Judicial Creativity

Judicial Creativity
Monday August 1, 2011

The extent to which judges should, could and do make the law, rather than Parliament, is a debate that has existed since the formation of modern law. On recently reading the decision of Justice Thomas in the Brooker v Police case, I was struck by his Honour’s creativity and brilliant interpretation of the New Zealand Bill of Rights Act. Brooker v Police was a case where a man sat outside a police officer’s home and sang songs of protest against certain actions of the officer. He was charged with disorderly behaviour and convicted. The man appealed and the matter tracked all the way through the appellate courts to the Supreme Court. The majority of the Supreme Court decided to allow the appeal and quash the conviction. Justice Thomas was in the minority. However, his judgment was convincingly written, and read a fundamental right of privacy into the Bill of Rights. While the other members of the Court looked to the parameters of reasonable limits on the Freedom of Expression under section 5 of the Bill of Rights, Thomas J found that it was not a competition or balancing act between the right of freedom of expression and justifiable limitations but rather between the right to freedom of expression and the right to privacy. It was, in my view, a brilliant interpretation of the statute in a completely different light to the rest of the Court. It certainly got me thinking about the many different methods of interpretation - law is sometimes about thinking completely out of the box in order to argue for the outcome your client wants. And as far as the extent to which judges do this? I recently heard an anecdote relating to Lord Cooke’s law making prowess. He would make a one line throw away comment in one judgment and no one would think anything of it. In a second judgment, he would refer back to that one line and say “as this Court found in the case of x...” and by the third case, it was law. Apparently someone has sat down, analysed all the large volumes of judgments he has written and penned article on it - if anyone comes across it, let me know as I would love to get my hands on a copy.

 

By Chris Patterson