also, we had Gary Judd earlier on this morning in

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Speaker 1: case he was going to a Select committee today and

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Speaker 1: he's worried about Tea Kanger being put into law studies.

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Speaker 1: If those sort of things come through, If you get

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Speaker 1: a thing like Tea Hunger and law studies and then

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Speaker 1: people graduate having studied Tea Kunger, and it's open to

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Speaker 1: a tremendous amount of interpretation. That open to interpretation approach

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Speaker 1: goes into more courts than up through to I mean,

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Speaker 1: you're asking for endless amounts of trouble, aren't you.

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Speaker 2: Well, there's always been a place for tit hunger in

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Speaker 2: our law, and so I don't think the problem is

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Speaker 2: so much tea hunger. It's the Supreme Court's approach to it.

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Speaker 2: In the common law custom and tea hunger is a

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Speaker 2: form of custom, has always been a source of law.

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Speaker 2: So I don't think the issue is so much tea hunger.

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Speaker 2: It's the issue is the court's approach.

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Speaker 1: The rational And my question is that if your open

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Speaker 1: seas I mean, if you deal with guilty not guilty,

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Speaker 1: it seems to be relatively black and white. But once

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Speaker 1: you start interpreting the law, the more interpretational mechanisms of

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Speaker 1: interpretation you allow yourself, the looser you can become if

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Speaker 1: you're an interventionist. Isn't that fair?

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Speaker 2: That's right? And a critical requirement of laws is that

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Speaker 2: they're consistent and predictable. That's the fundamental requirement of the

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Speaker 2: rule of law. That and impartial courts. So yes, the

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Speaker 2: common law has developed quite good tests sort of determining when

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Speaker 2: customs have the status and certainty necessary to be recognized

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Speaker 2: as law. In the Elst case, the court throughout the

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Speaker 2: common law test and has left us for this quagmile.

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Speaker 1: We've now got you seem to have well, not you,

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Speaker 1: we seem to have a couple of problems. One, do

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Speaker 1: we accept that what the Supreme Court doing is unacceptable

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Speaker 1: or acceptable? If we accept it as being unacceptable, then

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Speaker 1: who does something about it?

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Speaker 2: I e.

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Speaker 1: The Parliament? And then your second problem, do they have

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Speaker 1: the wherewithal the gonads or the spine to actually look

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Speaker 1: at your suggestions and do something about them?

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Speaker 2: Well? I think unquestionably they do, and I would expect

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Speaker 2: some of the recommendations and hopefully all of them to

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Speaker 2: be implemented.

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Speaker 1: Jeez, I hope you're right, Roger, appreciate you. Sign Roger Partridge,

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Speaker 1: New Zealand Initiative chair and senior Vella. So it's a

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Speaker 1: very important report that gets released today and the Latensmith podcast,

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Speaker 1: by the way, I can allert you to this now

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Speaker 1: he looks at length and talks with Roger at length

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Speaker 1: because the report is by Partridge, the chairman of the

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Speaker 1: New Zealand Initiative of course, over the overreach, the activism

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Speaker 1: and so on, and so Layton looks into this in

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Speaker 1: this latest podcast. So I would recommend if you want

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Speaker 1: an extended and more detailed view of it than we've

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Speaker 1: been able to provide this morning, then that's the place

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Speaker 1: you should.

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