provisions of the Constitution and to devise, fund, implement and supervise
measures to provide relief to those in desperate need.
28
For myself I cannot see that such judicial encroachment into key government
activity can be acceptable in New Zealands political culture and it runs contrary
to our traditions. Nor do I believe our judges have the background or capacities to
make that sort of decision. It is best left to politics. In South Africa the
constitutional court administers a constitution born out of circumstances quite
different from New Zealands. For me the South African arrangements translated
to New Zealand do raise the spectre of Professor Smillies juristocracy.
29
It is not my view and never has been that the Judges should be let loose on the
broader aspects of social policy to alter in significant ways fiscal policy, taxation
policy, education, heath, social welfare policy or any of the other broader political
issues that constitute the stuff of politics in New Zealand. My aim has always
been more limited - limited to those issues relating to civil and political rights that
lie at the bedrock of our democratic system, where the common law judges have
traditional expertise in our legal culture. Having dealt with the options that lie at
the two extremes of the continuum, now I put forward a third.
30
An extension of the judges powers can be considered within the defined areas
contained in the Bill of Rights Act. They could be given the power to invalidate
legislation. Section 4 of the Bill of Rights would have to be repealed. The
experience New Zealand has had with the Bill of Rights over the past fifteen years
does not indicate to me that the net impact of such an extension would be
dramatic. Indeed, in broad terms, I suggest it would have less impact on the
Executive Government and Parliament than the growth of judicial review of
administrative action. Since the passage of the Judicature Amendment Act in 1972
this growth has been dramatic. Yet these significant increases in judicial power
do not appear to have been resented by the Executive, the Parliament or the
citizenry. No serious effort has been made to curb the growth of modern
administrative law. Neither has it hampered the capacity of the Executive and
Parliament to carry out their functions. Justice in an individual case is not the
same thing as social justice for the community as a whole.
11