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Allan, James; Huscroft, Grant; Lynch, Nessa --- "The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?" [2007] OtaLawRw 7; (2007) 11 Otago Law Review 433

The Citation of Overseas Authority in Rights Litigation in
New Zealand: How Much Bark? How Much Bite?

James Allan^[*] , Grant Huscroft^[**] and Nessa Lynch^[***]

Jeremy Bentham is well known for his dislike of the common law, of judge- made legal rules. Bentham thought such a system of law resembled what he called “dog law”.

TRUTH – Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes law for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way judges make law for you and me. They won’t tell a man beforehand what it is he should not do … The French have had enough of this dog-law; they are turning it as fast as they can into statute law, that everybody may have a rule to go by: nor do they ever make a law without doing all they can think of to let every creature among them know of it. The French have done many abominable things, but is this one of them?^[1]

Bentham’s grievance concerned not just the retrospective nature implicit in common law decision-making; it had also to do with the lack of certainty and the room to manoeuvre that exists when rules are comparatively indeterminate. The greater the degree of vagueness in the law, the greater the power of the judges in charge of it. And when rules have to be inferred from the ratio of past decisions, it will generally (though not always) be the case that such rules have less specificity, less of a “core of settled meaning”,^[2] and less constraining effect over future circumstances than do rules laid down in statute form by a legislature.Bentham’s codification project was never realized, of course, and few lament that fact.^[3] But the sorts of concerns that motivated Bentham remain relevant, albeit in different ways than Bentham imagined. Our concern in this paper is not with New Zealand’s municipal system of common law, but instead with what can fairly be described as its common law-like system of rule-making in regard to rights and freedoms – judicial review under the New Zealand Bill of Rights Act. In particular, we are concerned with what we call rights-based internationalism: citation by New Zealand judges of the decisions of overseas judges (and quasi-judicial officers) interpreting and applying overseas bills of rights.

There are, of course, no hard and fast rules governing the use of overseas precedents in interpreting the New Zealand Bill of Rights Act. Indeed, there are no rules at all. Nothing like the notion of stare decisis exists to help in choosing between the myriad overseas precedents on offer – nothing to guide courts in determining when overseas decisions should be cited, which decisions should be cited, what weight particular decisions should be accorded, and so on. New Zealand courts are bound to consider relevant New Zealand authority – an obligation that goes without saying – but they are under no such obligation where overseas authority is concerned. Judges are free to cite Canadian authority in preference to American, American in preference to European, European to South African, and so on. But then they are free to do the opposite too. Nor is there a requirement of consistency, or a duty to provide cogent reasons for preferring some overseas decisions to others. A simple “we prefer the approach of (insert name of overseas court)” is enough. In short, judges are free to use overseas case law whenever and however they see fit.

If vague and indeterminate law (or case law) corresponds with greater judicial power and discretion to achieve results favoured by those same judges themselves, then rights-based internationalism has the potential to be even more dog-like, more canine, than the domestic variety of common law that so infuriated Bentham. Relatedly, and perhaps more importantly, the stakes may be much higher where terms like “freedom of expression”, “equality”, and “due process” – common to most bills of rights – are concerned. As Peter Hogg and Allison Bushel put the point matter-of-factly in discussing adjudication under the Canadian Charter of Rights and Freedoms: “[j]udges have a great deal of discretion in ‘interpreting’ the law of the constitution and the process of interpretation inevitably remakes the constitution in the likeness favoured by the judges.”^[4]

This seems to us to be a problem. Where Hogg and Bushel might see “a great deal of discretion”, a modern day Bentham might see a certainty-lacking, essentially retrospective, judicially-driven form of decision-making. But we do not attempt to address that problem here. Instead, our ambition in this paper is simply to set out the evidence from the reported New Zealand case law that refers to overseas rights-based decisions, and to pose some Bentham-like questions about the practice. In fact, one of the main things this paper does is to report the findings of a study into the use of rights-based internationalism in New Zealand courts.

We undertook this study with several questions in mind. We wondered:

1) Which rights tend to get the international treatment and which do not?

2) Which judges are “internationalists”?

3) Which overseas courts are cited most often, and which are rarely cited? Have there been any unusual or bizarre citations?

4) Is the citation of overseas precedent linked to particular counsel?

5) Is the citation of authority from particular countries linked to particular rights?

6) Are overseas precedents cited often, frequently, rarely or never when they point to the opposite outcome from the one ultimately reached by the judge?

7) When cited approvingly, are overseas precedents cited mainly in support of or in opposition to New Zealand legislation? Put slightly differently, are they cited mainly to limit the scope and ambit of a right or to extend it?^[5]

Our intuition before starting this study, as we made clear above, was that the use of overseas authority in New Zealand Bill of Rights Act case law is unprincipled and largely ad hoc and imposes few constraints on the judiciary. It is that intuition that we set out to test. With funds provided by the Law Faculty of the University of Otago, Nessa Lynch noted and considered the reported High Court, Court of Appeal and Supreme Court cases^[6] in which reference was made to an overseas rights-based precedent from the enactment of the New Zealand Bill of Rights Act up to April 2006. She organised the data in various ways so as to enable us to try to answer the above questions.

The data are by no means exhaustive. A good deal more work could be done, and as a result there are limits on the extent to which answers can be discerned from the data. Nevertheless, we believe this study is revealing in various ways, and we present it in the next section and in the appendices below. Following our précis of the results, we discuss a number of related matters including the amount of discretion – the freedom of action – New Zealand judges appear to have when it comes to the use of overseas authority.

The Results

We set out our results in the appendices to this article. Here we will summarize those results.

Appendices A and B

Appendix A provides the data that relate to our question 1), namely how often the rights and freedoms enumerated in the New Zealand Bill of Rights Act have given rise to reported cases in which overseas precedents are cited in the course of elaborating those rights and freedoms.

Appendix B sets out the related data concerning rights that are not explicitly mentioned in the New Zealand Bill of Rights Act, but which have nevertheless given rise to reported cases in which overseas precedents are cited. This data is necessarily incomplete. For one thing, courts will not always be inclined to characterize things as “rights” outside the parameters of the New Zealand Bill of Rights Act, although the New Zealand Bill of Rights Act contemplates the existence of rights in other contexts.^[7] Moreover, common law and statutory rights can exist outside the context of the Act in any event.

As regards the enumerated rights and freedoms, New Zealand judges are most likely to cite the decisions of overseas courts when considering criminal procedure rights, and by a noticeable margin.^[8] This may well be because these rights are the most frequently invoked and litigated ones overall. In fact, that seems quite likely to us to be the case. However, we cannot be sure as we measured only reported cases, and in particular those that referred to overseas precedents in the course of the judgment or judgments.

Outside the context of criminal procedure, freedom of expression gets the international treatment more than any of the other rights and freedoms, and by a wide margin. Next comes the freedom from discrimination, a right that has the potential to be the subject of extensive litigation in future. (Certainly there is an extensive body of case law concerning equality and discrimination in every country with a bill of rights.^[9] ) Enumerated rights not receiving the international treatment – and, again, this may relate to the fact these rights simply are seldom litigated – include the s 12 electoral rights, s 18 freedom of movement, and s 20 rights of minorities.

As for rights not explicitly mentioned in the New Zealand Bill of Rights Act, the right to privacy and the right to have evidence excluded (arguably not a right so much as a judicial remedy for a breach of other rights) are the ones that most frequently receive the international treatment, followed by the Baigent-inspired right to pecuniary damages (again, not a substantive right per se but a judicially created remedial power).

Appendix C

Appendix C relates to the judges, and which of them have been most inclined to cite overseas precedents – our question 2). We have not looked at how many judgments each of the judges has written that concern the New Zealand Bill of Rights Act, so the numbers are absolute rather than proportional. It may be that, given how many judgments each wrote, some judges were more inclined to cite overseas authority than others in a proportional sense. Nevertheless, the absolute numbers are interesting, and in some ways conform to what many would have expected. It will come as no surprise, for example, that President Cooke (in his then judicial role) tops the list, despite the relatively short time he was on the

Court of Appeal following passage of the New Zealand Bill of Rights Act. However, Justices Richardson’s and Gault’s second and third place standings may prove unexpected. Justice Keith is also near the top of the list, though some might have expected to find him placed even higher. He has for some time been New Zealand’s leading international lawyer, and now sits on the International Court of Justice. Justice Elias also has fewer citations than we expected to find, given the views she has expressed extrajudicially.^[10]

Appendix D

Appendix D sets out the data relevant to our question 3), and the results here come as no surprise. In terms of raw numbers, the decisions of Canadian courts are cited by New Zealand judges far more than those from any other jurisdiction. As Canada’s judges are, by most accounts, the most judicially activist in the common law world – the most willing to second-guess the decisions of the elected legislatures^[11] – reliance on Canadian precedents will worry some and delight others. Next, with just over half as many citations, comes the United States. This is hardly surprising given the extensive United States history with judicial review. Indeed, it is surprising that American cases are not cited more often, since United States Bill of Rights precedents can be found on just about any rights issue that comes up. Well down the list and in third spot comes the United Kingdom, though in part this is explained by the newness of the United Kingdom Human Rights Act, which only came into force in England in 2000. We would expect to see an increase in the number of United Kingdom cases cited in New Zealand courts as experience under the United Kingdom Human Rights Act unfolds, and New Zealand judges become more familiar and confident with United Kingdom case law (though the influence of European law may militate against this).

The New Zealand judiciary wisely managed to avoid citing any Zimbabwean cases.^[12] In fact, leaving aside Privy Council appeals, citations of German, Indian and Irish cases were as unusual or as unorthodox as we found. This comes as no surprise. Although many countries have bills of rights, New Zealand judges are likely to be far more receptive to overseas authority from jurisdictions with which they are comfortable, among other things because of shared affinities. For example, decisions from English speaking courts are likely to be cited more often than decisions from non-English speaking courts, and decisions from common law legal systems are more likely to be cited than those from civilian systems, and so on.

Appendix E

Appendix E also addresses our question 3), and provides the references made in New Zealand case law to the decisions of international tribunals. At the top of this list is the European Court of Human Rights, which interprets the European Convention on Human Rights (ECHR). Next comes the United Nations Human Rights Committee (UNHRC), with about a third as many citations. This is not a surprising result, in our view. Although the preamble to the New Zealand Bill of Rights Act refers to the goal of affirming New Zealand’s commitment to the International Covenant on Civil and Political Rights (ICCPR) and New Zealand is a signatory to the Optional Protocol, which allows individual complaints to be heard by the UNHRC,^[13] it is well-known that the quality of decisions reached by that body leaves much to be desired. Decisions often simply recite facts and submissions, and announce the UNHRC’s conclusion in a perfunctory manner.^[14] The decisions of the European Court of Human Rights in interpreting the ECHR are far more sophisticated.

Appendix F

Appendix F provides data that bears on our question 4). It lists those lawyers who appeared in at least three reported cases in which reference was made to overseas precedents. Mssrs. Pike and Shaw top this list. This list may be of limited utility, since it does not specify whether counsel proffered the relevant authority in their facta or were simply participants in litigation in which the other side cited an overseas case. We presume that counsel representing the Crown were most often involved in cases in which overseas authority was proffered by the other party, but there will be exceptions to this. And, of course, it may be the case that no counsel involved in a case raised the relevant overseas authority. In some cases overseas authority may be cited by the judges – perhaps the fruit of the research of their court clerks. This raises a number of concerns, in our view, to which we will return. Finally, we note that without reading all of the relevant facta, there is no way to determine which counsel were most likely to cite overseas cases, nor can the consistency of their practice in doing so be determined. We presume that the practice of counsel representing rights-seekers where appeal is made to overseas authorities is an unprincipled one – it is cited if it helps, and ignored if it does not – but we have no relevant data.^[15] In large part this is because this particular appendix, and the information it was trying to document, proved to be less useful than we had anticipated. Of course, to the extent that overseas authority is cited by counsel but ignored by a judge, that judge is not an internationalist, but again this cannot be established based on our data.

Appendices G and H

The final two appendices are the most interesting and important in our view. They bear on our questions 5), 6), and 7). If it turned out that New Zealand judges never cited overseas precedents that contradicted the eventual outcome they reached – that is, if conflicting overseas precedents were more or less just ignored – that would seem to us to make more plausible the charge that rights- based internationalism is simply an exercise in discretion enhancement. On the other hand, were such conflicting overseas rights-based precedents cited in all (or almost all) cases, that might be evidence that the judges’ freedom of movement was more circumscribed than latter-day Benthams might suspect. Clearly this sort of evidence would not be conclusive. Once the freewheeling modern day judge learned that it would be politic (and would foreclose at least some possible future criticism) to throw in an overseas case or two that took a different view of the scope of some right or its relation to other rights or what constituted a reasonable limit on it, he or she could easily enough add the necessary references – and then simply ignore them. But there is, today, little criticism for not referring to such conflicting precedents and hence, were they to appear in most cases, that would in our view be some sort of evidence (albeit perhaps rather exiguous evidence) of self-imposed constraints and something less than wide-open discretion and dog-like free-for-all.

Appendix G provides the data on that issue. Limiting our consideration here to reported Supreme Court and Court of Appeal cases, it transpires that of the 75 cases that refer to overseas rights-based precedents, 28 of them include a reference to an overseas case that did not support the New Zealand court’s eventual conclusion. That amounts to 37 percent of the time, or slightly more than once out of every three possibilities. And that figure overstates things to the extent that in some cases only one of the multiple judgments made such a reference.

A different issue relates not to whether judges interpreting the New Zealand Bill of Rights Act have the resources to dress their preferred answers in respectable clothes (that issue about the constraints on the judges is the Appendix G one), but rather to whether the rights-based edifice is prone to a gradual “ratchet-up” effect across the system as a whole. (Note that the two issues, a) whether judges are relatively unconstrained in reaching their preferred results and b) whether the results as a whole tend towards a ratchet-up effect, are distinct, but only so long as at least some judges do not favour an ever-widening understanding of the empire of rights.) On average, over time, do the overseas precedents tend to be cited by the judges to extend and broaden the ambit of various rights and freedoms and the scope and range of their application, which generally might be assumed to mean that Parliament’s legislation is often re-written (or re- interpreted in a “human rights friendly way”) by the judges?

Appendix H relates to this issue, to whether rights-based internationalism appears to have a built-in bias towards a slow, gradual broadening of the understanding of when any particular right is held to apply to a particular situation. Is there a ratchet-up effect? Of course it is far from clear what sort of track record would confirm such a built-in bias, and which would not. If, say, half of all reported cases citing overseas rights-based precedents involved extending the right (with the other half of cases limiting it to its then existing ambit and scope), that would seem to us to be solid evidence of a ratchet-up effect. However, would a quarter of such cases, say, or a fifth, or a tenth, suffice to show the same thing? Clearly different people will have different views on this. We express our view below in the next section.

Here we simply report that as far as those Supreme Court and Court of Appeal cases we considered go, the right at issue is extended more than four times more often than it is given an interpretation narrower than it had before the court’s decision. And the right at issue appears to be extended by the judges in two- fifths of all the cases.

Discussion

In this section we discuss various matters related to the findings outlined above. We begin by considering in more depth the implications of appendices G and H, the amount of discretion judges appear to have when citing overseas authority and whether rights-based internationalism gives rise to a ratchet-up effect. Appendix G appears to us to provide some evidence for the intuition with which we started: rights-based internationalism is not overly constraining on the judges. Indeed, there is a fair degree of ad hockery about it. To start, recall that when it comes to citing (and then relying on or treating as persuasive) the decisions of overseas rights-based authorities in interpreting the New Zealand Bill of Rights Act, there is nothing like the notion of stare decisis. There are no rules (hard and fast ones or otherwise) about when overseas precedents should

be cited, which overseas precedents should be cited, or what weight they should be accorded. This looseness and indeterminacy is aggravated to the extent one believes that different overseas courts have reached different results about where to draw these highly contestable rights-based lines, giving the New Zealand judges plenty of options from which to choose (the choice of any one of which still qualifying as resort to rights-based internationalism).

Let us rephrase that last point. Many of the rights enumerated in modern bills of rights are articulated in vague, amorphous, emotively stirring terms. They are pitched up in the Olympian heights of moral abstractions (eg “the right to freedom of expression”, “to life”, “to freedom from discrimination”, “to freedom of religion”) in terms that in themselves do not begin to resolve the myriad difficult policy decisions that must be made down in the quagmire of detail. Yet it is down there where bills of rights have real, practical effect – down where lines need to be drawn about censorship, abortion, same-sex marriage, what devout religious adherents may wear to school, and so on.

Given that the judges have authority to draw some of these highly contestable lines using a bill of rights, the citation of overseas authorities looks less constraining the more it is true that overseas courts have drawn different lines. Were there only one line being drawn by overseas courts on a particular issue, then citation of the overseas law would appear to impose constraints on the judges who cited it. On the other hand, if a multitude of lines were being drawn by overseas courts, and New Zealand judges had the discretion to pick and choose from amongst them, there would appear to be considerably fewer constraints.

So are there plenty of line-drawing choices on offer when it comes to giving rights the international treatment? The answer is yes. Consider the implications of the right to freedom of expression on reform of defamation laws. And then compare the Canadian position^[16] to the American one^[17] and the United Kingdom one.^[18] Three different lines have been drawn and we have yet to leave the most orthodox of reference points. Or take the same right and ask how it applies to the criminalization of hate speech. There is an international consensus that it is reasonable to limit freedom of expression where hate speech is concerned, but the lines drawn differ considerably across countries and, of course, there are significant outliers in any event: United States courts are the most protective of expression and concomitantly the most hostile to the very notion that expression can be limited based on its content.^[19]

Our view is that it is rare to find a rights-based line-drawing question in which a variety of approaches cannot be found if one decides to canvass the decisions of overseas judges. If that be correct, then the extent to which these conflicting decisions are cited may be some sort of evidence of self-imposed constraints, though as we note above not terribly powerful evidence. Appendix G indicates that in considerably less than half the cases receiving the international treatment – indeed in just over a third of them – do the New Zealand judges point to conflicting overseas precedents.

We turn next to the question of whether the whole of rights-based internationalism might have a built-in bias towards a slow, gradual broadeningof the understanding of when any particular right is held to apply to a particular situation – whether there is a ratchet-up effect. Appendix H indicates that in 30 of the 75 cases we considered, or 40 percent of the time, the Supreme Court or Court of Appeal extended the coverage of the right in some way or other.

The danger (from our point of view, at any rate) is that rights-based internationalism gives rise to a situation in which judges in each jurisdiction are tempted to draw on the most expansive interpretations of judges from other jurisdictions, while seldom being tempted to rely on the more restrictive interpretations on offer. Baigent’s Case^[20] is, in our opinion, the most obvious and egregious New Zealand example of this tactic of pointing to broader, more expansive practices abroad (including in Canada, Ireland, India, the West Indies, and from the United Nations Human Rights Committee) to ratchet-up the practice at home. Cooke P’s justification is telling: “In other jurisdictions”, he wrote, “compensation is a standard remedy for human rights violations. There is no reason for New Zealand jurisprudence to lag behind.”^[21]

Whatever one’s views on the merits of such a ratchet-up effect, Appendix Hprovides some support for thinking that it exists.

Why are Judges Internationalists?

The spread of bills of rights in the latter part of the twentieth century has led to a greater integration of legal systems than ever before. In our view, judicial behaviour is both a cause and an effect of this phenomenon.

It is a cause in so far as judges have taken to promoting internationalism. There is no doubt that today’s judges are concerned with far more than deciding cases. For many judging has become akin to an academic endeavour, and judicial decisions are an occasion for expounding on the law rather than simply deciding the case before them. Increasingly judges act as academics, giving speeches, participating in conferences, writing law review articles, and contributing to books – if not writing them.^[22] Like academics, they are keen to expand their influence, and that of their courts. Rights are a language that is spoken internationally, and judges are writing not simply for domestic but also for overseas audiences – especially other judges and academics, all of whom may promote and further disseminate their decisions. It is not only individual judges who are keen to promote their decisions internationally. Courts are keen to promote and disseminate their decisions internationally as well.^[23]

But judicial behaviour is also an effect of the integration that has occurred. Judicial decisions that were once largely unavailable – if, indeed, one knew enough to ask for them – are now accessible instantly on the internet. The moment a decision is delivered it is posted on the website of a court, and lawyers and judges from abroad know of it. Indeed, courts facilitate the dissemination of their decisions by sending automated messages announcing that their decisions are about to be rendered. The Supreme Court of Canada, for example, gives one week’s notice of impending decisions, along with brief summaries of the relevant history of a case. It is easier than ever before to follow developments in the case law of foreign countries. This has encouraged many judges and counsel to become internationalists, and as more and more do so, others are inclined (if not forced) to join the game. Thus, rights-based internationalism is advanced not only by conscious decisions but also by subtle growth and changes in the practice of law.

Doubtless, there are many more factors at work, and it is difficult to separate cause and effect when it comes to the spread of rights-based internationalism. In all likelihood, personal relationships also play an important role; friendships between judges from different countries – perhaps formed through meetings at academic and judicial conferences – may lead them to cite the decisions of their respective courts. Growth in the use of court clerks is another contributing factor. Left on their own, many judges would have little time or inclination for the sort of research that rights-based internationalism demands. Increasingly, however, courts utilize clerks and executive-type legal officers, many of whom are recent law school graduates and, as a result, likely to be conversant in overseas case law, if not enthusiastic proponents of it.

The Legitimacy of Rights-Based Internationalism

The concerns we have raised to this point have to do with the way in which overseas authority is used in New Zealand. We have said nothing about the legitimacy of the rights-based internationalism enterprise, so it is worthwhile to make a few points here.

Although rights-based internationalism is on the increase, it is not without its critics. Criticism is most pronounced in the United States, where various conceptions of originalist interpretive theory remain influential. If the role of courts on judicial review is to some extent constrained by the notion that the meaning of the United States Bill of Rights is relatively fixed – whether by the intention of the framers, the original meaning or understanding of the text, or some other conception – then the citation of overseas authority is obviously problematic. It is all the more problematic because the citation of overseas authority is usually aimed at overcoming some of the United States Supreme Court’s more conservative decisions. Hence the ongoing debate in the United States, a debate that two members of the United States Supreme Court have engaged in publicly.^[24]

Two of us have written about the debate over the use of, and appeals to, overseas authority in American courts,^[25] our view being that such appeals are more problematic in the Unite States context than in other countries. We do not propose to revisit that debate here. Instead, we note simply that the situation in New Zealand is different from that in the United States. Although the New Zealand Bill of Rights Act does not require the consideration of overseas authority, as some modern bills of rights do,^[26] there is a stronger basis for concluding that the use of overseas case law is legitimate in New Zealand courts than American ones. For example, the preamble to the New Zealand Bill of Rights Act states that one of the purposes of the Act is to affirm New Zealand’s commitment to the ICCPR. Moreover, the White Paper to that Act made clear that the use of comparative law was contemplated by the government that proposed the bill of rights. It was assumed, for example, that Canadian case law would be particularly helpful in interpreting the New Zealand Bill of Rights Act. Indeed, one of the arguments in support of the adoption of the reasonable limits provision in the Act (s 5) was that New Zealand courts could benefit from the Canadian experience interpreting s 1 of the Canadian Charter of Rights and Freedoms, on which the New Zealand provision was based.^[27]

There is, of course, much that could be said in response. For instance, it is not obvious why the decisions of Canadian courts should be considered unusually helpful, or to what end. The interpretation of bills of rights is not a generic sort of skill that transcends political and cultural differences.

Be that as it may, though, New Zealand courts are likely to cite overseas authority for a very practical reason: even 17 years after passage of the New Zealand Bill of Rights Act, there remains a dearth of New Zealand authority in regard to many of the rights and freedoms. For the most part, courts will prefer to have something to rely upon – even if it is the decision of a foreign court interpreting a different bill of rights – than to reason from scratch. The citation of overseas authority helps to sell a decision, especially if the decision involves moral or value judgments. Such decisions provide cover for judges who might otherwise be criticized for having made the same decision based on their own reasoning.^[28] The use of overseas precedents can be especially helpful if the relevant overseas jurisdiction is thought to have a good reputation for human rights.

Finally, we come to the reasons unique to particular judges. The limits on judicial review under bills of rights are, ultimately, linked to the views of individual judges: how they regard their role, their institutional competence, the roles of the other branches of government, and their willingness to defer to democratic decisions. Judges confident of the legitimacy of judicial review are likely to be attracted to rights-based internationalism. Such judges, like many academics, will be excited at the prospect that their judgments might be cited in the decisions of overseas courts, and will be keen to demonstrate their knowledge and command of overseas jurisprudence by citing it in their decisions.

Conclusion

In our view, the data set out in our appendices provide evidence that supports what we expected to find: overseas authority is not used in a principled or systematic way by New Zealand courts in interpreting the New Zealand Bill of Rights Act. The premises that justify its use are never articulated, either in general

or particular terms. For their part, counsel appear to be unconstrained by anything like that which limits them in regard to the use of New Zealand authority. It would be unethical for counsel to mislead a New Zealand court by selectively citing domestic precedents, but no such limitations apply when it comes to overseas case law. Counsel can cite or ignore overseas cases as they choose, and the court may be none the wiser.

In the light of all of this, we think New Zealand courts should be more sceptical of overseas authority than they appear to be. When overseas cases are cited, New Zealand courts should ask why: why should this authority be taken into account, and to what end? We hope that this study prompts courts^[29] to ask this and other pertinent questions when it comes to rights-based internationalism. Were they to do so, that would go some way towards undercutting the charge of dog-law.

Appendix A: NZBORA cases citing overseas precedents

Appendix B: Cases involving rights not specifically enumerated in NZBORA

Appendix C: Judges who cited overseas precedents

Appendix D: Jurisdictions cited

Appendix E: International tribunals whose decisions were cited

Appendix F: Counsel appearing in cases citing overseas precedents

Appendix G^[33] : Cases where an overseas precedent was cited in support of the

opposite conclusion

The number of Supreme Court and Court of Appeal cases in the sample numbered 75. Out of these cases, 28 (37.3%) had an overseas precedent cited in support of the opposite conclusion than the one the Court eventually reached.

Cases marked with an asterisk involve citation by a sole judge. The rest were cited in majority judgments.

Appendix H: Were the overseas precedents used to extend the right or to limit the right to a narrower than existing understanding or retain the existing understanding?

References

^[*] Garrick Professor of Law, University of Queensland.

^[**] Faculty of Law, The University of Western Ontario.

^[***] PhD candidate, University of Otago. We are grateful to Dean Mark Henaghan, who provided generous support that allowed this paper to be written. Thanks also to Andrew Geddis and Paul Rishworth who provided helpful comments.

^[1] Jeremy Bentham, The Works of Jeremy Bentham (ed) John Bowring, vol V (Edinburgh,1843 – first published 1823, though written in 1792 as “Truth versus Ashhurst; or, Law As It Is, Contrasted with What it is said to be”), 235, 236 (italics in the original).

^[2] HLA Hart, The Concept of Law (OUP, 1961), 140 inter alia.

^[3] Partly that is because there is no doubt that the common law can produce “a body of rules … as determinate as any statutory rule”, as HLA Hart more moderately reminds us. (ibid, 132) Yet Hart also recognized that the indeterminacies of rules inferred from precedents are more complex and the “penumbra of uncertainty” (Ibid, 131) of such rules generally wider or more often encountered. See ibid 131-132.

^[4] Hogg and Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997) 35 Osgoode Hall LJ 75, 77 [Hogg and Bushell, “Dialogue”].

^[5] We also wondered if there were cases in which seemingly relevant overseas authority was not cited. But one cannot look for evidence of what the judges should have said but did not by pointing only to what they did say. What is needed are instances where New Zealand judges fail to refer to an overseas case that seems relevant and applicable. So, at best, trying to answer this sort of question about what is missing would be an anecdotal endeavour.

^[6] Only cases reported in the NZLR and the HRNZ were considered. No doubt, some criminal law cases, both reported in CRNZ and unreported, consider overseas case law that neither the NZLR nor the HRNZ pick up. The same is true of other specialist law reports. Our intention in limiting the study to NZLR and HRNZ was to consider only the leading or most important cases.

^[7] Section 28 of the Act provides: “An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

^[8] For an extensive canvassing of overseas jurisprudence, but one outside the timeframe of this study, see Condon v The Queen (Sup Ct, August 23, http://www.courtsofnz.govt.nz/from/decisions/RobertJohnCondonvTheQueen_000.pdf)

^[9] Section 19(1) of the New Zealand Bill of Rights Act ties the definition of discrimination to that in the Human Rights Act 1993, which sets out an extensive list of prohibited ground of discrimination. The list is exhaustive, subject to legislative reform, unlike the list under s 15(1) of the Canadian Charter, which has been held to allow courts to read-in analogous grounds of discrimination. See Rishworth, Huscroft, Optican & Mahoney, The New Zealand Bill of Rights (OUP, 2003) ch 14. We suggest the possibility of increasing litigation under the discrimination provision because, among other things, a special procedure has been established to facilitate applications for declarations of inconsistency. See ibid, 836 discussing the Human Rights Amendment Act 2001.

^[10] See, for example, Elias “Judicial Legitimacy and Human Rights”, Address to the International Bar Association Conference, Durban, South Africa, 21 October 2002 and Elias “The Impact of International Conventions on Domestic Law”, An Address

to the Conference of International Association of Refugee Law Judges, Auckland Club, 10 March 2000. Both speeches are available at http://www.courtsofnz.govt. nz/from/speeches.html

^[11] Hogg, “Canada: From Privy Council to Supreme Court” in Goldsworthy ed, Interpreting Constitutions: A Comparative Study (OUP, 2006) 55, 88, cites the large number of federal and provincial laws struck down by Canadian courts since the Charter was enacted, and states: “Canada is a tolerant, sophisticated, liberal society with a flourishing democracy. For so many of its laws to be found in conflict with Charter guarantees can only be explained by activism on the part of the Supreme Court of Canada.”

^[12] One might have thought that reference to Zimbabwean cases is not something any promoter of rights-based internationalism would be unwise enough to suggest. However, Justice Breyer of the United States Supreme Court did just this extra- judicially, and then realized his error. Justice Breyer acknowledged that he “may have made what one might call a tactical error in referring to a case from Zimbabwe – not the human rights capital of the world.” See Dorsen “The relevance of foreign legal materials in US constitutional cases: A conversation between Justice Antonin Scalia and Justice Stephen Breyer” (2005) 3 Int Journal of Constitutional Law 519, 528. See too Justice Claire L’Heureux-Dube’s unrecanted comments in “The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court” (1998) 34 Tulsa Law Journal 15, 27.

^[13] As to the effect of UNHRC decisions concerning New Zealand, see Scott Davidson, “Intention and Effect: The Legal Statuts of the Final Views of the Human Rights Committee”, in Huscroft and Rishworth eds, Litigating Rights (Hart Publishing, 2002) 305.

^[14] On the jurisprudence of the UNHRC see Joseph, Schultz, and Castan, The International Covenant on Civil and Political Rights (OUP, 2nd ed 2004) and Conte, Davidson, and Burchill, Defining Civil and Political Rights: The Jurisprudence of theUnited Nations Human Rights Committee (Aldershot, 2004).

^[15] However, some rights advocates are happy to acknowledge as much. Professor Nadine Strossen, President of the American Civil Liberties Union, puts the point this way: In the ACLU’s ideal world, all individual rights would receive the maximum protection consistent with civil libertarian principles, and, in support of our claims for each right, we would cite whatever source of legal authority offered the most protection – not only the United States Constitution, but also, alternatively, state constitutions, federal or state statutes, or international human rights principles. This is an upwards- ratcheting approach. In other words, the United States Constitution – as interpreted by the Supreme Court – sets a floor under our individual rights, but it should not set a ceiling over them. Under this civil libertarian approach, to the extent that increased protection for individual rights is offered by other binding legal authorities, domestic or international, they should prevail over United States constitutional law. In contrast, though, whenever these other authorities purport to undermine rights protected by the United States Constitution, the Constitution trumps them. In the same vein, we believe that government officials should respect fundamental rights even if they are not expressly articulated in any constitution, treaty, or any other explicit source of law. See Strossen, “Liberty and Equality: Complementary, Not Competing, Constitutional Commitments”, in Huscroft and Rishworth eds, Litigating Rights (2002) 149, 153 (internal references omitted).

^[16] See Hill v Church of Scientology [1995] 2 SCR 1130.

^[17] See New York Times v Sullivan [1964] USSC 40; 376 US 254 (1964).

^[18] See Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL).

^[19] See RAV v St Paul [1992] USSC 99; 505 US 377 (1992).

^[20] [1994] NZCA 287; [1994] 3 NZLR 667.

^[21] [Baigent’s Case] ibid, 676. The trouble here, of course, is that a remedies provision had been omitted from the New Zealand Bill of Rights Act, on the understanding that no new remedies would be created. Moreover, many of the jurisdictions in which compensation was a standard remedy have constitutional bills of rights, with much different provisions and histories. See Rishworth et al, The New Zealand Bill of Rights, above note 9, 814-16.

^[22] Some wait until retirement to do so; others somehow find the time while still on the bench. Examples of the former include Thomas, The Judicial Process: Realism, Pragmatism, Practical Reasoning and Principles (Cambridge University Press, 2005). The latter includes Barak, The Judge in a Democracy (Princeton University Press, 2006).

^[23] Institutionally, some courts have decided that it is in their interests to promote their decisions beyond their own countries. The German Federal Constitutional Court issues English press releases to make its decisions more widely accessible. They also promote internationalism in other ways, for example providing linkages to their counterpart courts in other countries. See http:/www.bundesverfassungsgericht.de/links.html ” http://www.bundesverfassungsgericht.de/links.html

^[24] We refer to the Scalia-Breyer debate set out in Dorsen, “The relevance of foreign legal materials in United States constitutional cases: A conversation between Justice Antonin Scalia and Justice Stephen Breyer” 3 Int J Constitutional Law (2005) 519.

^[25] Allan and Huscroft, “Constitutional Rights Coming Home to Roost? Rights Internationalism in American Courts” (2006) 43 San Diego LR 1.

^[26] See eg, the United Kingdom Human Rights Act s 2(1) and the South African Constitution s 39(1).

^[27] A Bill of Rights for New Zealand (1985) AJHR A6 para 10.26.

^[28] See Richard Posner, “A Political Court”[2005] HarvLawRw 30; , (2005) 119 Harvard Law Review 31, 84-90.

^[29] Concerns about the use of overseas authority also arise in the context of pre- legislative scrutiny. Overseas case law is cited extensively by counsel in advising the Attorney General about the consistency of proposed legislation with the New Zealand Bill of Rights Act, and by the Attorney General in reporting to Parliament. See Rishworth et al, The New Zealand Bill of Rights, above note 9, ch 7. Given that New Zealand judges were denied the power to strike down legislation or to refuse to apply it, it is ironic that the judgments of overseas courts should sometimes have the effect of dissuading New Zealand legislators from passing legislation in the first place.

^[30] Differs from number of cases due to multiple judgments.

^[31] Differs from number of cases due to multiple judgments.

^[32] A decision was made to include in the data only those counsel appearing in three or more cases.

^[33] This appendix deals only with cases from the Supreme Court and Court of Appeal.

^[34] This appendix deals only with cases from the Supreme Court and Court of Appeal.

^[35] Where multiple names appear the judge giving the judgment is in bold type and the others were in agreement.