Last week, Parliament embarked on the process of repealing the so-called “three strikes” provisions in the Sentencing Act 2002. Given that Labour, the Greens and Te Paati Māori all supported this repeal Bill at first reading (and that NZ First no longer is in government to block the move), three strikes’ eventual legislative demise seems all but certain. However, National’s Shadow Attorney General, Chris Penk, issued a press release on Sunday explaining why he (and his party) believe this step is a big mistake.

You can get a flavour of the basis for Mr Penk’s criticism from that release’s opening line: “Labour is showing terrible judgment by repealing Three Strikes legislation at the behest of unelected and unaccountable judges … .” Not only is the repeal Bill bad policy that will make New Zealanders less safe, he claims, but it’s being pursued for the wrong reasons.

Before I get to the crux of Mr Penk’s argument, however, an initial gentle corrective. When outlining the reasons why he thinks the three strikes law is consistent with the New Zealand Bill of Rights Act 1990 (NZBORA), he says this:

[T]he Three Strikes law already contains a safety valve. It is simply untrue to claim the courts are invariably required to sentence a third-strike offender to the maximum extent of the law. Judicial discretion is already provided in the Three Strikes section of the Sentencing Act if it would be ‘manifestly unjust’ to impose the maximum penalty.

With respect, as we lawyerly types say, this claim is so misleading as to be effectively false. It is true that in relation to a third strike murder conviction a court may refuse to sentence someone to the maximum “whole of life” term of imprisonment should it be “manifestly unjust” to do so. But in relation to a third strike conviction for any other qualifying offence, no such express judicial discretion was included under the legislation:

Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more [third strike] offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

The only discretion apparently remaining in such circumstances is where it would be “manifestly unjust” to require the offender to serve all of this compulsory maximum term of imprisonment without allowing for parole. If that is the case, a judge can still leave open the possibility of an earlier release, should the Parole Board allow, according to ordinary parole rules (i.e. after they’ve served at least 1/3rd of the maximum sentence for the relevant offence). But no “manifestly unjust” exception exists in relation to imposing the maximum amount of prison time for a third strike offence (other than murder). 

Indeed, as we shall see, the only way around this apparently stark pre-emptive legislative command was for the Supreme Court to “read in” to it an exception where such a sentence would breach the NZBORA because it constitutes “disproportionately severe treatment”. In such cases, the Supreme Court said the three strikes sentencing regime is to be set aside altogether and the offender dealt with as if it did not exist. As such, the claimed “safety valve” of judicial discretion in relation to maximum sentences for third strike offenders (other than murderers) continues to exist only because the judiciary engaged in the sort of “activist” judging that Mr Penk otherwise decries.

But let’s put this point aside and look at Mr Penk’s underlying concerns regarding such “judicial activism”. Because I think that, some of his rhetoric notwithstanding, they are worth taking seriously. In summary, they are as follows:

1.    MPs from the Labour and Green parties are ceding too much authority to the courts (“kow-towing to judicial activists”) when deciding that the three strikes sentencing regime is bad law that should be repealed; and,

2.    The courts acted inappropriately (as “would-be judicial legislators”) when interpreting and applying various provisions within the three strikes regime so as to make them consistent with the NZBORA’s rights guarantees.

In relation to the first claim, I actually agree that it would be A Bad Thing for our MPs to simply rubber stamp the judiciary’s views on the desirability or otherwise of particular pieces of legislation. A fundamental job of our elected representatives is to form their own views on whether some proposed law is good or bad, especially insofar as it imposes limits on individual rights and freedoms. Contracting out that responsibility to anyone else—be it judges, international bodies, or even (heaven forbid) legal academics—would represent an abdication of role responsibility.

However, when MPs form such views, the evidence provided by and reasoning of other institutions can be very useful. After all, the courts have certain institutional advantages when it comes to seeing the impact that legislation has on real flesh-and-blood individuals in concrete cases. And without wishing to fully buy into a narrative of the courts being The True Guardians Of Our Constitution, it may be the case that they are somewhat more attuned to certain systemic values or principles than are MPs. For such reasons, MPs hearing and considering the judiciary’s view on the impact of and justifications for pieces of legislation can be A Good Thing.

And we know that MPs themselves actually believe this to be the case because Parliament is in the process of passing the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. As crafted by a unanimous Privileges Committee (i.e. with National and Act Party agreement), this Bill will set up a process to allow both the executive and legislative branches to consider any future judicial declarations of inconsistency with the NZBORA. In short, should a court formally state that some parliamentary enactment unjustifiably limits rights guaranteed by the NZBORA, there will be a procedure to allow both government ministers and MPs to review what the court has said and why; then consider what, if anything, to do in response.

Does that mean that elected lawmakers should (or will) then fall into lockstep with the courts and change the legislation to fit the judicial view of what is required? No, it doesn’t in theory, and there’s good evidence to suggest that they won’t in practice. As recently as March of this year, Parliament enacted the Child Protection (Child Sex Offender Government Agency Registration) Amendment Bill in a single day, precisely to override the Supreme Court’s interpretation of a parliamentary enactment that sought to retrospectively require those convicted of certain sexual offences against children to register as child sex offenders. Because the Court believed that this law went against the important principle that criminal penalties should not be imposed retrospectively, it chose to interpret the requirement as excluding a certain group of offenders. MPs then chose to amend the relevant legislation to, in the words of Poto Williams when introducing the measure, “clarify” that Parliament did indeed intend this group to be included. (Another way of understanding this is that Parliament told the Supreme Court “thanks for giving your view of what the law should be—but we actually really do want to do this … so, we are.”) 

Quibbles about the extremely expedited process used to achieve this end aside, there’s nothing constitutionally wrong with our sovereign Parliament taking this step. However, on other occasions, MPs (or, at least, a majority of MPs) may find the judiciary’s concerns about some legislation’s effect on individual rights and freedoms to be quite compelling. And citing those judicial concerns when explaining why you are supporting the repeal of a law that the courts have criticised is entirely apt. Indeed, it would seem very strange not to do so when saying why you are supporting a law change!

Of course, other MPs are then free to disagree with both the reasoning used by the courts and the fact that their opponents have chosen to accept it. Mr Penk’s press release provides a fine example, wherein he sets out his (and his party’s) reasons for believing (contra the courts) that the three strikes law represents a quite legitimate and defensible limit on rights. At some point in the future, they may have the parliamentary majority necessary to put that view back into the law. I personally think that would be a mistake and would oppose them doing so, but that’s the nature of politics. And, ultimately, the question of what our law should be will be resolved by political debate and institutions. 

What, then, of Mr Penk’s second critique; that the courts inappropriately acted as “would-be judicial legislators” when interpreting and applying the three strikes law? Or, as his colleague Simon Bridges put it during the Bill’s first reading debate; “there is a growing trend from our judiciary in New Zealand seeking to push back against Parliament and assert interpretations that aren’t conventional on parliamentary statutes and powers for themselves that they have never had.” 

I’ve previously had occasion to write about the decisions Messers Penk and Bridges likely have in mind. A High Court judge described the effect of mandatory maximum sentences at third strike has being “very harsh” and “very surprising”. The courts consistently have decided, despite what the parliamentary author of the three strikes believed, that sending second or third strike murderers to jail for the rest of their natural lives will virtually always be “manifestly unjust”. That’s because, the Court of Appeal said, it automatically is “manifestly unjust” to impose such a sentence when it is “grossly disproportionate” to the offender’s actions and circumstances. And just last month, in a decision with pretty major constitutional implications, the Supreme Court interpreted the provision requiring maximum terms of imprisonment for all non-murder third strike offences to effectively read:

Despite any other enactment (but not including the New Zealand Bill of Rights Act 1990), if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence but must not do so if this would result in disproportionately severe punishment under s 9 of the New Zealand Bill of Rights Act. 

There seems no doubt that these various decisions from the courts have reworked the three strikes regime in ways that the individual MPs who passed that law did not expect (and very well may have disapproved of). But that doesn’t necessarily then mean that the courts went beyond their “proper” constitutional role, because there’s a real debate about exactly what that role is. I’ve recently tried to explain the contours of this debate in a book chapter, so forgive me for quoting from it at length: 

… parliamentary enactments are not self-administering. That is to say, before they can have effect in the world, someone has to say what they mean and thus what they require, permit, or forbid in particular situations. While such interpretation and application is not carried out in the courts alone, the nation’s judges do play an especially important role in that practice. Under our constitutional arrangements, the courts (and, therefore, the judges who sit in the courts) are charged with issuing determinative and binding interpretations of a statute. In short, a parliamentary enactment ultimately will mean what a court says it is to mean, and it will be applied as a court says it is to apply. How the courts should carry out this interpretative role and the factors that should influence it when doing so are complicated questions. While judges carry out their work in a constitutional context that presumes parliamentary sovereignty, and so incorporates the idea that legislation ought to be applied “as Parliament intended”, that context also encompasses other fundamental constitutional principles and values. Paramount amongst these is a systemic commitment to the rule of law, a somewhat contested concept that is prone to being filled by the preferences of the person using it. To this longstanding principle may be added matters that have gained increasing importance in recent years: individual rights and liberties; the Treaty of Waitangi/Te Tiriti o Waitangi; obligations under international law; and so on. 

The consequence of courts operating in this constitutional context is that:

… the practice of judicial interpretation is not a simple matter of seeking to do exactly what … MPs would expect in all circumstances. Judges are not personal shoppers tasked with delivering the exact goods that their parliamentary employers order. Rather, judicial interpretation involves giving effect to a presumed parliamentary intent in the wider context of a constitution based on deeply entrenched principles and values.

The three strikes law sat in an area richly imbued with such principles and values. It limited individual rights that are considered so fundamental that Parliament has chosen to formally recognise them in the NZBORA. It sought to remove from the courts a core part of their traditional role; matching sentences to the individual actions and circumstances of the offender before them. It appeared to achieve its purported goals at the expense of ensnaring some individuals that no-one, including those who enacted the law, really thought should be caught by it. 

As such, it should provoke little surprise that when confronted with the three strikes law, the courts pushed their traditional role as interpreters and appliers of Parliament’s law to the limits. It may even be that they have gone beyond what those limits historically have been. In a country with an unwritten, customary constitution, change often happens by historical limits being tested and transgressed and seeing what the effect is. Which, ultimately, is what Mr Penk’s press release is all about: our judiciary took it on themselves to act in a particularly novel way, now what response will there be from the other branches of government? Acceptance and agreement as the law is changed, or rejection and disapproval of the possible shift in our collective method of governing ourselves?