Judicial activism: a public policy perspective

Abstract

Judicial law-making has a considerable impact upon public policy, yet in New Zealand this influence has not been widely examined outside the legal sphere. This thesis builds on Harlow and Rawlings' 'red and green light' theories of administrative law to elucidate the nature and scope of what is commonly known as 'judicial activism' and its implications for public policy in New Zealand. The investigation of judicial activism brings together themes of law, administration and politics to gain an understanding of the interdisciplinary and multifaceted issues that are pertinent to judicial law-making. Key concepts highlighted and investigated include the separation of powers, the rule of law, parliamentary sovereignty, judicial independence and the political role of the judiciary. Judicial activism in other jurisdictions is briefly reviewed to demonstrate that history and context influence judicial law-making. This thesis examines a relatively small number of cases, predominantly concerning judicial review, industrial relations and the New Zealand Bill of Rights Act 1990 to investigate the style of judicial decision-making and illuminate the utility of 'red and green light' theories of administrative law. This thesis suggests there is no fixed approach to judicial law-making. Judges are not a homogeneous group; and within the guidance of precedent, they decide cases according to the facts of the particular case. Nonetheless, 'red light' and 'green light' theories of administrative law provide constructive insights into the New Zealand situation. Notwithstanding the middle ground where the majority of judicial decisions are situated, the judge may either apply a 'green light' approach facilitating executive action (for example, Choudry v Attorney-General No.2 [1999]), Or take a 'red light' stance (for example, Fitzgerald v Muldoon [1976]) upholding the rights of citizens against the state. Even though, on occasion, they may provide a credible alternative for the government to pursue (for example, MOT v Noort; Police v Curran [1992]).