Relationships with the executive and Parliament

Contents:

It is essential to the stable and effective operation of the courts that the three branches of government—the legislature, the executive, and the judicial branches—can communicate effectively on matters of judicial administration. There are a number of ways that this happens.

The Chief Justice meets regularly with the Attorney-General to discuss judicial appointments. As the senior law officer of the Crown, the Attorney-General also acts as the bridge between the judiciary and both the executive and the legislature.[1]

For the first time, in November 2023—following the formation of the new government—the Chief Justice prepared a memorandum for the incoming Attorney-General covering matters of common interest relating to promoting access to justice and strengthening the rule of law through efficient and effective courts and a well-functioning judiciary.[2] Abridged versions of this document were also provided to the Minister of Justice and the Minister for Courts.

In recent years, the Attorney-General has facilitated an annual meeting between the Prime Minister and the Chief Justice in their capacity as heads of branches of government. In 2023 the meeting took place in December.

The Chief Justice engages with Ministers of the Crown (the Minister of Justice and the Minister for Courts), parliamentarians and public servants on issues of relevance to the courts and the judiciary. These engagements are governed by long-held conventions that protect the separation of powers—the idea that each branch of government should have separate, independent powers and responsibilities and act as a check and balance on the power of the other branches. The Chief Justice and members of the executive and legislature ensure that the roles and responsibilities of each branch of government are respected and, in particular, that the judiciary maintains its neutrality on political issues and that the judiciary’s independence is respected.

The Chief Justice and the Minister of Justice meet regularly to discuss high-level policy matters to do with improving the courts such as the availability of legal aid, Family Court reforms and Te Ao Mārama. In May, the Chief Justice wrote to the Attorney-General requesting express mention of the role of the courts in the Treasury’s Living Standards Framework [3] to ensure that the unique role of the courts is appropriately conveyed.

Opening of Parliament 2023

Following the formation of the new Government, the Commission Opening and State Opening of Parliament took place in December 2023. The Chief Justice and senior judges attended both ceremonies.

The Chief Justice, President of the Court of Appeal Justice Cooper and Chief High Court Judge Justice Thomas, were appointed by the Governor-General to act on her behalf to declare Parliament open. As Commissioners, the Judges were escorted to and from Parliament by the Sheriff of the High Court. The following day, the Governor-General, on behalf of the King, read the Speech from the Throne, with the Chief Justice and eleven judges attending the ceremony.

Judicial engagement with policy formation

There is a well-established convention that the judiciary should not interfere, or be seen to seek to interfere, with executive policy-making or parliamentary law-making. This reflects the separation of powers between the three branches of government. However, it is consistent with this convention for the judiciary to comment on proposed legislation that may affect the operation of the courts, the independence of the judiciary, the rule of law, or the administration of justice. The range of topics considered is listed at Appendix 2.

The Chief Justice may make a submission to a select committee on a Bill where it is appropriate to do so consistent with the conventions described above. This is rarely done. In 2023, the Chief Justice made an in-person submission with respect to the Natural and Built Environment Bill, relating to the implications of the legislation for the Environment Court.[4] She did so at the invitation of the Chair of the Environment Committee.

Maintaining the regulatory system: Regulatory Systems (Justice) Amendment Bill

Like all government departments, the Ministry of Justice is responsible for ensuring the legislation it administers is up to date and fit for purpose. To fulfil this regulatory stewardship role, the Ministry has begun a cyclical legislative process for making amendments to primary legislation via a package of regulatory systems amendment bills to deliver non-controversial amendments that support continuous improvement, repair, and maintenance of justice regulatory systems.

In June, the judiciary was invited to propose amendments for inclusion in the first justice-related Regulatory Systems Bill, which will include amendments relating to courts and tribunals. The Legislation and Law Reform Committee facilitated judicial proposals, collating and reviewing them for consistency with the scope of regulatory systems bills before submitting them to the Ministry of Justice. Work on the Bill will continue in 2024.

Declarations of inconsistency under The New Zealand Bill of Rights Act 1990

All the branches of government are bound by the New Zealand Bill of Rights Act 1990. The courts must give legislation, to the extent it can be, a meaning consistent with the rights that are affirmed in the New Zealand Bill of Rights Act.[5]

Unlike in other countries, New Zealand courts have no power to invalidate legislation. When legislation cannot be given a meaning that is consistent with the affirmed rights, the courts have the power to declare the legislation inconsistent with the New Zealand Bill of Rights Act. Parliament has standing orders that enable it to respond to such a declaration. A declaration of inconsistency by a senior court does not tell Parliament what to do as a consequence— Parliament has its own processes for that.

Where a declaration of inconsistency is made, the Act requires the Attorney-General to notify Parliament. Once the House has been informed about, considered and, if it thinks fit, responded to a declaration of inconsistency, the executive can then consider its approach to initiating legislative change to remedy the inconsistency.[6]

In 2022 the Supreme Court made a declaration of inconsistency in Make it 16 Incorporated v Attorney-General [2022] NZSC 134. The Court determined that the provisions of the Electoral Act and of the Local Electoral Act which set a minimum voting age of 18 years are inconsistent with the right in s 19 of the New Zealand Bill of Rights Act to be free from discrimination on the basis of age and that these inconsistencies had not been justified in terms of s 5 of the New Zealand Bill of Rights Act.

It is for Parliament to decide whether to change the law and, if so, in what way.

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Footnotes

[1] For an explanation on the three branches of government—Parliament, the executive and the judiciary, see Branches of Government—Courts of New Zealand (courtsofnz.govt.nz).

[2] Memorandum to incoming Attorney-General (2023). This memorandum was published with minor redactions in March 2024.

[3] Treasury uses the Living Standards Framework to understand the drivers of wellbeing when providing policy advice—including the role that institutions play in that.

[4] Chief Justice Helen Winkelmann’s Select Committee submission on the Natural and Built Environment Bill (2023).

[5] New Zealand Bill of Rights Act 1990, s 6.

[6] New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill 2020 (230—1) (Explanatory note) at 2.