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Allan, James --- "A Professor's progress: John Smillie on Bills of Rights" [2016] OtaLawFS 8; The Search for Certainty: essays in honour of John Smillie 19

Last Updated: 31 May 2019

2 A PROFESSOR’S PROGRESS: JOHN SMILLIE

ON BILLS OF RIGHTS

James Allan*

After a few years working at a big law firm in Toronto, Canada; and at the Bar in London, my life in legal academia began in Hong Kong in late 1989. After four years in that pre-handover, Somerset Maughmesque, world my wife and I moved to New Zealand. I had been offered a job at the Faculty of Law of the University of Otago in the city of Dunedin, near to the bottom of the South Island. By today’s standards of grant-getting and doctorates in law I was unemployable. Even by the standards of the time I reckoned I had been lucky to have been offered a position.

Only once I had arrived and been working for a while did I realise just how lucky I had been. This was a first class law school that I had stumbled my way into with top class legal academics. When I eventually moved over to Australia eleven years later it became clear to me that the law school I had left at Otago was better than any law school in Australia. In part this was due to the relative absence of overregulation that infects every aspect of university life in Australia.1 Partly it was due to the isolation – there is more scope for hard-headed, disinterested commentary when one virtually never encounters the top judges in person, or even all that often those in government. Partly again it was due to an incredibly collegial law school culture in which intellectual rigour was highly valued and the people at the top were all happy to read and comment on papers by those far more junior. But mostly it was due to the calibre of the legal academics at Otago at the time.

Professor John Smillie was at the forefront of those top class Otago legal academics. He never hesitated to read any draft papers I sent him. His presence was felt in all faculty meetings (back when a law school faculty meeting actually meant something and when the academics in a law school had a vote on key issues of importance, something unheard of in law schools in Australia today). And he wrote in a powerful and incisive way. So it is a privilege to have been asked to contribute a chapter to this book of essays in honour of John that is being published to mark his retirement from the University of Otago.

My topic will be bills of rights. Or rather my topic will be Professor Smillie’s attitude to, analysis of and verdict about bills of rights. What I intend to do is to

* Garrick Professor of Law, University of Queensland (and for 11 wonderful years a colleague

of John’s at the Faculty of Law, University of Otago).
1 See my “Why Our Universities are Failing” Quadrant (March, 2014).

take the reader through the four articles Smillie wrote on this subject beginning in 1986 and finishing two decades later in 2006. Along the way I will borrow a few character names from John Bunyan, who also provided the idea for the title of this chapter. Of course my own opinion about bills of rights will no doubt become plain as the chapter progresses. To be blunt I am against these instruments in all their variations.2 However, my main focus will not be directly on that substantive issue – however much it may reveal itself along the way – but rather on Smillie’s evolving position as regards these instruments. My goal is simply to sketch his developing and considered views on the topic over a twenty year period, or for the Whigs amongst you, to catalogue this professor’s progress.

1. 1986 – MR GREAT-HEART

In 1985 Professor Smillie was also the Dean of the Faculty of Law. That year he was invited to deliver the university’s prestigious F. W. Guest Memorial Lecture, established in honour of Francis William Guest who had been the first Professor of Law and the first full-time Dean of the Faculty of Law, having served from 1959 to 1967. Smillie used the occasion of this lecture to discuss the then government’s April 1985 White Paper containing a draft Bill of Rights. It was this Guest Lecture (after having been revised and expanded) which was published the following year in the Otago Law Review, under the title ‘A Bill of Rights for New Zealand? An Alternative Proposal’,3 that is the first of Smillie’s four articles that we will consider.

2 I have criticised bills of rights at length and in a host of contexts. For a selected few instances

from while I worked at Otago and afterwards see for example, James Allan “Speaking with the Tongues of Angels” [1994] 1 New Zealand Bill of Rights Bulletin 2; James Allan “Bills of Rights and Judicial Power – A Liberal’s Quandary?” (1996) 16 OJLS 337; James Allan “Rights, Paternalism, Constitutions and Judges” in Grant Huscroft and Paul Rishworth (eds) Litigating Rights: Perpectives from Domestic and International Law (Hart Publishing, Oxford, 2002) 29; James Allan “Oh That I Were Made Judge in the Land” (2002) 30 FL Rev 561; and James Allan “A Modest Proposal” (2003) 23 OJLS 197. For some examples from after I left Otago see eg James Allan “An Unashamed Majoritarian” (2004) 27 Dal LJ 537; James Allan and Grant Huscroft “Rights Internationalism Coming Home to Roost?” (2006) 43 San Diego L Rev 1; James Allan “Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century” (2006) 17 KCLJ 1; James Allan “Jeremy Waldron and the Philosopher’s Stone” (2008) 45 San Diego L Rev 133; James Allan “Meagher’s Mischaracterisations of Majoritarianism” (2009) 20 King’s Law Journal 115; and (coming at the issue in a circuitous way) James Allan “The Three ‘R’s of Recent Australian Judicial Activism: Roach, Rowe and (no) ’Riginalism’” [2012] MelbULawRw 19; (2012) 36 MULR 743.

3. John Smillie “A Bill of Rights for New Zealand? An Alternative Proposal” (1986) 6 Otago LR
   175 (hereinafter ‘Smillie 1986’).

Recall that this article was written over four years before the New Zealand Bill of Rights Act was eventually enacted and that it was focused on a Government proposal for an entrenched Bill of Rights that would constitute a superior body of law, one binding Parliament and the Executive, and one empowering the judiciary to strike down or invalidate law, including primary legislation. In effect, it was a proposal for a Canadian or US-style constitutionalised bill of rights. Smillie states right at the beginning of his article that he is putting to one side all ‘the technical legal arguments as to whether and how such a law can be effectively entrenched in the sense of being placed beyond the capacity of Parliament to amend by a simple majority vote’.4 This is just as well as I have pretty strong doubts that in an unwritten constitutional set-up this can be done, though of course given a sympathetic judiciary nothing can be ruled out.5 But let us follow Smillie and put that technical issue aside. If we turn to the overall tone and outlook of this 1986 article it is fair to say that Smillie is a supporter of the Government’s proposal. Indeed, it is if anything too modest for him in what it proposes. He comes across, at least to me, as a Rawlsian Romantic or Dworkinian Dreamer. Smillie favours a ‘strong’ bill of rights;6 he wants an even stronger anti-discrimination clause (one that would make unconstitutional single sex government schools and that would preclude any government life insurance from offering differential rates based on sex);7 he wants to remove the abridging provision or ‘reasonable limits’ clause that one sees in section 1 of the Canadian Charter of Rights and that ultimately survived to resurface as section 5 of the New Zealand Bill of Rights Act;8 he prefers to understand democracy in broad, morally pregnant terms that build in a substantive component rather than in more Spartan, wholly procedural terms;9 he favours electoral rights sufficiently strong – and recall that Smillie back then does not want there to be any scope for ‘reasonable limits’ or ‘proportionality’10 or ‘abridging’ analyses – that they would guarantee the right to vote to prison

4 At 175 (internal footnote to arguments that this might, somehow, be possible omitted).
5 For a very recent argument of mine in favour of the New Zealand constitutional arrangements

see my “Against Written Constitutionalism” (2016) 14 Otago LR 141.
6 See Smillie 1986, above n 3, from 194 forward.
7 And on that count Smillie got there some years before the European Court of Human

Rights which much later ruled in pretty much exactly that way. See Association Belge des Consommaterus Test-Achats ASBC and Others (C-236/09) [2011] ECR 1-773.
8 See, for example, Smillie 1986, above n 3, at 196.
9 See Smillie 1986, above n 3, from at 178. I disagree on this point of how best to understand

democracy. See my Democracy in Decline: Steps in the Wrong Direction (McGill-Queen’s University Press, Montreal, 2014) and my “Thin Beats Fat Yet Again – Conceptions of Democracy” (2006) 25 Law & Phil 533.
10 This is the term for abridging analyses in Europe.

inmates;11 he sees a right to self-respect as the fundamental human right from which all others are derived.12

Put bluntly, this is not an article written by someone who at the time is fearful of the proposal to bring in an entrenched bill of rights. Certainly there is little sign that this proposal amounts for Smillie in 1986 to some sort of Hill of Difficulty that one is better to avoid or that will prove too costly to ascend.

Yet that sort of big picture Rawlsian Romanticism is tempered by dollops of scepticism at the level of detail. For instance, Smillie’s analysis of the rule utilitarian underpinnings of the government proposal is spot on.13 And it is in that discussion that Smillie dissects the real problems with all ‘abridging’ or ‘reasonable limits’ or ‘proportionality’ analyses undertaken by unelected judges.

Of course the most obvious drawback to this approach is the practical difficulty of accurately identifying and balancing all the various consequences, both long and short-term, political, social, economic, cultural and otherwise, that will flow from any particular resolution of conflicting interests.14

... there is little likelihood of a judge being apprised of, far less conversant with, the full range of material relevant to such issues .... many judicial attempts at an objective balancing of social costs and benefits are likely to be based on incomplete information and understanding.15

11 Smillie 1986, above n 3, at 197. And note that this issue is a live and hotly contested one

throughout the developed common law world, including in New Zealand to this day. In Canada see Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519, overruling Sauvé v Canada (Chief Electoral Officer) [2000] 2 FC 117. In New Zealand see Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (NZ), which disqualified prisoners from voting. This was declared inconsistent with the Bill of Rights in Taylor v AG [2015] NZHC 1706. In Australia see the High Court of Australia’s decision in Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162. This is a case which I critique in the strongest terms in “The Three ‘R’s of Recent Australian Judicial Activism: Roach, Rowe and (no) ’Riginalism’” [2012] MelbULawRw 19; (2012) 36 MULR 743. And in the United Kingdom see Hirst v United Kingdom (No 2) [2005] ECHR 681 and the more recent case of McHugh and Others v The United Kingdom [2015] ECHR 155. David Cameron has said that prisoners “damn well shouldn’t” be given the right to vote, and has called for the powers of the European Court of Human Rights to be restricted. See, “Prisoner’s ‘damn well shouldn’t be given right to vote’, says David Cameron” (14 December 2014) The Guardian < www.theguardian.com/politics/2013/dec/13/prisoners-right-to-votedavid-cameron>.
12 Smillie 1986, above n 3, at 196 and also at 191-192.
13 At 179-187.
14 At 183-184.
15 At 184.

To critics of the outcomes of such controversial cases, judicial claims to be giving effect to dominant community values will be seen merely as a cover for the personal values and prejudices of the judges themselves.16

A more recent critic of such judicially-decided abridging exercises has said that ‘proportionality is plastic and can in principle be applied almost infinitely forcefully or infinitely cautiously, producing an area of discretionary judgment that can be massively broad or incredibly narrow – and anything else between’.17 Smillie got to the same general endpoint back in 1986. Of course his remedy back then was to jettison such abridging enquiries, but to keep the bill of rights and so to aim for an even more potent incarnation of such an instrument. However, it is an open question whether, even in the absence of such ‘a general limitation provision’,18 the judges would be forced to read one back in anyway. Well, it is not really an open question because they would do precisely that. Consider the United States which lacks just such an explicit Canadian Charter s 1 provision. Yet it is assuredly the case that the United States Supreme Court, and all the top US judges, do not treat rights as absolute when confronted with arguably infringing legislation. In the US all the work is done at the stage of determining the proper scope of application of some enumerated (or these days some unenumerated, but simply judicially intuited or divined) right. In Canada you get two distinct stages of analysis – a very expansive understanding of the scope of the right (since this is not the determinative stage) and then an analysis of whether the impugned statute’s limitation on that right is reasonable and justifiable in a free and democratic society. But as Grant Huscroft and others have argued, there is no reason to think that American judges are more absolute in their understanding of how rights will fare against legislation.19 They just undertake the balancing exercise when resolving the proper understanding of the scope of the right in the case at hand. Nor is this inevitability of judges doing all the balancing or abridging work when determining the scope of the particular right somehow avoided by laying down that only other rights, and nothing else, can limit some enumerated right, as Smillie attempts when setting out his Alternative Draft Bill of Rights.20

16 At 185.
17 Thomas Poole “The Reformation of English Administrative Law” (2009) 68 CLJ 142 at 146.
18 Smillie 1986, above n 3, at 196.

19 See Grant Huscroft “Rationalizing Judicial Power: The Mischief of Dialogue Theory” in James Kelly and Christopher Manfredi (eds) Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms (UBC Press, Vancouver, 2009); Stephen Gardbaum “The Myth and the Reality of American Constitutional Exceptionalism” [2008] MichLawRw 15; (2008) 107 Mich L Rev 391; and my “The Author Doth Protest Too Much, Methinks” (2003) 20 NZULR 17.
20 Smillie 1986, above n 3, from 194, with his bracketed abridging clause on 196.

With the benefit of hindsight we can also see what happens when an abridging provision is taken from an entrenched, constitutionalised bill of rights such as the one in Canada or such as the one being mooted in the 1985 White Paper and carried over into a statutory bill of rights. Personally, keeping such ‘reasonable limits’ provisions around and as part of a statutory model strikes me as coming close to a drafting error and throws open to doubt what such an exercise is supposed to amount to when, at the end of the day, judges operating a statutory bill of rights cannot anyway strike down or invalidate the legislation under consideration. Indeed I have argued at length that, within the context of a statutory bill of rights, having both an abridging provision and a reading down provision (section 6 in the New Zealand Bill of Rights Act) leaves the point-of-application interpreter in the position of having to reconcile the two by legislating from the bench, or something that comes within a millimetre of that.21 Whether you find my analysis persuasive, or not, it is certainly the case that the New Zealand top judges have tied themselves in knots considering this issue,22 as have the top Australian judges when considering the State of Victoria’s statutory bill of rights.23

Let us finish this first stage of Professor’s Smillie’s Progress by noting a couple of miscellaneous things about this 1986 article. Firstly, Smillie appears to be very sanguine that the top judges, if given all of this rather immense new power, will be extremely cautious in using it; they will be deferential to the elected legislature, he seems to believe.

[Supporters of the draft White Paper Bill of Rights] also claim that overseas experience shows that courts in fact exercise wider

21 See my “The Victorian Charter of Rights and Responsibilities: Exegesis and Criticisms” [2006] MelbULawRw 28; (2006) 30 MULR 906 and my “The Operative Provisions – An Unholy Trinity” [1995] 5 New Zealand Bill of Rights Bulletin 79. For those who argue that s 5 (the abridging provision) is largely going to be used to justify the legislature’s limits on rights in order that they can then be understood as rights-respecting interpretations for the purposes of s 6 (the reading down provision), my view is that it is at least as likely that an aggressive application of s 5 (the abridging or proportionality analysis) will find the limits to be unreasonable and hence that other rights-respecting interpretations will be sought by the court to be imposed under s 6 (the reading down power).

22 See R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 and Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260.

23 See Momcilovic v The Queen (2011) 245 CLR 1. The United Kingdom’s Human Rights Act dispensed with any abridging provision, although many are incorporated right-by-right in the European Convention on Human Rights. The later State of Victoria’s Charter of Human Rights and Responsibilities (though there is in fact not a single enumerated responsibility or duty in the statute), which is an amalgam of the operating provisions from the New Zealand and the United Kingdom statutory bills of rights, opted to include an abridging provision.

constitutional powers to review the validity of legislation responsibly and with restraint.24

Judicial awareness of the inherent difficulties associated with each of these approaches to constitutional review is likely to induce the courts to show substantial deference to Parliament’s assessment of what particular accommodation of competing interests best reflects community values...25

Today, some three decades later, this prediction of judicial restraint when operating a strong, entrenched, bill of rights seems laughably wrong-headed, as even a cursory look at what the Canadian judges have been up to would indicate – to the point that I sometimes wonder why my native Canadians bother to vote.26 Indeed even the British judges operating their souped-up version of a statutory bill of rights have become so powerful that bill of rights supporters such as Aileen Kavanagh27 now think them in the same league as the top US and Canadian judges in terms of getting their own way against the elected legislature.

Here is a second observation. Back in 1986 Professor Smillie nowhere mentions anything about how a bill of rights might affect the job of statutory interpretation. This was wholly understandable back then. Today, in discussing a statutory bill of rights, it would occupy much if not most of your time.28

And that suffices to bring us to the end of the first stage of this professor’s progress. Stop two occurs nearly a decade in the future.

2. 1994 – MR VALIANT-FOR-TRUTH

Eight years later, and four years after the New Zealand Bill of Rights Act had been enacted, Smillie’s tone is remarkably different. Doubts and apprehensions

24 Smillie 1986, above n 3, at 176.
25 At 185-186.

26 See my Democracy in Decline (McGill-Queen’s University Press, Montreal, 2014) and my “An Unashamed Majoritarian” (2004) 27 Dal LJ 537. And Gregoire Webber has noted the irony of judges being solicitous of the right to vote in their bill of rights jurisprudence at a time when voting matters less and less given the raw judicial power that bills of rights today bring about. Webber’s point was made in conversation or on a blog, I cannot recall.

27 See Aileen Kavanagh Constitutional Review Under the UK Human Rights Act (Cambridge University Press, Cambridge, 2009).

28 See my “Statutory Bills of Rights: You Read Words In, You Read Words Out, You Take Parliament’s Clear Intention and You Shake It All About – Doin’ the Sankey Hanky Panky” in Tom Campbell, Keith Ewing and Adam Tomkins (eds) The Legal Protection of Human Rights: Sceptical Essays (Oxford University Press, Oxford, 2011) 108.

are clearly visible. There is no sign of the Rawlsian Romantic or Dworkinian Dreamer. But close at hand we do see, if not the Slough of Despond, at least a newfound awareness that New Zealand’s top judges will not be the restrained, cautious, deferential utilizers of the new bill of rights that he had predicted nearly a decade beforehand.

The second of Smillie’s four articles that we will consider is entitled ‘The Allure of “Rights Talk”: Baigent’s Case in the Court of Appeal’, also published in the Otago Law Review.29 Its seventeen pages contain a powerful analytical dissection of the New Zealand Court of Appeal’s reasoning in Simpson v Attorney-General [Baigent’s Case].30 In fact, it is fair to say that Smillie demolishes the reasoning of the majority Justices, as well as that of the dissenting Justice (whose ‘judgment ... provides little cause for comfort’31). I would go so far as to say that Smillie leaves the reader with the clear sense that New Zealand’s then top domestic court indulged in reasoning that was sophistical, jesuitical and amounted to offering up arguments in the service of an agenda – that agenda being the self-aggrandizement of the role and power of those very same judges who were deciding the meaning and reach of this comparatively newly enacted statutory Bill of Rights Act. Or rather, after reading Smillie 1994 the sophistry of the court’s reasoning was (and is) plain to anyone who is able to distinguish between a) ‘the most plausible interpretation of the statutory provisions before us’ and b) ‘here is my preferred substantive outcome to this case, namely my strong pre-existing commitment in favour of outcomes that expand judicial power under the aegis of a potent bill of rights’. At the risk of repeating myself, for all those who can keep separate a) and b) – and truth be told there are myriad pro-bill of rights proponents who simply cannot do this – Smillie’s analysis in this second article lays bare the implausibility and fatuousness of the top court’s reasoning and arguments.

In Baigent’s Case the Court of Appeal creates a new cause of action sounding in the newly enacted Bill of Rights Act, with the defendant’s ‘liability [being] characterised as a direct liability in public law founded on the Bill of Rights itself rather than a vicarious liability in tort for the acts of individual Crown servants or agents’.32 To make that characterisation stick the majority Justices need to account for the fact that there is no remedies provision in the New Zealand Bill of Rights Act (or worse, that there had been one in the White Paper entrenched version

29 John Smillie “The Allure of ‘Rights Talk’: Baigent’s Case in the Court of Appeal” [1994] OtaLawRw 3; (1994) 8 Otago LR 188 (hereinafter ‘Smillie 1994’).
30 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667.
31 Smillie 1994, above n 29, at 198.
32 At 189-190.

mooted back in 1985 but that that remedies provision had to be removed in order to ease passage of the statutory Bill of Rights through a House with a hostile Opposition and some doubtful government MPs). The Court of Appeal Justices also need to explain how the statutory New Zealand Bill of Rights Act can be interpreted in such a way as to trump the statutory immunity for Crown servants and agents contained in s 6(5) of the Crown Proceedings Act – and doubly so given the s 4 provision that this bill of rights will lose to all other statutes in the case of any inconsistency.

So Smillie takes the reader through the legislative history of the new Bill of Rights Act.33 Based on this he argues:

In my view, the history, legal form, and overall structure of the New Zealand Bill of Rights Act 1990 demonstrate beyond doubt that Parliament did not intend the rights contained in the Bill to carry a higher “constitutional” status, and in particular, did not intend to confer power on the courts to enforce those rights through a new regime of public civil liability untouched by existing statutory immunities.34

The deliberate omission from the 1990 Act of the wide remedies clause included in the White Paper draft posed an obvious problem for the majority of the Court of Appeal. Their explanation is not convincing.35

Inexplicably, the Court overlooked the clearest expression of the government’s intention regarding availability of judicial remedies for violation of rights contained in the Bill. Moving the second reading of the Bill, the Prime Minister responded to continuing Opposition and public concern by taking pains to “spell out what the Bill does not do”. He then proceeded to emphasise [that] “the Bill creates no new legal remedies for courts to grant. The judges will continue to have the same legal remedies as they have now, irrespective of whether the Bill of Rights is an issue”.36

Clearly the legislative history of the Bill of Rights Act does not support the view that Parliament intended to confer new enforcement powers on the courts. In fact the whole point of enacting the Bill as an ordinary statute was to confine the courts to their existing jurisdiction.37

33 See inter alia, Smillie 1994, above n 29, at 193-197.
34 At 193.
35 At 195.
36 At 196 (internal footnotes omitted).
37 At 196.

The Court ignored all of that relying instead on such factors as outcomes in overseas jurisdictions with entrenched bills of rights that lack remedies clauses;38 on the long title to the Bill with its reference to a treaty;39 on claims about how fundamental to a civilised society the Bill’s enumerated rights were (together with various analogous assertions about the need to protect and promote them – by which they meant the need for judges to protect them);40 on how the absence of a remedies clause was probably not of much consequence and how the legislative history of the new statutory Bill of Rights Act was of little value;41 on how the precise legal form that was ultimately chosen for this Bill of Rights was not of much relative importance;42 on ignoring section 4 completely43 (and implicitly making use of the section 6 reading down provision); and so on and so forth with one argument in the service of an agenda piled on top of the next.

Smillie exposes it all for the flabby reasoning it is. Smillie’s opinion is that ‘[u] ltimately, the decision of the majority in Baigent’s Case rests on a simple assertion that the courts are the ultimate guardians of human rights and they must enforce those rights regardless of Parliament’s intentions. This has no more foundation in legal or democratic principle than Sir Robin Cooke’s controversial assertion that some common law rights “lie so deep that not even Parliament could override them”’.44 And Smillie is correct.

Of course being correct that a judicial decision from a country’s top domestic court rests on sophistry and interpretive implausibility does not stop that decision from becoming the law of the land. Accordingly Smillie goes on to consider the implications of this Baigent’s Case decision.45 These are various. For instance, after Baigent there is now a novel public law ‘civil action for breach of the Bill of Rights ... [where] the choice of remedy lies entirely within the discretion of the judge’.46 On top of that, this discretion the judges have effectively granted to themselves is in theory unconstrained. ‘The courts’ discretion to distinguish deserving from undeserving claimants of government compensation is complete. It is hard to justify judicial creation of such a unique and unfettered discretion.’47 The new

38 See, for example, at 190-191.
39 At 191 and 196.
40 At 191.
41 At 192.
42 At 192.
43 At 1 and 95.
44 At 197 (internal footnote omitted).
45 At 198-204.
46 At 199.
47 At 200.

cause of action ‘will prove extremely attractive to litigants’.48 Judges will be treated more favourably than police officers49 and they will become more politicised.50

Professor Smillie finishes this second article by reminding the reader that ‘[w] hile the New Zealand public emphatically rejected any expansion of the courts’ powers, it did embrace the idea of electoral reform ... [the consequence of the latter being that] any significant amendment to the Bill of Rights Act would certainly fall into this category [of being extremely difficult to pass under any future parliament elected under the incoming proportional representation voting system]’.51 Meanwhile the enthusiasm of the then Prime Minister to end all appeals to the Privy Council meant that Baigent’s Case would not be appealed.52

The pessimism with which Smillie finishes this second article has not been fully borne out by the passage of time and that is because cases brought for Baigent compensation (i.e., sounding in the Bill of Rights Act) have not been all that numerous. Only in 19 cases has Baigent’s Case been cited under a Briefcase search of ‘NZBORA damages cases’, and of course that does not even mean that damages have been awarded in each of those 19 cases.53 On the other hand, one assumes that with this new cause of action lurking in the background a goodly number of cases now settle out of court, though one has no idea how many that might be. Still, the impact of Baigent has been somewhat more limited than Smillie (and indeed I) feared back when it was decided. Commentators such as Geoff McLay, who laments this limited impact and from his perspective lack of success, put this down in large part to the fact that human rights compensation has been undertheorized.54 I prefer to give a chunk of credit to Smillie and his exposé of the Court of Appeal’s casuistical reasoning, which I am optimistic enough to believe is some deterrent to any hyper-inflated use of this judicially made-up innovation.

48 At 200.

49 See at 202: ‘... it seems anomalous that the Crown should be protected from direct liability for the consequences of carelessness by judges, but not police officers”.
50 At 203.
51 At 204.
52 At 204.

53 For more details see Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 1600–1606.

54 See Geoff McLay “Damages for Breach of the New Zealand Bill of Rights – Why Aren’t They Sufficient Remedy?” [2008] NZLR 333.

3. 1995 – MR STANDFAST

We will only alight at this third stop momentarily. Here we have a short casenote written by Smillie for the United Kingdom’s Law Quarterly Review.55 It had been written and sent off by the time of publication of the Smillie 1994 Otago Law Review article just discussed,56 though this third Smillie article did not in fact appear in print until 1995. Given that it is a condensed, more blackletter law account of Baigent’s Case for a predominantly English readership it is unsurprising that it covers virtually no new ground – save for revealing that ‘the Ministry of Justice has been asked to report on the practical implications of the decision [with Smillie hoping] that the government will take prompt legislative action to abolish the new cause of action’.57 All that conceded, this Smillie 1995 article can nevertheless be seen as offering a warning to British proponents of a statutory bill of rights of what is likely to happen should one be enacted there.

Of course if seen in that way it is also the case that Smillie’s 1995 warning was wholly ignored. Proponents of a statutory bill of rights for the United Kingdom in the Tony Blair government pushed on and eventually had passed through the Westminster Parliament the Human Rights Act 1998 which came into force in Scotland in 1999 and in England and Wales in 2000. And if Smillie’s warning was about how the judiciary is likely to be far less deferential and cautious than (some) proponents of these instruments might expect, it was an admonitory prediction that proved to be fully justified in the event. No, things in fact turned out far worse than in New Zealand with the United Kingdom judges treating their section 3 reading down provision far, far more virulently than the top Kiwi judges treated their section 6 version,58 to the point where some now see the UK judges as being as powerful as those in the United States.59 This may well go some way to explaining the current push within the Conservative Party in Britain to repeal the Human Rights Act, though it does not make much sense of the (to me) incoherent post-repeal desire then to replace it with a ‘British Bill of Rights’.

55 John Smillie “’Fundamental’ Rights, Parliamentary Supremacy and the New Zealand Court of Appeal” (1995) 111 LQR 209 (hereinafter ‘Smillie 1995’).

56 Or such is the inference one draws from the biographical details line in Smillie 1994, above n 29, at 188.
57 Smillie 1995, above n 55, at 217.

58 See Ghaidan v Godin-Mendoza [2004] UKHL 30. And note that Ghaidan has been affirmed and affirmed and affirmed repeatedly. See, for instance, Shekdrake v DPP [2004] UKHL 43; [2005] 1 AC 264, 303 (per Bingham LJ). See also Allan “Statutory Bills of Rights”, above n 28.
59 See Kavanagh Constitutional Review Under the UK Human Rights Act, above n 27.

Regardless, that suffices to allow us to move on to the fourth and final stage of Professor Smillie’s progress. Stop four occurs over a decade in the future.

4. 2006 – THE VALLEY OF THE SHADOW OF DEATH

Eleven years later Professor Smillie wrote ‘Who Wants Juristocracy?’,60 the final stop in his progress. This article had earlier been delivered as an address to the Legal Research Foundation’s conference on ‘Law, Social Policy and the Courts’ in Auckland on the 6th of August, 2005. And notice straight off the curiously bifurcated nature of this final article. By that I mean that it can be separated into two quite distinct parts, the first being a sort of Churchillian ‘Fight Them on the Beaches’ section61 and the second being a rather Vichyesque ‘If You Can’t Beat ’Em, Join ’Em’ about-face.62 The two do not sit easily together. The former gives a stirring defence of democratic decision-making over juristocracy, not least on the grounds of its much greater procedural legitimacy; it draws on the thinking of Ran Hirschl63 and Jeremy Waldron64 and Adam Tomkins65 and more; it notes how even by 2006 the New Zealand Bill of Rights Act had resulted in ‘the courts’ intrusion into controversial political issues [thus bringing] the judges into conflict with the politicians’;66 in brief this first part of the Smillie 2006 article warms the heart of someone like me, an opponent of bills of rights based largely on their enervated – nay, nearly invisible – democratic credentials. The Smillie who writes this first Churchillian section has travelled a long, long way from the Smillie of 1986 who wrote the first article we considered.

Meanwhile the latter ‘Join What You Can’t Beat’ section simply doubles down on rule by judges, on juristocracy. Any worries about the massive lack of legitimacy that flows from having a small committee of unelected ex-lawyers deciding a host of social policy issues for society at large go unspoken; an argument is advanced that if you are going to have judges deciding rights-related issues for all the rest of

60 John Smillie “Who Wants Juristocracy?” [2006] OtaLawRw 2; (2006) 11 Otago LR 183 (hereinafter ‘Smillie 2006’).
61 At 183-192.
62 At 193-195.
63 At 188.
64 At 184.
65 At 183.

66 At 186. Footnote 16 on that page then makes reference to some examples, including ‘the sharp public debate between the Chief Justice, Dame Sian Elias, and the Deputy Prime Minister (and now Attorney-General), Dr Michael Cullen, concerning the foundation and status of the doctrine of parliamentary sovereignty...’.

us then you can’t sensibly restrict those rights to civil and political ones, you need to include social and economic ones too;67 there is even a claim that:

if you are really serious about securing and maintaining reasonable minimum living standards in New Zealand and ensuring that there is no repetition of the social distress and dislocation that resulted from the economic policies of the late 1980s and 90s, you will not only campaign to extend the Bill of Rights Act to include basic economic and social rights, but you will also join people like Jane Kelsey and lobby for New Zealand to withdraw from the World Trade Organisation, APEC and the OECD, to ignore the International Monetary Fund and the World Bank, ... to increase income tax rates, and to erect protective trade barriers against the importation of cheap foreign clothing and manufactured goods.

You may object that such action would quickly return us to the boring social conformity of the 1950s and 60s. This is true. But at least during that period ... everyone who wanted to work had a job ... income inequality was much less marked, and certainly there was no permanent underclass resigned to life as beneficiaries of the state. To be sure, there wasn’t the same range of fancy cars available and a cup of good coffee wasn’t available on nearly every street corner. But that may seem a small price to pay for real, substantive social justice.68

Here we are seeing a slightly altered reincarnation of Smillie the Romantic from twenty years before. Now I personally believe such economic prescriptions would lead to poverty, not greater social justice,69 but put that issue aside. My sole point

67 At 193-194.
68 At 195.

69 The reasons are myriad. For instance, autarky was a disaster when tried over many years in post-colonial India and you would find few Indians keen to go back; employment rates when few women worked were not surprisingly higher for men; the policy options open to New Zealand back when most of the developing world relied on subsistence farming are not the same options open to a country when those many countries are now lifting tens of millions out of poverty by industrialising and so if New Zealand erected barriers to their goods they would reciprocate, leaving one to wonder to whom New Zealand’s farmers would sell their products – not to mention raising the issue of why it is morally good to aim to impoverish the Third World. Oh, and in world terms – and in New Zealand terms too – this is clearly the best time ever for anyone to be alive in terms of their overall wealth, lifespan, educational standards, pretty much everything – including having more choices about what coffee to drink, it is true. If reducing inequality to achieve ‘real, substantive social justice’ means lowering everyone to a 1950s standard of all of those things, to make everyone poorer (including those at the bottom) in order to narrow the gap between top and bottom, then I am against. My bet is that just about all women would be too. Indeed most people generally. But of course if the majority thought differently to me then I would say they should be free

here is that the Professor’s Progress we see in this second part of the Smillie 2006 article is markedly different to what we see in the first part of that same article. The Churchillian Smillie, as I noted above, has travelled a long, long way from the Smillie of 1986. The Vichyesque Smillie has certainly gone somewhere; but it seems to me that he still lives somewhere with the same postal code.

And yet, having said all that, let me offer a different reading of this Smillie 2006 article. You see, the anti-juristocracy section of the paper is well over three times longer than the ‘include social and economic rights too’ section. This antijuristocracy section catalogues how bills of rights are undemocratic;70 how they leave society-wide decisions with an institutionally suboptimal judiciary;71 how they encourage judicial activism72 and erode confidence in the judges;73 how they cost a lot of money (that could be spent elsewhere) and really deliver little save to criminals, lawyers and judges, and some articulate, well-educated members of the professional class;74 and more. In this section of the paper Professor Smillie even offers five pieces of hard-headed advice to the New Zealand Parliament,75 namely to repeal the New Zealand Bill of Rights Act, to reduce the number of judges, to abolish the Supreme Court, to get rid of all of those judges’ clerks and so make the judges do their own research, and to consider opting for European-style career judges, in the hope that this might curtail the number of Hero Judges,76 of those appointed to the Bench who see themselves as dispensers of social justice and hence feel more-or-less free to legislate from the Bench. Read the following passage and try to argue that Smillie is not spot on:

The problem is that many of our judges (particularly our superior court judges) consider themselves to be, and most probably are, overqualified for the role that society requires of them. People who rise to the top of their profession as barristers tend to be not only intelligent and articulate, but also confident, energetic and highly competitive. On appointment to the bench, many are not content to serve as mere custodians of the legal system focusing on consistent application

to try what they like, including joining with people like Jane Kelsey. No country has ever withdrawn from the WTO, the wealth-creating effects of comparative advantage being what they are, but the process for withdrawal is simple and can be done unilaterally by any member nation. I do not recommend trying.
70 Smillie 2006, above n 60, at 183.
71 At 184.
72 At 185-186.
73 At 186-187.
74 At 187-189.
75 At 191-192.
76 See John Gava “The Rise of the Hero Judge” [2001] UNSWLawJl 60; (2001) 24 UNSWLJ 747.

of settled norms to careful findings of fact. Instead they want to be architects of the legal system and engage with high level philosophy, political theory, economics, sociology and ethics as they actively shape the law to conform with their perceptions of society’s needs. Many judgments read as if they were written for other judges, or for academics, rather than for litigants.77

Wow! Right on the money, as I said. Indeed, all five of Smillie’s pieces of advice have merit, but none more so than his call to repeal the New Zealand Bill of Rights Act.

So why the 180 degree reversal of direction over the last two and half pages of this article, pages in which Smillie outlines his ‘If You Can’t Beat ’Em Join ’Em’ option? Well, I think that you can after all reconcile the two sections if you read carefully Smillie’s conditional phrasing before he delivers his alternative prescription. Notice that he prefaces this alternative by saying ‘If you really believe that judges have a valuable role to play in advancing the cause of social justice in this country ...’.78 And after reading all that has gone before these last couple of pages it is surely plain to any reader that Smillie himself does not believe judges have any such role to play. The alternative prescription is not one Smillie wants; it is more a counsel of despair for those who insist on living in the Valley of the Shadow of Death. It flows from a belief that his five pieces of advice to the legislature have little chance of being taken up.79 So my take is that the alternative prescription, the Vichyesque about-face in those last couple of pages, can be understood in terms of three separate ingredients being thrown into the pot. It is one part reductio ad absurdum argument; it is one part nicely argued point about how hard it is to draw some hard and fast line between civil and political rights and social and economic rights (for Smillie is correct about how difficult it is, sensibly, to restrict judges to the former but bracket off the latter); and it is one part opportunity to show off his romantic side, and if not return to the strong bill of rights supporting 1986 version of himself at least to make a few points about the undoubted costs – and undoubted costs there are – of moving to an open world economy.

But none of this is in anyway meant to condone juristocracy and undemocratic rule by judges. The first three-quarters of this fourth article of his make that abundantly plain.

77 Smillie 2006, above n 60, at 192.
78 At 193 (emphasis mine).
79 He says as much at 193.

And with that claim, my account of Professor’s Smillie’s progress when it comes to his thinking on bills of rights has finished. Neither he nor we may have entered the Celestial City, but I hope that the reader now has a better understanding of John Smillie’s evolving views on bills of rights over a twenty-year period.