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Forsyth, Hamish; Todd, Alison --- "The rule of law, human rights and the common law: addressing new challenges" [2003] CanterLawRw 15; (2003) 9 Canterbury Law Review 322


THE RULE OF LAW, HUMAN RIGHTS AND THE COMMON LAW: ADDRESSING NEW CHALLENGES

Hamish Forsyth and Alison Todd[*]

I. Introduction

The Commonwealth Law Conference is a triennial gathering of legal professionals and the judiciary from throughout the Commonwealth. The Thirteenth Commonwealth Law Conference was held in Melbourne, Australia between the 13th and 17th of April this year. It featured eminent international jurists, practitioners and judges who addressed an array of topics ranging from corporate governance post-Enron, to terrorism and human rights. We have identified for comment three main themes: the rule of law, human rights and the common law. In discussing each theme, this paper draws together some of the main ideas and practical examples floated during the Conference, pairs them with our comments and places them in a modern, and where appropriate, New Zealand context. We hope this approach will provoke readers' interests in areas often explored only in a theoretical capacity.

II. The Rule of Law

Having recently finished university, we understood the rule of law to have been largely an ethereal concept, something discussed mainly in jurisprudence. Where it was a practical issue, such as where the rule of law had broken down, we had associated these breakdowns with countries like Zimbabwe. Zimbabwe was indeed the subject of frequent reference at the Conference,[1] but it became readily apparent that there were real threats to the rule of law much closer to home, ranging from terrorism to refugee crises.

The United States

Predictably, the 'war on terror' received considerable attention.[2] In the United States the President, in exercise of his war powers under Art II of the Constitution, and in reliance on the broadly framed Use of Military Force Joint Resolution (Public Law 107-40) can classify both citizens and non-citizens, normally suspect terrorists, as 'unlawful combatants'. This classification carries two implications. First, as 'combatants', they are outside the protection of the criminal justice system, and so for example, can be held indefinitely without trial or habeas relief.[3] Argument continues over whether unlawful combatants can have access to counsel.[4] Any trials that do eventuate are likely to be trials by the executive government through the instrument of a military commission (authorised by the same joint resolution) and these may well operate on a closed-door basis. Unlawful combatants have almost no access to the courts to challenge their detention or treatment. Secondly, as 'unlawful 'combatants (the Administration argues that Al-Quaeda's alleged defiance of the laws of war makes its combatants unlawful) they are denied the rights of prisoners of war under the Geneva Convention. Of particular relevance to the detainees is the right to a full hearing pursuant to Article 5 of the Third Geneva Convention under which they would have the opportunity of demonstrating they are not actually combatants.[5] Detainees do in fact have a narrow right to a review of their initial classification as "unlawful combatants". However, that review has become meaningless. In Hamdi et al v Rumsfeld,[6] the United States Court of Appeals for the 4th Circuit ruled that a Government affidavit deposing that a detainee was in the zone of combat was all that was necessary to classify him as a combatant, and an unlawful one. The detainee had no ability to challenge in a federal court the factual determinations purportedly justifying his seizure and continued detention.[7]

Assessment against the Rule of Law

In his speech, Mr Ron Heinrich, the President of the Law Council of Australia, identified three aspects of Dicey's conception of the rule of law. First, that the courts and not the executive determine the legal rights of individual citizens. Secondly, that the courts protect against the arbitrary exercise of coercive power by the executive. And thirdly, that all persons are equal before the law.[8] The United States anti-terror laws would appear to fall foul of all three. Executive commissions will conduct trials of unlawful combatants, and these are not through the military court system, which operates under the Uniform Code of Military Justice.[9] Further, the courts defer to executive determinations of the status of detainees. Finally, once classified as unlawful combatants, non-citizens and citizens alike are denied the basic criminal process rights available to those without the classification who are charged with similar acts.

Reading this, and other decisions such as North Jersey Media Group v Ashcroft[10] in which the US Court of Appeals for the 3rd Circuit allowed closed hearings for 'special interest cases' in immigration tribunals, and Al Odah v United States,[11] in which the Court of Appeals for the DC circuit ruled that it lacked jurisdiction over prisoners held at the United States military base in Guantanamo Bay, one could be forgiven for thinking that the war on terror has resulted in a high degree of judicial deference to executive power. This raises a further point about the rule of law. As many speakers at the Conference urged, just as the executive must respect the rule of law, it is equally important that the courts are prepared to assert themselves in its defence.

A More Flexible Rule of Law?

Perhaps though, a certain degree of deference in times of crisis is appropriate. We have suggested that in giving a narrow reading to (for example) criminal process protections, so as to allow the executive almost unfettered discretion in deciding whom to remove from the criminal justice system, courts have abdicated their role in protecting the rule of law. Clearly, allowing the executive to break the law, either by granting it additional powers or ignoring limitations on its existing powers would contravene the rule of law. But is it possible to conceive of the rule of law as being a more flexible concept, such that in times of emergency, it can allow rules protecting constitutional and human rights to be 'bent', in deference to the necessity of protective action by the executive?

In searching for a principled flexibility, we must look to the purpose of the rule of law. In his speech, HE Christopher Patten suggested that the purpose was to 'protect the common good and common man against vested interest'.[12] This seems plausible. If Christopher Patten is correct, should the greater threat to the common good and common man come from a present emergency, be it one generated by refugees, terrorists or civil disorder, it might better advance the protective purpose of the rule to temporarily bend the laws, giving broader powers to the 'vested interests' of the executive. In other words, the rule of law is utilitarian, not deontological (based on underlying rights). To continue with our example, the courts might give the executive a wide 'margin of appreciation' in interpreting how criminal process protections limit its actions, an idea not dissimilar to that accepted in European human rights jurisprudence. There are two problems with this argument. First, in order to best protect the common man and the common good, there must, even on a utilitarian analysis, be some minimum restrictions on state action that are strictly enforced. If not true of most individual cases, this will certainly be true over the long-run (a rule-ultitarian approach). Many of the key constitutional protections were formulated precisely to provide these minima. This is certainly true, for example, of laws requiring a curial, not executive trial, with the protections of criminal due process. Thus, a flexible approach to the rule of law so as to allow a margin with respect to these rights would not serve the rule's purpose. Secondly, we re-emphasise that the clear purpose of such laws is to act as strict minima. Allowing any margin would therefore be directly contrary to their purpose. Nor can a margin be defended on the grounds that the law's framers could not have foreseen the current emergency context. These minima were not designed for 'fair weather sailing'- they represent balances struck between individual and community rights, precisely for controversial situations in which the relationship between citizen and state was under stress, a fortiori emergency situations. At least in terms of the United States position, the remarks of Chief Justice Hughes in Home Building & Loan Association v Blaisdell[13] are apposite:

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power .. were determined in the light of emergency, and they are not altered by emergency.[14]

Many of our own statutory and common law protections were also formulated during great turmoil and instability - Magna Carta prevented a revolution, whilst the Bill of Rights 1688 settled one. So, a margin that allowed the executive to go beyond these intended minima on grounds of emergency would ignore both the laws' explicit purpose and the context in which they were generated, which would be to break, not bend the laws. Such an approach must contravene the rule of law. Rights such as the right to be tried before a court cannot be compromised. But could the rule of law be flexible in the case of 'lesser' protections? By lesser protections, we refer to important rights, such as being free from unreasonable search and seizure, but rights that do not perhaps represent the minimum protections required to ensure the common good (see for example the Shaheed approach in which some breaches of these lesser rights can be outweighed by other factors: R v Shaheed[15] ). Because such lesser protections may not have been intended to be strict minima, bending them would not be breaking the law.

In our view, a flexible approach in respect of lesser protections is both desirable and necessary. In reality, a flexible approach to the rule of law is regularly employed under the guise of judicial recognition of the high policy content inherent in some laws. Characterising it in this way simply avoids admitting the flexibility of the rule of law. The danger is that the line between minimum and lesser protections is thin. During times of crisis, the absence of a strict divide may encourage the executive to exert its power as far as it can, aided by populist justifications of community security, and the temptation for the judiciary to allow the executive to stray across the line will be great. This is where we must return to the view expressed above: the rule of law is only as good as the judges who enforce it. Finally, we leave open the question of whether, in an extreme situation, a court should allow the executive to effectively break the law, abridging the rule of law, so as to preserve the executive's recognition of the court's authority and prevent the complete breakdown of the rule of law.

Australia

There are also real concerns about the rule of law much closer to home. Heinrich noted 'a real erosion of executive and legislative confidence in the rule of law in Australia'.[16] As an example of this, he cited the Australian Government's use of subordinate legislation to classify certain parts of Australian sovereign territory, for example Christmas Island, as 'excised' territory',[17] and thus outside the migration zone (to which all other parts of Australia belong). Being outside the migration zone precludes refugees from applying for a refugee visa. Potential refugees may be transported to certain areas outside the migration zone, such as Nauru or Papua New Guinea, where they can apply for refugee status. However, being outside the migration zone also means that refugees are denied any right to any review by the Refugee Review Tribunal.[18] So if applicants are refused refugee status, they have no legal protections.

As a second example of this erosion, Heinrich pointed to the Federal Government's enactment of an privative (ouster) clause[19] attempting to prevent Australian courts from judicially reviewing refugee status decisions made by executive tribunals under the Migration Act 1958 (Cth), by characterising those decisions as 'final and conclusive' and not subject to challenge before any court. However, the High Court was able to rely on the exercise of its original jurisdiction, conferred by s75(v) of the Australian Constitution, which guarantees the role of the High Court of Australia in hearing mandamus, prohibition or injunction applications against Commonwealth officers, to read down the application of this clause in Plaintiff S1 57/2002 v Commonwealth of Australia,[20] with the result that judicial review, although limited, is still available.[21] It would have been very unfortunate had this not been the result; as the Chief Justice of Australia, Hon Justice Gleeson said in his Conference address, 'judicial review is the rule of law in action',[22] holding the executive accountable for the great power it wields. Both of these examples, like those from the United States, illustrate the abrogation of the rule of law: executive determinations of individual rights, and the denial of access to the courts for protection from executive power. Dicey would turn in his grave.

Community Rights as a Justification?

Of course, there is another view. In defence of tough tactics by executive governments to address terrorism and the refugee crisis, the Attorney-General of Australia, Hon Daryl Williams QC, reminded us that individual liberty must be balanced against the rights of the community to live in safety;[23] an argument that has been repeated around the world, especially in the United States. In essence, rights are not simply the province of individuals; an idea embraced by the New Zealand Court of Appeal (see for example R v Gray son and Taylor [24] ). However, there is nothing inconsistent about accepting this point and demanding a rigid application of the rule of law. Rights do need to be balanced and it may be appropriate for the balance to favour the community in times of crisis. However, the rule of law requires that that balance be within the law and that it be struck by the courts, not by the executive at its whim. The issue is not the balancing of rights, but who does the balancing. So the Attorney-General's justification cannot, properly understood, defend breaches of the rule of law. So the rule of law is not merely an academic notion. Nor is it a guarantee only challenged in distant or 'uncivilised' nations. To return to Christopher Patten's words, 'the rule of law protects the common good and common man against vested interest'. And as vested interest is present everywhere, challenges to the rule of law will be ongoing and omnipresent, making them the concern and responsibility of all lawyers.

III. Human Rights

As one speaker noted, 20 years ago human rights would have barely featured on the agenda of an international legal conference. At that time, they were seen as ineffectual ideals rather than substantive norms. The prevalence of human rights issues at the Conference emphasised how much this has changed.

Social Rights

One of the most dramatic demonstrations of the practical impact of human rights came in an address by Justice Albie Sachs, a judge of the South African Constitutional Court. In a moving speech he described how in Government of the Republic of South Africa and others v Grootboom & Ors[25] the Court was able to enforce a constitutional right to housing by ordering the Government to provide shelter for the homeless. Although social and economic rights are far from new, their practical enforcement had been unheralded. Justice Sachs showed how this could be effectuated whilst maintaining the distinct roles of the judicial and executive branches of government. In the decision, the Court did not require the government to expend money it had not allocated to housing, but instead used the familiar concept of reasonableness to determine that while the Government's efforts to build high quality housing for the homeless were admirable, it was unreasonable to continue to direct all resources to this area while some people lacked the most basic accommodation. As Yacoob J put it:

Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right.. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.[26]

As a matter of reality, we are unlikely to see the enforcement of social rights in New Zealand any time soon. New Zealand has ratified the International Covenant on Economic and Social Rights, but has not incorporated it into legislation. Domestically enforceable guarantees such as those in the South African Constitution seem a long way off.

Nor can we expect the courts to lead the way by taking an expansive reading of existing civil and political rights that also contain a social or economic dimension. Social rights are almost invariably positive rights (or 'positive freedoms' to borrow from Isaiah Berlin's famous categorisation)[27] as they require the government to provide something - a positive act. New Zealand courts have shown considerable reluctance to enforce positive rights. Take for example the rights in the International Covenant on Civil and Political Rights (ICCPR) that were incorporated in the New Zealand Bill of Rights Act 1990. With the exception of the criminal process rights (which have historically required some positive state action), the courts have not read those rights so as to place a positive obligation on the state (see Mendelssohn v AG[28] where the court emphasised that the right to freedom of religion did not place positive obligations on the state to protect this freedom; see also Lawson v Housing NZ[29] where the court held that the right to life did not encompass a right to affordable housing). This is despite the fact that article 2 of the ICCPR (to which the Bill of Rights makes specific reference in its long title) requires state parties to 'ensure' the rights to all individuals. That said, Simpson v Attorney-General (Baigent's Case)[30] shows that New Zealand courts are open to requiring the state to take positive steps to recognise rights, in this case by requiring the state to provide compensation as an 'effective remedy' where rights have been breached. Nonetheless, this is only the court ordering the state to take the positive step of paying a relatively small sum for its breach of a negative right, rather than the actual recognition of a positive right.

A major reason for the courts' reluctance to recognise positive rights is that their enforcement would require very substantial positive steps, the taking of which could require the courts to order the government to expend massive resources; for example, enforcing the right to life by providing housing. But is this so different from enforcing the well-recognised positive civil right to fair criminal procedure? This right also requires the state to expend resources, albeit indirectly; for example, if the state does not provide X with adequate facilities to prepare his defence then the court may acquit X or possibly award damages against the state. There is an apparent difference in the degree of expenditure required, but that is mainly because the state has already undertaken much of the expenditure necessary to ensure adequate criminal procedure rights — we do in fact spend millions ensuring these rights. This expenditure is so well accepted we seldom notice it. This acceptance also means that we do not see what is effectively a court-enforced requirement of expenditure as meddling in policy. By contrast, ordering expenditure on housing would clearly be seen as meddling. Finally, one cannot say that social rights are less important than civil rights given that life can be at stake. Further, sustenance, shelter and life are essential prerequisites to participation in a liberal democratic community. So we are sceptical about a principled divide between recognition of civil/ political and social/economic rights. Ultimately this difference can only be accounted for by how ambitious each society is for its standard of living and by how willing it is to allow its courts to intervene in social matters. Both of these things depend on what a society is used to, which explains why South Africa, with a post-apartheid fresh social and legal canvas, has been able to enforce social rights, while New Zealand, which continues to follow a historically liberal tradition, has not.

General Language and the Use of Comparative Jurisprudence

It is trite that the general language in which human and constitutional rights are expressed gives little substantive content to the rights. This requires judges to look for more guidance in interpretation, leading many courts to rely more than ever on international precedent. For those who see the role of the judge as advancing human rights, the increasingly acceptable use of international material is a valuable tool. Mr Sorabjee described how the Indian Supreme Court has been willing to borrow jurisprudence from almost any jurisdiction in order to advance human rights protections.[31] He cited the examples of implied constitutional rights, which the Court took from the High Court of Australia's decision in Australian Capital TV and Ors v Commonwealth of Australia[32] and the direct public law action, which it took from Baigent's Case.[33] Others advocated a more cautious approach. Former Chief Justice of Australia, the Rt Hon Sir Anthony Mason, described how lawyers must be alive to the social and political history surrounding the development of constitutional and human rights in their jurisdictions in order to assess whether comparative material from another jurisdiction could appropriately be used.[34] See for example the approach of the High Court of Australia in McGinty v Western Australia.[35] To take a New Zealand example, when interpreting our New Zealand Bill of Rights Act 1990, we must be careful not to borrow uncritically from countries with more traditional Bills of Rights simply because the rights are similar and all Bills of Rights can be said to be broadly 'constitutional' documents. Our New Zealand Bill of Rights Act 1990 was inspired by the modern human rights tradition, as evidenced by the long title's reference to the ICCPR. By contrast, the United States Bill of Rights, although sharing many of the same rights and some of the same phraseology with our Act, grew out of a distinctly Lockean tradition in which private property and the importance of a clear separation between citizen and state were seminal values. These values are largely alien to the human rights tradition upon which our Act is based. These socio-political differences could be very important in considering whether to borrow from United States law in determining the extent to which property, for example, is protected under our Act. Therefore, even though the general language of New Zealand's Act makes it tempting to borrow from foreign interpretations of similar language, to help give content to the rights, this will not always be appropriate.

Specific Language and Efficacy

Despite the potential pitfalls that general language may create, the use of very specific language can also create difficulties for human rights implementation. Looking internationally, we see that the advent of the International Criminal Court has taken human rights law to a new level, but has also created new challenges to its development. HE The Hon Justice Hunt, Judge of the ICTFY and ICTR, described how the influence of the civil law has led to a comprehensive code-style drafting of the Rome Statute, which may limit the ability of the judges to develop a necessarily flexible approach to international criminal law.[36] This is particularly evident in the definitions of crimes in the Rome Statute.[37] This also reflects a desire by State parties to maintain as much control as possible over a court that partially intrudes on State sovereignty. This may ultimately limit the efficacy of this international human rights protection.

Judicial Activism

We have already touched on the role of judges in advancing the cause of human rights. This issue received significant attention throughout the Conference. Cherie Booth QC, stressed that the Bangalore Principles (principles developed on the domestic application of international human rights norms resulting from ahigh level judicial colloquium in 1988), together with the Harare Declaration on Human Rights, supported the role of the judiciary in giving effect to international human rights instruments when performing their interpretative function in the domestic sphere, even where such instruments were unincorporated.[38] New Zealand and Australia's progressive approach in this area received favourable mention: see Tavita v Minister of Immigration;[39] Minister of Immigration and Ethnic Affairs v Teoh.[40] In our view, although the importance of human rights is indubitable, the inherently political nature of the human rights movement means that the suggestion that judges adopt the role of advocates forthis movement should give us reason to pause. In New Zealand, our valuable tradition of an apolitical judiciary means we have more to lose by the inevitably political foray into human rights activism than countries in which the judiciary is already heavily politicised, e.g. by way of the appointments process. If Parliament were to more comprehensively incorporate international human rights, then judges could develop human rights without being seen as entering into politics in the same way that they have been able to develop Treaty jurisprudence where Treaty commitments have received legislative recognition.

IV. The Vitality of the Common Law

By now it will be apparent to the reader that the Conference focused on many cutting-edge developments in law. Against this background, one might see the common law as becoming outdated. However, a closer look may reveal a different conclusion.

Impact of Statute Law

Both the Canadian Chief Justice, Rt Hon Beverley McLachlin and New Zealand's Chief Justice, Rt Hon Dame Sian Elias defended the ongoing relevance and vitality of the common law in the face of the exponential growth of legislation.[41] They agreed that the common law had no fixed core and so could continue to evolve indefinitely. McLachlin CJ noted that much statutory law was to be understood in the context provided by the common law, for example; the Crimes Act 1961 in New Zealand. The corollary, as Elias CJ noted, was that the common law would also evolve by reference to the statutory matrix surrounding it, which in more recent times has grown to include the influence of important human rights legislation. A good example of this can be seen in Lange v Atkinson and Australian Consolidated Press Ltd [42] where Elias J (as she then was) stated:

The New Zealand Bill of Rights Act 1990 is important contemporary legislation which is directly relevant to the policies served by the common law of defamation. It is idle to suggest that the common law need not conform to the judgments in such legislation.[43]

In any case, although much of commercial law, especially property and contract law is now the subject of detailed legislative guidance and sometimes codes,[44] this trend has not been followed in the areas of family law, law concerning new technology, law and ethics, human rights law and constitutional law, where the legislature has largely left the content of the law to judges.

A New Common Law Born of Constitutional Language

We would go further and venture that not only does judge-made law perform an interstitial role where legislation 'runs out' or is largely devoid of content, but also some legislation, especially human rights or constitutional legislation, opens the door to a 'new' common law. As mentioned above, the highly generalised language in which constitutional and human rights must necessarily be expressed offers very little textual guidance. In consequence, judges must invent, or draw from existing common law principles, all the concepts necessary to give substance to the rights. Further, these areas of law are effectively 'roped off’ from further legislation because parliaments either lack the ability or the political inclination to radically amend human rights Acts and constitutions. This gives the common law free reign in developing these areas of law.

V. Final Thoughts

The experience of attending a truly international law conference with speakers of the highest calibre was both extremely educational and inspirational. We built on our understanding of the key theoretical concepts underlying the law, concepts that still provide the touchstone for today's innovations. Also, hearing how these concepts operated in practice enriched our appreciation of the pivotal role they play. The discussions that took place, both in the seminars and informally made us aware that modern legal dialogue and debate requires at least a passing familiarity with a range of legal systems and with international law. Unless they want to be left behind, it is a familiarity that all lawyers should aim to acquire, because in today's rapidly evolving legal landscape, the jurisprudence of most countries is increasingly informed by that of their neighbours.


[*] Judges' Clerks, Court of Appeal of New Zealand.

[1] See for example, the opening address delivered by the Prime Minister of Australia, The Hon John Howard MP, 14 April 2003, http://www.pm.gov.au/news/speeches/speech89.html.

[2] See for example: Sir K Keith, 'Terrorism, Civil Liberties and Human Rights' (Paper presented at the 13th Commonwealth Law Conference (CLC), Melbourne 15 April 2003); Attorney-General S Sorabjee, 'Terrorism: Protecting the State & Civil Society' (Paper presented at the 13th CLC, Melbourne, 15 April 2003); S Okudzeto, 'Responses to Terrorism: Legislative Responses in Domestic Law' (Paper presented at the 13th CLC, Melbourne, 15 April 2003).

[3] Hamdi et al v Rumsfeld 316 F 3d 450 (4th Cir 2003) ('Hamdi'). The Court draws a very fine distinction. It notes at 476 that it has previously rejected the 'sweeping proposition...with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so' Hamdi v Rumsfield [2002] USCA4 145; 296 F 3d 278 ( 4th Cir 2002) at 283. However, the Court distinguishes the present case arguing that 'Hamdi is not "any American citizen alleged to be an enemy combatant" by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces.' In other words, according to the Court, the US military's assertion is a determination, not a say-so.

[4] The Court in Hamdi reasoned at 460 that a citizen charged with a crime has access to counsel, but Hamdi had not been charged, so he was not entitled to counsel. By contrast, in Padilla v Bush 233 F Supp 2d 564, a US District Court ruled that an enemy combatant was entitled to access counsel. However, it should be noted that Padilla was arrested in the United States, not in a foreign theatre of war.

[5] Imbalance of Powers, Lawyers Committee for Human Rights, March 2003, http://www.lchr.org/us_law/loss/imbalance/powers.pdf

[6] Above n 3.

[7] Ibid 461.

[8] R Heinrich, The State of the Profession, Closing Keynote Address, 13th CLC, 17 April 2003.

[9] Imbalance of Powers, above n 5.

[10] [2002] USCA3 238; 308 F 3d 198 (3rd Cir. 2002). The 6th Circuit Court of Appeal reached the opposite conclusion, saying that 'democracies die behind closed doors', see Detroit Free Press v Ashcroft, [2002] USCA6 281; 303 F 3d 681 (6th Cir. 2002).

[11] [2003] USCADC 52; 321 F 3d 1134 (DC Cir. 2003). The United States Supreme Court granted certiorari on Monday 10 Noovember 2003. The case will be heard together with Rasul v Bush [2003] USCADC 52; 321 F.3d 1134 (DC Cir 2003).

[12] HEC Patten, 'The Law, Globalisation and the Common Good' (Plenary Address delivered at the 13th CLC, Melbourne, 16 April 2003).

[13] [1934] USSC 10; (1934) 290 US 398.

[14] Ibid 425.

[15] [2002] 2 NZLR 377.

[16] Heinrich, see above n7.

[17] Section 5 of the Migration Act 1958 (Cth) defines excised territories as including several territories including Christmas Island. Section 5(d) provides for further excised territories to be added by regulation.

[18] Migration Act 1958 (Cth) s 411(2).

[19] Migration Act 1958 (Cth) s 474.

[20] [2003] HCA 2; (2003) 195 ALR 24.

[21] The Court, at 45, stated that decisions protected by the privative clause must 'involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act'.

[22] The Hon The Chief Justice of Australia, M Gleeson, 'The State of the Judicature' (Closing Keynote Address delivered at the 13th CLC, Melbourne, 17 April 2003).

[23] Attorney-General D Williams QC, 'Law and Government' (Closing Keynote Address delivered at the 13th CLC, Melbourne, 17 April 2003).

[24] [1997] 1 NZLR 399, 411.

[25] [2000] ZACC 19; (2001) (1) SA 46 (CC).

[26] Ibid 29-30.

[27] I Berlin, Two Concepts of Liberty, inaugural lecture as Chichele Professor of social and political theory, Oxford (1958).

[28] [1999] NZCA 67; [1999] 2 NZLR 268 (CA).

[29] [1997] 2 NZLR 474 (HC).

[30] [1994] 3 NZLR 667 (CA).

[31] Attorney-General S Sorabjee, 'Progressing Comparative Constitiutional Law' (Paper presented at the 13th CLC, Melbourne, 15 April 2003).

[32] [1992] HCA 45; (1992) 177 CLR 106.

[33] Above n 31.

[34] The Hon Sir A Mason, 'Progressing Comparative Constitiutional Law' (Paper presented at the 13th CLC, Melbourne, 15 April 2003).

[35] [1996] HCA 48; (1996) 186 CLR 140.

[36] HE The Hon D Hunt, 'International criminal justice, from Nuremberg to The Hague -some likely problems for the International Criminal Court' (Paper presented at the 13th CLC, Melbourne, 15 April 2003).

[37] Ibid 3.

[38] C. Booth QC, Opening Keynote Address (delivered at the 13th CLC, Melbourne, 14 April 2003).

[39] [1994] 2 NZLR 257 (CA).

[40] [1995] HCA 20; (1995) 183 CLR 273 (HCA).

[41] Rt Hon B McLachlin, 'Withering of the Common Law' (Plenary Address delivered at the 13th CLC, Melbourne, 17 April 2003); Rt Hon Dame S Elias, 'Whither the Common Law(Plenary Address delivered at the 13th CLC, Melbourne, 15 April 2003).

[42] [1997] 2 NZLR 22.

[43] Ibid 32.

[44] For example: The Property Law Act 1952; Contractual Mistakes Act 1977.


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