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Puvogel, Lars --- "A V Dicey and the New Zealand Court of Appeal. Must theory finally give in to legal realities?" [2003] CanterLawRw 4; (2003) 9 Canterbury Law Review 111


A V DICEY AND THE NEW ZEALAND COURT OF APPEAL - MUST THEORY FINALLY GIVE IN TO LEGAL REALITIES?

Lars Puvogel[*]

I. Introduction

The function of the courts in relation to Acts of Parliament has been described as the 'fundamental', 'the ultimate question' in a legal system like that of New Zealand.[1] Its answer predicates the location of ultimate decision-making authority - the right to the 'final word' and hence the fundamental source of law. According to New Zealand constitutional orthodoxy the answer was prescribed by the somewhat elusive notion of the doctrine of parliamentary sovereignty. A V Dicey[2] is probably the most renowned exponent of the doctrine and his attempt to give the relevant principles a concrete content is still highly influential in both the United Kingdom and New Zealand. His doctrine has been described as the 'the one legal doctrine that... New Zealand lawyers are never taught to question (or perhaps are taught never to question)'.[3]

His theory establishes Parliament as the supreme law making body within the polity, which enjoys almost unfettered legislative power. Within this constitutional framework the courts occupied a subordinate position to parliament. Consistent with this position their task in relation to Acts of Parliament was limited to interpreting and applying them. According to Dicey the courts could not therefore refuse to obey or give effect to an Act of Parliament; nor, because it was the supreme law, could they hold an Act of Parliament to be invalid. Over the century or so since the Law of the Constitution first appeared in 1885 Dicey's work and his concepts have been the subject of extensive judicial and academic scrutiny.[4] Indeed very few judges and academics today embrace the strictly Diceyan conception of parliamentary sovereignty.[5] But until recently, there has been little doubt about the core of the doctrine, that the courts have no legal authority to invalidate statutes on the ground that they are contrary to fundamental moral or legal principles. As a leading critic of the doctrine concedes, among English lawyers 'it is hard to question his [Dicey's] doctrine without appearing to lose touch with practical reality. Until very recently, it was almost unthinkable that the courts would ever refuse to apply an Act of Parliament'.[6]

However, in the advent of an undoubtedly growing contemporary recognition, international in scope, of fundamental human rights the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand, and Australia. Growing doubt about parliamentary sovereignty has coincided with increasing judicial activism in all three countries.[7] The focus of this paper is to assess the legal validity of Dicey's articulation of the relationship between Parliament and the courts in the light of recent judgments of the New Zealand Court of Appeal. It argues that some judgments have called into question parts of Dicey's theories of parliamentary sovereignty and significantly modified the operation of his theories. It examines the manner in which Dicey's theories have been altered and considers the extent to which his principles survived these modifications. Its thesis is that Dicey's theories no longer adequately explain the relationship between Parliament and the judiciary in contemporary New Zealand because the recognition of these principles by the courts and the way they are given effect has been altered. The paper briefly outlines Dicey's conception of parliamentary sovereignty, explores its historical development and its academic and common law foundations. It goes on to examine how the New Zealand Court of Appeal has interpreted its role within the Diceyan conception of parliamentary sovereignty. In this context the concept of fundamental common law rights and the impact of the Bill of Rights Act 1990 on the traditional rules of interpretation will be highlighted. It then examines briefly the operation of Dicey's theories in the United Kingdom suggesting that in the advent of Britain's membership in the European Union and the enactment of the Human Rights Act 1998 their scope has been significantly limited. In the conclusion consideration is given to the following issues: the extent to which Dicey's theories have been altered by the New Zealand Court of Appeal; and whether the new judicial approach heralds the demise of Dicey's theories.

II. Academic and Common Law Foundations of the Sovereignty Doctrine

This part first defines and clarifies Dicey's concept of legislative supremacy. It then goes on to take a closer look at the implications of his propositions as regards the relationship between Parliament and the courts. The final part of this section provides a brief outline of the origins and foundations of the Westminster sovereignty doctrine.

The Legal Doctrine of Legislative Sovereignty - the Diceyan View

The Essence of Parliamentary Sovereignty as a Legal Doctrine

The doctrine of parliamentary sovereignty has long been regarded as the most fundamental element of the British Constitution. It has been described as 'the dominant characteristic of our political institutions', 'the very keystone of the law of the constitution'.[8] From the perspective of law, the sovereignty or supremacy of Parliament has a definite meaning, since the doctrine is often seen as providing one of the pillars vital to the structure of the entire legal system. The classical definition of sovereignty is that of A V Dicey. Although the sovereignty of Parliament had been accepted as one of the fundamental doctrines of constitutional law in the United Kingdom long before the publication of Dicey's The Law of the Constitution,[9] the significance of his analysis is that, despite the extensive political and social changes that have occurred since 1885, and despite criticism which his work received from constitutional lawyers such as Sir Ivor Jennings,[10] his statement of the doctrine has retained a remarkable influence on both legal and political thinking about Parliament. Dicey summarized his views in this way:

The principle of parliamentary sovereignty means neither more nor less than this, namely, that Parliament [defined as the Queen, the House of Lords, and the House of Commons, acting together] ... has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.[11]

From this description can be deduced three basic rules:

• Parliament is the supreme law making body and may enact laws on any subject matter;
• no Parliament may be bound by a predecessor or bind a successor;
• no person or body - including a court of law - may question the validity of Parliament's enactments.

The principles, 'looked at from their positive side', ensure that any new Act of Parliament will be obeyed by the courts. The same principles, 'looked at from their negative side' ensure that there is no person or body of persons who can make rules which override or derogate from an Act of Parliament or which, 'to express the same thing in other words',[12] will be enforced by the courts in contravention of an Act of Parliament. Moreover, no Parliament can exercise its legislative powers to bind future Parliaments. As the Parliament possesses the power to unmake any laws, any attempt to restrict permanently the legislative powers of Parliament could be overridden by any subsequent Parliament. Dicey observed that although 'Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors ... the endeavour has always ended in failure'.[13] The mechanism by which the courts give effect to this facet of sovereignty is provided by the doctrine of implied repeal. It applies only when two Acts of Parliament are incapable of standing together.[14] In its operation, the doctrine provides that where two Acts are inconsistent with each other, the later Act is to be construed as impliedly repealing the earlier Act.[15] There are several cases which support the Diceyan view that the automatic application of the doctrine of implied repeal is a constituent notion of parliamentary sovereignty.[16] For instance, in Ellen Street Estates v Minister of Health[17] Maugham LJ stated that:

The Legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject matter there can be no implied repeal. If, in a subsequent Act, Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.[18]

This conception stems straight from A V Dicey, guaranteeing contemporary sovereignty and thus being a corollary of the untrammelled sovereignty of Parliament.[19]

Relationship between Parliament and the Courts According to Dicey an Orthodoxy

Dicey's doctrine of parliamentary sovereignty maintains that Parliament has ultimate authority to determine what the law shall be. Parliament was to have the last word and the courts were to have no power to strike down primary legislation. It is the responsibility of judges to declare what the law is, but in doing so, they are bound to accept every Act of Parliament as valid law. According to Dicey the judiciary thus occupies a subordinate position to Parliament.

English courts, however, did not always uncritically defer to such a concept of omnipotent parliamentary power. In early 17th century Britain there were even delicate beginnings of the idea of the primacy of fundamental rights and principles. This attitude dates back to Coke CJ's dictum in Dr Bonham 's Case[20] where he asserted:

And it appears in our books, that in many cases the common law will control Acts of Parliament and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right or reason, or repugnant, or impossible to be preformed, the common law will control it and adjudge such Act to be void.[21]

Yet, this idea became eclipsed at the end of the 17th century by the concept of absolute parliamentary sovereignty[22] . This was made clear by Lord Reid when he declared in British Railways Board v Pickin:[23]

In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.[24]

As regards Diceyan orthodoxy the dividing line between legislature and courts and their respective functions is thus clear cut: on the one hand law-making; on the other, interpreting and applying the law. As Lord Bridge explained:

In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law.[25]

The Legal Source of Sovereignty

Having identified the doctrine of parliamentary sovereignty as determining the locus of power within the legal system, it is now time to explore its legal source.

The doctrine of parliamentary sovereignty has been described as being entirely the work of Oxford men.[26] And indeed, the theory has been largely developed and written about in extra-judicial settings, there being relatively few judicial decisions on parliamentary sovereignty and thus little scope for the courts to give substance to the doctrine. Dicey in his writings relied heavily on the political philosophy of Thomas Hobbes and referred to notions expressed earlier by William Blackstone.[27] He did, however, not cite a clear judicial decision of binding authority for his absolutist view of parliamentary power, nor did he point to any reference to it in any statute or constitutional instrument. To use AW B Simpson's words:

Dicey announced that it was the law that Parliament was omnicompetent, explained what this meant, and never devoted so much as a line to fulfilling the promise he made to demonstrate that this was so.[28]

However, the origins of the doctrine of parliamentary sovereignty as expounded by Dicey may be traced to the 17th century constitutional conflict between the Crown on the one hand and parliament and the courts on the other. Parliament emerged from that conflict occupying a uniquely powerful position in the constitution. In 1689, after the overthrow of James II but before the union of the English and Scottish Parliaments in 1707, the Earl of Shaftesbury wrote: 'The Parliament of England is that supreme and absolute power, which gives life and motion to the English Government'.[29] The basis of that position was that its approval, expressed in the form of legislation, was required to change the law and to raise taxes.[30] The combined effect of these requirements was that there were few aspects of policy that did not require the legislatively expressed sanction of Parliament.

While this provides the historical background of the doctrine of parliamentary sovereignty it fails to identify the legal source of the relationship between Parliament and the courts. What then is the legal source of that relationship? The sovereignty of Parliament is not itself laid down in statute: nor could it be, for the ultimate law maker cannot confer upon itself the ultimate power. Therefore the supreme law making powers of the United Kingdom Parliament are argued to have an historic common law basis.[31] The expression 'common law' is used because the rules of parliamentary sovereignty have been promulgated and recognised by the courts. However, if the common law is identified as the legal source of sovereignty the next question must be what gives the common law its authority? The process of finding legal sources could go on ad infinitum.[32] As legal theorists have demonstrated, when searching for ultimate legal power, there comes a point of inquiry beyond which you cannot logically move.[33] Thus, in all legal systems a point has to be reached where a rule is accepted as an operative legal rule even though its authority cannot be explained in traditional legal analysis. Kelsen called such a rule a grundnorm.[34] Hart wrote in terms of the 'ultimate rule of recognition' .[35] Such rules are justified historically rather than legally.[36] For both, Kelsen and Hart, the key to ultimate power lies in its acceptance - but not necessarily moral approval - by the judges and other senior officials within the legal system. Thus, the rules of parliamentary sovereignty derive their legal validity from the fact that they have been accepted by United Kingdom commentators and courts. A necessary condition for the continuing existence of such rules is a consensus among all three branches of government. In this way legal theory is highly dependent on political reality and it is therefore probably correct to suggest that the doctrine of parliamentary sovereignty is as much a political fact as a rule of law.[37]

Traditional Approach of Dicey's Propositions in New Zealand

British attitudes took root in New Zealand and accordingly New Zealand's legal and political system has developed very much in the British tradition.[38] The doctrine of parliamentary sovereignty is an integral part of this tradition. Indeed it has been said that 'New Zealand's legal system operates on the basis that Parliament has supreme lawmaking powers that cannot be challenged' and that 'this is the cornerstone of New Zealand's legal system'.[39] This leads to the assumption that the New Zealand Parliament enjoys a law making supremacy similar in nature to that enjoyed by the United Kingdom Parliament.

However, whereas the law making supremacy of the latter is - as has been indicated above - a common law doctrine, the law making powers of the New Zealand Parliament are provided by statute.[40] This is due to the fact that New Zealand Parliament was granted its legislative powers under authority of Imperial statute.[41] In the late 19th century, the Judicial Committee of the Privy Council held that, when the Imperial Parliament granted power to colonial legislatures to make laws for the 'peace, welfare, and good government' of their colonies, it granted them power of the same nature, as plenary and absolute, as its own power.[42] As a result of this and subsequent developments, the Parliament of New Zealand is generally thought to be as fully sovereign as that of the United Kingdom.[43] An example of the use of Parliament's supremacy in this manner is the Clutha Dam saga.[44] In this matter, despite the success of private litigants in the High Court[45] and the Planning Tribunal[46] preventing the Minister of Energy from attaining a water right required for the Clyde Dam's construction to proceed, the government of the day enacted the Clutha Development (Clyde Dam) Empowering Act 1982 which effectively reversed the Court's and Tribunal's decision, granting the Minister of Energy the necessary water right. The Act was criticised as having been passed in breach of constitutional convention.[47] However, even the critics acknowledged that under orthodox doctrine Parliament's legal supremacy enables it to legislate contrary to convention.[48]

And although it has been asserted that the statutes conferring the law making powers on the New Zealand legislature have left the New Zealand courts with scope for determining the detailed nature of the law making authority are by no reason obliged to adopt the Westminster doctrine,[49] the courts have traditionally construed the United Kingdom statutes as giving the New Zealand Parliament supreme law making powers similar in nature and extent to those possessed by the United Kingdom Parliament.[50] A series of judicial statements have consolidated the doctrine of legislative sovereignty as the core political and legal fact underlying New Zealand's constitutional order. For example, in Rothmans of Pall Mall (NZ) LtdvA-G[51] Robertson J said:

The constitutional position in New Zealand (as in the United Kingdom) is clear and unambiguous. Parliament is supreme and the function of the courts is to interpret the law as laid down by Parliament. The courts do not have a power to consider the validity of properly enacted laws.[52]

With a doctrine that firmly embedded within the constitutional structure it is evident that a different judicial philosophy and approach resulting in a different perception of the court's role is condemned to have serious impacts on the whole legal system. For this reason it is of vital importance to see which approach the highest court within the boundaries of New Zealand — the New Zealand Court of Appeal — has adopted in order to reflect the proper balance between Parliament and the courts in the contemporary constitutional climate.

III. The Demise of Parliamentary Sovereignty in New Zealand

Although the doctrine has been criticised time and again, there has been little doubt about the core of the doctrine and the courts accepted the sovereignty of Parliament and thought it undesirable for the judiciary to be given power to invalidate statutes. But recently this very basis of the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand and Australia. Sir Robin Cooke, as the President of the New Zealand Court of Appeal, was the first eminent judge to do so publicly. In Britain, several senior judges have explored the question, in extra-judicial speeches. The Master of the Rolls, Lord Woolf of Barnes, has asserted that there are 'limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold'.[53] The arguments put forward among those advocating limited parliamentary powers have been backed by the increasing recognition accorded to fundamental human rights. Fear that majoritarian governments will erode the rights which serve to protect the individual or the freedoms enjoyed by minority and ethnic groups has generated a quest for an independent adjudicator.[54] In response to those concerns more and more countries with legal systems rooted in the common law have adopted bills of rights.[55] These experiences have given rise to the fundamental question of how bills of rights fit into common law structures and to what extent they have altered those structures.[56] For the purposes of this paper it is of special importance to examine the impact on the traditional maxims of statutory interpretation.

This section focuses on the development of the doctrine of parliamentary sovereignty in New Zealand. It explores Sir Robin Cooke's concept of fundamental 'common law rights' and discusses the validity of Dicey's propositions in the light of recent decisions of the New Zealand Court of Appeal. Consideration will be given to the Court's understanding of orthodox rules of statutory construction and its implications for the doctrine of parliamentary sovereignty as explained by Dicey. In this context the role of the Bill of Rights Act 1990 will be examined. The central point will be the question of to what extent the trend of the Court of Appeal incrementally to endow the Bill with increasingly stronger powers is compatible with strict Diceyan theory.

Lord Cooke's Theory of Fundamental 'Common Law Rights'

A profound challenge to the orthodox understanding of parliamentary sovereignty occurred in a series of Court of Appeal decisions between 1979 and 1984. Lord Cooke's comments indicated a belief that Dicey s assessment of parliamentary power was mistaken and actually presented a direct attack on the absolutist sovereignty doctrine.

Lord Cooke's Controversial Comments[57]

The first instance in which Cooke J (as he then was) suggested that there was a restriction on Parliament's law-making powers was the case of L v M.[58] With regard to an ouster clause[59] he commented:

It would be a strong and strange step for Parliament to attempt to confer on a body other than the Courts power to determine conclusively whether or not actions in the Courts are barred. There is even room for doubt whether it is self-evident that Parliament could constitutionally do so.[60]

In 1982, in the case of New Zealand Drivers' Association v New Zealand Road Carriers[61] Cooke J returned to this theme and, again in the context of an ouster clause, noted:

Indeed, we have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary Courts of law for the determination of their rights.[62]

And two years later his comments became even more direct. In Fraser v State Services Commission[63] he warned:

This is perhaps a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.[64]

In Taylor v New Zealand Poultry Board[65] the 'doubt', earlier expressed in 1979, that Parliament's competence was limited, later became a 'reservation' in 1982, and finally turned into a 'presumption'. In discussing the question of the so-called right to silence Cooke J made his opinion about the role of the judiciary with regards to the legislature very clear. He said:

I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.[66]

Exploring the Concept of Fundamental 'Common Law Rights'

Implications for Dicey's proposition of sovereignty

The above quotations illustrate a substantial departure from the expected function of the judiciary as expounded by Dicey. Indeed they can be regarded as challenging the very basis of parliamentary sovereignty. The process has therefore been described as a 'quiet revolution which has been occurring on the Benches of the Court of Appeal'.[67] This observation is certainly correct, given the fact that the dicta not only challenged the doctrine of parliamentary sovereignty but inherently questioned the location of ultimate decision-making in New Zealand's legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. Moreover, it appears that Lord Cooke is suggesting not only that there is a set of fundamental rights that lie so deep that Parliament cannot abrogate them, but that in the absence of any clear indication as to what those rights are, it is the responsibility of the courts to define and protect them. This, it was argued, could be seen to parallel the institution of substantive judicial review, giving the courts the power to review the substance of legislation passed by a legislature.[68]

That this would have put an end to Dicey's doctrine of sovereignty has been publicly stated by Lord Cooke himself in a subsequent article published in the New Zealand Law Journal.[69] Discussing the subject of the relationship between the courts and Parliament he observed: 'Before any serious discussion of the subject it is necessary to get Dicey out of the way'.[70]

The legal reality

It is certainly no surprise that the comments created something of a stir in legal and political circles both in New Zealand and overseas. While some commentators praised Lord Cooke's views as the seeds of a novel and simpler foundation for legal legitimacy to replace an antiquated doctrine of sovereignty, others criticised them as the purest heresy. Hushcroft and Rishworth[71] have pointed out that a series of events between 1975 and 1984 contributed to a view in some quarters that the government of the day was prepared to act, and did act, in a manner which was unconstitutional. They suggest that these events may not have been irrelevant to Lord Cooke's warning dicta and that therefore they are to be seen in context. The comments have, however, not had any revolutionary constitutional effect in practice. And although occasional reflections on Lord Cooke's dicta have arisen before the courts, the judges always refused to overturn legislation passed by Parliament on grounds of overriding common law rights and have always affirmed Parliament's sovereignty.[72]

However, the courts have — despite their obedience to the doctrine of parliamentary sovereignty — recently warned that lack of goodwill and disregard of convention would impact on the legitimacy of legislative power.[73] And although it is probably true to assert that the debate over fundamental common law rights remains 'theoretical' and 'extra-judicial'[74] these comments leave at least room for the possibility that the judiciary may assert a power to review extreme legislation which places in jeopardy fundamental rights and freedoms. The resulting uncertainty, it has been argued, serves a valuable constitutional function.[75] Uncertainty as to whether the courts will intervene to strike down legislation perceived to undermine representative government and destroy fundamental rights can act as a brake upon Parliament's conception of its omnipotence and remind those in power to have regard to and respect fundamental rights and freedoms.

Statutory Interpretation: Judges as Legislators?

Perhaps even more subtle, a second string of judicial challenges of parliamentary sovereignty emerged out of the function of the judiciary as entailed by the doctrine itself. As has been explained above one of the judiciary's primary functions in New Zealand's legal system is to interpret legislation. This role is of course, due to the subordinate position to Parliament, in theory subject to giving effect to the latest expression of the will of Parliament.[76] However, statutory interpretation in practice is not straightforward, and the sometimes broad wording used in statutes allows the courts considerable manoeuvrability. As regards this manoeuvrability a senior judge of the Australian High Court, has commented, that 'Parliament and the people accept that the courts have the right to go through statutes with a fine tooth comb. This is part of the relationship between Parliament and the courts in countries such as ours'.[77] However, his Honour then goes on to emphasize the fact that, 'the relationship is accepted on the premise that the courts will not, without legal authority, go beyond their proper function'.[78] Thus, if the law is clear, the judge, like anyone else, is obliged to obey the law. Nevertheless, it is this aspect of the relationship between the legislature and the judges that has often prompted the reproach that the courts through the interpretation of statutes usurp a legislative function and in fact make law. This issue is complex and outside the scope of this work.[79] The point to be made here is that even under orthodox judicial thinking the words of an Act of Parliament are not always seen as sacrosant. Indeed, statutory interpretation has, in recent times, come close to challenging the supremacy of Parliament's laws. Agood example is provided by the decision in Anisminic Limited v Foreign Compensation Commmission.[80] which dealt with an 'ouster clause' referred to earlier in the paper. The provision in issue declared that a determination of the commission 'shall not be called into question in any court of law'. The House of Lords held that those words did not prevent a court from intervening to review the decision of a case where the commission had exceeded its jurisdiction thus allowing the decision to be successfully challenged on the ground of jurisdictional error. Moreover, in orderto keep administration agencies and tribunals fully subject to the rule of law the House of Lord adopted an extremely wide view of this kind of error. Against the background of the express words used in the provision this is clearly not the result one would have commonly expected. The common feature of all the cases where the courts have disregarded the clear wording of Acts of Parliament is that all concerned statutes presumably violate fundamental rights. There is the well known principle that courts will construe legislation, made by Parliament, in ways protective of fundamental rights. Even Dicey while ruling out any judicial power to overrule or set aside primary legislation, acknowledged the practice of the courts to interpret legislation on the basis of certain presumptions:

When attempting to ascertain what is the meaning to be affixed to an Act of Parliament, [the judges] will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and international morality.[81]

Thus, such rights may only be abolished or diminished by legislative language which is expressed in the clearest of terms.[82] Although Dicey was technically right to describe these as rules of interpretation, the description actually disguises their importance. This is vividly illustrated by a line of cases decided in the context of the New Zealand Bill of Rights Act 1990 (BORA).

The Impact of the New Zealand Bill of Rights Act 1990

Recent decisions of the New Zealand Court of Appeal suggest that old common law canons of construction should give way to a new, rights-centred approach to statutory interpretation, sourced in s 6 of the BORA. The question is whether this new judicial approach suggests a new relationship between the courts and Parliament and consequently, heralds the end of Dicey's vision of parliamentary sovereignty.

The Bill of Rights Act: An Overview
History and legal status

The New Zealand BORA was assented to by the Governor-General in August 1990. This assent marked the end of a five year debate over the principles of parliamentary supremacy and whether New Zealand should continue to observe these principles or whether the country should incorporate into its legal system an entrenched document of constitutional magnitude capable of protecting individual rights beyond the reach of Parliament.

The idea for a New Zealand Bill of Rights was resurrected[83] by Geoffrey Palmer in 1985. His ideas were embodied in the 1985 Government White Paper A Bill of Rights for New Zealand which proposed that a Bill of Rights was necessary to bring New Zealand in line with its obligations under international law, notably the International Covenant on Civil and Political Rights[84] and moreover as a means of safeguarding against the potential abuses of executive government.

The Draft Bill originally proposed, took the form of an entrenched supreme law that would empower the courts to strike down inconsistent legislation, and included a wide remedies clause authorising the courts to redress violations of rights by granting such remedy as the court considers appropriate and just in the circumstances. The Bill would therefore have brought an end to parliamentary sovereignty. It was, however, 'met with overwhelming public opposition'[85] and was rejected. The Select Commission concluded that New Zealand was not ready, if it ever would be, for a fully fledged Bill of Rights along the lines of the White Paper draft.[86] Like the White Paper the Act which finally became law confirmed a similar catalogue of civil and political rights.[87] It however differed in two crucially important aspects: it was an ordinary rather than an entrenched document and the courts were given no power to strike down repugnant legislation. Moreover, it omitted the remedy clause contained in the White Paper.

The operational provisions

The difficult task of the BORA to strike a balance between preserving parliamentary sovereignty on the one hand and achieving compliance with the fundamental rights set out in the Covenant and affirmed by the BORA itself on the other hand is illustrated by some of the operational provisions of the Act. Sections 4-6 which deal with the relationship between the rights conferred and other law have particularly given rise to significant interpretation difficulties. For a better understanding of the following discussion the texts of these sections are reproduced below.

4. Other enactments not affected - No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), —
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6. Interpretation consistent with Bill of Rights to be preferred - Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Modified principles of statutory construction?

Under all constitutional regimes that give courts power to strike down legislation, an interpretative remedy is preferred on the presumption that interpretation is less intrusive on the legislative branch of government.[88] In New Zealand, however, because of the doctrine of parliamentary sovereignty, the courts in the end must preserve the legislation and must not deprive the statute of its intended effect. The crucial question therefore is, how far can interpretation legitimately take the courts?[89] Under s 6 of the BORA the judiciary is entitled to prefer the meaning of words within a statute that is consistent with the Bill of Rights. It is only in cases of clear inconsistency that the Bill is to be read down.[90] This has provided the judiciary with the power to favour particular interpretations of statutes, as it is obvious that the question of inconsistency will hardly ever be clear-cut. Where a statute is open to more than one interpretation, it is clear that the courts will always choose the interpretation that is compatible with the BORA. Therefore, it is arguable that, absent a clear and explicit parliamentary intention to the contrary, the BORA created a rebuttable presumption in favour of an interpretation consistent with the rights contained in it and thus has added a new principle of statutory interpretation that modifies Dicey's vision of parliamentary sovereignty.[91] Nevertheless, while it must be accepted that s 6 of the BORA signals some change to statutory construction method, the traditional approaches to interpretation cannot be fully jettisoned if parliamentary sovereignty is to be meaningfully preserved. If the basic rules of judicial interpretation are altered in a way so as to make it very hard for Parliament to assert its sovereignty, then interpretation will become judicial legislation, a development which was apparently sought to be prevented by s 4 of the Act.[92]

However, the interrelation of the sections being a matter of interpretation itself, the issue was to be left to the courts to resolve.

Early Influence on Statutory Construction: The Court of Appeal's Approach to Interpretation

From the beginning there was a suggestion that the Act should be treated as some sort of special, 'half-constitutionalized'[93] Bill of Rights to which the judges would give primacy unless clear legislation indicated otherwise. In the first ever BORA case to reach the Court of Appeal, Flickinger v Crown Colony of Hong Kong[94] Cooke P. suggested that s 6 of the BORA may require a court to depart from a long established judicial interpretation of the meaning and intent of a particular statutory provision. He said that the court saw 'force in the argument that, to give full effect to the rights

..., [a particular statutory provision with a long-standing interpretation] ... should now receive a wider interpretation than has prevailed hitherto'.

In those early cases the Court of Appeal thus manifested that a purposive approach to interpretation of the Act is to be favored, putting emphasis on the fact that it will adopt the interpretation which best gives effect to the underlying purpose of the rights.

Baigent's Case

The practical effect of the Court's intended purposive approach to human rights legislation is illustrated by the decision in the case of Simpson v Attorney-General (Baigent's Case).[95] In that case the Court of Appeal reinstated claims against the Crown based on alleged breaches principally of s 21 of the BORA. Section 21 states that everyone has the right to be secure against unreasonable search or seizure. Mrs Baigent's house had been mistakenly specified as the target of a search warrant and the police, notwithstanding that they were told they had the wrong address, searched the premise anyway. The Court of Appeal held that the Crown was liable for unreasonable search. Moreover it held that in certain cases breaches of the Act could be remedied by an award of damages, notwithstanding the absence of an express provision on remedies in the Act. In reaching his conclusions, the Court relied on the following assumptions. Firstly, because of the fundamental nature of the rights affirmed by the BORA, the courts should adopt a 'liberal, purposive' and 'rights-centred' approach to interpretation. Secondly, adequate judicial remedies to redress violations of the BORA are necessary in orderto give effect to its provisions. Thirdly, the absence of an express remedies clause in the Act did not indicate a legislative intention to confine the courts to existing common law remedies but implied that Parliament had left it for the courts to develop appropriate remedies. Finally, the Court drew heavily upon precedents from countries with entrenched constitutions, and saw no impediment to inferring a similar remedy under the BORA. Indeed, its non-entrenchment was specifically rejected as a distinguishing feature for the purpose of that case.[96] Instead it was argued that the 'fundamental' nature of the rights together with the growing international recognition of human rights are more important than the legal form in which they are declared.

Rights-centred interpretation or judicial law making in disguise?

Following Baigent's Case, BORA claims for compensation have been considered by the courts in other cases.[97] The developments prompted the question of whether the subject of remedies under the Act should be left to be further developed judicially, or whether legislative clarification or reform might be desirable. The Law Commission has issued a study endorsing the approach taken by the Court of Appeal, and concluding that no legislation should be introduced to remove the general remedy for breach of the BORA established in Baigent's Case.[98] Whereas this may seem to support the approach taken by the Court of Appeal, the reasoning in Baigent's Case nevertheless remains doubtful as regards the doctrine of parliamentary sovereignty.

First of all, a purposive approach can only be used as an aid in interpreting the meaning of the words of a provision. It cannot be used to create provisions that do not exist.[99] Moreover it is confined to giving effect to parliamentary intent and thus subject to a clear expression of Parliament's will. For this reason it is especially the last step in the Court's reasoning that causes problems. It amounts to an assertion that Parliament intended the BORA to carry a higher constitutional status.

However, the BORA was deliberately enacted as an ordinary statute, capable of repeal or amendment by a simple majority vote in Parliament. Moreover, its history demonstrates beyond doubt that Parliament did not intend to confer power on the courts to create a new regime of public civil liability. Facing continuing opposition, Geoffrey Palmer during the second reading of the Bill said:

[T]he Bill creates no new legal remedies for courts to grant. The judges will continue to have the same legal remedies as they have now, irrespective of whether the Bill of Rights is an issue.[100]

Accordingly there was a clear expression of Parliament's will and thus no room for the interpretation on which the Court of Appeal embarked in its decision. Arguably, the decision therefore illustrates a type of judicial activism that although using the label of statutory interpretation actually amounted to judicial law-making.

Growing Judicial Activism - Declarations of Incompatibility

Baigent's Case was, however, only one step in a series of cases incrementally endowing the BORA with increasingly stronger powers. In a next step the Court of Appeal canvassed the possibility of a declaration of inconsistency with the BORA. Such a declaration is a pronouncement by the court that, having gone through its Bill of Rights analysis, the legislation in question is, in the court's view, an unreasonable limit on a right or rights contained in the BORA.[101] This form of remedy had been foreshadowed soon after the passage of the Act by academic commentators.[102]

Moonen v Film & Literature Board of Review[103]

In the case of Moonen a five judge bench of the Court of Appeal discussed the possibility of such a new remedy of a declaration of inconsistency. In the course of explaining the correct approach to the BORA the Court of Appeal suggested that s 5:

necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. [104]

This discussion was however conducted in the abstract and was not applied to the facts.

R v Poumako[105]

It did not take very long before at least one judge of the Court of Appeal followed through on these dicta and actually made a formal judicial indication of inconsistency. In the case of R v Poumako, the facts of which will be set out below, the Court of Appeal was split as to whether clearly retrospective criminal legislation could be limited in its effect by use of s 6 of the BORA, or whether the Court should only express its disapproval of the statute. Whereas the majority of the Court, basing their approach on s 6 of the BORA, chose to seek an interpretation which would be less inconsistent with fundamental rights, Thomas J was of the view that the provision in question was sufficiently clear and that the majority 's preferred interpretation was at odds with parliamentary intent. In his opinion 'to attribute to a statutory provision which is neither equivocal nor malleable in its terms a meaning which is admittedly contrary to Parliament's discernible intent is to effectively challenge Parliament's supremacy'.[106] He then, however, went on and said that 'this Court would be compromising its judicial function if it did not alert Parliament in the strongest manner to the constitutional privation of this provision'.[107] In his view, obiter statements lacked the force needed to express the Court's disapproval. For this reason, having concluded that the provision in question violated rights guaranteed in the BORA, he rejected the procedural matters raised by the Crown[108] and, being the first New Zealand judge ever, made a formal declaration of inconsistency with the BORA.[109]

Implications for the doctrine of parliamentary sovereignty

In earlier cases at least two Court of Appeal judges had opined that it is no part of the function of the courts to examine whether a statutory limit on a BORA right can be justified under s 5 of the BORA.[110] And in the light of traditional constitutional paradigms there may indeed be serious doubts on whether there is a jurisdiction to make such an indication of inconsistency.

The traditional role of judges under the Diceyan system has been to apply the laws passed by Parliament and not to pass judgment upon their reasonableness or comment on their quality. A judicial indication of inconsistency however would necessarily involve the courts passing judgment on the legal quality (though not validity) of legislative content and thus lead to a fundamental alteration in the nature of the judicial function.

Moreover, a judicial indication of inconsistency will bring about enormous political pressure to change the law.[111] In the United Kingdom, the Government recorded in the White Paper that accompanied the draft Human Rights Bill,[112] which in s 4 expressly provides for the possibility of the courts to make a 'declaration of incompatibility' that 'a declaration that legislation is incompatible with the Convention rights ... will almost certainly prompt the Government and Parliament to change the law'.[113] Keeping that in mind, it is obvious that such a judicial remedy will have a significant impact upon the current paradigm of the constitutional role and function of the judiciary, putting significant practical power into the hands of the judges, even if nominally the locus of legal power remains with Parliament.[114]

Abrogating Dicey?

Far-reaching as the implications of the decisions discussed above for the relationship between the courts and Parliament may have been, they did not go as far as questioning whether the courts in particular cases should apply the relevant statute or not. At least that issue was thought to be settled by the doctrine of parliamentary supremacy beyond any reasonable doubt. But two recent cases have cast serious doubt upon the proposition, which may be regarded as the core proposition under the Diceyan conception in terms of describing the relationship between the courts and Parliament.

The background

Both cases arose out of the so-called 'home invasion' amendments and concerned the issue of retrospective criminal statutes. In order to understand fully the issues that were raised in the decisions and the reasoning applied by the judges the pertinent legislation, namely the sentencing regime for murder, will be shortly reviewed.

At the time of the offences, the sentence for murder was life imprisonment. On 1 September 1993 the Criminal Justice Amendment Act 1993 gave the courts the power to impose a minimum term of imprisonment of more than 10 years where the circumstances of the offence were 'exceptional'.[115] However, s 56 of the Act provided that this new power did not apply to offences committed prior to 1 September 1993. This was consistent with the cardinal principle of the rule of law that a citizen should be able to rely on the law as it was when he or she acted. This principle of non-retrospectivity is embodied in ss 25(g) and 26 of the BORA, s 7 of the Interpretation Act 1999 and Art 15(1) of the International Covenant on Civil and Political Rights. Moreover it is enshrined in s 4 (2) of the Criminal Justice Act 1985 (CJA) which provides:

Without limiting subsection (1) of this section, except as provided in subsections 152 (1) and 155(1) of this Act but notwithstanding any other enactment or rule of law to the contrary, no Court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender's consent.

In 1999, the legislation relating to sentencing changed again through the enactment of two statutes: the Crimes (Home Invasion) Amendment Act 1999 which inserted a definition of 'home invasion' into the Crimes Act 1961 and raised the maximum penalties for specified offences involving home invasion; and the Criminal Justice Amendment Act (No 2) 1999 (CJAA) which amended s 80 of the CJA by raising the minimum parole period for murder from ten to thirteen years in cases involving home invasion. Section 2(4) of the CJAA reads:

Section 80 of the principal Act (as amended by this section) applies in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date.

This section apparently purports to give s 80 of the CJA retrospective application. Indeed, the Member of Parliament who proposed the amendment affirmed the intended retrospective effect. She stated:

I would also like to draw the House's attention to the impact that this [her amendment] will have because, of course, once this Bill becomes law, and it seems that the majority of parliamentarians wish that to be so, then the impact of that provision will affect those who are now before the courts on murder charges in the context of home invasion.[116]

The issue in both cases was whetherthe purportedly retrospective provision, s 2(4) of the CJAA , prevailed over the anti-retrospective protection in s 4(2) of the CJA.

R v Poumako revisited[117]

In the first case R v Poumako, the appellant was convicted of a crime, which was committed on 30 November 1998, and hence before the home invasion amendments came into force. In the High Court, Salmon J imposed a 13 year period of imprisonment, holding that the unlimited retrospective application of the amended s 80 of the CJA was the only possible interpretation of s 2(4) of the CJAA and that thus, it applied retrospectively to the appellant.[118]

In the Court of Appeal the judges avoided the question of determining the meaning and effect of the legislation. They held that the appellant's behaviour came within the category of 'exceptional circumstances' underthe previous sentencing regime and that he would have received a minimum period of 13 years imprisonment even if the new section of the CJA did not apply to his case.

Nevertheless the Court at least addressed the question of the true construction of s 2(4) of the CJAA in obiter dicta. The majority determined the issue by narrowly construing the amendments. While acknowledging it required s 80 of the CJA to be given some retrospective effect they emphasized the importance of the BORA and, basing their approach on s 6 of the BORA, they chose to seek an interpretation which would be less inconsistent with fundamental rights. They identified two possible interpretations. First, in accordance with the apparent terms of s 2(4) of the CJAA, s 80 CJA was to be given unlimited retrospective effect. Secondly, the latter could be seen as being dependent on the concept of 'home invasion' which had been introduced by the Crimes (Home Invasion) Amendment Act 1999. Confronted with the debates in Parliament the majority argued:

These possible constructions are to be considered by reference to section 6. The meaning to be preferred is that which consistent (or more consistent) with the rights and freedoms in the [BORA]. It is not a matter of what the Legislature (or an individual Member) might have intended. The direction is that wherever meaning consistent with the [BORA] can be given, it is to be preferred. The legislature's intention in this regard is clear.[119]

Consequently, they interpreted s 2(4) CJAA as only having retrospective effect to the point in time when the concept of home invasion was enacted. For this reason, the retrospective effect of the provision was confined to the 15 days between the passing of the Crimes (Home Invasion) Amendment Act 1999, which created the definition of home invasion, and the enactment of the CJAA which included s 2(4).

R v Pora[120]

As regards the factual background of R v Pora the appellant had been convicted for an offence committed in 1992. At the time he committed the offence, judges did not even have a power to set a minimum non-parole period as part of the sentence - that power did not exist until 1993.[121] However, following a retrial on the original charges, the Court had to consider whether it was obligated to sentence Pora to a minimum non-parole term of 13 years' imprisonment under the new sentencing regime. As this was a penalty that could not have been imposed when Pora committed the crime the Court had to decide whether and to what extent the home invasion amendments applied retrospectively.

On appeal, a seven judge bench of the Court of Appeal was unanimous in allowing Pora's appeal. All members held that the legislation was not retrospective beyond 1 September 1993, when the power to impose minimum non-parole periods was first conferred. The Bench was, however, divided on whether the legislation had any retrospective effect at all. The majority of the judges held that with regard to the clear terms of s 2(4) CJAA, s 80 of the CJA, as amended, must be given some retrospective effect. Keith J, delivering a joint judgment for the majority, said that 'Parliament clearly directed the Courts to apply the new powers in respect of home invasion murders committed earlier'.[122] They regarded Parliament's intentto abrogate the principles of non-retrospectivity as plain. Moreover, in their view orthodox principles of statutory construction prevented the breach from being removed by judicial interpretation. Especially the rules that later enactments prevail over earlier enactments, specific enactments prevail over general enactments and that the meaning of enactments must be ascertained according to their purpose, were given consideration to support their reasoning.

However, in the light of s 56 of the 1993 Amendment the retrospective effect was limited to offences after the initial power to impose a minimum sentence came into effect, which was on 1 September 1993. Therefore the increased mandatory non-parole period could not be applied to Pora.

While this approach already seems to be a rather strained interpretation in order to avoid the retrospective effect of s 2(4) CJAA, the minority judges were prepared to go even further. Elias CJ, Tipping J and Thomas J in a concurring judgment held that s 4(2) of the CJA operated entirely to negate the effect of s 2(4) CJAA and consequently refused to concede s 80 CJA any retrospective effect at all, notwithstanding that s 2(4) of the CJAA was enacted later in time and more specific than the general terms of s 4(2) of the CJA. The focus will lie on the joint judgment delivered by Elias CJ. The principal concern here is with her approach towards orthodox means of resolving inconsistencies between statutory provisions. First, Elias CJ considered the lex posterior derogat priori principle.[123] Requiring that later provisions prevail over earlier ones, this rule gives effect to the doctrine of implied repeal as it treats earlier provisions as impliedly repealed to the extent they are inconsistent with later provisions. According to this general principle of statutory construction s 2(4) of the CJAA should have taken priority as it was enacted later in time. The Chief Justice dismissed such a rule as being too 'mechanical' and out of step with the modern, purposive approach to the interpretation of statute.[124] In her view the 'chronological order of the inconsistent provisions cannot be determinative and is not likely to be helpful'.[125] Rather the question was which of the two provisions 'was the leading provision'.[126] This was to be determined by reference to the BORA and other statutory and common law principles, which, enshrining the principle of non-retrospectivity, pointed to favour s 4(2) of the CJA.

She then dismissed the maxim of statutory interpretation of generalia specialibus non derogant, the general does not derogate from the particular.[127] She rejected the objection that s 2(4) of the CJAA should have prevailed because it was more specific than the general terms of s 4(2) of the CJA, arguing that the above mentioned principle did not equate to a maxim, specialia generalibus derogant, the special derogates from the general.[128] The acceptance of such a proposition 'would undermine the policy of s 7 of the Interpretation Act and the direction given by s 6 of the BORA'.[129] The underlying tenor of her reasoning is that the traditional maxims of statutory interpretation are only valuable insofar as they help to indicate Parliament's intention, and moreover that they are subordinate to the legislative direction which is expressed in s 7 of the Interpretation Act and the BORA.

She finally proceeds to examine the legislative history of the section asserting that the Members of Parliament were not aware of the fact that s 2(4) of the CJAA was inconsistent with s 4(2) of the CJA and in breach of the BORA.[130] Moreover she suggests that it was implausible to believe Parliament would deliberately enact laws that were in breach of the BORA and its international obligations.[131] Therefore the legislative history would not permit any inference that Parliament intended to derogate from the fundamental principle expressed in s 4(2) of the CJA. Considering the objection that if this section prevailed, it would deprive s 2(4) of the CJAA of any effect, she concluded that such a result was mandated by s 6 of the BORA.[132]

By s 6 of the BORA Parliament had adopted a general principle of legality. This required 'Parliament to speak plainly if it wishes to derogate from principles such as those contained in s 4(2)' .[133] According to the minority, the evaluative analysis of the sections, required by s 6 of the BORA, proved that s 2(4) of the CJAA was not such a sufficiently clear expression by Parliament.

Discussion

Pora raises profound questions about the appropriate role of the courts in interpreting legislation. Moreover, given that the traditional canons of statutory interpretation have been closely associated with giving effect to parliamentary sovereignty the approach adopted by the minority may go beyond a mere introduction of a new methodology of interpretation and pose a threat to the very heart of Dicey's doctrine.[134] In the words of one commentator 'this approach is pregnant with possibility and may necessitate a rethinking of the judicial role'.[135]

From the theoretical point of view, it is arguable that the reasoning, applied in the judgments of Elias CJ, Tipping and Thomas JJ, does not infringe Parliament's powers conferred under the traditional doctrine. According to the Chief Justice, 'this result does not affect the orthodoxy that Parliament cannot bind its successors. Nor does it attempt to tie Parliament to a manner and form restriction which establishes the conditions for valid lawmaking'.[136] And indeed she then publicly affirms Parliament's supremacy, accepting that Parliament in theory has the right to abrogate basic rights.[137] For this reason, the approach in Pora has been argued to establish a method of disapplying statutes that avoids a confrontation with Parliament.[138] Under this approach the courts may declare that a provision was valid but inoperative where Parliament fails to understand the consequences of what it was enacting.[139] However, acknowledging Parliament's right to override fundamental rights, where it chooses to enact specific and unambiguous legislation this methodology theoretically would not be an assault on the doctrine of parliamentary sovereignty.[140]

Nevertheless, even this result as regards the theoretical position of the doctrine may be doubted. Diceyan theory requires the courts to give effect to the will of Parliament as expressed in legislation. What Parliament enacts is law and the courts must apply it. Denying a provision any operational effect can hardly be regarded as an application. Moreover, the attempt to warrant this result with an assumption that Parliament failed to understand the consequences of what it was enacting is an assault on Diceyan theories itself. What Parliament would or should have done if it had thought things through has no effect on the legal validity of a clearly worded enactment. Therefore such statements are an imputation rather than an attempt to implement Parliament's intention. Furthermore they amount to a judicial examination and an assessment of whether Parliament has properly balanced possible advantages and disadvantages of the enacted legislation. A task not envisaged for the courts under Diceyan theory. From a practical perspective the adoption of the modern approach of statutory interpretation is even less unproblematic and challenges the concept of parliamentary sovereignty at its very basis. Despite being introduced as an interpretative model that does not challenge Parliament's supremacy, it effectively results in the judges declining to apply an Act of Parliament.[141]

The reasoning of the minority is incompatible with the doctrine of parliamentary sovereignty particularly for two reasons: they refuse to apply the doctrine of implied repeal and practically introduce a new manner and form requirement that has to be fulfilled in order for statutory provisions to be valid.

The refusal of Elias CJ, Tipping and Thomas JJ to hold that s 4(2) of the CJA was impliedly repealed by the enactment of s 2(4) CJJA was based on the assumption that the latter if properly interpreted, is subordinate to s 4(2) of the CJA because Parliament did not intend to abrogate basic human rights. The judgments cite with approval Lord Hoffman's observation in R v Secretary of State for the Home Department, ex parte Simms:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. .. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.[142]

It has been argued that the minority judgments merely gave practical effect to this sentiment.[143] Parliament can abridge human rights protection but if it wants to do so it must use express words. This was said to be merely a rule of interpretation,[144] the requirement of explicitness being sourced in an interpretation of s 6 of the BORA.[145]

It is, however, clear that an interpretation preferred under s 6 must still be an interpretation available on the wording of the statute. It is not open to the courts to strain statutory provisions to mean something which, on their face, they do not; or to provide an alternative interpretation where the meaning of the provision is clear and unambiguous. This is inherent in the wording of s 6 itself, and in s 4(b), which forbids a court from refusing to apply any provision of an enactment solely by reason of conflict with the Act.

As has been mentioned above, the interpretation preferred by the minority has the strange result that the provision enacted to amend the Criminal Justice Act does not in fact amend it.[146] Moreover, it becomes devoid of any meaning or purpose. It is suggested that such an interpretation cannot be extracted from the text of the provision and cannot be justified by reference to s 6 of the BORA.

At the same time it fails to give effect to the clear imperatives of s 4 of the BORA which reserves full sovereignty to Parliament. It seems that if this section is to have any practical effect, Parliament must expressly invoke it and show some evidence of an intention to override a fundamental right. With regard to the provision in R v Pora one has to ask the question of whether there are words capable of achieving such an object. The only way in which Parliament can express its intentions more explicitly than it has done in the case of s 2(4) of the CJAA, is expressly to oust the relevant provisions in the BORA. Moreover, Parliament seems to have to demonstrate informed understanding of the consequences of its legislation to make sure that the enacted provisions are applied by the courts.[147] Despite assurances to the contrary the level of explicitness required by the minority practically imposes a manner and form requirement on future legislation intended to abrogate basic human rights.

This conclusion is supported by a comparison with a provision of the German Constitution.[148] Article 19 (1) Grundgesetz (Basic Law), requires laws which restrict basic rights to expressly cite the Article which is being limited: the so-called Zitiergebot. Moreover, the details of any change and the amending law must be given. This is generally regarded as a formal or procedural requirement which must be complied with when restricting basic rights. Apparently it is very similar to the requirements imposed by the minority judges in R v Pora.

In the end the promoted methodology envisages a greater role for the judiciary and practically provides judges with a means of reviewing parliamentary legislation. As understood and applied by Elias CJ, Tipping and Thomas JJ the new perception of the judicial role comes close to judicial invalidation and thus challenges the core concept of Diceyan orthodoxy, namely that Acts of Parliament are sacrosant and may not be invalidated by the courts. The fact that this is exercised under the guise of interpretation and in the name of Parliament's intention is nothing more than an attempt to disguise its true consequences.

IV. The Status of the Doctrine in the United Kingdom

As has been indicated above the doctrine of parliamentary sovereignty has not only been thought to describe the power of Parliament and its relationship to the courts in New Zealand. Of course it is beyond the scope of this paper to examine the developments Dicey's propositions have taken in different countries and to assess their validity against the respective contemporary constitutional background.[149]

However, as international comparisons can not only provide a powerful impetus for law reform but are also a useful device in interpreting or understanding domestic rules and laws, a brief survey of the development of the doctrine of parliamentary sovereignty in its country of origin, the United Kingdom, will be given.[150] The focus will be on two relatively recent developments: the United Kingdom's accession to the European Communities in 1972 and the enactment of the Human Rights Act 1998.

The Impact of European Community Law on the Doctrine of Sovereignty

The United Kingdom acceded to the European Community by the Treaty of Brussels 1972 notwithstanding that the Community legal order is plainly inconsistent with the doctrine of sovereignty of Parliament. Whereas Dicey asserted that 'no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament'[151] Community law envisages that it prevails over any national law. This has been repeatedly emphasized by the European Court of Justice. In the Simmenthal[152] case, the Court stated:

A national court which is called on within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means. [153]

Consequently, the role Community law envisages for the courts is far wider than under the Diceyan theory, requiring judges if necessary to disregard national laws - even if they take the form of an Act of Parliament - in order to give full effect to Community law.

The Treaty was implemented in the United Kingdom by the European Community Act 1972. Section 2(1) gave effect to all Community rules that have direct application or direct effect within Member States. This applied both to existing and to future Community rules.[154] Hence, it was questionable what the position would be if an Act passed after 1972 were found to contain a provision that was impossible to reconcile with a rule of Community law. The key question was whether the courts -in accordance with orthodox Diceyan theory — would refer to the doctrine of implied repeal and give effect to that legislation or - in accordance with the European Court of Justice and the doctrine of the supremacy of Community law - would let Community law prevail.

Not surprisingly, however, the response of the British courts to the question showed a preference for resolving potential clashes and inconsistencies by interpretation, and they were reluctant to reach the sovereignty question.[155] Relying on s 2(4) as a rule of construction,[156] the courts took the view that where possible national legislation had to be interpreted and applied so that it did not conflict with Community law.[157]

However, in the case of R v Secretary of State for Transport, ex parte Factortame Ltd[158] the question of what the courts should do if Parliament chose to legislate inconsistently with Community law eventually arose. Parliament had enacted the Merchant Shipping Act 1988 which introduced a new system of registration for British fishing vessels. To be entered on the register vessels had to be British owned. Spanish owners and operators whose vessels were registered under the old register argued that this requirement discriminated against them contrary to Community law. In judicial proceedings they sought an order restraining the Secretary of State from enforcing the Act against them pending a ruling on its compatibility with Community law by the European Court of Justice. The House of Lords held that as a matter of national law the courts had no power to suspend the effect of an Act of Parliament, but referred to the European Court the question whether Community law empowered or obliged a national court to provide effective interim protection of rights claimed under Community law. The Court replied that if the only obstacle to the granting of relief in order to protect directly effective Community rights was a rule of national law prohibiting it from doing so, the national court must as a matter of Community law set that rule aside. The House of Lords then took the unprecedented step of restraining the Secretary of State from applying the Act pending the ruling on its compatibility with Community law by the European Court.

This was argued by some as representing a blow to the doctrine of parliamentary sovereignty.[159] Others argued that all it did was implement a rule of construction (derived from s 2(4) of the European Communities Act 1972) that the UK Parliament is presumed not to intend statutes to override EEC law.[160]

Whatever the truth may be, legal reality demands that British courts within the scope of the Treaty now have to decide whether to apply or not to apply Acts of Parliament.

The Human Rights Act 1998[161]

On 2 October 2000, the Human Rights Act 1998 came into force, incorporating the European Convention on Human Rights into British law.[162] The Act, which has its roots in the New Zealand Bill of Rights Act 1990, brought an end to the Bill of Rights debate in the United Kingdom. Like its New Zealand role-model the Act strives to strike a balance between reflecting modern ideas of human rights protection on the one hand and preserving the ideas of Diceyan parliamentary omnipotence on the other hand. The key provision of the Human Rights Act imposes a duty upon all public authorities to act compatibly with Convention rights.[163] But just as before, British courts are not entitled to set aside parliamentary legislation on the ground that it violates human rights. Instead the Human Rights Act 1998 lays down the following procedure. First, courts have to interpret national legislation, wherever possible, in a way which is compatible with Convention rights.[164] Where this is not possible, the higher courts may make a formal declaration that national legislation is incompatible with a Convention right.[165] Such a declaration of incompatibility does not effect the validity, continuing operation or enforcement of the provision in question, nor is it binding on the parties to the proceedings in which it is made.[166] The declaration merely sets in motion a fast-track procedure to amend incompatible legislation.[167] Thus the power to amend parliamentary legislation is strictly reserved to Parliament itself and - under certain provisions[168] - to the government. The same rules apply if the European Court of Human Rights states the incompatibility of British national law with the Convention.[169] Although this scheme is described as 'an ingenious and successful reconciliation of the principles of parliamentary sovereignty and the need for effective domestic remedies'[170] it effectively alters the Diceyan assumptions of parliamentary omnipotence in various ways. Limited space confines the analysis to the most obvious challenges. Firstly, the Human Rights Act 1998 modifies the doctrine of implied repeal. In this context s 3 of the Act is pivotal. It imposes a duty on the courts to interpret existing and future legislation in a way which is compatible with Convention rights.[171] The section in practice imposes anew interpretative requirement on the courts. As the White Paper explained:

This goes beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so.[172]

Thus the section presupposes a continuing parliamentary intention to legislate in a manner consistent with Convention rights.[173] As a result later Acts of future Parliaments that cannot be interpreted consistently with a Convention right cannot automatically be deemed to have been intended, by implication, to depart from Convention rights.[174] This result is manifested by the deliberate omission from the Act of the equivalent of s 4 of the New Zealand Bill of Rights Act 1990, which expressly requires the courts to apply the doctrine of implied repeal to the interpretation of the Act. Moreover the Act has transferred significant power to the judiciary.[175] In relation to legislation enacted by Parliament, the courts have acquired very extensive new functions. The Act has created a mechanism to exercise a weak form of judicial review over parliamentary legislation. The introduction of the remedy of a declaration of incompatibility means that parliamentary decisions are now subject to legal scrutiny by the courts. A court that makes such a statement will have scrutinized the legislation closely against the jurisprudence of the European Court of Human Rights and in the end will have to make a statement as to the quality of the statute in question. The implications for the traditional understanding of the doctrine parliamentary sovereignty have already been discussed in the context of the New Zealand Bill of Rights.

However, in the case of the United Kingdom there is an additional factor that adds to the potential of a declaration of incompatibility as athreatto parliamentary omnipotence. As a declaration of incompatibility actually means that someone's Convention rights have been infringed that person could consider having recourse to the European Court of Human Rights in Strasbourg itself. This point has been made clear by the Home Secretary who stated:

One of the questions that will always be before Government, in practice, will be, 'Is it sensible to wait for a further challenge to Strasbourg, when the British courts have declared the provision to be outwith the Convention?'[176]

Furthermore, s 10 of the Human Rights Act 1998, which establishes the so-called fast-track procedure to allow rapid action to be taken to amend legislation which is the subject of a declaration of incompatibility or a finding of a violation of the Convention by the European Court of Human Rights, specifically provides for the amendment or repeal by ministerial means of primary legislation. Whereas under Diceyan theory only Parliament itself had the power to negate the consequences of a legislative Act, this power now has been transferred to the executive.[177] This not only blurs the line between legislative and executive powers; in practical terms it chips away another part of Parliament's position as the supreme and once exclusive law-making body.

Comment

Whatever controversy it aroused at the time, the practical impact of Factortame on the conception of parliamentary sovereignty cannot be overlooked. It moved some real distance away from the Diceyan view of the doctrine. The practical point is that in matters governed by the law of the Community parliamentary supremacy has been, whether permanently or for an indefinite period, to some extent abrogated or suspended.[178] The legislative powers of the British Parliament are subject to the limitations within the Treaty as interpreted by the European Court of Justice. While this is not the end of parliamentary sovereignty, it is nonetheless a not inconsiderable limitation of it.

The constitutional impacts of the Human Rights Act 1998 are similar to those discussed in the context of the New Zealand Bill of Rights Act 1990. As a result of the enactment elements within the Diceyan framework have been significantly qualified.[179]

However, while in New Zealand this result was achieved by judicial activism, which sometimes clearly went beyond the legislative imperatives of the Bill of Rights Act 1990, in the United Kingdom the provisions of the Human Rights Act 1998 itself are an expression of changed legal arrangements between Parliament and the courts. In particular, the procedure laid down in s 10 of the Act for amending legislation judicially held or considered by a minister to be incompatible with the Convention is likely to weaken, if not actually infringe, parliamentary sovereignty. The practical effects of the Human Rights Act 1998 need, however, to be awaited. Nevertheless, it is quite likely that the enactment of the Human Rights Act 1998 will have a significant impact on traditional constitutional principles and the courts' protection of fundamental freedoms. As Lord Lester has stated: '[O]ur courts will surely regard the Human Rights Act as no ordinary law'.[180] A comparison between the position in the United Kingdom and the situation in New Zealand shows both similarities and differences. In both states the doctrine of parliamentary sovereignty could not ignore the reality of the countries' respective international relations and obligations and had to catch up with political realities.

The way in which international obligations provide a catalyst for national constitutional changes is especially elucidated in the case of the United Kingdom. Apparently, the constitutional changes there are the result of a process of an increasing European integration. Strict Diceyan theories of the sovereignty of Parliament had to give way in return for the benefits of the accession to the European Community.

The extent to which this step was influenced by rather practical and economical considerations has been pointed out by Hoffman J (as he then was):

Our entry into the European Economic Community meant that (subject to our undoubted but probably theoretical right to withdraw from the Community altogether) Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty on the matters of social and economic policy which it regulated. The entry into the Community was in itself a high act of social and economic policy, by which the partial surrender of sovereignty was seen as more than compensated by the advantages of membership.[181]

Interestingly, Parliament and the courts in the United Kingdom have shown a greater preparedness to change Diceyan conceptions in relation to economic convergence than they have in relation to human rights. Under the European Communities Act 1972 inconsistency with Community law is resolved by an actual disapplication of the relevant statutory provisions by the courts. In contrast, under the Human Rights Act 1998 laws which violate the Convention are 'only' subject to a declaration of incompatibility. The growing influence of international law, especially the international law of human rights on national legal systems, is also clearly visible in New Zealand. In both countries the respective obligations under international treaties protecting fundamental rights, have prompted the enactment of human rights legislation. And although the British Human Rights Act 1998 is modelled on the New Zealand Bill of Rights 1990 the former might be of particular importance for New Zealand in terms of providing model procedures and mechanisms required to give effect to judicial indications of inconsistency. Thus the Act might help to further the future development of this new form of remedy and help to establish it within the legal system. Moreover, the judicial responses to the Human Rights Act 1998 in the United Kingdom may be of persuasive value for the New Zealand courts and their future approach towards protecting fundamental rights; be it in a way of preserving Dicey's paradigms or not.

In the end, both countries, despite their different political, cultural and to some extent legal developments face the similar problem, namely to adapt traditional legal theories to the realities of the modern world.

V. Conclusion

It is clear that this paper can only provide a brief introduction to the issues that are raised by Diceyan theories in the context of contemporary discussions of the constitutional developments in New Zealand. The degree to which they are interweaved with the legal realities is of course far more complex than one might think after having read through the foregoing chapters. A glimpse at the articles of academic writers commenting on topics like the debate over a written constitution for New Zealand, a change of the form of government from the current constitutional monarchy to a republic or even the debate over the introduction of a new electoral system, reveals that Diceyan theories are on the political agenda of almost every single constitutional discussion.

With these remarks in mind it is, however, now time to sum up the observations, which have emerged out of the foregoing analysis and to turn back to the questions asked at the beginning of this paper. The first one concerned the extent to which Dicey's theories can be regarded to have been altered, if at all. The analysis of the above mentioned decisions of the Court of Appeal has made it quite clear that the content of some of Dicey's theories or at least the way that they are given effect by the Court of Appeal have been or are on the way to being significantly changed. Traditional canons of statutory interpretation, which had been judicially developed against the background of the Diceyan conception of parliamentary sovereignty are being diluted little by little and replaced by the lingering concept of purposive interpretation, sourced in s 6 of the BORA. The principle which is to be mentioned first in line, is the doctrine of implied repeal. The way the doctrine has been given effect in the context of fundamental rights, is often hardly more than the recognition of its label. This is especially so in the reasoning of the minority judges in R v Pora, which effectively deprives this principle, which originally was thought to be an automatic corollary of the acceptance of the Diceyan conception of parliamentary omnipotence, of any practical effect. Moreover, the way in which the Court has used and applied the interpretative provisions of the BORA to achieve interpretations of enactments in some cases has completely blurred the dividing line between the respective functions of Parliament and the courts. While the Act was originally designed to protect parliamentary sovereignty, it may ultimately have the opposite effect.

Especially in the context of s 6 of the BORA the term 'interpretation' has sometimes been so strained that the description of the relationship between Parliament and the courts offered by Dicey can no longer be seen as representing the law. And indeed, in R v Pora Thomas J noted that 'the difference [between the majority and the minority judges] reflects a different judicial philosophy and approach resulting in a different perception of the Court's role'.[182]

If one accepts this statement as reflecting the reality one can move on to the second question and ask whether this new judicial approach heralds the demise of Dicey's theories? The answer seems to be twofold. From a theoretical point of view the answer seems to be no. Notwithstanding the substantial academic and judicial criticisms, Dicey's perceptions of the sovereignty of Parliament are still used to describe the operation of the New Zealand constitution and still used to explain the democratic legitimacy of the legal system. Even the remarkable comments of Sir Robin Cooke did not manage to overcome Dicey's influence and legacy in 20th century New Zealand. Despite the disdain for the doctrine which is evident in some of the judgments of the Court of Appeal, none of the judges ever went so far as to actually challenge the theoretical position of parliamentary sovereignty. Quite to the contrary, Dicey's description of parliamentary omnipotence is regularly affirmed.[183]

In practical terms, however, it seems that any other statement than that reality has moved some distance away from Dicey's theories, comes close to political embellishment. The cases discussed above quite clearly indicate the extent to which their position within the constitution has already been transformed.

Whichever role Dicey's doctrine of parliamentary sovereignty will play in New Zealand's legal system, as regards the relationship between Parliament and the courts one conclusion, which might be of assistance in future debates, is evident: even impossibility has never stopped things actually happening.


[*] The author is currently employed by the German Federal Ministry of Consumer Protection, Food and Agriculture. This paper was written as part of the requirements for the LLM.

[1] Sir Robin Cooke, 'Fundamentals' [1988] New Zealand Law Journal 159.

[2] A V Dicey, An Introduction to the Study of the Law of the Constitution (10th ed, 1959).

[3] G de Q Walker, 'Some Democratic Principles for Constitutional Reform in the 1990s' in B D Gray and R B McClintock (eds), Courts and Policy: Checking the Balance (1995) 183, 190.

[4] For recent suggestions that Parliament lacks unlimited legislative competence, see Sir John Laws, 'Law and Democracy' [1995] Public Law 72; Lord Woolf, 'Droit Public - English Style' [1995] Public Law 57; Sir Stephen Sedley, 'Human Rights: A Twenty-First Century Agenda' [1995] Public Law 386; T R S Allan, 'The Limits of Parliamentary Sovereignty' [1985] Public Law 614; 'Parliamentary Sovereignty: Law, Politics, and Revolution' (1997) 113 Law Quarterly Review 443.

[5] D Kalderimis, 'R v Pora' [2001] New Zealand Law Journal 369, 370.

[6] T R S Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (1993) 16.

[7] J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999) 3.

[8] Dicey, above n 2, 39, 70.

[9] See Goldsworthy, above n 7, arguing that Dicey's analysis of the sovereignty of Parliament was in essence merely a re-statement of a central theme in English legal history.

[10] See I Jennings, The Law and the Constitution (5th ed, 1959).

[11] Dicey, above n 2, 39-40.

[12] Ibid.

[13] Ibid 21.

[14] G Patmore and A Thwaites, 'Fundamental Doctrines for the Protection of Civil Liberties in the United Kingdom: A V Dicey and the Human Rights Act 1998 (UK)' (2002) 13 Public Law Review 52, 64.

[15] H Barnett, Constitutional and Administrative Law (2nd ed, 1998) 230; J F Burrows, 'Inconsistent Statutes' [1976] OtaLawRw 8; (1976) 3 Otago Law Review 601, 607-15.

[16] Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590; McCawley v The King [1920] AC 691; South Eastern Drainage Board (SA) v Savings Bank of South Australia Ltd [1939] HCA 40; (1939) 62 CLR 603; Deputy Commissioner of Taxation v Moorebank Pty Ltd (1988) 165 CLR 56.

[17] [1934] 1 KB 590.

[18] Ibid 597.

[19] A Killeen, R Ekins and J Ip, 'Undermining the Grundnorm' [2001] New Zealand Law Journal 299, 301.

[20] Bonham's Case (1610) 8 Co Rep 114a.

[21] Ibid 118a.

[22] J L Caldwell, 'Judicial sovereignty - A new view' [1984] New Zealand Law Journal 357, 358.

[23] [1974] UKHL 1; [1974] AC 765.

[24] Ibid 768. For other modern judicial dicta supporting the omnipotence theory, see O Hood Phillips, Constitutional and Administrative Law (5th ed, 1973) 48, note 53.

[25] X v Morgan-Grampian (Publishers) Ltd [1991] AC 1, 48.

[26] R F V Heuston, Essays in Constitutional Law (2nd ed, 1964) 1.

[27] ML Principe, The New Zealand Bill of Rights Act 1990: A Step Towards the Canadian and American Examples or a Continuation of Parliamentary Supremacy (1992) 30-1.

[28] A W B Simpson, The Common Law and Legal Theory' in A W B Simpson (ed), Oxford Essays in Jurisprudence (2nd series, 1973) 77, 96.

[29] Earl of Shaftesbury, Some Observations Concerning the Regulating of Elections for Parliament, quoted in Goldsworthy, above n 7, 150.

[30] Case of Proclamations (1611) 12 Co Rep 74.

[31] O Dixon, 'The Common Law as an Ultimate Constitutional Foundation' (1957) 31 Australian Law Journal 240.

[32] Ibid 242.

[33] H L A Hart, The Concept of Law (1961); H Kelsen, General Theory of Law and State (translated by A Wedberg, 1949).

[34] Kelsen, above n 33, 116.

[35] Hart, above n 33, 145 ff.

[36] G Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-examined' (1976) 92 Law Quarterly Review 591.

[37] H W R Wade, 'The Basis of Legal Sovereignty' (1955) Cambridge Law Journal 172, 188.

[38] PA Joseph, 'Foundations of the Constitution' [1989] CanterLawRw 5; (1989) 4 Canterbury Law Review 58; 'The New Zealand Bill of Rights' (1996) 7 Public Law Review 162, 163.

[39] M McDowell and D Webb, The New Zealand Legal System (2nd ed, 1998) 4.

[40] The Constitution Act 1986 s 15 declares: 'The Parliament of New Zealand continues to have full power to make laws'.

[41] See particularly the New Zealand Constitution Act 1852 (UK) s 53.

[42] R v Burah (1878) 3 AC 889; Hodge v R (1883) 9 AC 117; Powell v Apollo Candle Company (1885) 10 AC 282.

[43] Joseph, above n 38, 58; F M Brookfield, 'Parliament, the Treaty, and Freedom - Millennial Hopes and Speculations' in P A Joseph (ed), Essays on the Constitution (1995) 41, 42. In S Elias, 'The Treaty of Waitangi and Separation of Powers in New Zealand' in B D Gray and R B McClintock (eds), Courts Policy: Checking the balance (1995) 206, Sean Elias (as she then was) argued that the British doctrine of parliamentary sovereignty has no application to the fundamentals of the New Zealand constitution as it is not a necessary feature of the possession of territorial sovereignty. She expresses the view that under the Treaty of Waitangi at most territorial sovereignty was transferred and that the transfer of that sovereignty was conditioned upon performance of the promises guaranteed in it. For a further discussion of this view, see E W Thomas, 'The Relationship of Parliament and the Courts: A Tentative Thought or two for the New Millennium' (2000) 31 Victoria University of Wellington Law Review 5, 10-1.

[44] See F M Brookfield, 'High Courts, High Dam, High Policy' [1963] New Zealand Law Review 62.

[45] Gilmore v National Water and Soil Conservation Authority and Minister of Energy (1982) 8 NZTPA 298.

[46] Annan v National Water and Soil Conservation Authority and Minister of Energy (No 2) (1982) 8 NZTPA 369.

[47] Brookfield, above n 44, 66.

[48] Ibid.

[49] B V Harris, 'The Law-Making Powers Of The New Zealand General Assembly: Time To Think About Change' [1984] OtaLawRw 6; (1984) 5 Otago Law Review 565, 573-4.

[50] Ibid. Whether or not the doctrine of parliamentary sovereignty prevents the New Zealand Parliament from prescribing binding requirements as to the procedure and form by which they must enact future legislation: at 574-90.

[51] [1990] NZHC 632; [1991] 2 NZLR 323.

[52] Ibid 330, quoted in Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 157. See also Cooper v A-G [1996] NZLR 480, 484; Westco Lagan v A-G [2001] 1 NZLR 40, 62-3.

[53] Woolf, above n 4, 69.

[54] Sedley, above n 4, 391.

[55] See B McLachlin, 'Bills of Rights in Common Law Countries' (2002) 51 International and Comparative Law Quarterly 197.

[56] Ibid.

[57] For a detailed examination of Cooke's dicta, see Caldwell, above n 22. See also Cooke J's comments in Brader v Ministry of Transport [1981] 1 NZLR 73, 78.

[58] [1979] NZCA 59; [1979] 2 NZLR 519.

[59] Ouster clauses are clauses by which the Legislature seeks to prevent the courts from reviewing a decision of an administrative body.

[60] [1979] NZCA 59; [1979] 2 NZLR 519, 527.

[61] [1982] 1 NZLR 374.

[62] Ibid 390.

[63] [1984] 1 NZLR 116.

[64] Ibid 121.

[65] [1984] 1 NZLR 394.

[66] Ibid 398.

[67] Caldwell, above n 22, 357.

[68] A Lloyd, 'Lord Cooke's Fundamental Rights and the Institution of Substantive Judicial Review' (1999) 8 Auckland University Law Review 1173, 1175.

[69] Cooke, above n 1, 158.

[70] Ibid 160.

[71] P Rishworth, 'Birth of the Bill of Rights' in G Hushcroft and P Rishworth (eds), Rights and Freedoms (1995) 1, 10.

[72] For an overview of recent attempts to rely on Lord Cooke's 'common law rights' dicta, see P A Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001) 493-4.

[73] Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154, 158.

[74] Cooper v A-G [1996] 3 NZLR 480, 484.

[75] Thomas, above n 43, 7-8.

[76] Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590.

[77] M D Kirby, 'The Struggle for Simplicity: Lord Cooke and Fundamental Rights' [1998] Commonwealth Law Bulletin 496, 506.

[78] Ibid.

[79] For a detailed discussion, see Lord Reid, 'The Judge as Lawmaker [1972] JSPTL 22; M McHugh, 'The Law-making Function of the Judicial Process - Part I' (1988) 62 Australian Law Journal 15; 'The Law-making Function of the Judicial Process - Part II' (1988) 62 Australian Law Journal 116.

[80] [1968] UKHL 6; [1969] 2 AC 147.

[81] Dicey, above n 2, 60.

[82] Black Clawson International Ltd v Papierwerke AG [1975] UKHL 2; [1975] AC 591, 638; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, 96-7, 104, 116, 123; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 348.

[83] There were two earlier, but unsuccessful attempts to adopt a Bill of Rights in New Zealand in 1963 and 1985; see Joseph, above n 38, 162.

[84] Ratified by New Zealand in 1978.

[85] J A Smillie, 'The Allure of "Rights Talk": Baigent’s Case in the Court of Appeal' [1994] OtaLawRw 3; (1994) 8 Otago Law Review 188, 194.

[86] J A Smillie, 'Fundamental Rights, Parliamentary Supremacy and the New Zealand Court of Appeal' (1995) 111 Law Quarterly Review 209, 214.

[87] Joseph, above n 38, 164.

[88] For example, see the decisions of the German Constitutional Court, BVerfGE 18, 97 at 111; 54, 277 at 299; 86, 71 at 77; 90, 145 at 170.

[89] See J McLean, 'Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act' [2001] New Zealand Law Review 421, 427.

[90] P Rishworth, 'Affirming the Fundamental Values of the Nation: How the Bill of Rights and the Human Rights Act affect New Zealand Law' in G Hushcroft and P Rishworth (eds), Rights and Freedoms (1995) 71, 94.

[91] Ibid 94. Compare the comments as regards the British Human Rights Act 1998 in I Leigh and L Lustgarten, 'Making Rights Real: The Courts, Remedies and the Human Rights Act' (1999) 58 Cambridge Law Journal 509, 536.

[92] M Hodge, 'Statutory Interpretation and Section 6 of the New Zealand Bill of Rights Act: A Blank Cheque or a Return to the Prevailing Doctrine' (2000) 9 Auckland University Law Review 1, 24

[93] J Allan, 'Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990' [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613, 618.

[94] [1991] 1 NZLR 439. 95 [1994] 3 NZLR 667.

[96] Ibid 677 (Cooke P).

[97] Upton v Green (No 2) (1996) 3 HRNZ 179; Dunlea & Others v Attorney-General [2000] NZCA 84; [2000] 3 NZLR 136.

[98] Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derick, New Zealand Law Commission Report Series R37, Wellington 1997.

[99] See R v Joyce [1968] NZPoliceLawRp 8; [1968] NZLR 1070.

[100] NZPD Vol 510, 1990: 3449-50.

[101] Killeen, Ekins and Ip, above n 19, 308.

[102] F M Brookfield, 'Constitutional Law' [1992] New Zealand Recent Law Review 231; A Butler, 'Strengthening the Bill of Rights' (2000) 31 Victoria University of Wellington Law Review 129; P Rishworth, 'Reflections on the Bill of Rights after Quilter v Attorney- General' [1998] New Zealand Law Review 683, 689-95.

[103] [1999] NZCA 329; (1999) 5 HRNZ 224.

[104] Ibid 234.

[105] [2000] NZCA 69; [2000] 2 NZLR 695.

[106] Ibid 714.

[107] Ibid.

[108] The Crown submitted that it had not been given sufficient notice of the intention to argue for a declaration of incompatibility with the Bill of Rights Act.

[109] [2000] NZCA 69; [2000] 2 NZLR 695, 710, 715-20.

[110] Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260, 273 (Cooke P, 295; Gault J, 295).

[111] P Rishworth, 'Human Rights' [1999] New Zealand Law Review 457, 469.

[112] See now The Human Rights Act 1998 (UK) s 4.

[113] Bringing Rights Home (1997) para 2.10.

[114] A S Butler, 'Judicial Indications of Inconsistency - A New Weapon in the Bill of Rights Armoury?' [2000] New Law Review 43, 60.

[115] Criminal Justice Amendment Act 1993 (NZ) s 2.

[116] NZPD Vol 578, 1999: 17686-7 (Patricia Schnauer MP)

[117] [2000] NZCA 69; [2000] 2 NZLR 695.

[118] R v Poumako (1999) 17 CRNZ 294.

[119] [2000] NZCA 69; [2000] 2 NZLR 695, 703.

[120] [2000] NZCA 403; [2001] 2 NZLR 37.

[121] At the time of Pora's original conviction for the offence in 1992, s 56 of the 1993 Amendment Act and s 4(2) of the Criminal Justice Act 1961 precluded a mandatory order being imposed for the offence prior to 1 September 1993.

[122] [2000] NZCA 403; [2001] 2 NZLR 37, 63.

[123] Ibid 47.

[124] Ibid 47-8.

[125] Ibid 48.

[126] Ibid.

[127] Ibid.

[128] Ibid.

[129] Ibid.

[130] Ibid 49.

[131] Ibid.

[132] Ibid 49-50.

[133] Ibid 50-1.

[134] Hodge, above n 92, 13.

[135] P A Joseph, 'Constitutional Law' [2001] New Zealand Law Review 449, 452.

[136] [2000] NZCA 403; [2001] 2 NZLR 37, 50.

[137] Ibid 50-1.

[138] Joseph, above n 72, 510.

[139] Ibid.

[140] Joseph, 'Constitutional Law', above n 135, 453-4.

[141] J Evans, 'Questioning the Dogmas of Realism' [2001] New Zealand Law Review 145.

[142] [2000] AC 115, 131.

[143] Kalderimis, above n 5, 371.

[144] Ibid.

[145] Compare J Palmer, 'Elias in Wonderland' (2001) 9 Auckland Univeristy Law Review 594, 604.

[146] The long title of the CJAA declares it to be 'An Act to amend the Criminal Justice Act 1985'.

[147] Joseph, 'Constitutional Law', above n 135, 455.

[148] For an overview of the German Constitution, see N Foster, German Legal System & Laws (2nd ed, 1996) 140.

[149] For the position in Australia, see A R Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998); for the position in Canada, see P W Hogg, Constitutional Law in Canada (4th ed, 1997).

[150] For a recent examination of the constitutional status of the doctrine of parliamentary sovereignty in the United Kingdom, see J L Black Branch, 'Parliamentary Supremacy or Political Expediency? The Constitutional Position of the Human Rights Act under British Law' (2002) 23 Statute Law Review 59.

[151] Dicey, above n 2, 40.

[152] Amministrazione delle Finanze dello Stato v Simmenthal SpA (No 2) [1978] EUECJ R-106/77; [1978] 3 CMLR 263.

[153] Ibid 268.

[154] The European Communities Act 1972 s 2(1) provides: 'All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies'.

[155] A Page, 'The Constitutional Background' in P Giddings and G Drewry (eds), Westminster and Europe: The Impact of the European Union on the Westminster Parliament (1996) 31, 44-5.

[156] Section 2(4) provides that: 'The provisions that may be made under section 2(2) include, subject to Schedule 2, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed ... shall be construed and have effect subject to the foregoing provisions of this section ...'.

[157] See Macarthys Ltd v Smith [1979] 3 All ER 325; Garland v British Rail Engineering Ltd [1982] UKHL 2; [1983] 2 AC 751; Pickstone v Freemans plc [1988] UKHL 2; [1989] AC 66.

[158] [1989] UKHL 1; [1990] 2 AC 85; R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) (1990) UKHL 13; [1991] 1 AC 603; for a discussion of the relevance of the decisions for New Zealand see B V Harris, 'Parliamentary Sovereignty and Interim Injunctions: Factortame and New Zealand' (1992) 15 New Zealand Universities Law Review 55.

[159] H W R Wade, 'Sovereignty - Revolution or Evolution?' (1996) 112 Law Quarterly Review 568.

[160] P Craig, ' Sovereignty of the United Kingdom Parliament after Factortame' (1991) 11 Yearbook of European Law 221.

[161] For a discussion of the Human Rights Act 1998, see especially Black Branch, above n 150, 64.

[162] The United Kingdom signed the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 and ratified it in 1951. Since 1966 the United Kingdom has recognized the right of individual petition, which permits persons, and not merely states, to bring a case against the United Kingdom government before the European Court of Human Rights alleging contraventions of the Convention. However, in the absence of legislation incorporating it into domestic law, the Convention could not be relied upon directly before the British courts.

[163] Human Rights Act 1998 (UK) s 6.

[164] Human Rights Act 1998 (UK) s 3.

[165] Human Rights Act 1998 (UK) s 4.

[166] Human Rights Act 1998 (UK) s 4(6).

[167] Human Rights Act 1998 (UK) s 10.

[168] Human Rights Act 1998 (UK) s 10.

[169] Human Rights Act 1998 (UK) s 10(1)(b).

[170] Lord Irvine, 'The Influence of Europe on Public Law in the United Kingdom', in B Markesinis (ed), The Clifford Chance Millennium Lectures: The Coming Together of the Common Law and the Civil Law (2000) 11, 15 Lord Lester.

[171] G Marshall, 'Interpreting Interpretation in the Human Rights Bill' [1998] Public Law 167; F Bennion, 'What Interpretation is "Possible" under Section 3(1) of the Human Rights Act 1998?' [2000] Public Law 77.

[172] Rights Brought Home, Cm 3782 (1997) para. 2.7.

[173] N Bamforth, 'Parliamentary Sovereignty and the Human Rights Act 1998' [1998] Public Law 572, 573-5.

[174] D Feldman, 'The Human Rights Act 1998 and Constitutional principles' (1999) 12 Legal Studies 165, 178-80.

[175] K D Ewing, 'The Human Rights Act and Parliamentary Democracy' (1999) 62 Modern Law Review 79.

[176] HC Debs, Vol. 306, 1998: 773.

[177] Note that Parliament retains the power of scrutiny over remedial orders and may disallow them prospectively at any stage.

[178] B M Selway, 'The Constitution of the United Kingdom: A Long Distance Perspective' (2001) 30 Common Law World Review 3, 33.

[179] Lord Bingham, 'Dicey Revisited' [2002] Public Law 39, 45.

[180] Lord Lester, 'The Art of the Possible: Interpreting Statutes under the Human Rights Act' [1998] European Human Rights Law Review 665, 668.

[181] Stoke-on-Trent City Council v B. & Q. plc. [1991] Ch 48, 56.

[182] [2000] NZCA 403; [2001] 2 NZLR 37, 66.

[183] See only the statements in R v Pora [2000] NZCA 403; [2001] 2 NZLR 37, 50-1 (Elias CJ, Thomas J, 65).


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