If you cast your eyes across the Tasman right now, you can see the beginnings of an imperial judiciary, the makings of which are being cheered on at every step by many of those in the lawyerly caste and in the law schools. What do I mean by ‘an imperial judiciary’? I refer to a country where the top judges – committees of unelected ex-lawyers if we want to deal in specifics – are giving themselves new-found power at the expense of the elected branches of government. Under the cover of purportedly applying the law they are usurping power to themselves.  This may involve what is known as ‘proportionality analysis’, where the unelected ex-lawyers ask themselves whether they believe what the elected parliament enacted was reasonable and justifiable and proportional to the intended goal. Or it may involve interpretive techniques that sever the attribution of meaning from any consideration of what the legitimate authors of the law – in a democracy that means the elected branches, not these committees of ex-lawyers themselves – intended it to mean and from what the words the legislators chose clearly mean in light of those intentions. Or again it might involve infusing and substituting their own judicial moral sensibilities for those of the elected politicians, often using the notion of ‘the principle of legality’ to do so. Basically, my grievance boils down to alleging various forms of judicial usurpation.

Now if I’m going to throw around that sort of charge of ‘an imperial judiciary’ as regards our neighbours across the Tasman, I need to provide some examples. So I will. Two years ago the top NZ court decided the Make It 16 case. I have written about this at length in the New Zealand Universities Law Review but in basic terms the top court decided – no, it announced – that the right to vote should apply at 16 not at parliament’s preferred 18 years of age. They made a formal declaration that parliament’s voting age infringes people’s rights, indeed a fundamental right. Which right? The right to be free from discrimination on the basis of age. But here’s where it gets good. The statutory bill of rights in NZ has a s.12 that enunciates in explicit terms that every citizen who is of or over the age of 18 has the right to vote. It also has a s.19 anti-discrimination provision which picks up on another statute – made by parliament to be clear – that triggers age discrimination at 16. So the timeless, fundamental right the judges refer to only exists because the legislature happened to enact the age of 16, in a process no less arbitrary than picking 18 as the voting cut-off. The judges also implicitly held that their statutory bill of rights is inconsistent with itself; that age 18 was not a justified, reasonable limit on this rights infringement; that the judges should intrude into this wholly political matter. And have I mentioned that the Kiwis take voting sufficiently seriously that the right to vote is singly entrenched in a special statutory provision that requires a super-majoritarian process to change it? Not to worry. The judges (4 to 1) swept that all away in a display of sophomoric reasoning, virtue-signalling and, yes, self-regard that gives what we saw here in the Love case a good run for its money.

In 2022, the top NZ judges also posthumously quashed the conviction of Peter Ellis. This saga dates back to my years living in Dunedin, NZ and the Ellis conviction (upheld again and again by the judges over there) was one of the most egregious miscarriages of justices I have ever seen. Hence this 2022 quashing was long overdue, if far too late for a by-then-dead Ellis himself. But the courts could have done this using bog-standard public interest common law principles. Instead, the judges chose to infuse tikanga and mana (Maori customary law and a person’s honour) into NZ law. On what basis unelected ex-lawyers could do this is beyond me, leave aside the fact no one has a clue what the reach or meaning of these concepts is.

The activism doesn’t stop there. A fortnight ago the top NZ judges decided the Smith case. 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). Until a few years ago the defendants’ motion to strike out these proceedings would have won and been a no-brainer – as happened at first instance and at the Court of Appeal. But the hero judges of the Supreme Court reinstated all of Smith’s claims after giving leave to hear the case. So it goes back to first instance with the judges now having inserted themselves into deciding what actions on climate change are and are not reasonable. It’s judicial usurpation and puffed-up, sanctimonious judges on steroids. (And note that it is pure sophistry to reply, ‘We’ve only allowed the case to proceed’ when the judges have made clear they have (or rather gave themselves) the power to make new law here, whether they opt to use it this time or not.)

At this point you’ll be asking, ‘Who appointed these top judges?’ Well, three of the six were appointed by the supposedly conservative National party. And their appointees in these three cases were arguably worse than Labour’s. (In the voting case the only dissenter was a Labour pick.) So just as we see here in Australia the right side of politics is structurally incapable of making good judicial picks of people who are interpretively conservative – don’t get me started on the Liberal appointees to our High Court who were in the majority in Love and who overturned the Al-Kateb case. The same goes for Britain and Canada. Only after five decades have the US Republicans figured it out. You need to publish a list of candidates from whom you promise to make all your top judicial picks. That opens them up to scrutiny. It gives you people who can handle being hated. As an aside, it also absolutely prevents you from doing a world first and picking the wife of the retiring top judge she is replacing (as the Libs did, and not getting a remotely interpretively conservative judge either).

Puffed-up, pontifical and presumptuous top judges are a huge problem around the Anglosphere. NZ’s imperial judiciary is particularly bad. But here in Australia we are now living through our top judges regularly indulging in proportionality analysis-type exercises when we have no national bill of rights and where no legitimate lawmaker actually gave them that power or asked what these committees of unelected ex-lawyers happened to think as regards what’s reasonable and justifiable. This is the legal caste that broke at least 70-30 for the Yes side in the Voice debate. It is so out of sync with the average voter it should just do its job and stop with philosopher-king indulgences. Meanwhile, maybe the new NZ government will actually try to rein in their imperial judiciary over there. That would require bravery when all we see from most conservative politicians is evidence of non-spinery status.