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CORDING to James Allan (1997:473), judicial activism is ‘a fact of life in Jew Zealand today’ and would have undesirable long-term consequences l terms of a more uncertain legal system and a weakened democracy. An important example of alleged judicial activism concerns fixed-term employment contracts, which are common in New Zealand’s institutions of tertiary education. It is currendy proposed to introduce them also for primary-school principals. Critics of decisions of eidier die Employment Tribunal (ET) or die Employ­ ment Court (EC) argue diat die courts have failed in their duty to enforce explicit contractual terms, effectively rewriting diese alter die event largely widi a view to protecting property rights of individual workers. They also argue diat die incentive effects of diese decisions make all parties to future contracts potentially worse off. They typically recommend diat die judiciary confine itself to enforcing explicit con­ tractual terms, since this would he consistent widi die major object of die Employ­ ment Contracts Act 1991 (ECA), namely, ‘to promote an efficient labour market’. During a recent visit to New Zealand, Richard Epstein, Professor of Î aw at die University of Chicago, chided die courts for continuing to ‘chip away’ at die basic structure of die ECA in an attempt to return to die days of protectionism, and rec­ ommended diat ‘judges should resist the temptation to play Robin Hood alter die lacf (The Press, 23 May 1996). John Hughes responded by arguing diat judges were ‘administering well-established principles under a legislative regime providing lor personal grievances’ (The Press, 3 June 1996). Noting diat the ECA required a standard grievance procedure for all employment contracts in New Zealand, he argued diat judges were ‘simply applying an existing term of contract’ when hearing an employee’s argument regarding dismissal involving alleged unfairness. Further, judges were seen to be constrained to act within dieir statutory jurisdiction, which derived from the concept of ‘unjustifiable dismissal’. The ECA was seen as carrying over die relevant legal principles embodied in case law prior to its enactment; dius, ‘Parliament was aware of die setded law under diose provisions and chose to en­ dorse if.

Fixed-Term Employment Contracts in Tertiary Education in New Zealand