Kings Counsel Gary Judd has stirred hornets’ nests before with his comments and his substack writing, but his attack upon the Supreme Court’s judicial imperialism and ikanga and kaupapa Māori issues in the judicial system has created inevitable attention and controversy.
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In a piece originally written for ‘Law News’ and repubished on his own blog, he says the New Zealand judges need to ‘step back from the brink’ and ‘stick to their lane’ rather than overstepping their roles and encroaching upon legislative functions.
‘Judicial imperialism’ involves top judges asserting new powers at the expense of elected government branches.
Referencing the Supreme Court decision in Smith v Fonterra and others [2024] NZSC 5, an activist who petitioned the court to restrain major companies from contributing to climate change, he wrote that this case exemplifies judicial overreach, as judges inserted themselves into a political debate.
Smith is a Maori climate change campaigner who brought proceedings against seven of NZ’s biggest companies for an injunction to stop them from contributing materially to climate change. Yes, you would have thought this is purely a political matter. Wrong! Basically, Mr Smith was inviting the judges to become hero judges and inject themselves into this heated debate. And they did (and this in a country that has enacted an emissions trading scheme).
He cites a statement from Justice Glazebrook, suggesting the judiciary’s role in shaping New Zealand’s laws based on shared values, including tikanga and kaupapa Māori, condemning the assertion, saying that judges have no authority to create law and should adhere to parliamentary sovereignty.
The article received criticism and praise in equal measure in social media from Left and Right.
The article emphasizes the judiciary’s duty to interpret laws, not create them, in contrast to Parliament’s legislative function. The author contends that judicial activism undermines the constitutional framework and suppresses individual rights, particularly the freedom to hold differing opinions.
The piece also criticizes the judiciary for elevating tikanga and kaupapa Māori beliefs as guiding principles for common law development, arguing that this imposition infringes upon individual freedoms. The author warns against unchecked judicial power and advocates for judicial restraint to uphold respect for the judiciary and the rule of law.
Judd calls for a re-evaluation of the judiciary’s role and urges judges to exercise humility and restraint in their decision-making, avoiding interference in legislative matters and respecting the diversity of beliefs within society.
Revolutionary Thoughts
He has previously written stridently about the moves towards co-governance and the need to reject the trend.
Writing in the Democracy Action blog about Chris Trotter’s writing in Law News about surrending to coercion to avoid revolutionary results, he found the move a ‘horrifying’ message requiring the need to surrender to the demands of political and bureaucratic establishments to avoid a so-called “full blown revolution”.
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