Parliament v The Judiciary: The curious case of Judicial Activism

Abstract

In 2004 amidst much controversy the Supreme Court was established by way of the Supreme Court Act 2004. The controversy that surrounded this event related in part to Ministerial concern that “Judicial Activism” would abound. This paper sets out to re-examine the concept of judicial activism in relation to New Zealand’s constitutional arrangement and considers whether in the 11 years since the Supreme Court’s establishment the decisions that have eventuated can be said to be evidence of an activist judicial bench. The conclusion reached is that New Zealand does not have an activist judiciary, especially not in the sense imagined by some parliamentary representatives. The Supreme Court decisions to date evidence a conservative and deferential judiciary. If judicial activism were to exist it is difficult to conceive of such activism having any meaningful effect without a NZBORA which allows for the judiciary to strike down inconsistent legislation. This author believes that New Zealand should not fear increasing judicial power in that way as any increase is unlikely to awaken judicial activism.