Eroding rule of law: The ruling right and the judiciary
Trump's attacks on the judiciary are becoming explicit, but the difference between the USA and Aotearoa is only a matter of degree
In the US, Trump’s frontal attacks on the judiciary are becoming explicit. In the last few days, the US President has threatened to impeach federal judge James Boasberg who sought to impose an urgent order on the regime by requiring two migrant deportation flights to turn around mid-air. The order was itself ignored, and the world watched in real time while the leader of the nation receiving the illegal flights, El Salvadoran President Bukele, joked on X, “Oopsie..too late” with US Secretary of State Marco Rubio. This is just one example of the flagrant disregard for judicial rulings, and of a member of the judiciary being threatened by the highest officeholders in the land.
It would be easy to dismiss this phenomenon as more American excess, particularly for those of us here in Aotearoa NZ who don't have a lot of interaction day-to-day with the justice system. But the same underlying logic and tactics are driving increasing attacks on the judiciary here, particularly by right wing political parties ACT and NZ First.
The intent of this article is to wave a red flag and to issue a warning for all of us who care about living in a country that operates by the rule of law, and not by arbitrary violence. For those of you who say, “let it burn” because our existing system is so utterly imperfect and unjust, I say, “not only can this system get considerably worse, but it is likely to do so without an urgent understanding of what is happening and a plan to stop it.”
Why attack the courts?
There are two reasons that underpin right-wing attacks on the judiciary here and in the “West” more generally. The first is that courts and quasi-judicial agencies are making judgements that they don't like. Secondly, and perhaps more fundamentally, they don’t believe in the rule of law. They believe in power. I return to this point more fully at the end of this piece.
I want to be very clear: attacks on the judiciary are a specific strategy, not unrelated or coincidental events. But, to be equally clear, they are not a “grand conspiracy”. Rather they are a series of at least four interrelated tactics that are being deployed by various actors for complementary, but not necessarily, identical ends.
These tactics embody some contradictory currents, but the overall aims are the same:
To undermine public goods including environmental, economic and social justice
To undermine human rights
To concentrate power in the executive
To reduce the power of the courts
To reduce transparency and accountability
To benefit the wealthy
How is the right attacking the judiciary?: Four tactics
Legislative attacks on judicial power
The ruling right does not like the courts interpreting law in a way that is unfavourable to them. So what do they do? They seek to limit the ability of the courts to interpret law.
Auckland Law lecturer Marcelo Rodriguez Ferrere has written about claims of so-called “judicial activism.” This is where the courts are portrayed as overstepping their boundaries and usurping the sovereignty of parliament. These claims are pushed by organisations such as the NZ Initiative, a pro-free market think tank, that recently published a report entitled Who Makes the Law? Reining in the Supreme Court.
The most obvious and pointed examples of this tactic before us right now are the Treaty Principles Bill and NZ First’s removal of references to Treaty principles in approximately 28 pieces of legislation. ACT Party leader David Seymour has justified the Treaty Principles Bill as necessary because “activist judges and bureaucrats” had “twisted the meaning of our founding document to give different groups of people different rights”. Defending NZ First’s plan to remove Tiriti references in law, Justice Minister Paul Goldsmith said, ““That’s left the courts, and the agencies themselves, and businesses and local councils all to free-range as to what it does mean and doesn’t mean.”
Existing Treaty principles are not some vague concepts with arbitrary meaning. As Māori law scholar Carwyn Jones notes, “The application of "principles" rather than more specifically or exhaustively prescribed rules is not unusual in the law. The courts will often look to identify broad legal principles in order to understand how best to interpret and apply the law to a specific case.” He goes on to note some of the specific principles are good faith, good government, partnership, equity, and redress.
Treaty Principles are legal interpretations; they are an attempt to reconcile the Te Reo Māori Tiriti with the English text of the Treaty, this is in lieu of upholding the stricter Te Tiriti's Tino Rangatiratanga to which the vast majority of Māori signed originally. Nevertheless, even this attenuated interpretation has proved too powerful a handbrake on the ecological vandalism, colonial land theft and foreign asset sales that masquerade as economic policy in Aotearoa NZ.
Other very recent attacks on the judiciary’s ability to interpret law have come through the Marine and Coastal Areas Act (MACA) and Waitangi Tribunal.
The Law Society was scathing in its objection to MACA in part because it applied to court cases that were already underway, that had been years in the making, where cases might have even already been heard and judges were just simply evaluating the case before issuing a judgement. Unbelievably, it applies all future amendments to the law to all decisions from the date on which the proposed changes were announced.
The Government has also promised to ‘refocus’ the Waitangi Tribunal’s scope and purpose - and by ‘refocus’ they mean limit - based on a coalition deal between National and NZ First. The Tribunal has extremely limited powers of enforcement and these have never been exercised. The Tribunal is almost entirely a deliberative body that issues recommendations the government may, or may not, wish to take up. But again, even this very limited power to truth-tell about our colonial past and our colonial present has proven too dangerous.
Undermining courts and tribunals by appointing highly partisan and unqualified people
The right’s agenda seeks to place sympathetic parties onto the judiciary and other quasi-judicial tribunals. In the NZI’s report, they recommend, “reforming the judicial appointments process so that future candidates must commit to a list of what the report deems “orthodox judicial constitutional principles” by which of course they mean principles they agree with. In the meantime, appointments to quasi-judicial bodies are already being made based on ideology and political alignment, not knowledge or experience.
Again the Waitangi Tribunal provides an obvious example of this. In January there was a major shakeup of membership with more than half of the current members, including some esteemed Māori academics, losing their places to make way for some controversial new appointees with no experience in Treaty law.
These include:
Philip Crump, a former conservative blogger who wrote under the pen name Thomas Cranmer. He was hired by NZME in 2023 to run ZB Plus, a right-leaning website offshoot of Newstalk ZB that has since ended.
Grant Hadfield a councillor on the Manawatū District Council, a vocal opponent of the proposed Three Waters legislation and a phrenetic opponent of co-governance in any form.
Ron Mark former NZ First MP with strong anti-Tiriti views
But so too, are recent appointments at the Human Rights Commission: Stephen Rainbow was appointed chief human rights commissioner and Melissa Derby as race relations commissioner. The appointment of Rainbow and Derby in particular raise serious questions about the placement of inappropriate people into roles where NZ has significant international obligations, of the appointment processes followed, and the intent behind them. There are very serious questions about Rainbow’s vocal support of Israel, and both Rainbow and Derby’s history of anti-trans views.
Neither Rainbow nor Derby were put forward as shortlisted candidates by the independent panel tasked with conducting the “transparent process”. Rainbow was specifically noted as “not recommended” by the panel following his interview. For the role of race relations commissioner, there was no recommended candidate from the panel’s report.
The first and second tactics work hand-in-hand: power can be simultaneously limited through legislation while at the same time the institutions can be undermined by appointing unqualified and/or highly partisan people to corrupt the aims of the institution.
Attacking & threatening courts and judges publicly
In August 2024, the New Zealand Bar Association said that Ministers' public statements about judges amount to attacks on the judiciary. Their statement was made a full seven months before US Supreme Court Chief Justice John Roberts cautioned Trump about his threats to impeach Judge Boasberg. What that means is that the worst excesses of US authoritarianism are already here, in operation, though the circumstances and impacts of such actions are not as severe (not yet, in any case).
In its statement, the Bar Association observed that there had been a recent increase in such Ministerial statements, and it expressed concern at the risk of political interference in the courts. In particular, it highlighted the comments of Shane Jones who described one judge as a “communist”, and remarked that some recent judicial decisions were “beginning to show elements of totalitarianism.”
The NZ Law Society also noted criticism of two Supreme court decisions was worrying: one to allow activist Mike Smith to proceed with his climate change claim against Fonterra and other major polluters, and the other, the declaration in 2022 that the law preventing 16- and 17-year-olds from voting was inconsistent with the New Zealand Bill of Rights Act.
As importantly, the Māori Law Association objected to Shane Jones’ attack on the Waitangi Tribunal. It interpreted his stated intention to initiate a review of the agency as a specific threat intended to silence the Tribunal, noting the chilling effect of his actions.
These examples go hand-in-hand with David Seymour and the NZ Initiative’s attempts to characterise the courts as ‘activist’ when they rule in a way that is unfavorable to their interests.
Removing access to legal recourse by denying or restricting access to legal funding
One clear tactic to undermine the power of the judiciary is simply to make it much more difficult for important questions of law to be heard. This can be done by ensuring that those with reasonable claims - particularly those related to Te Tiriti, economic, environmental and social justice - are unable to afford it. This is precisely what has happened since the 2023 election:
The Environmental Legal Assistance Fund is no longer accepting applications and will close. This fund provided up to $50,000 to iwi and non-profit groups to help them prepare, mediate, or present resource management cases to the Environment Court and other courts.
Funding changes for Takutai Moana Act applicants: Te Arawhiti/ The Office for Māori Crown Relations has significantly reduced its funding for Takutai Moana applications. It has put a fiscal cap on yearly spending and specified milestones that are not appropriate for complex, long-term, multi-year court cases. As such the financial burden to iwi will be significant to pursue these claims. Te Ati Awa ki Kāpiti noted “This decision will significantly impact us if the Government’s proposed amendments are passed into law. Given the high costs to date, it is unlikely we would be able to participate in another hearing if it is not funded by Te Arawhiti.” Thus, iwi ability to pursue justice will have been denied. These funding changes prompted a claim to the Waitangi Tribunal; However, given the government's "reforms" of the Tribunal, it isn’t clear how it will rule.
Section 27 Cultural Reports: The funding of expert reports into offenders' backgrounds at sentencing was repealed under urgency. The bar association, along with the Law Society and former judges, have argued that the reports encouraged judges to consider appropriate sentences for offenders. They observed that the reports would still be written for some offenders: those who could afford them - leaving out groups like working class or poor Māori, Pākehā, and Pasifika - those most likely to be in the criminal justice system in the first place.
Rule by threats and violence, not law
Given the amount of time that ACT and NZ First talk about “law and order”, it may come as some surprise that they are actively attempting to undermine the judiciary. It's important to understand that “law and order” policies have nothing to do with justice. Secondly, what these people seek is power, not the rule of law.
So-called ‘law and order’ policies have little to do with justice or even dealing with crime. Instead law and order policies are usually called “penal populism" because they are ideas that seem “common sense” on the face of it (like extremely harsh penalties for crime), but are not backed up by evidence. They usually involve racist dog whistles that claim to be about addressing certain behaviour, but almost entirely target an ethnic group like the gang patch ban. They also don’t address the root causes of crime and often involve massively increasing the number of people in prisons (which leads to more crime, as the evidence actually does show).
Secondly, these people care about power, not the rule of law. The NZ Law Society says, “In its simplest expression, the rule of law is the principle that the law applies equally to everyone – both the government and its citizens. It is the basic idea that governors, officials and citizens alike should comply with the law, and that ministers, officials and public bodies must follow law when executing their functions.”
The right cares about the power to make things that they want to happen, happen; and those they don’t want to happen, not to happen. They are not interested in justice. They are prepared to use their power - or the threat of it - to make the world as they want it. They are prepared to corrupt the rule of law and the court system for the maintenance of power. To achieve that goal, the creation of a dual state may be the vehicle.
In the US, for some decades the development of a dual state has been ongoing, under Trump this is significantly accelerating. This is a descriptive model of authoritarianism written from within Nazi Germany by German Jewish lawyer Ernst Fraenkel in the 1930s. It includes a ‘"normative state" (Normenstaat), which secured the continuation of capitalist society for those Germans not threatened by Nazism, and a "prerogative state" (Maßnahmenstaat), which employed both legal and extralegal violence against people considered to be enemies of Nazism and Nazi Germany.’
The ‘prerogative state’ can best be understood as a government that makes pretence to care for the rule of law, but which only allows the operation of that law in a way that is of benefit to its own survival, and when that is threatened, the state will subvert the rule of law as it sees fit.
Aziz Huq, writing in The Atlantic in March says:
As Fraenkel explained it, a lawless dictatorship does not arise simply by snuffing out the ordinary legal system of rules, procedures, and precedents. To the contrary, that system—which he called the “normative state”—remains in place while dictatorial power spreads across society. What happens, Fraenkel explained, is insidious. Rather than completely eliminating the normative state, the Nazi regime slowly created a parallel zone in which “unlimited arbitrariness and violence unchecked by any legal guarantees” reigned freely. In this domain, which Fraenkel called the “prerogative state,” ordinary law didn’t apply. (A prerogative power is one that allows a person such as a monarch to act without regard to the laws on the books; theorists from John Locke onward have offered various formulations of the idea.) In this prerogative state, judges and other legal actors deferred to the racist hierarchies and ruthless expediencies of the Nazi regime.
The key here is that this prerogative state does not immediately and completely overrun the normative state. Rather, Fraenkel argued, dictatorships create a lawless zone that runs alongside the normative state. The two states cohabit uneasily and unstably. On any given day, people or cases could be jerked out of the normative state and into the prerogative one.
It is important to note that the US dual state is not something new under Trump, it is something that has been being built since at least 9/11 when a vast new architecture of secret courts and extra judicial processes were created to deal with people who were deemed “unlawful combatants” in the war on terror. US State Department lawyer David Bowker said of Guantanamo that it met their aim to “find the legal equivalent of outer space”, somewhere beyond the reach of the US judicial system.
It would be unreasonable to argue that Aotearoa NZ is in the same political place and space as the US, but as with many things, the difference is in matters of degrees (that are significant) rather than fundamentals. It would also be wrong to suggest that undermining the rule of law was something unique or exclusive to the current government. However, as in the US, there has been an acceleration of these tendencies since the recent election - and include the four tactics previously outlined.
Additionally in Aotearoa, the rise of the dual state can be seen in instances such as:
Attempts by Ministers to avoid being subpoenaed to give evidence in critical hearings and Ministers attempting to rule by media statement.
The inclusion of Schedule 2 listed projects in the Fast track legislation granting an exemption from normal law to specific people (and corporations)
Coalition Minister Shane Jones openly boasting that he is “not interested in the rules ministers have to follow when engaging with people from the tobacco industry.” This comment along with revelations of dinners with mining executives who subsequently asked for fast-track listing.
The failure of the Department of Corrections, responsible for the lives of some 10,000+ incarcerated people, to address the documented “cruel, inhuman and degrading” conditions for inmates in Auckland’s Prisoners of Extreme Risk Unit.
Health New Zealand’s “disgraceful” OIA compliance record
The rise of legislative carve-outs allowing official information to remain secret.
An unprecedented use of urgency in Parliament: In its first 400 days, the Government used urgency to progress 133 stages of 51 unique bills. A majority – 57 percent – of those stages were for the 19 bills it pushed through Parliament in a single day, without a select committee process thereby denying any citizen reviews of proposed legislation.
Funding cuts to Open Government Partnership commitments including one that aimed to establish and champion an all-of-government approach to the delivery of government information and services, so that agencies deliver services that are accessible to, and meet the diverse needs of, all New Zealanders; and a National Counter Fraud and Corruption Strategy that seeks to support government efforts to address fraud and corruption by enabling better coordination between government agencies, and strengthening agencies' ability to prevent, detect and investigate fraud and corruption.
Cancellation of previous government plans to increase the transparency of New Zealand companies and limited partnerships by introducing legislation to make beneficial owners’ identifying information available on a public register
The knowing passage of laws like the Crimes (Countering Foreign Interference) Amendment Bill where the criminalisation and long term imprisonment of entirely innocent people is acknowledged to be a likely, but somehow acceptable, outcome.
A red flag warning
Authoritarianism is on the rise around the globe. Aotearoa NZ is not exempt and serious democracy deficiencies in the systems here are multiplying and compounding each other. Attacks on the judiciary are one part of that rising authoritarianism. These are recognisable in the operation of at least four strategies. There are many solutions to counteract and minimise the effectiveness of these strategies. Professional legal organisations - the Law Society, Te Hunga Rōia Māori Law Association and the NZ Bar Association - have recognised and publicly called out the deployment of some of these strategies. Yet it is not clear that they as yet see these as a concerted attack and cohesive set of strategies that ultimately seek to undermine the rule of law. It is a concerted attack. If it is not resisted, it will forever foreclose the possibilities of justice.
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