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Muth, Daniela --- "Basic conceptions of the legal system: a critical comparison between New Zealand and Germany" [2004] CanterLawRw 6; (2004) 10 Canterbury Law Review 152


BASIC CONCEPTIONS OF THE LEGAL SYSTEM: A CRITICAL COMPARISON BETWEEN NEW ZEALAND AND GERMANY

Daniela Muth[*]

I. Introduction

New Zealand and Germany are about 23,000 kilometres away from each other. For a German, New Zealand is 'at the other end of the world', and for a New Zealander it feels the other way round. The question is whether or not the two legal systems also mirror this great distance. Are there extreme differences or are the basic conceptions of both countries quite similar? This paper examines the fundamentals of the legal systems of New Zealand as well as of Germany. Through a critical comparison it will be investigated which legal conception leads to more benefits and provides the people - in the long-term - with the better solution. This depends on the ability of a legal system to distribute responsibility and to limit power. If all goes well in a society, nobody worries about constitutional limitations of power. Every legal system is fine as long as the rulers exercise their power responsibly. But the true value of a legal system becomes clear when powerful bodies seek to abuse their power. In this situation the fundamentals of a legal system should provide safeguards that maintain democracy and the rule of law. Only if a legal system can ensure such a protection is it valuable to the people. It is easy to say that an abuse of power is hypothetical and very unlikely. That may be so. But to offer solutions in problematic - and maybe hypothetical - situations, is the nature of legal rules. Therefore, a legal system should be steeled for when the case occurs. According to this premise, the basic conceptions of New Zealand and Germany will be investigated. In Part II it will be shown which kind of constitutional framework sets the basis for the two legal systems. Part III is focused on two constitutional principles which complement these constitutional frameworks.

II. Constitutional framework

A constitution is about power - the power of the state. It is the framework within which the law is created, serviced and administered. It describes and prescribes the major institutions of government, specifying and regulating their principal powers.[1] Therefore, it provides the source of the powers and functions of the different branches of government. It also establishes the rights of citizens, and regulates the relationship between the state and the individual.

This general definition enables countries such as New Zealand to claim the existence of a constitution, despite the absence of a written document containing all its constitutional principles. This makes clear that a constitution does not require a special form. Rather any constitution is undoubtedly the product of history and a creature of time.

Today several types of constitutions exist, which all reflect their historical development. Also the constitutional frameworks of Germany and New Zealand were mainly influenced by legal history. Each of them symbolizes today one main type of constitution. In Part II similarities and differences between these conceptions will be shown and examined with regard to their effectiveness and their benefits to the people.

Sources of the Constitution of New Zealand

New Zealand does not have a written constitution. Therefore, it is often criticised for not having a constitution at all.[2] This criticism rests largely on the interpretation of the word 'constitution' as a single document. But as described above, there is no exclusive requirement for a written form of constitution. Consequently, the critics are wrong. New Zealand does have a constitutional framework which is provided by a combination of different sources, both written and unwritten. The constitution is built up by legislation, the common law, conventions, as well as by the Treaty of Waitangi and by fundamental principles such as the rule of law.

Statutes

Statute law provides a very important and large source of New Zealand's constitution. There are many Acts of constitutional significance.[3] Legislation has sought to deal with the country's history and to recognise Maori interests in, for example, the Treaty of Waitangi Act 1975.[4] Besides this, the most important formal legal documents are particularly the Constitution Act 1986, the Electoral Act 1993 and the New Zealand Bill of Rights Act 1990.

The Constitution Act 1986 brings together the most important aspects of the constitution. It defines the Head of State as well as the composition and powers of Parliament. Moreover, it contains provisions for the dissolving of Parliament, for the carrying over of parliamentary business and for securing judicial independence. The Electoral Act 1993 determines the electoral system of New Zealand,[5] which is partly protected against undemocratic change.[6] Basic rights and freedoms of individuals are affirmed in the New Zealand Bill of Rights Act 1990, providing protection against unlawful actions and abuses by the state.[7]

All these regulations are significant for a constitution. Nevertheless there is no document that could be identified as a written constitution. A document, known as 'the constitution' must be the fundamental source of the state's instruments and its authority. It has to be the highest level of law which sets the criteria for the legitimacy of all other law. But in New Zealand there is no hierarchy of statutes. No constitutional Act has the character of superior law or is entrenched against amendments.[8] Moreover, no document can be called the source of New Zealand's state instruments and fundamental principles. Although the Constitution Act 1986 consolidates the various branches of government,[9] it does not describe the general balance, relationship or division of power between them.[10] Considering the terminologies, the Act itself is rather more declaratory than constituent.

Furthermore, a constitution as the most important basic document must be widely accepted by the people. If asked, most New Zealanders would reply they have never heard of the Acts above.[11] Therefore none of the constitutional Acts of New Zealand can receive that identification of the people that is required for a written constitution.

Until now New Zealand's Parliament has not created a written constitution, but fixed the rules that already existed within the unwritten constitutional framework, restating and updating New Zealand's statutory constitutional law.

Common Law

The decisions of the courts form another constitutional source, what is known as 'judge-made-law', or common law.

This characteristic of New Zealand's legal system derives from England, where the common law developed in the 13th century. Before Parliament became the supreme law-making body, the courts were the major source of law. Over the years the decisions of judges, reported and quoted, became the basis of all modern common law systems. Consequently, much of the law in New Zealand is still found in cases ('precedents'). Judicial precedents either create law in areas previously undetermined, or they apply existing rules, clarifying the common law. They are used as a guide or as an authoritative rule in later, similar cases. Moreover, there is the so-called principle of stare decisis, which means that courts must follow precedents set by judgments made in higher courts. Any court bound by the precedent must come to a similar conclusion, unless there is a difference in material facts.

The judiciary also plays an important role in the development of constitutional principles and in the interpretation of constitutionally important statutes. For example the doctrine of parliamentary supremacy[12] - a fundamental principle upon which New Zealand's whole government and legal structure is based - has its basis in judicial decision.[13]

Constitutional Conventions

Furthermore, there are long-standing and recognised practices known as constitutional conventions. Constitutional conventions are not law, but together with the law they form a part of New Zealand's constitutional framework.

The legal rules often transfer wide powers or discretions to governmental institutions. In practice, these powers are circumscribed by conventions which require them to be used only in a certain limited manner.[14] In that way conventions control much political and constitutional behaviour, restraining and moderating the exercise of government power. Conventions often supplement the simple letter of the law. Moreover, they have been referred to in courts as an aid to statutory interpretation and so conventions may play an essential role in judicial reasoning. They developed over time and are supported by precedents and the expectation that there is a belief in the standards they impose. Their nature is informal, and this allows them to develop flexibly and to reflect the constitutional standards and needs of the day.[15] Consequently, they cannot be enforced by the courts. There are no formal sanctions provided when they are breached. The only sanctions for breaching a convention are political, and rest with Parliament, with public opinion and ultimately with the electorate.[16]

The Treaty of Waitangi

Finally any understanding of New Zealand's constitutional position must include the Treaty ofWaitangi. With this Treaty of 1840 the Maori people exchanged their sovereignty for the guarantees of the Treaty and New Zealand became a British colony. Therefore, it is popularly referred to as the founding document of New Zealand.

It is undoubtedly an important and unique source of New Zealand's constitutional framework although the Treaty has no juridical standing for enforcement in the courts. It has socio-political, not legal, force.[17] Over the years the Treaty of Waitangi has been increasingly recognised in domestic law, both through legislation[18] and judicial consideration.[19] Nevertheless, there is still great controversy over its meaning and interpretation.[20] Its legal status has never been categorically and finally determined.[21]

The Basic Law (Grundgesetz) in Germany

Unlike New Zealand, Germany has a written constitution in the sense of a comprehensive and systematically considered document, called the Basic Law (Grundgesetz). It came into force on 23 May 1949 in the western part of Germany, and since the German reunification in 1990 it applies to all Germany.

Historical background

Even more than the constitutional framework of New Zealand with its unbroken legal tradition deriving from the common law of England, the current constitution of Germany was influenced by history and it is, finally, an end product out of learning processes from historical events. Many provisions of the Basic Law mirror the historical experiences with instability and abuse of power in Germany.

After atime of war and political division, the Weimar Republic of 1919 set up the first German constitution ruled by democratic principles. But the still existing conflict of political philosophies and the consequences of losing the First World War burdened the new republic. Also the extensive powers of the President of that time (the Reichspräsident) contributed definitively to the collapse of the system. Thus, the constitution itself enabled Hitler and the National Socialists to seize power in 1933. After that, democratic government disappeared and a totalitarian dictatorship was set up which took Germany into the Second Word War.

These experiences have decisively influenced the Basic Law, being the founding document of post-war Germany. Consequently the new German constitution concentrated on two leading aims: to remedy the errors of Weimar; and to ensure that there would be no erosion of the law, no return to the totalitarianism of Nazi Germany. It followed the Weimar Constitution of 1919 in many points, but it also deviated from it in certain critical respects, mainly where experience had shown that the rules of the Weimar Constitution were unsatisfactory or unsafe.[22]

Main characteristics of the Basic Law

All power in Germany derives from the Basic Law. The document sets out the structure of government and follows the principle of separate powers[23] by establishing various government institutions.[24] It defines and authorises the powers, functions, and limitations of those institutions as well as prescribing how the government organs operate. In reaction to the historical experiences, the Basic Law tries to avoid any concentration of authority.

Moreover, the German constitution contains a catalogue of 'basic rights' (Grundrechte), which give fundamental rights and freedoms to the citizens. The basic rights have a double function: first, as restrictions on the state to ensure the liberty of the citizen; and secondly, as objective values which constitute the basis for the activities of the state.[25] The state is forced to have regard to these values, because the state itself is bound by the Basic Law. This means that not only citizens are subject to its declarations, but also the state. Thus, government - with all its actions - is always held responsible to the written document. To secure the compatibility of legal actions with the Basic Law, there is a comprehensive judicial review of both executive and legislative action.

For this, the Basic Law provides an independent Court, the Federal Constitutional Court (Bundesverfassungsgericht), and gives it a particularly important position. It acts as the guarantor of the constitution and the rights and fundamental principles it establishes. As the supreme constitutional Court, it has far-reaching powers which confirm its 'watchdog' function. It decides all disputes regarding the basic rights, regardless of which branch of government is claimed to have violated them. Unlike the position in New Zealand, all legislation has to conform with the Basic Law because this is the highest source of law in Germany. In the event that any statute is inconsistent with the written document, it may be declared unconstitutional, and therefore invalid, by the Federal Constitutional Court. In a similar way, political parties may be banned if the Federal Constitutional Court holds that they are unconstitutional, because their aims or their conduct threaten the basic order of freedom and democracy.

Moreover the Federal Constitutional Court is responsible for the decision about any difficulties that may arise between the Federal Parliament (Bundestag), the Federal Council (Bundesrat), the Federal Government (Bundesregierung), and certain other institutions with constitutional importance regarding their respective rights and duties under the Basic Law.[26] Thus, unlike in New Zealand, the settlement of disputes between the organs of state is not only a matter for compromise and agreement, but can be the subject of a judicial trial in the supreme constitutional court.

Constitutional stability

The Basic Law is protected against undemocratic changes. It needs a special procedure of legislation for amendment or repeal of constitutional law: a vote of a two-thirds majority of all the members of the Federal Parliament as well as of the Federal Council is required. This constitutional entrenchment itself is reserved and protected from ordinary amendment (so called double entrenchment), which gives the Basic Law an overwhelming consistency.

In addition to this, there are provisions which are so fundamental that they can not be altered at all, not even by constitutional amendments.[27] This 'barrier of change' (Veränderungssperre) includes the principle of human dignity (Article One) and the proclamations of Article 20, which declares the German State as a democratic, federal and social state under the rule of law. It would need a revolution to remove these fundamental principles of the state.

With all these characteristics the Basic Law is the basis of the German legal system. It is not simply a code establishing the constitutional structure of the country and the principles of government. Because of its stability, the German people have a considerably high faith in the legal system and therefore it has become fundamental to German society and its institutions.

New Zealand's solution or the German one? Which constitutional system is preferable?

The constitutional systems of New Zealand and Germany differ widely: Germany has a single written document; New Zealand relies on a flexible constitution, consisting of several, partly unwritten, sources. Deciding which of these two concepts is preferable means asking which form is more effective. To examine this matter, it is necessary to point out the main tasks of a constitution. A constitution has to limit the power of government and to protect the rights of the people against legal infringements. The kind of constitution which is best in fulfilling these tasks is the better one.

Protection of individual rights[28]

One primary focus of any constitution is to regulate the relationship between the individual and the state. This relationship should be clearly expressed and the position of the individuals should be strengthened with civil or human rights, protected by the constitution.

The German Basic Law includes a 'Bill of Rights' with its catalogue of basic rights.

New Zealand with its common law system - like Britain - has traditionally been wary of making declaratory proclamations of human rights or constitutional issues.[29] Dicey, a nineteenth century legal academic whose ideas had a significant influence on New Zealand's constitutional system,[30] said 'the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the Courts.'[31] With its Bill of Rights Act 1990 New Zealand moved partly away from this point of view. The Act affirms, protects and promotes human rights and fundamental freedoms in New Zealand. But despite being part of the constitutional framework, the Bill of Rights Act 1990 is no written constitution. Whether it, nevertheless, protects the rights of the people as well as the German constitution does will now be examined. This examination[32] will concentrate on three different aspects.

Accessibility

First, rights should be of practical use for the individual. Therefore, people need to be informed about their rights. Only if they know their rights are they able to look after them. For that, a certain degree of public awareness not only of these rights themselves, but also of the documents which grant and protect them, is necessary.

The Basic Law of Germany is a founding document. It expresses the unity of the German people and the people identify themselves with their constitution. Every German is able to tell you 'Our constitution is the Basic Law', because it is a formal, identifiable document. New Zealand with its complex, partly unwritten constitution does not have such a written document that is generally known. Most of New Zealand's inhabitants have probably never heard about an enactment which protects their human rights.[33] Even if the constitutional framework of New Zealand includes a statute like the Bill of Rights Act 1990 protecting individual rights, it is not very helpful if the people do not know about it. In contrast to that, the German public is more fully aware of individual rights and the relationship between their rights and state action. The consequence of this awareness is that the German people can more readily identify when a government is acting unconstitutionally and can therefore react appropriately. That means, the protection of rights by the Basic Law of Germany is more readily accessible to the general public than it is in New Zealand.

Enforceability

Secondly, any protection of rights is nothing without the possibility of their enforcement. Without being enforceable, rights are just a small shield against state attacks and are ineffective. Therefore, it is essential to have an authority dealing with the enforcement of these rights. The more competent and more independent such an authority is, the higher the extent of enforceability of individual rights.

1. The situation in Germany

In Germany the constitution does not only guarantee basic rights, but it also provides a special court for their defence. It is the Federal Constitutional Court which is responsible for procedures against claimed infringements of the basic rights. Anyone whose constitutional rights are unlawfully restricted by any branch of public authority can make a constitutional complaint (Verfassungsbeschwerde) to the court. As a constitutional body the Federal Constitutional Court is at the top of the judicial hierarchy. Its decisions are binding and so the people obtain legal certainty. The Basic Law itself gives the Federal Constitutional Court a special field of exclusive jurisdiction. Moreover, this extent of judicial review is also guaranteed by the constitution. Section 93 (2) of the Basic Law expressly empowers the Legislature to add fields to those jurisdictions, but not to take them away. Thus the constitutional complaint - being one of these exclusive jurisdictions - is permanently allocated to the Federal Constitutional Court. Therefore, the protection of individual rights by this court is protected against legislative curtailments.

2. New Zealand's counterparts of the Federal Constitutional Court

In New Zealand there is no constitutional court, established by the Bill of Rights Act 1990 or anywhere else, which deals especially with matters concerning peoples' rights. But that does not mean that New Zealanders do not have the possibility to enforce their rights. Rather, they can choose between several institutions. It is questionable if these institutions provide the same extent and quality of protection as the constitutional court in Germany does. To clarify this question, the authorities protecting individual rights will be briefly described, and their effectivness in comparison to the German Federal Constitutional Court will be examined.

(a) The Attorney-General

Firstly, the Attorney-General has to be mentioned. 'The Attorney-General is the first law officer of the Crown and is the person primarily responsible for overseeing law enforcement and maintaining the integrity of law.'[34] He or she is a Cabinet Minister[35] and is obliged to act only in the public interest.[36]

To look after the public interests in legislation, the Attorney-General is involved in the early stage of the legislative process. He or she is supposed to prevent violations of the Bill of Rights Act. When a Bill that has been introduced appears to be inconsistent with the Bill of Rights Act, the Attorney-General is required to report to the House of Representatives.[37] The idea is that Parliament will not willingly choose to pass legislation inconsistent with the Bill of Rights Act.[38] Thus, when determining contraventions the Attorney-General may place a check on the Legislature. But only a kind of preventive protection is offered. People can not approach the Attorney-General directly if they want to act against infringements of their rights. Considering this, the Attorney-General, although being a constitutional institution, does not enforce peoples' rights. Moreover, he or she can only inform and is not empowered to force the Parliament to withdraw Bills being inconsistent with the Bill of Rights Act. Therefore, the Attorney-General has quite a weak position.

(b) The Ombudsman

As a real institution for enforcing rights, there is the office of the Ombudsman.[39] The Ombudsman is an Officer of Parliament. In the name of that body he or she inquires into complaints from aggrieved persons against unfair administrative actions of the state. People who feel unjustifiably treated by a government or its agencies can turn directly to the Ombudsman. After their complaint is investigated, the Ombudsman can issue reports and make recommendations to the department or decision maker concerned with the respective case.

But these recommendations are not binding. That means the executive agencies do not have to pay attention to the recommended corrective action. If some of their decisions are arbitrary or unjust, there is, therefore, no guarantee for the affected person that the decision will be reconsidered or cancelled, or that the act or omission will be rectified. How the executive department reacts to the recommendation of the Ombudsman depends on its own estimation. Consequently, the result of the Ombudsman's investigation is not a final one. It does not give the people legal certainty as with any decision of the Federal Constitutional Court in Germany.

Moreover, the Ombudsman's area of jurisdiction is limited to matters of administration. That means he or she is only able to inquire into claimed maladministration by the executive. The activities of the legislature and the courts are excluded from the Ombudsman's scrutiny.[40] Unlike the Ombudsman, the Federal Constitutional Court offers the Germans the possibility to defend their rights against all kinds of state actions, regardless of which branch has acted. In comparison to the German constitutional court, the Ombudsman provides only a limited degree of protection. The advantage of the Ombudsman against the Federal Constitutional Court is that the first offers a quite easy way for the ordinary citizen to gain redress. Not every person affected in an unfair manner may have the resources or the ability to engage a lawyer to take action before a court. Moreover, the court's procedures themselves can be both lengthy and expensive. In Germany though, there is also a possibility for people to defend their rights against unlawful administrative acts without a judicial trial. In the so-called procedure of contradiction (Widerspruchsverfahren) they can formally complain directly to the department which made the decision. In that way a reconsideration of the administrative decision may be reached - like after a recommendation by the New Zealand Ombudsman. Having such a possibility in addition to the Federal Constitutional Court clearly shows the comprehensive protection of rights in Germany.

(c) The Human Rights Commission and the Human Rights Review Tribunal

Regarding discrimination there exist institutions like the Human Rights Commission or the Human Rights Review Tribunal, established by the Human Rights Act 1993. Their function is to investigate and to redress breaches of human rights.

Complaints of unlawful discrimination can be made to the Human Rights Commission. This Commission tries to achieve an agreed outcome between the parties and so it offers a low-level resolution as an alternative to litigation. If the parties do not succeed in settling the dispute the complaint is referred to the Director of Human Rights Proceedings who determines whether the issue will be dealt with before the Human Rights Review Tribunal.[41] Although this Tribunal is not a 'court of law', it makes decisions based on proceedings. It may issue prohibitory orders and make reparation through compensation or damages.[42]

Thus, the Tribunal offers the people the possibility to enforce their rights. In contrast to the Ombudsman, the Tribunal solves disputes in making its own decisions that are binding for the parties. Nevertheless, in comparison with the German Federal Constitutional Court, there are some disadvantages which cause gaps in the protection of people's rights. The jurisdiction of the Human Rights Tribunal is restricted to breaches of human rights, which means the anti-discrimination provisions contained in the Human Rights Act 1993. If someone wants to defend his or her rights established by the Bill of Rights Act 1990,[43] the Human Rights Tribunal is not responsible for that request. Therefore, the number of rights being protected by the Tribunal is much smaller than the number of rights that can be enforced in the Federal Constitutional Court. Furthermore, the Tribunal can only redress discrimination resulting from administrative actions. When the complaint concerns a judgment or other order of a court, the Tribunal is not empowered to act.[44] Besides that, unlawful acts of the legislature can not be effectively opposed, although enactments can be the subject of investigations. If a violation of an enactment is found, the Human Rights Review Tribunal may declare that enactment to be incompatible with the right to freedom from discrimination.[45] But this kind of declaration does not affect the validity, application or enforcement of the enactment. Nor does it prevent the continuation of the act, omission, policy, or activity that was the subject of the complaint.[46] Therefore, the Human Rights Review Tribunal is not very helpful if a statute discriminates against someone. In contrast to this, in Germany the Legislature is also held responsible to the Basic Law containing the Basic Rights. If an enactment violates these rights, the Federal Constitutional Court can declare it to be unconstitutional. Consequently, the enactment becomes invalid and is not applied any more. Any decision about the compatibility of an Act or statute with the Basic Law is declared by statute to have the force of law. This means that it does not only bind the parties but constitutes the law of the country. Every decision of the Federal Constitutional Court is binding upon the constitutional organs, all other courts and public authorities.[47]

Unlike the judgments of the Federal Constitutional Court as the supreme body in the German court hierarchy, the decisions of the Human Rights Review Tribunal are not final. It is possible to appeal to the High Court, and, on a question of law, to the Court of Appeal.[48] Therefore, the people do not receive the legal certainty they do with the decisions of the Federal Constitutional Court.

(d) The Courts

Finally, there are still the courts as institutions protecting rights. If someone wants to defend individual rights against infringements he or she can - of course - bring the case before a court. Although there is no equivalent of the Federal Constitutional Court in New Zealand, it is the courts in general that have traditionally upheld rights of individuals, by applying and interpreting the law.

A court's judgment is binding. It gives more legal certainty than decisions of the institutions described above. Considering this advantage, the necessity of a special constitutional court becomes questionable. There is no need for such a court if the protection of rights provided by the ordinary courts is already sufficient. Therefore, the effectiveness of New Zealand's courts has to be examined. To find out if they offer the same quality of protection as the Federal Constitutional Court does, two aspects will be discussed which determine how effectively rights are protected. The first aspect deals with the extent of protection.

In New Zealand the power of the courts to control legislative actions is very limited. The doctrine of parliamentary sovereignty determines that no other person or body can invalidate or set aside parliamentary law.[49] Consequently, the courts cannot create any law that prevails over parliamentary law. No enactment of Parliament can be declared to be invalid by the courts, even if it violates people's rights. In theory, Parliament is free to pass any law it wishes.[50]

In Germany the Parliament does not possess such a carte blanche. Every parliamentary action can be controlled by the Federal Constitutional Court. If it is incompatible with the Basic Law this court has the power to declare it to be invalid. All acts of state - judicial or administrative as well as legislative ones - have to be consistent with the fundamental early stage of the legislative process. The Legislature does not have a special position in this system. Therefore the German people can defend their rights against the Legislature. Unlike the Federal Constitutional Court, the courts in New Zealand do not offer such comprehensive legal protection. Secondly, the definitiveness of judicial decisions influences how effectively rights are protected. Only if people can rely on a judgment is the judicial protection of effective use.

The situation in New Zealand is another result of parliamentary sovereignty. After a case is decided and the rights of appeal exhausted, a judgment has binding force. Nevertheless, the judiciary is considered to be subordinate to Parliamentary control.[51] The statutes of Parliament, not the decisions of the courts are the highest form of law. Legislation, which emanates from parliamentary process, is supreme. That means Parliament can exercise its supreme lawmaking power to change the effect of judicial decisions. It is possible for Parliament to pass an enactment that effectively nullifies a court's decision. In contrast to this, decisions of the Federal Constitutional Court are absolutely final. They cannot be retrospectively altered or nullified by later legislation. Consequently, the German people can rely on a judgment of the Constitutional Court. It gives them maximum legal certainty. To sum up, the Federal Constitutional Court is authorised to strike down any unconstitutional legislation. Its judgments are final and unimpeachable. In comparison to this, New Zealand's courts are powerless against unlawful legislation and their decisions can be nullified by the legislature. Considering these two points, the protection of rights by the courts in New Zealand is not as effective as it is by the German Federal Constitutional Court.

3. Summary

As the discussion about the enforceability of rights has shown, all the institutions in New Zealand do not have the same effectiveness in enforcing rights as a constitutional court, provided for by a (written) constitution itself. Only the latter- like the German Federal Constitutional Court - makes rights directly enforceable for the people.

With its comprehensive jurisdiction and its final decisions the Federal Constitutional Court sets a high standard in protecting individual rights. The protection of rights in New Zealand by quasi-judicial agencies and by ordinary courts does not reach the same extent and quality. That New Zealand does not have a powerful equivalent to the Federal Constitutional Court protecting individual rights, is a fault in its constitutional system.

Resistance

Finally, human rights deserve special protection because of their significant role in the constitution. More than other legal provisions, human rights are of fundamental importance for democratic societies. Therefore, they are to a lesser extent subject to social and political changes. Consequently, human rights should be a permanent component of any constitution. The Basic Law is protected against amendments. A vote of a two-thirds majority of all the members of the Federal Parliament as well as of the Federal Council is required to alter the constitution- and the basic rights as part of it. Because such a vote is hard to achieve, the basic rights are well secured against changes or repeals. In addition to this, the right of human dignity is so fundamental that it can not be altered at all, not even by constitutional amendments.[52] Consequently, the German people can rely on their rights.

In New Zealand the individual rights could simply be removed by ordinary legislation. In atechnical sense the New Zealand Bill of Rights Act 1990 does not have a higher position than any other statute. There is no formal guarantee for the resistance of human or basic rights in New Zealand.[53] Therefore their position is weaker than it is in Germany.

Summary

To sum up, the basic rights set out in the German Basic Law are more readily accessible to the general public. Not only are they protected against alterations, but they are also well enforced through the Federal Constitutional Court.

Although there is a Bill of Rights in New Zealand, its consistency and its enforceability are less than its German counterpart. Besides this, the public is not sufficiently aware of it yet. Therefore, the protection of rights in New Zealand is less effective than in Germany.

The concept of rigidity

At the beginning of the comparison between Germany and New Zealand one parameter was set to determine which country offers the better constitutional solution. The constitution which is better in limiting the power of government and in protecting the rights of people should be preferable. These tasks are two sides of one coin. How a constitution fulfils them does not only depend on the content of its current provisions. Rather, the efficiency of these provisions in daily life is decisive. Only if infringements of rights can be clearly identified and only if certain sanctions follow can a constitution provide an effective protection. Furthermore, it is also important how easily the government can free itself from the constitutional limits of power. The best protection of people against state arbitrariness does not help if the state is able to remove this protection.

Considering this, it becomes questionable which form constitutional provisions should take. Should a constitution be secured against amendments? What role do constitutional conventions play and how are they justified? Comparing the situation in Germany and New Zealand these points will now be discussed.

Constitutional Entrenchment

As described above,[54] the German Basic Law is protected against amendments. As a result of this constitutional entrenchment, it is very rigid. On the other hand, New Zealand's constitution does not require a special procedure for amendments; almost every law is alterable by a simple majority of Parliament.[55] That leads to the general question of how flexible a constitution should be. The concept of rigidity has both advantages and disadvantages.

An entrenched document, like the German Basic Law, provides certainty in the way a power can or cannot be exercised. The constitutional limitations placed on the organs of government are unambiguous and are beyond question. Therefore, the Basic Law is very effective as a check on the exercise of state power.

However, a flexible constitution, such as New Zealand's, is able to evolve quite quickly. Without long lasting procedures it can be improved, in accordance with new knowledge, fashions and trends. Conversely, rigid documents are incapable of reflecting the evolution of society.[56] They can, therefore, sometimes block constitutional progress. A good example for this is the debate in Germany about the protection of animal rights. Although society had recognised the animal as a creature in need of protection, it was several years before this development was reflected by the constitution. Finally, in 2002 the Basic Law was supplemented by an article that protects animals.[57]

In contrast to Germany, the constitution of New Zealand is not so static; it continues to develop as a reflection of New Zealand's changing societal values. But, the price for that flexibility is a lack of stability. That does not mean that New Zealand's society is not stable. Hitherto, New Zealand's system has avoided the worst excesses of communism and fascism, and other forms of mindless and destructive tyranny. But it is too easy to change things in New Zealand. Even the most fundamental law can be altered by Parliament.[58] Therefore there is always a danger of pernicious legislation that infringes rights and freedoms by overriding constitutional principles.

Under this point of view New Zealand's constitution is not stable. A constitution should be something that the people can rely on. It must not be too easy to overrule social values, contained in a constitution. According to this, the big achievement of the Basic Law is its stability. Consequently, the Germans have great confidence in their legal system. Summarising, it is a difficult question as to how far constitutions should be open for amendments and it cannot be answered in general. Perhaps, a compromise between a legal inalterability and a totally flexible constitution would be the best solution.

Constitutional conventions

The discussion about constitutional entrenchment is, however, superfluous for constitutional sources that are not written at all. Therefore, another question arises regarding the concept of rigidity: should a constitution be based on conventions? The German constitution consists of just a single written document, the Basic Law, but New Zealand's constitutional framework is partly built on conventions.

Conventions develop from custom and usage. They are unwritten and, therefore, informal by nature. In accordance with their informality there is no need to follow any formal rules for changing them. With this characteristic, constitutional conventions represent the peak of flexibility. But flexibility is only one aspect of a constitution. A constitution should also be something concrete, a foundation of the state, a law that is unambiguous. How conventions ensure these characteristics has to be analysed.

As they are an unwritten part of the constitutional framework the question arises how conventions can be identified. There is no established procedure for determining the existence of a convention. In general, it is said, a behaviour becomes a convention when it is supported by past actions or precedent and if there is an expectation that this behaviour will continue. But who decides if such an expectation exists? It is impossible to find a foundation for a certain convention, being undoubtedly recognisable for everybody. Part of the test for identifying conventions is whether or not the actors regard themselves as bound.[59] But it is not justifiable that the existence and applicability of a constitutional provision depends on the attitude of individuals.

Moreover, some existing constitutional conventions are very general. Interpretation difficulties may therefore arise if the conventional rule is not exactly clear. It may be disputed what a convention actually prescribes, or whether an agreed convention is applicable. For example, a convention requires that the Parliament does not enact 'oppressive' legislation.[60] But this can have several meanings, because people may have different ideas of what 'oppressive' means, excessively restricting or infringing enactments. Because there is no precise test, the limitations on Parliament are ambiguous. In a situation where the legitimacy of parliamentary conduct is questionable, these problems of interpretation can lead to doubts about the extent of the convention - and finally about their existence in the particular situation.

Unlike unwritten conventions, rules of constitutional importance should be clear and concrete in accordance with their existence and content. Only if this is ensured, are unambiguous solutions possible when disputes occur. Finally, conventions can not be enforced by the courts. In this respect they stand in direct contrast to the nature of law[61] . Without judicial review there are no formal sanctions provided when conventions are breached. Only political consequences may follow, such as the loss of office or unpopularity resulting in non-election.

But it is very doubtful if members of a government really care about these impending political effects. They will be guided by their political instincts. A politician may weigh up the advantages of flouting a convention and risk the political consequences[62] - always keeping in mind that because of the existing uncertainties a breach of conventions will seldom be obvious. Because no formal sanction or disorder results from the violation of constitutional conventions, the worth of the constitution itself becomes questionable. A constitution sets out the fundamental principles of a state, which build the basis of all governmental actions. This basis must be enforceable, otherwise obedience, which is the requirement for an effective and reliable constitutional rule, is not achieved.

It is argued that conventions are followed simply out of habit. But just because people have acted in a certain way for a long time does not automatically create further obedience to conventions. A good example for that claim is the constitutional crisis of New Zealand in 1984. The outgoing Prime Minister refused to act on the advice of the incoming government, to devalue the New Zealand currency, although there existed a convention which required it. This crisis highlighted the problem of unwritten conventions if they are not obeyed, and resulted in the enactment of the Constitution Act 1986, which now has regulated the procedure for transition of power after general elections.

The criticism of New Zealand's constitutional conventions does not mean that conventions should not be a source of law at all. Every legal system is founded on the interaction of law and convention. Even in Germany, where almost every rule is confirmed in Acts, conventions exist and they fill the gaps in written laws. But conventions should not be used to form a constitution. If conventions play an important role in a constitutional framework - as in New Zealand - their unenforceable nature is particularly problematic. The importance of constitutional provisions requires a written form, which finally makes them binding and enforceable. While most conventions in New Zealand are unwritten, some of them can be found in written sources, and some have been enacted in statutes.[63] At the point where a convention is incorporated into law, it becomes enforceable. Therefore, it could be asked whether constitutional conventions should be enacted as law. One big disadvantage of legislative enactment would be the loss of flexibility, which is characteristic of unwritten conventions. But as mentioned above, too much flexibility removes the stability of legal norms. A written rule, which is not secured against amendments, is still flexible enough and open for changes, reflecting new values of the society. The evolution of conventions into law improves the constitutional stability and is, therefore, desirable.

Summary

Considering all the points discussed, a written constitution like the German one - partly entrenched against amendments - is preferable. A certain loss of flexibility in favour of more stability is entirely defensible, if the importance of a constitution is considered.

In the last few years there has been significant constitutional reform in New Zealand. Many fundamental rules and principles were confirmed by constitutional legislation.[64] Therefore it seems as if the weak points of an unwritten constitution have been recognised. Whether New Zealand should enact a written constitution, reflecting its own national identity, is still being discussed.

Two draft constitutions for New Zealand have already been prepared - one by the Constitutional Society for the Promotion of Economic Freedom and Justice in New Zealand (founded in February 1957), and one by Dr D E Paterson in 1977 for the New Zealand Section of the International Commission of Jurists.[65] Both proposals failed.

Obviously, the New Zealand people have not been ready yet for such a drastic change. New Zealand's stability and its still widely diffused acceptance of the status-quo and of traditional forms may have constrained it from enacting a written constitution. The majority is still satisfied with the actual situation. But the success of a new constitution always depends upon its acceptance by the people who have turned away from their former constitutional order in disappointment.

Moreover, the Maori question hinders the development towards a written constitution. The social and racial divisions seem to be too deeply entrenched for the New Zealand people to reach any agreement on a new constitutional settlement.[66]

Perhaps these socio-political factors may change in the future. New Zealand evolved from a Crown colony to an independent state in a little over 100 years. Its national identity and the way in which its constitutional position is seen may develop progressively.

III. TWO Leading Principles and Their Implications -Parliamentary Supremacy and Statutory Supremacy

Introduction

Every constitution is decisively influenced by constitutional principles. Constitutional principles reflect the fundamental understanding of the legal system. They are behind all legal rules and shape the further development of law. Only when having constitutional principles in mind, do most of the legal regulations and their intentions become intelligible.

Constitutional principles are, like the constitutional framework they complement, the result of the experiences and historical roots of the society. According to this, the constitutional principles of Germany and New Zealand also mirror their respective legal pasts.

New Zealand's legal structure has been largely influenced by colonisation. Therefore, some constitutional and legal similarities with Britain still remain today: there is no written constitution, the same form of government - a structure that is known as the Westminster system[67] - was adopted, and New Zealand is still a monarchy.[68] A link to the United Kingdom can also be found in New Zealand's fundamental principles. These principles recognise the important role of the common law. Dicey said:

... the general principles of the constitution ... are the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions the security given to the rights of individuals results ... from the general principles of the constitution.[69]

In contrast to New Zealand, Germany did not experience colonisation. Its legal structure was rather influenced by wars and political changes. The bad experiences of the periods of the Weimar Republic and of National Socialism under Hitler[70] particularly led to the constitutional principles underlying the German legal system today. All these principles are fixed in or derive from the Basic Law.

Although having different historical roots, the German and the New Zealand systems can be described as democratic and parliamentary. Consequently there are a few principles which are similar in both states. For example, there is a separation of powers. This means that power is divided among different areas of government, having separate functions. In New Zealand as well as in Germany, these three areas are the executive, the legislature and the judiciary.[71] Furthermore, both states accept the rule of law.[72] This principle basically contains the concept that people in a society should be governed by law and should be free from arbitrary government.[73] These two examples illustrate that there exist similarities between the fundamental principles of Germany and New Zealand. Of course, there are also differences. It is these differences which make a comparison interesting. Only when constitutional principles differ, can different legal outcomes be expected, which are the basis for a critical assessment. Dealing with all existing differences between New Zealand and Germany would go beyond the limits of this paper. Constitutional principles are too complex and linked together in various ways. Rather, the aim should be to point out the constitutional principle which is most characteristic for each state, because its counterpart within the other legal system is fundamentally different. Considering this objective, Part III will focus on two leading principles, parliamentary supremacy in New Zealand and statutory supremacy in Germany. Both principles are very important in their respective legal systems and have their origins in the legal history, briefly summarised above. This section describes the contents of two diverse principles and tries to outline the consequences that inevitably follow. It will examine which consequences achieve more benefits for the legal system, and ultimately, for the people.

The Contents of Both Constitutional Principles

The legal doctrine of parliamentary sovereignty in New Zealand

The legal academic AV Dicey was one of the main proponents and formulators of this doctrine. He defined Parliament as having 'the right to make or unmake any law whatever'.[74] Thus the doctrine of parliamentary sovereignty or supremacy[75] means that Parliament has absolute and unlimited powers of legislation. The laws that it makes cannot be challenged or declared invalid by any other governmental institution.[76] Parliament may legislate on any topic without restriction of any 'higher law' or entrenched Bill of Rights.[77] The New Zealand system lacks the character of' supreme law' or 'higher law', because any 'higher law' would limit Parliament's powers of legislation.

Nevertheless, there is a sort of hierarchy of legal norms, with parliamentary enactments at the top. Parliament's collective will, expressed in enactments, is the highest source of law. Statutes prevail over all other sources of law, including judicial precedent, common law principles and subordinate legislation made under Parliament's delegated authority.[78] The doctrine of sovereignty applies to every Parliament. That means every new Parliament has the same amount of sovereignty as its predecessor. Therefore, succeeding Parliaments can amend or repeal any earlier enactments by simple majority.[79] Even if a previous Parliament attempts to enact unchangeable legislation (for example an entrenched Bill of Rights) this legislation could be repealed overridden or simply ignored by the next Parliament.[80]

Since its formulation, Dicey's doctrine of parliamentary sovereignty has been the subject of endless analysis and also of criticism.[81] It is still New Zealand's fundamental principle, but the courts are developing new views about it.[82]

Germany's statutory supremacy

The supremacy of the law (Vorrang des Gesetzes) is the prime principle of the German constitution to which all other aspects have to be adjusted.[83] Supremacy of the law means statutory supremacy, because Germany does not have a common law system. Rather, all the law can be found in written sources. Legal rules are hierarchical with the rules of constitutional law at the top.

The fundamental principle of statutory supremacy is established by s 20(3) of the Basic Law. It determines that all powers have to be exercised within the framework of the law. Not only the executive and the courts are bound by the law, but also the legislature itself. That means all branches of government have to respect the constitution (the Basic Law) and every statute constitutionally enacted. Moreover, all state organs are only permitted to act on the basis of statutory authority. This principle is called 'legal reservation' (Vorbehalt des Gesetzes) and it is one important part of the statutory supremacy. As a result, the Executive as well as the courts are precluded from acting without statutory authority. Every act without a legal foundation is illegal.

A necessary condition for the principle of statutory supremacy is its enforceability. Only if the law can be enforced is it able to keep its supreme position. Therefore, in Germany, all state actions are subject to a judicial control. The courts can check whether the actions of the legislature, executive and/or judicial branches of government are consistent with the constitution and the statutes applicable in the respective case. The legislature has no special position in this system; legislation must also be compatible with the law.

IV. Implications for Legal Practice

The doctrine of parliamentary supremacy, as well as the principle of statutory supremacy, causes some inevitable consequences in legal practice. They influence the requirements for the restriction of rights and they determine how far legislative power can be exercised and controlled. These points will be discussed now in a comparison between Germany and New Zealand. The implications of the sovereignty of the law on the one hand and of Parliament on the other hand will be shown and judged according to their strengths and weaknesses.

Limitation of individual rights

Even fundamental rights are not absolute. Both in Germany and in New Zealand they can be limited when competing interests dominate the rights. But as a result of the different leading principles in the two legal systems, the requirements under which limitations of rights are permissible differ.

Basis for limitations

In Germany, the supremacy of law requires that only law itself can justify a restriction of rights. Every limitation of rights can only be done directly by a statute or on the basis of a statute. Either a statute itself limits rights or it gives the executive or the courts the authority to do so. That makes clear that only the legislature is empowered to limit basic rights. A limitation of basic rights by executive or judicial bodies acting in an unauthorised manner is impermissible.

This restricted authority derives from the general principle of legal reservation, described above. Both the executive and the courts are only allowed to act on the basis of statutory authority, giving their actions a legal foundation. Without an authorising statute they can not act legally. Consequently, without a statutory authority they cannot limit rights. In New Zealand, governmental authorities do not necessarily need an authorisation under a statute. They often act solely on the basis of common law or conventions. Therefore, the limits of competence are sometimes unclear - at least they are not easily identifiable by the people.[84] None of the provisions of the New Zealand Bill of Rights Act 1990 contain a requirement of a parliamentary Act to limit the established rights.[85] That means, every branch of government can limit constitutional rights. The question is whether or not it is necessary to reserve the power of limiting rights for the Parliament. What is the function of the German provisions permitting only the legislature to limit rights? It could be assumed that it makes no difference for the people by which branch of government their rights are limited. However, there is a difference. If rights can be limited only on a statutory foundation, the people enjoy a readily determined protection against limitations of their rights. In a written statute the requirements for restricting rights can be easily recognised. Because of that, the governmental scope of action becomes transparent. It can always be controlled whether or not the state action has taken place within the limits of the statutory authority.

Moreover, it is ensured that rights can be limited only by a democratically elected body. Every limitation of individual rights is done with the consent of the people themselves as represented in Parliament. A limitation by some appointed bureaucrat, subject only to indirect political control, is not possible.[86] Therefore, the requirement of a legislative basis for limitation of basic rights is an important element both of democracy and of the separation of powers.

Quality of restricting laws

In Germany, not every statute is able to limit basic rights. Rather, the Basic Law sets special requirements for a law which intends to restrict rights. These requirements are described in the following passages and a comparison will be drawn with possible New Zealand counterparts.

The form of legislation

In Germany every statute that limits basic rights is required to fulfil a special form: the statute must expressly specify any right that is limited.[87] This provision is called the 'rule of citing'. Its purpose is that Parliament should be aware of limiting rights. In expressly citing the right that is limited by a statute, Parliament acts consciously. That the legislature enacts laws without thinking about the consequences of its legislation for people's rights is precluded.

In New Zealand there are no particular requirements for the quality of enactments - neither for ordinary statutes, nor for statutes that limit individual rights. According to Dicey, parliamentary sovereignty means that Parliament's power of legislation can have no legal limitation:

Limited sovereignty is ... a contradiction in terms. Every attempt to tie the hands of [a sovereign legislature] breaks down, on the logical and practical impossibility of combining absolute legislative authority with restrictions on that authority which, if valid, would make it cease to be absolute.[88]

But quite a few judges and academics today question the strictly Dicey an conception of parliamentary sovereignty. The meaning of the phrase 'parliamentary sovereignty' has changed over time. According to the modern view,[89] Parliament is sovereign if it can change all laws, even if different procedures may sometimes be required.[90] There have been developments within the jurisdiction of the courts that seek to encourage Parliament to follow a special form of legislation.

In R v Pora[91] two members of the Court of Appeal[92] required that Parliament 'must speak clearly if it wishes to trench upon fundamental rights'.[93] The Court had to deal with a statute[94] which introduced an increased penalty for offences and made it retrospective. In doing this, the statute violated two fundamental provisions: the general proscription against retrospective criminal penalties in s 4(2) of the CriminalJusticeAct 1985 and the right to the benefit of the lesser penalty prescribed at the time of the offence, guaranteed by s 25(g) of the Bill of Rights Act 1990. The Judges held that it is unimaginable that Parliament would have acted so when it had clearly seen the full the significance of its legislation. They did not see any clues that Parliament intended to override the fundamental principles expressed in s 4(2) of the Criminal Justice Act and in s 25 (g) of the Bill of Rights Act. With the help of statutory interpretation the Judges avoided applying the new Act.[95]

The basic idea of the so-called 'Pora methodology' is the assumption that Parliament does not intend to give effect to a misapprehension or error of law.[96] This means Parliament must know and therefore intend the consequences of its laws. Otherwise, errors of law may occur. Especially if enactments limit fundamental rights, Parliament should be aware of this. In order to demonstrate its knowledge of all the effects of its legislation, Parliament must speak clearly and unambiguously. If Parliament wants to limit fundamental rights it should do so explicitly.[97] English courts have also required this explicitness. In R v Secretary of State for the Home Dept; ex parte Simms[98] Lord Hoffman said 'fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process'.

These examples show that the essential motives of the German 'rule of citing' are also found in systems shaped by the supremacy of Parliament. Parliament should enact specific and unambiguous legislation to make clear that it consciously limits fundamental rights. In Pora the Court clearly demanded this form of restricting statutes. Nevertheless, New Zealand lacks a strict requirement of a special form or quality of statutes that limit fundamental rights. The supremacy of Parliament hinders any solid and explicit boundaries of parliamentary freedom to legislate. Unlike in Germany,[99] there is no written provision which sets up Parliament's duty to enact in a particular way when limiting rights. Not even a corresponding common law principle exists.[100] Rather, a statutory interpretation is necessary that requires a lot of effort in terms of reasoning, because it differs from the conventional interpretation methods.[101] It appears more as a construct than a real legal rule. Therefore, it will depend on the view and strength of character of a single judge, in how far legislation is controlled concerning its clarity.

Another problem is the connection between the Pora methodology and 'higher law' values, constitutionally based in the common law. Only if these values are flouted by Parliament in a 'wanton or indiscriminate manner'[102] can the courts criticise the particular statute. But precisely which rights possess values so fundamental that they are able to limit Parliament's freedom of legislation? All the rights contained in the Bill of Rights Act 1990? That scope might be too extensive. But maybe the meaning of 'fundamental rights' is even broader, also including common law principles not contained in the Bill of Rights. It is simply not clear which rights trigger the Pora methodology. In Germany it is unambiguous that the 'rule of citing' refers to the basic rights catalogued in the Basic Law. This makes the rule clear, meaningful and practicable. On the contrary, the situation in New Zealand tends to subjectivism and uncertainty.

Considering all these points, it becomes obvious that in New Zealand no equivalent to the German rule of citing exists. Nevertheless, the development in New Zealand goes in the right direction. The courts have emphasised the importance of human rights and the desirability of transparent and careful legislative process.

Extent of limitations

Another question is whether a statute, regardless of its form, is able to override or exclude all fundamental rights, or whether there are limits for the legislature.

In Germany there is no 'hierarchy' of fundamental rights. All basic rights of the Basic Law have an extreme high value. But each of them can be limited under special circumstances. However, no basic right can be overridden totally. Rather, every basic right has a core area that is unimpeachable, the so-called essential content (Wesensgehalt) of the right. No statutory limitation can impinge upon this essential content of the right.[103]

Moreover, every statute in Germany that wants to limit fundamental rights must satisfy the stringent test of proportionality (Verhältnismäßigkeit).[104] No limitation of basic rights is valid unless it promotes a legitimate governmental purpose, is the least restrictive means of attaining that goal, and imposes a reasonable burden.[105]

In New Zealand, Parliament can, theoretically, legislate on any subject it wants to. It does not need to justify its enactments and it is, again theoretically, able to override fundamental rights totally. Nevertheless, in practice there are some restrictions on the extent of limiting fundamental rights. There are not only extra-legal constraints[106] on parliamentary power, but also legal ones. The courts developed new views about the meaning of Parliament's supremacy. Some judges have sought to set a framework within which Parliament can exercise its legislative power. An innovator in this field is Cooke J (now Lord Cooke of Thorndon), one of New Zealand's most respected judges. His attempts to limit Parliament's power can be seen as a direct attack on the absolutist sovereignty doctrine, established by Dicey.

In R (Daly) v Secretary of State for the Home Department,[107] Lord Cooke said Parliament's power to override fundamental rights exists 'only to the extent reasonably necessary to meet the ends which justify curtailment'.[108] Thus, he required a qualification of proportionality, similar to the German one. Usually in New Zealand the concept of proportionality is only known within the administrative law.[109] But for Lord Cooke this concept operates as a silent constitutional principle which qualifies Parliament's power.[110]

Moreover, in several Court of Appeal judgments[111] Cooke J questioned whether Parliament had the power to override particular 'common law rights'. In Fraser v State Services Commission[112] he commented 'some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them'[113] Another definitive statement followed in the case of Taylor v New Zealand Poultry Board.[114] In discussing the question of whether a citizen can be forced to answer certain questions from an official, his Honour wrote '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.'[115]

In the context of parliamentary supremacy, Cooke J's remarks are really significant and 'the most breath-taking dicta ever propounded by a New Zealand Judge'.[116] The idea that Parliament's power of legislation is limited in respect to particular rights does not fit with its absolute sovereignty. By interpreting the law, judges occasionally seem to ignore the clear words of a statute in order to give effect to the 'true' intent of the statute. But Lord Cooke did something new, as vividly described by John Caldwell: '[j]udges who depart from the clear words of a statute in order to give effect to its true intention are acting quite differently from Judges who depart from the clear words of a statute because its intention is all too clear'.[117] Therefore, it is not surprising that Cooke J failed to cite judicial precedents[118] in support of his views. Considering this, the question arises what consequences the dicta of Lord Cooke have in New Zealand's common law system. Do courts now have to allow argument to the effect that an Act of Parliament should not be recognised because it infringes fundamental common law rights? Hitherto, some courts have acknowledged the possibility that in an 'extreme case' a court might be forced to revisit the convention that requires judges to uphold duly enacted statutes.[119] But Lord Cooke's dicta have not caused a radical constitutional change yet. No court has invalidated or refused to apply a statute for encroaching on common law rights.[120] The courts keep calling for the continuing good will of the politicians and the legislature. They stress the need to preserve common law rights and conventions that are 'fundamental to New Zealand's constitutional structure'.[121]

The practical value of Lord Cooke's dicta about common law limitations on parliamentary sovereignty power is also questionable regarding another point. According to Cooke J, 'Parliament has the constitutional role of laying down policy', but only 'within very broad limits'.[122] But what are those broad limits? It is not at all clear which rights lie deep enough to preclude Parliament from overriding them. In several decisions,[123] attempts have been made to use the Magna Carta to give Lord Cooke's common law rights dicta a firm basis. But in every case the Court has affirmed Parliament's sovereignty and rationalised the Magna Carta as a 'rule of law' concept having 'special historical status',[124] but '[not able] to override the clearly expressed will of Parliament'.[125] The debate over fundamental common law rights remains, therefore, 'theoretical'[126] and without legal foundation.

Nevertheless, Lord Cooke has started the discussion about unimpeachable common law rights. Lawyers and judges are now compelled to rethink their traditional understandings 'of the nature of law and its conceptual link with morality'.[127] It is more and more acknowledged that there is a certain area of fundamental rights that should be secured against arbitrary legislative attacks. Consequently a moving away from the strict Diceyan view of the doctrine of parliamentary supremacy is happening. With this development New Zealand increasingly resembles the German idea of an essential content of rights, although it goes another way: not a special core area of catalogued rights is protected, but particular common law rights. However, the doctrine of parliamentary sovereignty and the lack of definite rights or values affected, complicate the realisation of individual rights protection in New Zealand.

All in all, the attempts of New Zealand's courts to develop certain standards for legislation that limit fundamental rights do not yet reach the effectiveness and legal certainty provided by the German solution. But the new developments are desirable and improve the position of fundamental rights in New Zealand.

Judicial control of legislation.

The two leading principles in Germany and New Zealand also affect the relationship between Parliament and the courts. The supremacy of law on the one hand, and of Parliament on the other, influence decisively how far legislation can be controlled by the judiciary. The extent of judicial review finally determines the effectiveness of legislative limitations, discussed in the passage above.

The Federal Constitutional Court as the German 'guardian of law'

In Germany, judicial review confirms the supremacy of law. All acts of state, including legislation, have to be consistent with the law, set by the Basic Law and by statutes. Consequently, all parliamentary enactments are the subject of judicial control.There is also the important concept of 'legal reservation'.[128] As mentioned above, all governmental action needs legislative authority. If this legal foundation is already unlawful, it 'infects' all the following actions based on the statute. Therefore, a comprehensive review of legislation is necessary.

The German Basic Law provides several possibilities as to how statutes can be controlled by the Federal Constitutional Court. Not only is a single person able to initiate such a judicial review by constitutional complaint.[129] Moreover, the (ordinary) courts can also demand the review of the constitutionality of statutes. If they believe a statute, which has to be applied in litigation, to be invalid they can refer the question to the Constitutional Court.[130]

In addition to this, statutes can even be reviewed when there is no concrete issue. Thus, there exists a possibility for an abstract judicial control ('abstrakte Normenkontrolle'), not being based upon the concrete facts of a particular case. Without the requirement of adverse parties,[131] the Federal Constitutional Court is authorised to resolve 'differences of opinion or doubts'[132] respecting the constitutionality of federal or state legislation. If a statute is compatible with the Basic Law, the Federal Constitutional Court can declare it to be unconstitutional and invalid. Thus, the Constitutional Court has the power to strike down legislation.

The possibilities for New Zealand's courts

The judiciary in New Zealand has no direct power of legislative review. According to Dicey, there is no judicial body which could question the validity of an Act of Parliament. Judges must apply the law and not question it.' What the statute itself enacts can not be unlawful, because what the statute says and provides is itself the law.'[133]

But as shown above, there are attempts in contemporary New Zealand 'to peel away the label of [strict] parliamentary sovereignty'[134] and there is a debate about its proper meaning and scope. Accordingly, the courts are not powerless to act. They have developed some methods of indirect control of legislation, avoiding any direct confrontation with Parliament.

1. Disapplying unconscionable legislation

The courts may dis apply statutes that indiscriminately override constitutional rights or values. This method was created in the Pora decision,[135] where some judges[136] declared a provision of the Criminal Justice Amendment Act 1999 not applicable.[137] By a new form of interpretation the Judges presumed that Parliament must have proceeded under mistake or ignorance, because its legislation wantonly violated basic human rights. Thomas J stated 'Parliament in enacting legislation does not intend to erode fundamental rights unless such an intention is manifested in clear and unambiguous language'.[138] Orthodox principles of statutory interpretation[139] had no application because 'the rule giving effect to a later or more specific Act had less weight than the principle that the law should uphold human rights'.[140] The 'bottom-line' of the Pora case is the possibility to disapply legislation when Parliament fails to understand the consequences of what it is enacting. 'Where legislation proceeds in error, it may 'misfire' and be ineffective'.[141] A court is not able to invalidate a provision, but it can declare it to be 'inoperative'.[142]

This issue is not undisputed and is clearly one of current importance in New Zealand. According to John Burrows, the new views by some Judges in Pora, 'although currently seen as unorthodox by many, could contain the seeds of future development'.[143]

2 Declaration of incompatibility

Another possibility for the courts to control legislation derives from the New Zealand Bill of Rights Act 1990. The Court of Appeal has signalled that it may examine legislation under the 'justified limitations' (s 5) and make a declaration of incompatibility where a statute violates the rights and freedoms affirmed by the Bill of Rights..

In Moonen v Film & Literature Board of Review[144] the Court of Appeal stated that New Zealand courts have the power and, on occasion, the duty to indicate that a statute is inconsistent with the New Zealand Bill of Rights Act 1990, notwithstanding that they are required by s 4 of that Act to give effect to enactments regardless of their consistency with the Bill of Rights.[145]

In earlier cases,[146] the question of whether such a judicial power exists was controversially discussed.[147] But Moonen effected the long-awaited resolution of the differing approaches to the operation of the Bill of Rights Act[148] and finally cleared the way for the exercise of this jurisdiction.[149] Although the Court only sketched the broad outlines of what a declaration[150] of inconsistency would involve,[151] it strongly suggested that no declaration will be made without a detailed consideration of the substantive issues.[152] A declaration of incompatibility under s 5 of the New Zealand Bill of Rights Act 1990 should not be confused with a declaration of invalidity, known in the German jurisdiction of the Federal Constitutional Court. If a New Zealand court declares a provision inconsistent with the Bill of Rights, it neither affects the construction of the statute nor its validity (due to s 4). Consequently, a declaration of incompatibility does not avoid the operation of inconsistent legislation. Rather, it is only a remedy to inform. Once a court has granted a declaration, its function is at an end, whether or not Parliament chooses to respond to the declaration.[153] Under the New Zealand system of government, the final decision on legislation rests with Parliament, not with the courts.

Through the methodology established inMoonen, the courts can exercise a constitutional review without the sanction of invalidating Parliament's law. While maintaining the formal supremacy of the legislature, a declaration of incompatibility can initiate political pressure on Parliament to change the law. Thus, significant practical power is put into the hands of judges. It is hard to establish the exact role and status of the new possibility for the courts to make a declaration of inconsistency. However, it cannot be denied that it requires the courts to judge on the legal quality (though not validity) of legislative content.[154] That is something New Zealand's courts have not previously done. Therefore, the constitutional role and function of the judiciary may change. But up to now, no formal declaration of incompatibility has been made.[155] Whether the courts use this possibility in future, remains to be seen.

As shown, New Zealand courts also have opportunities to control legislation. Each of these options is a middle path between parliamentary sovereignty and 'higher law' jurisprudence.[156] Nevertheless, no court has the power to strike down legislation in New Zealand. In spite of all modern developments, it is very unlikely that this will change in the near future.

V. Conclusion

The discussion has shown that not only is there a great geographical distance between New Zealand and Germany, but also the legal systems of both countries are shaped by vastly different constitutional arrangements. Germany trusts the letters of statutes. Every governmental action has a legislative foundation. There is a hierarchy of law with an entrenched and partly unalterable constitution on the top. This constitution, the Basic Law, distributes tasks and competences to the different branches of government, striving for a strict separation of power. There are various structural as well as functional limits which avoid any concentration of authority in Germany. These limits provide significant safeguards against arbitrary governmental actions and protect the people against infringements of their rights. The German supremacy of the law functions as a powerful check on political institutions.

In contrast to this, New Zealand, with its common law system, relies on a partly unwritten constitution, composed of diverse sources. Any law entrenched against amendments would violate its legal tradition, shaped by the doctrine of parliamentary sovereignty. Unlike Germany, there is no well-balanced separation of power, because Parliament has a superior position in New Zealand's legal system. As the supreme law-making body, its power to legislate is almost free of limitations and judicial review. Instead of installing powerful safeguards against misuse of power, New Zealand relies on the good will and the sense of responsibility of its rulers. Hitherto, this confidence has not been eroded. New Zealand has not experienced excesses of abuse of power. Its legal system has avoided any form of mindless and destructive tyranny. This political stability may well have contributed to the far-reaching public support for the keeping of the existing system with its parliamentary predominance. But New Zealand moves on thin ice. Without an effective controlling mechanism on what Parliament may or may not do, there is always an inherent danger of an infringement of rights and freedoms.[157] An allocation of power which offers the theoretical possibility that legislation can overrule even the most fundamental principles and values of a society involves too great a risk. The concept of a free democracy must carry with it some limitation on legislative power.[158]

If all goes well, it is easy to say that a possible abuse of power is only hypothetical and that it will not seriously arise. But what happens when it occurs nevertheless? Philip Joseph used a very concrete analogy when reflecting upon the need for constitutional protection 'like fire and other kinds of insurance the protection is normally not needed. When it is, the need arises very suddenly. ... Homeowners take out fire insurance as protection against the mere risk, not the likelihood, of fire damage'.[159] This example makes clear that a parliamentary democracy should be protected against the mere risk, not the likelihood, of abuses of power. As a result of its legal history, for Germany it has been easier to recognise the sense of such an insurance. Every house-owner, who has already had a fire, will be an unreserved proponent of fire insurances. On the contrary, people who have not experienced fire damage yet, probably will question the worth of spending money on insurance.

According to this example, New Zealand's position becomes understandable, because it has not had 'fire' yet. But maybe it does not need to sustain fire damage before introducing safeguards in its legal system. One nation can learn from the successful and unsuccessful experiments of other nations. Therefore, New Zealand should utilise the experiences of Germany. It should not wait for a constitutional crisis before considering reforms. But every legal system should be interpreted in the light of local conditions. The German regulations are not commands that should be blindly followed. Rather, every comparison must take into account the local variations in national history, national structure and national character. New Zealand with its common law system cannot simply copy the German legal system. It is better that it should keep faithful to its own tradition, and 'seek to modify it towards a more open and free society by a gradual and continuous pressures on all fronts - intellectual and legislative and judicial'.[160] By strengthening the position of the courts, New Zealand has already started reforms in the right direction. The courts can protect a parliamentary democracy, not only against tyrannous excesses by a legislature that may have fallen under extremist control, but also in a general sense as limiting the power of Parliament. Therefore, New Zealand should not hesitate to go on redefining the relationship between the courts and the legislature.


[*] The author was a postgraduate student from Germany in 2003 and wrote this paper as a part of her studies for the LLM.

[1] The Parliamentary Service Commission, 'How Parliament Works' Decision Maker Guidebook to Parliament for the Community — How your voice may be heard— (1997), 2.

[2] M McDowell and D Webb, The New Zealand Legal System (3rd ed, 2002), 101.

[3] Naming them all would go beyond the limits of this paper; therefore only some of the important ones are referred to.

[4] The Treaty of Waitangi is another source of New Zealand's constitution, compare comments below.

[5] Since 1993 the MMP (Mixed Member Proportional) system.

[6] The Electoral Act 1993, s 268.

[7] But without controlling the legislative powers of Parliament. For more information about this topic see below in Part III.

[8] Exception: The Electoral Act 1993 s 268.

[9] But it does not define the constitutional role of all important institutions within the New Zealand Government; for example, the composition and function of Cabinet is not described.

[10] McDowell and Webb, above n 2, 157.

[11] For the Constitution Act 1986 argued by P A Joseph in Constitutional and Administrative Law in New Zealand (2nd ed, 2001) 115.

[12] Discussed below in Part III.

[13] McDowell and Webb, above n 2, 146.

[14] For example, there is a convention granting power to the Governor-General to dissolve Parliament in times of constitutional crisis.

[15] McDowell and Webb, above n 2, 141.

[16] The Parliamentary Services Commission, above n 1, 2.

[17] Joseph, above n 11, 117.

[18] The Treaty ofWaitangi Act 1975, which established the Waitangi Tribunal, was the first significant modern enactment that made reference to the Treaty.

[19] Judicial decisions on important and influential cases have significantly shaped the Treaty's legal development. See, for example, New Zealand Maori Council v Attorney-General [1987] 1 NZLR641.

[20] These controversies surrounding the Treaty are not the subject of this paper and, therefore, they will not be discussed.

[21] McDowell and Webb, above n 2, 194.

[22] N Horn, HKötz and HGLeser German Private and Commercial Law: An Introduction (1982), 15.

[23] 'People shall act through the agency of separate legislative, executive and judicial bodies': the Basic Law, s 20.

[24] Mainly the Parliament, the Government, the Federal Constitutional Court, which exercise separately legislative, executive and judicial powers.

[25] J Cash Goedan 'The influence of the West German constitution on the legal system of the country' (1989) 17 International Journal for Legal Information, 121.

[26] Horn, Kotz and Leser, above n 22, 20.

[27] Basic Law, s 79 (3).

[28] In Germany these rights are called basic rights. As there is no equivalent expression in New Zealand, the expressions 'individual rights' or 'rights' are used.

[29] McDowell and Webb, above n 2, 147.

[30] Dicey's ideas had a significant influence on New Zealand's legal system. He is renowned for his statements on the Rule of Law and on Parliamentary Supremacy. More references to Dicey below in Part III

[31] A V Dicey 'The Rule of Law: Its Nature and General Applications' in Introduction to the Study of the Law of the Constitution (10th ed, 1959) 183.

[32] The examination is always referred to those rights which are established by the German Basic Law and by the New Zealand Bill of Rights Act 1990 respectively.

[33] Joseph, above n 11, 115.

[34] Ibid, 1012.

[35] Usually (but not always) the Minister of Justice.

[36] Joseph, above n 11, 1013.

[37] s7 New Zealand Bill of Rights Act 1990

[38] McDowell and Web, above n 2, 167.

[39] The office of the Ombudsman has its origins in Scandinavia and was first introduced New Zealand in 1962.

[40] A Satayanand 'The Role of the Ombudsman' [1996] New Zealand Law Journal 208.

[41] McDowell and Webb, above n 2, 173.

[42] Joseph, above n 11, 1023.

[43] With the exception of s 19 of the New Zealand Bill of Rights Act 1990 (BORA) that contains the right to freedom from discrimination. The BORA is the standard for determining whether activities constitute discrimination.

[44] Human Rights Act 1990, s 79.

[45] Ibid, s 92J.

[46] Ibid, s 92K.

[47] Act on the Federal Constitutional Court s 31(1).

[48] Human Rights Act 1993 ss 123,124.

[49] McDowell and Webb, above n 2, 127.

[50] Nowadays this theory comes into question. Especially Lord Cooke pronounced some new ideas about the relationship between Parliament and the courts. See below in Part III for more comments about his views and other developments concerning the doctrine of parliamentary sovereignty.

[51] McDowell and Webb, above n 2, 122.

[52] Basic Law, s 79 (3)

[53] Although, some 'implied' guarantees are discussed. For Lord Cooke's statements about fundamental common law rights, which cannot be overridden by Parliament, compare comments below in Part III.

[54] See in detail above.

[55] Only s 268 of the Electoral Act 1993 entrenches constitutional provisions, for example, the term of Parliament (three years) which is defined in s 17 of the Constitution Act 1986

[56] McDowell and Webb, above n 2, 104.

[57] Basic Law, s 20a- 'The state protects the natural necessities of life and the animals in awareness of its responsibility for the next generations'.

[58] Although, there are new developments towards 'limitations' of parliamentary sovereignty; compare comments in Part III.

[59] Joseph, above n 11, 304.

[60] Example from McDowell and Webb, above n 2, 142.

[61] McDowell and Webb, above n 2, 141.

[62] Joseph, above n 11, 304.

[63] See, for example, s 16 of theConstitution Act 1986, which provides that Bills must receive royal assent (by the Governor-General).

[64] For example, by the Constitution Act 1986, the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 or the Privacy Act 1993.

[65] Joseph, above n 11,117.

[66] Ibid, 127.

[67] The difference between the British Westminster system and the New Zealand model is that New Zealand has abolished the Upper House and governs solely through the Lower House, known as the House of Representatives.

[68] Queen Elizabeth II has the title Queen of New Zealand and is therefore traditionally head of state, represented in New Zealand by a resident Governor-General.

[69] A V Dicey Law of the Constitution (5th ed, 1897), 187. Compare comments below.

[70] Described in more detail in Part II.

[71] Although, Germany's separation of power is stricter than it is in New Zealand.

[72] In New Zealand Dicey defined the rule of law by laying down three guiding principles.

[73] McDowell and Webb, above n 2, 130.

[74] Dicey, above n 69, 38.

[75] The terms parliamentary sovereignty and parliamentary supremacy are used as synonyms. To make the comparison to Germany's statutory supremacy easier, the term supremacy will be used more often.

[76] McDowell and Webb, above n 2, 115.

[77] Joseph, above n 11, 8.

[78] Ibid, 475.

[79] Exception: s 268 of the Electoral Act 1993, see above n 55.

[80] Joseph, above n 11, 461.

[81] Lord Bingham of Cornhill, 'Dicey Revisited' Public Law 44.

[82] More details about these developments are provided below in Part IV- Implications for Legal Practice.

[83] G Smith Democracy in Western Germany (3rd ed, 1986), 55.

[84] For a detailed discussion about the advantages and disadvantages of constitutional conventions, see Part II.

[85] In Germany this requirement is not only the consequence of the supremacy of law. It also canbe found in the precise text of most of the basic rights established in the Basic Law.

[86] DP Currie 'Separation of Powers in the Federal Republic of Germany' (Spring 1993) 41 American Journal of Comparative Law 215.

[87] Basic Law, s 19 (1)

[88] Dicey, above n 31, 68 (fn1)

[89] Besides this, there is still the Diceyan view that any limitation at all, procedural or substantive, is inconsistent with the concept of parliamentary sovereignty.

[90] D Kalderimis 'R vPora [2001] New Zealand Law Journal 369.

[91] [2001] 2NZLR37.

[92] Elias CJ and Tipping J.

[93] Above n 91, 50.

[94] Criminal Justice Amendment Act 1999 , which introduced s 80 (2A) into the Criminal Justice Act 1985.

[95] For detail concerning the method of ‘disapplying' statutes see the comments on judicial control of legislation below.

[96] Joseph, above n 17, 510.

[97] See R v Lord Chancellor; Ex parte Witham [1997] EWHC Admin 237; [1998] QB 575, 586 per Laws J.

[98] [1999] UKHL 33; [2000] 2 AC 115 (HL), 131.

[99] Compare s 19(1)

[100] This does not mean that such a common law principle can not develop in future.

[101] The later in time prevails, and the specific prevails over the general.

[102] Joseph, above n 11, 511.

[103] Basic Law, s 19(2).

[104] The Federal Constitutional Court held that the principle of proportionality can be found implicit in the rule of law and in the basic rights themselves.

[105] D P Currie, above n 86, 215.

[106] For example, Parliament's responsibility to the public opinion, pressure groups and, finally, to the electorate.

[107] [2001] UKHL 26; [2001] 2 WLR 1622 (HL).

[108] Ibid 1622.

[109] The New Zealand courts classify disproportionality as an aspect of unreasonableness.

[110] Joseph, above n 11, 511.

[111] Mainly between 1979 and 1984. SeeL vM [1979] 2NZLR519, 527; Brader v Ministry of Transport [1981] 1 NZLR 73, 78; New Zealand Drivers Association v New Zealand Road Carriers [1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1 NZLR 116, 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR394, 398.

[112] [1984] 1 NZLR 116.

[113] Ibid 121.

[114] [1984] 1 NZLR 394.

[115] Ibid 398.

[116] J Caldwell 'Judicial sovereignty- A new view' [1984] New Zealand Law Journal 357.

[117] Ibid 359.

[118] Caldwell tried to show some cases indirectly supporting Cooke J's views. See above n 116, 358.

[119] See Cooper v Attorney-General [ 1996] 3 NZLR 154, 158 (CA); Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154.

[120] Joseph, above n 11, 493.

[121] Shaw v Commissioner of Inland Revenue, above n 119, 158.

[122] R Cooke 'Fundamentals' [1988] New Zealand Law Journal 164-5

[123] See Cooper v Attorney-General, above n 119; Shaw v Commissioner of Inland Revenue, above n 119; Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40; West vMartin [2000] NZCA 177; [2001] NZAR 49 (CA)

[124] Westco Lagan Ltd v Attorney-General, see above n 123, 50.

[125] WestvMartin, above n 123, 56-7.

[126] Cooper v Attorney-General, above n 119, 484.

[127] Caldwell, above n 116, 359.

[128] Compare with comments above in Part III.

[129] Compare with comments above in Part II.

[130] This concrete judicial review ('konkrete Normenkrontrolle') is assured by the Basic Law, s 100 (1).

[131] Thus, there is no defendant in this proceeding.

[132] The abstract judicial review ('abstrakte Normenkontrolle') is assured by the Basic Law, s 93(1).

[133] Cheney v Conn [1968] 1 All ER 779, 782 per Ungoed-Thomas J.

[134] Kalderimis, above n 90, 369.

[135] Above n 91, already discussed regarding the form of legislation, compare above in Part III.

[136] Elias CJ and Tipping J in a joint judgment, and Thomas J in a separate but concurring judgment.

[137] It was ruled that s4 (2) of the Criminal Justice Act 1985 was the dominant provision and that s80 (20A) of the Amendment Act 1999, being subordinate, had to give way.

[138] R vPora, above n 91, 38.

[139] The later in time prevails, and the specific prevails over the general.

[140] R vPora, above n 91, 38 per Thomas J.

[141] Ibid, 49.

[142] Joseph, above n 11, 510.

[143] J F Burrows, Statute Law in New Zealand (3rd ed, 2003)321.

[144] [2002] 2 NZLR 9(CA).

[145] Ibid 17.

[146] See Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA).

[147] The opponents argued that investigating the justifiability of statutory provisions is an illegitimate waste of judicial resources, because it is irrelevant to the ultimate resolution of a legal dispute. Even if a statutory provision unjustifiably limits BORA rights, s 4 BORA means that it is nonetheless the law and must be applied by the judges.

[148] Especially the relationship between ss 4,5 and 6 BORA.

[149] P A Joseph 'Constitutional Law: R v Poumako. A potpourri of constitutional issues.' [2000] New Zealand Law Review 301, 318-9.

[150] The Court of Appeal generally refrained from using the word 'declaration', preferring instead the word 'indication'. But according to A S Butler, there should be no difference in the legal meaning; compare his comments in 'Judicial indications of inconsistency- A new weapon in the Bill of Rights Armoury?' [2000] New ZealandLaw Review 43, 45-6.

[151] Because the court's discussion of the judicial indication of inconsistency was done in the abstract and was not applied to the facts of the case.

[152] See Butler, above n 150, 48.

[153] Joseph, above n 11, 6.

[154] Butler, above n 150, 55.

[155] It was only discussed theoretically.

[156] Joseph, above n11, 509.

[157] P A Joseph 'The challenge of a Bill of Rights: A Commentary', [1986] New Zealand Law Journal 417.

[158] R Cooke, above n 122, 164.

[159] Joseph, above n 157, 417, referring to Sir Owen Woodhouse.

[160] Compare comments by R A Epstein, 'The Perils of Setting a Constitutional Order', foreword in P Brook Cowen, T Cowen and A Tabarrok An Analysis of Proposals of Constitutional Change in New Zealand (1992), iii.


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