‘Butterworths Questions and Answers: Public Law’

by Nicholas Wood

Index :)

1. Advice on exams

2. English Constitutional History and the Royal Prerogative

3. Parliamentary Sovereignty

4. The Rule of Law

5. Separation of Powers and Judicial Independence

6. Constitutional Conventions and the Reserve Powers

7. Judicial Review

8. The New Zealand Bill of Rights Act 1990

9. Maori and the Crown

Chapter 1: Advice on exams- Before each lecture, briefly review the previous lecture- At the end of each week, briefly review the material covered in that week’s lecture- At the end of each topic or unit, thoroughly review it.

This is not extra work, it is saving you from doing it all at the end of year in one go.

For each case that you study, you should be familiar with the material facts:

- The ratio decidendi

- What policy considerations (if any) influenced the Court in its decision.

Should also try to develop a view on whether you think the case is a good or bad decision.

Summarise each weeks study notes.

Think of public law as being like a tree:

Every area of law is very much like a tree. There is a sturdy trunk going up the middle, which contains all the key principles running through that area of law. Then, there are branches leading off the- main truck, each of which deals with a particular topic or unit that you will cover. Finally, there are leaves, which are like the particular cases and statutes that provide the precise rules and details.

Except for perhaps short answer questions, most Q’s are usually set in such a way to let you show the examiner that you know what the particular trunk or branch of law that you have studied looks like. Examiners are usually less concerned with the leaves. If your answer shows that you are familiar with the key principles, you will be well on your way to a good answer. In short, try to ensure that your answer looks more like a tree (with a clear structure of trunk and branches) than an unorganised pile of leaves.

Chapter 2: English Constitutional History and the Royal Prerogative

2.1 Introduction:

NZ inherited its constitutional system from England and remains a constitutional monarchy. The English constitution is therefore the starting point for an understanding of New Zealand’s.

- After the Norma Conquest (1066), English monarchs had virtually absolute power (executive and legislative).

- Over time a gradual shift of power from the monarch to Parliament (See English Legal History first year notes for more information).

2.2 Nature of the royal prerogative:

Statute and case laws have now severely restricted the monarch’s powers. What remains of the monarch’s ancient powers is called the royal prerogative.

What is the term prerogative?

- Blackstone saw it as the powers which the Crown or monarch has over and above the powers enjoyed by subjects.

- Dicey thought that all the powers of the Crown not derived from statute were the prerogative.o Dicey would thus have included Crown powers such as the power to contract under the

prerogative, whereas Blackstone would not, since the Crown shared it with its subjects,

The prerogative today continues to provide the legal authority for much of what the executive branch of the government does. The following lists some important surviving prerogative powers:

1. The external affairs prerogative – for example, the power to enter into treaties at international law.

2. The prerogative of mercy – the power to pardon criminals.3. The defence prerogative.4. The power to summon, prorogue (postpone) and dissolve Parliament.5. The power to grant the royal assent to Bills passed by Parliament and thereby give them the

force of law.6. Conferment of honours – the power to make someone a member of the New Zealand Order

of Merit.7. Various immunities, including the Crown’s immunity from statute. This is now codified by s

27 of the Interpretation Act 1999.

2.3 The battle between the monarchy and Parliament:

Today in England and New Zealand, Parliament is generally considered to be supreme in the legal system in that the other two branches of the government – the Executive (the Crown) and the Courts – cannot override its decisions. This state of affairs results from a battle for supremacy fought between the English Parliament and monarchs of the 17th century (see Bill of Rights 1688).

Over time it became established for the Crown’s prerogative powers to be exercised only on the advice of Members of Parliament and who have the support of a majority in Parliament. This practice is the convention of responsible government. Today, this convention means that the ministers of the Crown (or Cabinet) control almost all of the monarch’s powers, and that the monarch merely ‘rubber-stamps’ the ministers’ decisions.

In New Zealand this convention applies to the Cabinet’s relationship with the Sovereign as well as the Cabinet’s relationship with the Sovereign’s representative in New Zealand, the Governor-General.

A constitutional monarchy is one that is subordinate to the law (Parliament and the common law) and held in check by representative institutions.

2.4 Reviewability of exercise of prerogative powers:

For a discussion of whether decisions made by the executive under the prerogative can be judicially reviewed, see Chapter 7.

2.5 The “third source” of power

The Crown’s subjects have the power to do anything that the law does not prohibit.

The Crown also has this power. On Dicey’s wide view of the prerogative as encompassing all Crown or executive power not conferred by statute, the prerogative includes not only the special powers referred to by Blackstone, but also the Crown’s freedom to do anything that is not prohibited by law.

Malone v Metropolitan Police Commissioner [1979]

Facts:

The Chancery division of the High Court of England and Wales held that it was legal for the Secretary of State (an English minister) to authorise the tapping of the plaintiff’s telephone calls by the Post Office. The Court concluded that tapping was legal because it was not prohibited by any statute, the criminal law, or tort law.

Arguments for and against this power:

It has been argued that this third source of state power is undesirable because it gives the state a broad discretionary power without the safeguards that often accompany statutory powers. Such power is more concerning in the hands of the state than in the hands of private individuals because of the state’s vast resources.

In response it can be argued that the Crown needs such a general power, and that it makes no difference whether it is conferred by statute or the common law. In this instance the real problem appears to be the absence of adequate privacy laws.

- If there has been something akin to a tort of privacy in England, Malone might have been decided differently

2.6 Statutes and the prerogative

Parliament is able to extinguish prerogative powers by express words. Prerogative powers will also be held to have been extinguished where the language of an Act necessarily implies that the prerogative has been extinguished. This follows from the idea that Parliament is supreme, and that it controls the monarchy.

- Today prerogative powers cannot be extended by the Courts.- If a statute that abridges a prerogative power is repealed, it is possible that the prerogative

power will be automatically revived.- The Crown does not lose prerogative powers through disuse.- Many traditional prerogative powers are very wide and it is difficult to know how far they

extend today.

Fitzgerald v Muldoon

Facts:

During the 1975 election campaign, the National Party campaigned against the superannuation scheme established under the New Zealand Superannuation Act 1974. Immediately after winning the election, but before Parliament had resumed sitting, the leader of the National Party and Prime Minister-elect, Robert Muldoon, announced that government departments should cease to administer the 1974 Act. The plaintiff, a public servant, sued Muldoon, seeking a declaration that

Muldoon’s statements were illegal. The plaintiff argued that Muldoon had attempted to suspend a statute by “regal authority” without Parliament’s consent in contravention of cl 1 of the Bill of Rights 1688. The Court held for the plaintiff.

- Under New Zealand’s current constitutional arrangements a great deal of power is vested in the Cabinet. Fitzgerald v Muldoon shows that the Bill of Rights 1688 is still and important check on the power wielded by Cabinet. It helps to ensure that the Cabinet does not rule entirely without Parliament.

Common pitfalls:

Confusion about the nature and source of prerogative power. Confusion about the sequence of the main events in the battle between Parliament and the

monarch in the seventeenth century.

Chapter 3: Parliamentary Sovereignty

3.1 Historical Background

The Courts once regarded themselves as a check on Parliament as well as the monarchy. While it had been accepted long ago that statutes could override the common law, up until the 19th century the Courts maintained that there were limits to Parliament’s powers.

Dr Bonham’s Case [1610]

The Royal College of Surgeons asserted the right to fine unlicensed practitioners, and to retain the money collected for itself under an Act of Parliament. The Court found I favour of a doctor who had been fined, as the statute breached the fundamental rule of natural justice that one cannot be a judge in one’s own cause.

Coke CJ said that:

“…in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.”

Similar statements were made by other judges in other cases, but these cases were later overruled.

After 1688 Parliament was increasingly seen as the champion of individual rights. The Courts, having largely sided with the monarch during the 17th century battles and having not been independent of the monarch until 1700, were in no position to assert political power over Parliament. The Stuart’s (the Royal House between 1603 -1714) had claimed absolute and unlimited power under the divine right of kings. When the monarchy was defeated, Parliament claimed unlimited power for itself.

3.2 Dicey’s theory

Parliamentary sovereignty or parliamentary supremacy is another constitutional concept that the English writer A V Dicey helped to fashion. Dicey states that Parliament is free to “make or unmake any law whatsoever” and that its laws cannot be set aside or invalidated by any person or body. In Dicey’s view there are no limits on Parliament’s lawmaking powers. The current Parliament can do anything except restrict a future Parliament’s legislative power. If it were able to do so, Parliament would cease to have unlimited power.

According to Dicey, there is no law that can prevent Parliament from enacting morally repugnant legislation (e.g. killing all blue-eyed babies at birth). Such legislation is not enacted only because any government that introduced it would almost certainly be voted out of office at the next election, and because the enactment of such legislation might prompt a revolution. The only constraints on Parliament’s powers are thus political, not legal.

3.3 The doctrine of implied repeal

Dicey’s principle that Parliament cannot bind itself entails the doctrine of ‘implied repeal’. It holds that if Parliament enacts a statute to which the Courts cannot give effect without departing from the provisions of an older statute, the new statute must prevail. If an older statute prevailed over a later statute, the Parliament would not be supreme because it would be bound by a prior Parliament.

Thoburn v Sunderland City Council [2002]:

In this case (involving two decisions from the House of Lords and the European Court of Justice), Laws LJ held that the doctrine of implied repeal did not apply to “constitutional” statutes.

It was said in Winnipeg School Division No 1 v Craton [1985] (a Canadian case) that:

“Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims.”

3.4 Entrenchment and double entrenchment

Section 268(2) of New Zealand’s electoral Act 1993 provides that:

(2) No reserved provision shall be repealed or amended unless the proposal for the amendment or repeal –

(a) Is passed by a majority of 75% of all the members of the House of representatives; or

(b) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts….

Certain constitutionally important provisions (for example s 168, which sets out the method of voting, and the definition of the term “general electoral population” in s 3(1)) are described by s 268(1) as “reserved provisions”. A provision like s 168 is “singly entrenched” because the entrenching provision (that is, s 268(2) – the provision which states that s 168 cannot be amended by a simple 50 per cent majority of the votes in Parliament) is not itself entrenched. Thus, s 168 can be amended or repealed by a simple majority. That is to say, s 268(2) could be repealed by a simple majority in Parliament, and once it has been repealed, a simple majority could pass a separate Bill amending s 168.

Double entrenchment exists where an entrenching provision is itself entrenched. A provision like s 168 would be doubly entrenched is s 268(2) read as follows:

(2) No reserved provision shall be repealed or amended unless the proposal for the amendment or repeal –

(a) Is passed by a majority of 75% of all the members of the House of representatives; or

(b) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts;

And this section itself may be amended of repealed only if the proposal for the amendment or repeal –

(c) Is passed by a majority of 75% of all the members of the House of Representatives; or

(d) Has been carried by a majority of the valid votes cast at a poll of the electors of the General and Maori electoral districts.

There are no doubly entrenched provisions in New Zealand or the United Kingdom. However such provisions do exist in Australia, Germany, the US, and in many other countries. In the UK and New Zealand there is a debate about whether, if Parliament enacted a doubly entrenchment provision, the Courts would accept that double entrenchment prevented the amendment of the entrenched provision by a simple majority.

One camp argues that double entrenchment is simply not recognised by English (and NZ) law at present. The rules that define the procedures by which Parliament makes legislation cannot be amended by Parliament so as to impose constraints on future Parliaments. It would be a revolution if the Courts upheld any limits that Parliament imposed on itself.

The other maintains that the rules which govern how Parliament operates, and what validly qualifies as a statute, are common law rules, and that Parliament can therefore amend them. Thus, a common law rule currently says that a bare majority in the House of Representatives is required to enact legislation, but Parliament could override that common

law rule and provide that a 75 per cent majority is required to enact certain types of legislation.

There is a distinction between procedural and substantive limitations on parliamentary sovereignty.

- Procedural limitations increase above a simple majority the percentage of the votes in a legislature that is required to pass certain types of legislation.

- Substantive limitations prevent a legislature from passing certain Bills no matter how much support they have.

Many of those who accept that the UK or NZ Parliaments could adopt procedural limitations of their sovereignty argue that substantive limitations are impossible.

Cooke P “Practicalities of a Bill of Rights”: Whether the Courts would uphold a doubly entrenched Bill of Rights depends ultimately on their view of the will of the electorate and on broad public support. Legal logic alone cannot provide an answer.

3.5 Substantive common law limits on parliamentary sovereignty

Although there are no statutory double entrenched procedural or substantive limitations on the powers of the NZ Parliament, it has been suggested that there are substantive limits on Parliament’s powers, which judges should enforce if Parliament violated them.

Cooke P suggested obiter in various cases that Parliament cannot override fundamental common law rights such as the right to access to the Courts and to freedom from torture. These comments have prompted criticism and support.

- The idea that unelected Judges should strike down legislation which has the support of a majority of the population on the basis that it offends their conception of fundamental values in the absence of an entrenched Bill of Rights may be regarded as undemocratic.

Shaw v Commissioner of Inland Revenue

In this case the Court of Appeal suggested that even if Courts can strike down legislation, they can do so only in the event of a very serious constitutional crisis.

Furthermore, Parliament has recently reaffirmed the doctrine of parliamentary sovereignty in the Supreme Court Act 2003, s 3(2) of which declares that nothing in that Act affects “New Zealand’s continuing commitment to… the sovereignty of Parliament.

Despite the fact that NZ and UK Courts often endorse Parliamentary sovereignty, they regularly ignore Parliament’s will in relation to ouster or privative clauses.

- These are provisions in legislation that prohibit the ordinary Courts from judicially reviewing the decisions of specialist tribunals or persons on whom legislation confers discretionary powers.

o Despite some suggestions to the contrary, the generally accepted position is that the Treaty of Waitangi does not limit Parliament’s legislative powers in any way.

The Courts will not strike down legislation that is inconsistent with international law:

o In R v Pora the Court of Appeal accepted that the Criminal Justice Amendment Act (No 2) 1999 breached New Zealand’s international obligations, but no suggestion was made that this entitled the Court to strike down the Act.

Finally, the Governor-General can withhold the royal assent to prevent a Bill from becoming law. Such action would breach the fundamental constitutional convention that the royal assent will not be withheld. It would be taken only in the event of a serious constitutional crisis – perhaps if Parliament attempted to change a fundamental aspect of the constitution without widespread public support, and without the proposed change having been put to the electorate during an election campaign.

Things to note:

Parliamentary sovereignty or supremacy is a common law concept. It is completely unrelated to the notion of a nation state’s sovereignty at international law, which refers to a state’s power to enter into treaties at international law and its right not to have other states interfere with its domestic affairs and territory. There are many nations that have sovereignty at international law, but to whose legislatures parliamentary sovereignty does not apply (for example, the US, Germany, and Australia).

Don’t be concerned about the fact that there are no clear answers to some of the questions raised, i.e. whether the Courts uphold double entrenchment. Simply point this out in an exam answer.

Common pitfalls:

Parliamentary sovereignty or supremacy is a common law concept. It is completely unrelated to the notion of a nation state’s power to enter into treaties at international law and its right not to have other states interfere with its domestic affairs and territory. There are many nations that have sovereignty at international law, but to whose legislatures parliamentary sovereignty does not apply (for example, the US, Germany, and Australia).

Confusion about the meaning of the terms “single entrenchment” and “double entrenchment”.

Do not be concerned about the fact that there are no clear answers to some of the quns raised in this section (for example, whether the Courts uphold double entrenchment). Simply point this out in an exam answer.

Chapter 4: The Rule of Law

4.1 Introduction

One of the fundamental principles underpinning public law is that of the rule of law. The rule of law is a guiding principle for democratic government, and distinguishes democratic government from undemocratic regimes.

- Shortly put, the rule of law may be said to regulate the exercise of state power vis-à-vis individual citizens, by requiring that all public power should be exercised pursuant to legal authority, and not arbitrarily.

The importance of the rule of law has now been expressly recognised in the Supreme Court Act 2003, s 3(2) of which provides that nothing in that Act “affects New Zealand’s continuing commitment to the rule of law”.

Although now recognised by statute, the rule of law is not defined by statute. Indeed a precise definition is elusive. For some, the rule of law means “law and order”. On another view, the rule of law simply means that the state is bound by the law as much as private citizens. However, even the most despotic regime can provide law and order, and be bound by its own tyrannous laws. Thus, such definitions are wanting, as they fail to distinguish democratic government from totalitarian regimes.

4.2 The Diceyan formulation of the rule of law

The classic exposition of the rule of law is that set out by Dicey in his text, Introduction to the Study of the Law of the Constitution. For Dicey, the rule of law had three particular meanings or could be regarded from three different points of view.

In the first place, it meant:

- The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, or prerogative, or even wide discretionary authority on the part of the government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of law, but he can be punished for nothing else.

Secondly, the rule of law meant:

- Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law Courts; the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.

Thirdly, the rule of law could be used as a formula for expressing the fact that:

- 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; that, in short, the principles of private law have with us have been by the action of the Courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land.

Common pitfalls:

When discussing the term “rule of law” in an examination, specify precisely what you mean by this term. The term has been used to refer to a variety of differing concepts and ideas, not all of which are mutually consistent.

Chapter 5: Separation of Powers

5.1 Separation of powers

Like the rule of law, the doctrine of separation of powers is an attempt to formulate a theory about how to create an effective government without destroying individual liberty.

The doctrine can be interpreted in different ways:

1. The same individuals should not be members of more than one of the three branches of the government.

2. One branch should not interfere with or share the functions of another.3. Each branch should be able to veto or check what any of the other branches proposes to do.

If the 2nd interpretation is adopted strictly, then it is difficult to see how the three powers can act as checks upon each other. If the Courts cannot strike down legislation because they would be impermissibly interfering with the legislature if they did, then the judiciary does appear to be able to act as a check on the legislature.

In the world today, there are two principal constitutional systems:

- The Presidential system of the United States and the UK’s and New Zealand’s Cabinet system.o These systems are distinguished largely by the extent to which they embrace the

separation of powers.

5.1.1 Presidential government

The US Constitution of 1787 holds:

Legislature: The House of Representatives and the Senate (which together make up the Congress)

Executive: The President

Judiciary: The Supreme Courts and inferior Courts.

- Generally no one who is a member of one branch may be a member of another.

How the branches can check on each other:

- The President acts as a check on Congress because he/she can veto legislation.o A presidential veto can only be overridden by a two thirds vote by each of the two

houses.- The President can enter into treaties and appoint Judges, ambassadors and other officers of the

US, but the Senate must approve treaties by a two thirds majority, and appointments by a simple majority.

- The President can be impeached by Congress and removed from office for “treason, bribery, or other high crimes and misdemeanours”.

- Separate elections are held for the Presidency and membership of congress, and the terms of office for each are different.

o Often the President is from a political party different from that which has a majority in one or both of the two Houses.

- Each House acts as a check on the other, because Bills must be passed by both Houses to become law.

o One political part may have a majority in the Senate and another in the House of Representatives.

- The federal Courts, the highest being the Supreme Court, have the power to review the legality of actions of the executive branch. Furthermore, in the famous case Marbury v Madison (1803) 1 Cranch 103, the SC held that the federal Courts have the power to strike down Congress’s legislation if it is inconsistent with the Constitution, although the Constitution does not expressly confer any such power on the Courts.

- Congress can impeach Judges, and Judges’ interpretations of the Constitution can be overturned by amendment of the Constitution, although such amendments are rare.

5.1.2 Cabinet government

New Zealand’s constitutional system (called Cabinet, parliamentary or responsible government of the Westminster system) was adopted from the UK. In New Zealand, the Executive is nominally controlled by the Sovereign, but this is limited by the constitutional convention of responsible government, which requires the Sovereign to act in accordance with the advice of ministers who command the confidence of the House of Representatives.

- S 6 of the Constitution Act 1986 provides that only members of Parliament may be appointed ministers or members of the Executive Council.

o In NZ and the UK, the executive and legislative branches are almost completely fused.o A small part of Parliament – the Cabinet – controls the Executive, and exercises a great

deal of power in Parliament.

5.1.3 France

The French Constitution of 1958 lies between the US presidential system and NZ’s Cabinet system.

- The constitution embraces the first and second interpretations of the doctrine of separation of powers, but not the third.

- Thus, the ordinary Courts are given no power of review over the acts of the executive and legislative branches. The acts of the Executive are reviewed by special administrative Courts that are part of the executive branch, although independent of the political part of the executive. A Constitutional Council reviews legislation. Furthermore, the French President has no power to veto legislation.

5.2 Judicial Independence

The independence of the judiciary from undue interference from the Executive is essential if the separation of powers and the rule of law are to be upheld.

Under NZ’s constitutional system the judiciary does not function as a check on the legislature, but is expected to act as a check on the Executive. Legislation and constitutional conventions exist to protect the judiciary from executive interferences.

Common pitfalls:

Do not run the separate interpretations of the doctrine of the separation of powers together in essay answers. Although they overlap to some extent, be sure to discuss them separately and to distinguish among them.

Chapter 6: Constitutional Conventions and the Reserve Powers

6.1 Constitutional conventions

Constitutional conventions are non-legal rules that are an important part of our constitutional system. Constitutional conventions are non-legal in the sense that they cannot be directly enforced through the Courts.

- However, some of them, such as the convention that the Sovereign or Governor-General will not withhold the royal assent to legislation, are more important than most legal rules.

6.1.1 Functions

Dicey suggested that the main function of constitutional conventions was to ensure that the prerogative powers that the law vested in the monarch were exercised in accordance with the wishes of the people, rather than the whims of the monarch. It is true that this is the role of the most important conventions, which establish responsible government. However, many conventions are unrelated to the monarch’s prerogative powers. Generally, conventions restrain formal legal

powers and ensure that they are exercised in accordance with the public’s expectations. They make the constitution flexible by permitting constitutional change without formal legal change.

Constitutional conventions arise from precedent or agreement.

- If, when a novel constitutional questions arises, political actors act in a manner which commands widespread approval, their conduct may establish a precedent and thereby a new constitutional convention. Alternatively, a convention may arise from a formal agreement entered into by political actors.

Conventions are obeyed because (examples):

- They have moral force.- They reflect widely held expectations about constitutional behaviour.- Because breaching them will have adverse consequences for those who breach them or for the

constitutional system generally.- Because of habit.

A convention may cease to exist if it is breached repeatedly without the breach attracting widespread criticism.

6.1.2 Some key conventions

The most important conventions govern:

- The way in which the Sovereign (or G-G) exercise their prerogative and statutory powers.- The functioning of Cabinet.- The relationship between the UK and other Commonwealth nations.- The relationship between the judiciary and Parliament (/and the Executive).- The relationship between the Cabinet and civil servants.

The most fundamental convention is that which requires the Sovereign or G-G to exercise his or her prerogative and statutory powers in accordance with the advice tendered by ministers commanding the confidence of a democratically elected legislature.

The convention that the NZ G-G (and other Dominion G-G’s) must act on the advice of Dominion governments rather than on the advice of the UK Government was established by agreement at the Imperial Conference of 1926.

Collective ministerial responsibility:

Another fundamental convention is collective ministerial responsibility. The unanimity aspect of the convention prohibits individual ministers from publicly disagreeing with a Cabinet decision once it has been taken.

- Also, Cabinet discussions are confidential. Once Cabinet has decided to pursue a certain policy, individual ministers cannot reveal what alternative policies were considered and who supported them.

After the 2005 general election, the convention of collective ministerial responsibility was modified further, to allow the leaders of two non-government political parties (NZ First and United Future) to assume ministerial roles outside of Cabinet, without their parties formally joining the Executive Government.

Individual ministerial responsibility:

This convention requires individual ministers to explain their own actions and those of their departments to the House. They must also remedy shortcomings in their depts., and inform the House of their efforts. The conventions may require a minister to resign for serious misconduct (either personal or a breach of a constitutional convention), but resignation is rare where a minister simply makes an error or judgement or where departmental employees act incompetently without the minister’s knowledge.

- Often Cabinet will balance the political cost of retaining the minister against the cost of losing his or her expertise should they resign. If Cabinet resolves that a minister should stay on, Cabinet as a whole will defend the minister.

Some other conventions:

- Require the Sovereign to appoint as G-G of a commonwealth country the person nominated by the Prime Minister of that country.

- Prohibit Parliament from enacting oppressive legislation.- Require that public servants be politically neutral and shielded from political criticism.- Limit the ability of politicians to criticise the judiciary.

6.2 Governor-General’s key political and “reserve” powers

Despite convention requiring the G-G to act on the advice of ministers commanding the confidence of the House, G’s-G have the right to be consulted about government policies, and to question and criticise the advice tendered to them, although bound by convention to accept the advice unless exceptional circumstances arise.

G’s-G have five “reserve powers”. These are powers which convention permits the G-G to exercise without advice or against the advice of Cabinet. They must be exercised with extreme caution, because the continued existence of the monarchy would be threatened if they were used controversially.

1. Appointment of a Prime Minister2. Dismissal of a PM

I.e. If a PM has lost the House’s confidence but refuses to resign.

3. Refusing a dissolution

Unless certain that there is a viable alternative, a G-G should allow a dissolution if requested by a PM.

4. Forcing a dissolution

In extreme circumstances.

5. The royal assent

Common pitfalls:

Ministers are often criticised by the media and by opposition politicians for failing to resign even when they or their departments make relatively trivial errors of judgement. Individual ministerial responsibility does not require resignation in such circumstances.

-

Chapter 7: Judicial Review

7.1 Introduction

Judicial review is the process by which the High Court ensures that the Executive, lower Courts, administrative tribunals, and statutory bodies do not exceed their legal powers, and that they observe their legal duties. For example the High Court can:

- To declare that a police officer has acted illegally in seizing someone’s property if the officer lacked any statutory or common law authority for the seizure.

- Order a minister of the Crown to perform a statutory duty if the minister refuses to perform it.

Most judicial review cases are concerned with ensuring that those on whom Parliament has conferred discretionary statutory powers do not use their powers improperly, or in breach of certain basic rules of fairness.

It is needed for separation of powers; however, some decision-making powers are not subject to judicial review, most notably Parliament’s power to enact legislation.

Council of Civil Service Unions v Minister for the Civil Service

Lord Diplock stated that there are three grounds of review:

1. Illegality2. Procedural impropriety3. Irrationality

The core elements of judicial review are old, but the scope (in terms of the types of decisions Courts are willing to review and the types of errors for which they quashed decisions) was modest until recently.

The expansion of the welfare state during the 19th and 20th centuries led to an increase in state power, and to an increase in the number of wide discretionary powers conferred by Parliament on executive decision makers. Courts began responding to this from the 1950s onwards by increasing the scope of judicial review.

The Courts justify judicial review on the basis of the legal fiction that Parliament cannot have intended to permit a decision maker to violate the three grounds of review. When the grounds of review are violated, a decision is described as ultra vires – beyond the power that Parliament conferred.

Even where a statute provides that “the Minister may issue a permit if he thinks fit”, a Court will hold that judicial review principles apply. In R v Somerset County Council, Laws J said that there is no such thing as an “unfettered discretion”, as these would be inconsistent with the rule of law.

A Court’s role when hearing a judicial review application is different from its role when hearing an appeal. Where a Court hears an appeal, it is required to decide whether the person who made the decision appealed from made the right decision. When a Court is judicially reviewing a decision, it may not overturn the decision under appeal merely because it thinks that the decision was wrong on the merits.

- The Court can intervene only if the decision maker adopted the wrong process in reaching the decision (irrelevant matters taken into account, bias and so on). Parliamentary sovereignty and the separation of powers are the reasons for this distinction.

If Parliament confers a statutory decision-making power on a minister and does not provide for an appeal to a Court, a Court would be violating the doctrine of Parliamentary sovereignty if it were to overturn the minister’s decision simply because it did not agree with it. Parliament has instructed the minister, not the Court, to make the decision.

Even where a Court finds that a decision maker has adopted the wrong process in reaching a decision the Court will rarely replace the decision maker’s decision with a decision of its own. Instead it will generally quash the decision (that is, to declare that it has no legal effect) and direct the decision maker to reconsider.

Judicial review comes at a price. While it helps to uphold the rule of law and basic principles of fairness, judicial review applications are costly for the state to defend, may delay implementation of important public policies, and prevent government departments from functioning efficiently. Courts are at times influenced by such considerations.

Finally, note that the Judicature Amendment Act 1972 was enacted to simplify the complex procedural rules that governed judicial review before its enactment. The Act applies only to review of the exercise of statutory powers.

7.2 Standing

Complex rules once existed which specified who was sufficiently affected by an administrative decision to be able to seek judicial review. These rules have been relaxed considerably, and you will probably not study them in detail.

7.3 Privative or ouster clauses

Parliament often attempt to prohibit the Courts from reviewing decisions made under statutory powers. A statutory provision that states that a decision maker’s decision “shall not be quashed by any Court” or “shall not be questioned in any Court” or something similar s a “privative” or “ouster” clause. The Courts have always held that privative clauses could exclude judicial review only if there was no jurisdictional error of law.

Anisminic Ltd v Foreign Compensation Corporation

HoL held that virtually all material errors of law go to jurisdiction.

Thus, because ouster clauses protect against only errors of law that do not affect jurisdiction, all material errors of law can now be reviewed despite the presence of an ouster clause.

- “Material” means that the error must affect the outcome of the case. Any breach of the three grounds of review discussed below will qualify as an error of law.

Although the Courts have held that ouster clauses which attempt to prevent judicial review entirely cannot prevent review where a material error of law has been made, they are willing to give effect to “time ouster” clauses. If a statute provides that a decision maker’s decision shall not be quashed once six weeks have expired since the date of the decision, a Court will probably refuse to quash the decision after six weeks even if a material jurisdictional error has been made: see R v Secretary of State for the Environment.

7.4 Public function

A Court will normally review decisions made by a member of the Executive, an inferior Court, an administrative tribunal or a statutory body. But;

R v Panel on Take-Overs and Mergers

The decisions of a body that is not established by statute and which is not exercising any statutory or prerogative or common law powers can be reviewed if the body’s function is public.

Dunne v CanWest TVWorks Ltd

Ronald Young J held that a decision by a privately owned broadcaster arbitrarily to exclude two political party leaders from an election debate amounted to the exercise of public power and was susceptible to judicial review.

7.5 Justiciability

In the past the Courts took the view that once it was established that a certain act fell within a prerogative power, it could not be reviewed.

I.e. Curtis v Attorney-General

- The CA held that the decision by the Minister of Defence to disband the air combat force of the RNZAF is not justiciable, because that is a matter for government policy and it is constitutionally improper for the Courts to question such decisions.

Council of Civil Service Unions v Minister for the Civil Service

The HoL held that there was no reason why an act should be unreviewable merely because it fell under the prerogative rather than a statutory power.

It was held that anything done under the prerogative could be reviewed by applying the same grounds of review which apply to statutory powers, provided that what was done under the prerogative was “justiciable”.

Lord Roskill identified as being “non-justiciable”:

- Decisions under the prerogative relating to national security.- Entry intro treaties at international law.- The dissolution of Parliament.- Mercy.- The grant of honours.

Such decisions cannot be reviewed because they involve political judgement on the part of the decision maker, and major questions of public policy. Courts feel unable to second-guess such decisions because there are no clear standards in relation to which they can be assessed.

Courts rather take the view that politicians should be held to account for such decisions only by the electorate at a general election.

Burt v Governor-General

NZCA adopted CCSU. Cooke P held that the G-G’s refusal to grant the applicant a pardon (refusal to exercise the prerogative of mercy) could not be reviewed, although he suggested that the Court might reconsider its position if there was evidence that the NZ criminal system was not working well.

Justiciability applies to statutory powers as well: CREEDNZ v Governor-General

It is important to stress that the Courts today rarely refuse to review something done under a statutory power on the basis of non-justiciability. Even if a Court finds that a decision is non-justiciable, it may be willing to review it in exceptional circumstances, and on very limited grounds. It may review only if fraud, corruption, or bad faith is established, but refuse to review the decision on normal grounds of review.

7.6 The grounds of review

Lord Diplock’s division of judicial review into illegality, procedural impropriety, and irrationality as in CCSU is used below. Each ground is broken down into its separate limbs (except irrationality, which cannot be divided into limbs). You may wish to ignore those limbs that the lecturer does not cover.

7.6.1 Illegality

The illegality ground has eight different limbs.

1) Improper purpose

Courts will ensure that decision makers do not exercise their statutory powers for purposes for which they were not intended to be used. Where a statute does not expressly state that the purpose for which a power is conferred, a Court will read the statute as a whole and attempt to identify its objectives. Decisions that stem from fraud or malice are always ultra vires.

2) Irrelevant considerations

A decision maker must not take irrelevant considerations into account when exercising a statutory power. Statutes rarely list factors that may not be taken into account. When identifying irrelevant considerations the Courts normally draw on the policy and language of a statute. Note that the improper purpose and irrelevant consideration limbs will often overlap.

3) Mandatory irrelevant considerations

When deciding whether to exercise statutory powers, decision makers must take “permissible relevant considerations” into account, but are not obliged to do so. There are also matters that they must take into account. These are “mandatory relevant considerations”. A statute may expressly state that certain factors must be taken into account, or a Court may, as the result of a process of statutory interpretation, read mandatory relevant considerations into a statute. Courts are slow to read implied mandatory relevant considerations into statutes without there being any basis for doing so within the statute. Note that the law generally does not prescribe what weight must be given to a mandatory relevant consideration. It is enough if decision makers simply turn their minds to them.

4) Improper delegation

Where a statute confers a decision-making power on a person holding a certain office, that person generally may not allow someone else to exercise the power for them. Delegation may be permitted where a decision is administrative, routine, and of limited importance.

5) Dictation

Where a statute confers a decision-making power on a person holding a certain office, that person may not surrender his or her discretion to another by acting on that person’s instructions.

6) Fettering a discretion

Decision makers may adopt a policy as to how discretionary statutory powers should be exercised. However, they must be prepared to depart from such a policy in an individual case, and listen to someone who wishes to argue that a policy should be departed from.

7) Other errors of law

Anisminic extended the meaning of the term “jurisdiction”, so that all material errors of law now go to jurisdiction. A Court can now usually quash a decision for any material error of law irrespective of

whether it is “on the face of the record” and of whether it goes to jurisdiction in the old narrow sense.

Any breach of limbs (1)-(6) of the illegality grounds or of the procedural impropriety and irrationality grounds is a material error of law. However, there are also errors of law, which do not fall within these, and which can be used to quash a decision. These are covered by limb (7). A decision maker may act without the preconditions for the exercise of a statutory power being satisfied. A good example is provided by the CA’s decision in:

Everitt v Attorney-General.

Section 57A(1) of the Police Act 1958 provides that:

where any person…it taken into lawful custody and is to be locked up in Police custody, a member of the police, or any searcher employed for the purpose under section 57B, may conduct a search of that person.

The plaintiff was validly arrested and brought to a police station. At the station, he was strip-searched by two police officers before the police had decided whether he would be put in a cell, or released on bail. A majority of the Judges held that the search was not authorised by s 57A(1) because the plaintiff was not “to be locked up” at the time when he was searched. That requirement is satisfied only where the police have decided to place someone in a cell or where it is very likely that they will do so. Because the police officers had not decided to place the plaintiff in a cell, but thought that s 57A(1) allowed them to strip-search him simply because he was in a secure part of a police station, they had made an error of law as to the scope of their powers which made their actions ultra vires.

An error of law falling under limb (7) also occurs where an inferior Court or an administrative tribunal misinterprets a statute that it is required to apply to the case before it.

8) Error of fact

A decision is ultra vires if the decision maker made a jurisdictional error of fact. All errors of law now go to jurisdiction because Anisminic extended the meaning of the term “jurisdiction” in relation to errors of law. However, Anisminic did not extend the meaning of jurisdiction in relation to errors of fact, so where decision makers make errors of fact, their decisions can be quashed only if their errors of fact are jurisdictional errors in the original narrow sense of that term.

A jurisdictional error of fact occurs where the statutory power exercised by a decision maker is dependent on the existence of certain facts and the decision maker wrongly thinks that those facts exist.

It is often difficult to distinguish between jurisdictional errors of fact, and errors of law, like that in Everitt. It can also be difficult to distinguish between jurisdictional and non-jurisdictional errors of fact.

In Edwards v Bairstow the HoL held that a decision can be quashed where a decision maker makes a finding of fact without such evidence such that no reasonable decision maker could have made it. Such err-or of fact is treated as an error of law.

In Daganayasi v Minister of Immigration, Cooke J stated that all material errors of fact can be reviewed, not just jurisdictional errors of fact. However, this extension of judicial review is controversial, and the other members of the CA left this open.

7.6.2 Procedural impropriety

The procedural impropriety ground of review (also called “natural justice”) has two limbs, which themselves have “sub-limbs”.

1. The right to be heard, and;2. Bias

Most statutes confer statutory powers without referring to the rules of natural justice. In such cases, Courts will simply read the common law rules of natural justice into a statute: see Cooke P’s judgement in Daganyasi.

1) The right to be heard:

This is also known as audi alteram partem. It has several sub-limbs, however only the main sub-limbs are discussed here. In general, the closer a decision maker’s role is to that of a Court, the more likely the Courts are to insist on the observance of all the sub-limbs of the right to be heard. Conversely, the further the decision maker’s role is from a Court’s, the less likely it is to be held to an observance of all of the limbs.

- Where a decision maker must decide whether to punish someone, or dismiss someone from a government job, Courts normally insist on observance of all the sub-limbs and on a full and fair hearing.

However, Courts will be reluctant to read an implied right to a hearing into a statute where such a right word would frustrate the policy of a statute, where the decision maker is Cabinet or the Governor-General, or where the decision affects a very large number of people.

Even if the rules of natural justice do not give a person a right to be heard, if a decision maker expressly undertakes to give a person an opportunity to be heard before making a decision, the decision maker creates a legitimate expectation and is bound by the undertaking. A decision in breach of it can be quashed. CCSU shows that an express undertaking is not always required – a history of consultation may create a legitimate expectation of future consultation.

The main sub-limbs of a right to be heard are:

1. Notice

Persons affected by a decision must be given notice of any charges or complaints made against them and of any hearing (if a hearing is to be held). There is no rule requiring a decision maker to hold an oral hearing. Written submissions may be received instead.

2. Disclosure of relevant information

Persons affected by a decision are entitled to be told of evidence adverse to their interests that a decision maker holds.

3. Right to comment

Persons affected by a decision are entitled to put their views about the case against them to the decision maker.

4. Legal representation

A tribunal has discretion as to whether to permit those who appear before it to be legally represented. In some cases it may be inappropriate not to permit legal representation.

5. Cross-examination

There is a right to cross-examine witnesses before a Court, but tribunals generally have a discretion as to whether to permit cross-examination.

6. Giving of reasons

There is currently no rule requiring a decision maker to give reasons for his or her decisions, even if the decision maker is a Court. However, the CA in Lewis v Wilson & Horton Ltd suggested that this might change, at least in relation to Courts.

2) Bias:

Bias has three sub limbs:

1. Actual bias

A decision will be quashed if actual bias can be proved. This requires evidence that the decision maker in actual fact reached a certain result because that result furthered his or her own interests. Evidence of actual bias is rarely available.

2. Presumptive bias

When a decision maker’s personal financial interests will be directly affected by the result they reach, the law automatically assumes that the decision maker will act in a biased manner. There is no need to establish actual bias, or to adduce evidence to show that the decision maker is likely to be improperly influenced by their financial interests. This is the rule of presumptive bias.

3. Apparent bias

The third sub-limb is apparent bias. Even if neither actual bias nor presumptive bias can be established, a decision can be quashed if it can be established that;

- “in all the circumstances of the case there was a real danger or a real likelihood, in the sense of a real possibility, of bias” see Auckland Casino Ltd v Casino Control Authority.

The overall impression created by the decision maker on the reasonable observer is relevant here. Factors such as a family relationship between the decision maker and one party, and statements revealing personal hostility or a closed mind on the decision maker’s part are relevant.

7.6.3 Irrationality

A Court can quash a decision if it is “so unreasonable that no reasonable authority could ever have come to it” (Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation.

- Such a decision is said to be “irrational”, or “Wednesbury unreasonable”.

Irrationality involves an assessment of the merits of a decision rather than merely the process by which it was made. The Courts have thus set the threshold for interference under the ground very high.

- This is because, if they quashed every decision with which they disagreed on the merits, they would in effect be taking statutory decision-making powers away from the authorities on which Parliament has conferred them, and breach the principle of Parliamentary sovereignty.

- Another reason for the Courts’ reluctance to intervene is the absence of obvious and universally accepted moral standards that they can use to explain why an administrative decision is irrational. Thus, only extreme departures from what most people find acceptable will be found to be irrational.

The Courts are more willing to hold some decisions to be irrational than others. A Court is less likely to hols a decision made by a democratically elected local authority in relation to a matter such as rates (about which there exist a wide range of views) irrational than a decision affecting human rights (for example, a decision to arrest someone without good reason).

Some commentators and Judges have argued that the irrationality threshold should be lowered across the board. These views have to date not been accepted explicitly by the CA.

- Cooke P attempted to develop “substantive unfairness” as a ground of review in decisions such as Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd. Decisions that were “unfair” were to be quashed. Adoption of this ground would probably amount to a lowering of the irrationality threshold.

o The status of substantive fairness as a ground for review is, at present, somewhat uncertain.

Finally, there have been indications that a new ground of review called “proportionality” might be adopted at some stage in the future. Review on this ground would allow the Courts to quash decisions that were out of proportion to the objective sought to be achieved, which would go further than Wednesbury unreasonableness. The CA has said that the question of whether proportionality is available as a distinct head of review is open.

7.7 Remedies

Applicants in judicial review proceedings who establish that one of the grounds of review has been infringed can seek a declaration from a Court that a certain act is illegal. They can also seek an injunction ordering an official not to do something (a prohibitory injunction), or one ordering an official to act (a mandatory injunction).

They may also rely on one of the prerogative writs (these seem similar to the aforementioned remedies?):

I. Certiorari

This involves a Court reviewing a decision, and quashing it if it is ultra vires.

II. Prohibition

This involves an order that an official will not act in a certain way.

III. Mandamus

This involves an order that an official perform a public duty that he or she has refused to perform.

Note that a remedy will not automatically be granted is one of the grounds of review is breached. All the remedies are discretionary. A declaration is the most frequently granted remedy.

Common pitfalls:

Failing to identify all the different decisions in a problem question that can be reviewed. Often there is more than one.

Missing out some of the steps which need to be applied when answering a judicial review problem question.

Be aware of the differences between the separate limbs and sub-limbs of illegality and procedural impropriety.

In an examination answer, you should aim to cite at least one case as authority for each limb or sub-limb of illegality or procedural impropriety that you apply. You may also need to cite cases for irrationality.

Then compare the facts in the problem questions with the facts of the cases to see whether the relevant ground of review is satisfied.

Chapter 8: The New Zealand Bill of Rights Act 1990

8.1 Why have human rights become so important?

This section just talked about the holocaust and how it showed how a government could abuse its power and deny basic rights to its citizens etc.

8.2 A Bill of Rights for New Zealand

The debate that led up to the current Act essentially dates from the mid-1980’s. In 1985, the Labour government issued a discussion document entitled A Bill of Rights for New Zealand: A White Paper.

That White Paper proposed enacting a fully entrenched Bill of Rights for New Zealand, which would include most of the rights included in the International Covenant on Civil and Political Rights (ICCPR)(mentioned in the excluded previous section as part of the aftermath of the holocaust).

The White Paper received an overwhelmingly negative response. The minister responsible for the Bill (Sir Geoffrey Palmer) acknowledged that the Bill could not proceed unless there was a widespread consensus in support of it. No such consensus emerged.

- The select committee examining the Bill recommended the enactment of an unentrenched Bill of Rights.

By the time the BORA 1990 was enacted, it had been watered down even further. In the final stages of the Bill’s passage, the provision that became s 4 was added to ensure that other enactments, including those passed before the BORA, would not be overridden or impliedly repealed by it.

Many expected that the BORA, in its weakened and unentrenched state, would achieve little. From the early 1990’s, however, the CA demonstrated in a series of decisions that it was prepared to breathe some life into the BORA, and to ensure that the rights and freedoms affirmed by it were given appropriate effect.

It is now fair to say that the BORA has taken on a quasi-constitutional significance.

8.3 When does the Bill of Rights Act apply?

The BORA is not a general human rights enactment regulating all conduct. Its purpose is to regulate public exercise of power. Section 3 sets out the acts to which it applies. There are two limbs to this section.

Section 3(a):

This provides that the BORA applies only to “acts done by the legislative, executive, or judicial branches of the Government of New Zealand”.

- The main “acts” done by the legislative branch comprise the passing of Acts of Parliament.

- The mains acts done by the judicial branch comprise adjudicating on cases before the Courts and developing the common law.

o There was some initial debate as to whether the Courts had to comply with the BORA in developing the common law.

In Lange v Atkinson and Australian Consolidated Press NZ Ltd, the CA indicated that the development of the common law was subject to the BORA, and this position appears to have been accepted or assumed by the members of the CA in Hosking v Runting.

- The main acts of the Executive comprise the enacting of secondary regulations, and the exercise of statutory (and prerogative) powers and duties by ministers, public servants, and government entitites.

Section 3(b)

This section attempts to capture acts done by bodies that are not governmental in nature but that nevertheless exercise some public functions. Accordingly, s 3(b) provides that the Act applies to acts done “by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law”.

A number of cases have grappled with the complex question of what a “public function” is, and when such a function is “conferred or imposed by or pursuant to law”.

The distinction between these two limbs is important. If a body falls within s 3(a), all of its acts will be subject to the BORA. However, for bodies falling within s 3(b), only those of its acts that involve a public function, power, or duty are subject to the BORA. Thus, it does not regulate purely private conduct by these bodies.

8.4 Sections 4, 5 and 6 – parliamentary sovereignty preserved

8.4.1 Section 4

Section 4 provides that other enactments, whenever passed, are not to be rendered inoperative if they are in conflict with the Bill of Rights. The effect of s 4 is to ensure that the BORA does not even impliedly repeal legislation before the BORA. In this way, s 4 operates to preserve parliamentary sovereignty, and to allow Parliament to enact legislation that is inconsistent with the rights and freedoms affirmed by the BORA.

8.4.2 Section 5

Section 5 allows the various rights and freedoms affirmed in the BORA to be subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. This section recognises that rights are not absolute. They can conflict with other rights or interests. Accordingly, any given right may be limited, but only where it is reasonable. It should be noted that s 5 is expressed to be subject to s 4.

Section 5 permits only such limits as are “prescribed by law”. Accordingly, any public act that infringes the rights and freedoms affirmed by the BORA is not “prescribed by law” unless that act is mandated by some legal authority.

- If the Executive or judiciary is empowered under a statute to act in a way that infringes the rights and freedoms affirmed by the BORA, that will constitute such a limit.

- Common law limitations on the rights and freedoms affirmed by the BORA are also limits “prescribed by law”.

- Where a statute confers a discretion that may be exercised only in a manner inconsistent with the rights and freedoms affirmed by the BORA, that is probably also a limit “prescribed by law”.

Moonen v Film and Literature Board of Review

In this case the CA set out a test for determining whether a given limitation can be “demonstrably justified in a free and democratic society under s 5.

1. The Court must determine what objective the legislature was trying to achieve by the provision in question.

2. The Court must assess the important and significance of that objective.3. The way the objective is statutorily achieved must be “in reasonable proportion” to the

objective.4. The means used must have a “rational relationship” with the objective, and in achieving that

objective there must be as little interference as possible with the BORA right or freedom in question.

5. The limitation must be justifiable in the light of the objective.

8.4.3 Section 6

This section requires the Courts, when interpreting statutes, to prefer meanings that are consistent with the rights and freedoms affirmed by the BORA to those meanings that are not. However, there are limits to how far legislation can be interpreted in a BORA-consistent manner.

Where a statutory provision uses ambiguous language, s 6 can be applied.

In some cases, the Courts have used s 6 to depart from well-settled interpretation of statutes. In Flickinger v Crown Colony of Hong Kong, Cooke P appeared willing to use s 6 to ignore the legislative history and statutory context of s 66 of the Judicature Act 1908, and to depart from the well-established interpretation given to s 66 by a line of authority decided decades before the enactment of the BORA.

- Cooke P’s decision could be said to be inconsistent with s 4, because it could amount to ignoring Parliament’s will by radically altering the established meaning of existing legislation. However, the better view is perhaps that s 6 – as a statutory provision – is itself a manifestation of the will of Parliament, and that the Courts are only following Parliament’s will as expressed in that section if they prefer BORA-consistent interpretations over those suggested by traditional methods of statutory interpretation.

With that said, s 6 cannot usually be used to give a statute a “strained” interpretation (i.e. Quilter v Attorney General CA would not stretch the word marriage to include same-sex couples).

In recent years, the Courts have been willing to use s 6 to adopt strained interpretations where that has been necessary to avoid giving effect to legislation that involves significant breaches of fundamental rights and liberties; see R v Pora and R v Poumako.

8.5 How do ss4, 5 and 6 interact?

For some time after the BORA came into force, it remained unclear how ss 4,5 and 6 should interact. Although s 5 is expressed to be subject to s 4, s 6 is not expressed to be subject to either of those sections.

In Moonen v Film and Literature Board of Review, the CA (in a unanimous decision of five judges) laid down a standard approach to applying ss 4-6 when assessing whether a statutory provision conflicts with BORA rights and freedoms.

Tipping J’s approach in this case is often described as a “five-step”.

1. After the Court has determined the scope of the right or freedom in question, the first step is to identify the different interpretations of the provision that are “properly open”. If only one meaning is properly open, that meaning must be adopted, and s 4 of the BORA means that the Court must nevertheless give effect to that meaning, even if it is inconsistent with a BORA right or freedom.

2. If more than one meaning is available, the second step is to identify the meaning that constitutes the smallest possible limitation on the BORA right or freedom in question. Section 6 requires the Court to adopt that meaning in preference to any other.

3. Having adopted the relevant meaning, the third step is to identify to what extent (if any) the BORA right or freedom in question is limited by that meaning.

4. If any limitation exists, the fourth step is to consider (under s 5) whether that limitation can be demonstrably justified in a free and democratic society. If it cannot be so justified, there is an inconsistency with the BORA but s 4 will require the Court to give effect to the infringing statutory provision.

5. The fifth step is for the Court to indicate, after it has made up its determination under s 5, whether the limitation is or is not demonstrably justified. If it is so justified, there is no inconsistency with the BORA, because s 5 permits such limitations on BORA rights and freedoms. If the limitation is not so justified, the Court must give effect to the provision under s 4, but may declare that there has been an infringement of a right and freedom affirmed by the BORA.

It is important to note that this Moonen approach is only one of many, and in that case the CA stressed that other approaches to applying ss 4-6 to legislation were open. Nevertheless, it is probably the simplest to use the aforementioned approach.

It should also be noted that ss 4 and 6 apply only to statutes, and to acts of the Executive or judiciary done under a statute. If the Executive or judicial branch acts under a common law power (for example, the royal prerogative), ss 4 and 6 do not apply, and if the Executive or judicial branches purport to act under a statute and what they do is not in fact authorised by the statute, ss 4 and 6 do not apply in those cases either.

o In those cases, the consistency of the act in question with BORA rights and freedoms is assessed solely under s 5.

Finally, the operation of ss 4-6 on delegated or subordinate legislation may be noted. Section 4 prohibits Courts from directly striking down regulations that are inconsistent with

the BORA, because regulations are “enactments”. However, there is an indirect route by which the Courts may strike down regulations inconsistent with the BORA.

o In Drew v Attorney-General, the CA stated that the Courts may use s 6 of the BORA to read down the empowering provision under which the regulations are made. In these cases, the Court is effectively saying that a broad power in a statute to make regulations must be interpreted as conferring only a power to make regulations consistent with the BORA.

8.6 Remedies

Article 28 of the draft BoR included in the 1985 White Paper contained an express remedies provision, but this provision was deliberately omitted when the BORA was enacted.

- Despite the absence of an express remedies provision, the CA has created remedies to vindicate breaches of the BORA.

8.6.1 The exclusion of evidence

In R v Kirifi the CA developed a remedy for infringements of the rights and freedoms affirmed by the BORA known as the “prima facie exclusionary rule”.

- Where evidence that a crime had been committed was obtained in breach of the BORA, the CA held that such evidence would be prima facie inadmissible in a criminal proceeding and that the onus would be on the Crown to satisfy the Court that the evidence should be admitted.

- The CA examined and affirmed the rule in the later case R v Butcher.

The above rule was eventually abolished in R v Shaheed. In its place the CA declared that the admissibility of evidence obtained in breach of the BORA should be determined by means of a “balancing exercise”.

8.6.2 Public law compensation

In Simpson v Attorney-General (Baigent’s case) the CA held that where exclusion of evidence is not an adequate remedy, damages may be recoverable from the Crown where a BORA right has been breached.

- This remedy is most useful where the person whose BORA rights have been infringed is not being prosecuted, and so exclusion of evidence is a meaningless remedy.

The main reason for permitting such a remedy is that the BORA rights would be meaningless unless the Court had adequate remedies to uphold them when they were breached.

8.6.3 Indications of inconsistency

In the first Moonen case, the CA suggested obiter that it had the power to indicate that a staute was inconsistent with the BORA. As of yet there appears to be no case in which a Court has formally ordered that such a declaration should issue. In Zaoui v Attorney-General, Williams J described the declaration of inconsistency as being a remedy of “last resort”.

In the UK, the Courts are expressly empowered under s 4 of the Human Rights Act 1998 (UK) to issue declarations of incompatibility where primary legislation is inconsistent with that Act. In NZ s 92J of the Human Rights Act 2001 now expressly empowers the Human Rights Review Tribunal to make a declaration that an enactment is inconsistent with the right to freedom from discrimination under s 19 of the BORA.

- Given this background, it seems unlikely that the Courts in NZ will renounce their assumed power to issue such declaration. In any event, the remedy would appear to be a discretionary one.

8.7 Substantive rights generally

It is unlikely as students we will be required to demonstrate any detailed knowledge about the various substantive rights conferred by the BORA. However, the following general comments about substantive rights under the BORA should be noted.

1. As a quasi-constitutional document, the BORA must be generously interpreted. Thus in Flickinger v Crown Colony of Hong Kong Cooke P stated that the rights and freedoms guaranteed by the BORA were to be:

construed generously in the manner recommended by the Pricy Council in Minister of Home Affairs v Fisher [1980] AC 319…suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

2. Decisions of the United Nations Human Rights Committee interpreting the ICCPR are persuasive authority for interpreting the BORA, because the BORA is intended, in part, to affirm NZ’s commitment to the ICCPR. Decisions of the Canadian Courts on the Canadian Charter of Rights and Freedoms are also often relevant, as the drafting of the BORA drew heavily from the Charter.

3. There is a debate about whether the BORA was intended to add to the rights and freedoms that existed under statute and the common law at the time of its enactment. Not all of the substantive rights contained in the BORA, nor the new remedies created to give effect to BORA rights, existed before its enactment. However, the CA has repeatedly stated that the BORA merely affirmed existing rights and does not create new rights.

Common pitfalls:

Current case law has not yet established when s 3 of the BORA applies. This is particularly so for s 3(b). You should discuss all the relevant cases mentioned during your course when discussing s 3 in a problem question.

Make sure you are well acquainted with the part in the judgment in Moonen in which the CA sets out how ss 4-6 are applied to statutes. It is often described as a “five-step test”, but it may be easier to think of it as having five steps.

When answering a BORA problem question involving the interaction of ss 4-6, make sure that you apply the Moonen test and that you keep all the different steps separate. Do not combine all the different steps.

Before Moonen, there was much debate among academics and also in some cases about the order in which ss 4, 5 and 6 should be applied. The Moonen approach has now been widely adopted, so it is probably best for students to focus on how to apply the Moonen test and what its strengths and weaknesses are.

Section 5 permits limitation of BORA rights only where these are “prescribed by law”. If an act infringing BORA rights or freedoms is committed without legal authority, s 5 will not justify that act.

Chapter 9: Maori and the Crown

9.1 Introduction

Alongside judicial review and human rights, the Treaty of Waitangi has in recent decades come to play an increasingly important role in the NZ legal system. Before the 1970’s, the Treaty was all but irrelevant as far as the study of public law was concerned. Since then however, the the Treaty of Waitangi has occupied an increasingly significant – and controversial – place in the NZ legal system. As the 2005 election campaign showed, many NZer’s appear to have very different views about what role (if any) the Treaty should play in our society.

9.2 A Treaty is signed

For more than fifty years after Cook’s initial visist to NZ, the British Crown was reluctant to intervene formally in NZ. By 1839, however, the need for a form of government for the increasing numbers of Britons living in NZ, and the possibility of French settlements being established in NZ, galvanised the British Government into action, and the decision was made to acquire sovereignty over at least part of NZ.

Britain had previously recognised NZ as being a sovereign and independent nation outside Her Majesty’s Dominions. Accordingly any acquisition of sovereignty would have to rest on the free and intelligible consent of the Maori people. Accordingly the British Secretary of State for Colonies, Lord Normanby, sent Hobson to NZ in late August 1839 with instructions to obtain sovereignty over so much of NZ as the Maori wished to cede.

In Jan 1840 Hobson arrived in NZ and immediately set about obtaining Maori consent to the acquisition of British sovereignty over NZ. Maori consent was to be obtained by way of a treaty, and Hobson invited various Maori chiefs to Waitangi on 5th Feb 1840 to duscuss and enter into the treaty prepared for this purpose. On the following day, more than 20 Maori chiefs signed what we now

know as the Treaty of Waitangi. Hundreds more chiefs (but by no means representing all Maori) were to sign the Treaty in the following months.

9.3 The differences in the two Treaty versions

Since Hobson was anxious to obtain (in accordance with Normanby’s instructions) the free and intelligible consent of Maori, the Treaty of Waitangi was translated into Maori, this being the version that Maori signed. However, neither the drafting of the Treaty in its original English version nor its translation into Maori was expertly executed. As a result, the English and Maori versions of the Treaty diverge in four significant respects.

1. Under article 1 of the English version of the Treaty, the Maori cede “all rights and powers of sovereignty” to Her Majesty the Queen. Under article 1 of the Maori version, the Maori gave to the Queen “kawanatanga”. This word is not identical with the concept of sovereignty. It comes from the Maori word “kawana” (a transliteration of the English word “Governor”), and connotes nominal rule, but not full government.

2. Under article 2 of the English version, the Crown guaranteed to Maori the “full exclusive and indisturbed possession” of their lands, estates, forestries, fisheries, and other properties. The Maori version guaranteed to Maori “te tino rangatiratanga” over these things. This term comes from the Maori word “rangatira”, meaning “chief”, and thus “te tino rangatiratanga” refers to the full chiefly authority exercised by Maori chiefs. Accordingly, the Maori version suggests that Maori will retain rather more power than is ceded to the Crown; the English version provides for the very opposite.

3. Article 2 of the Maori version of the Treaty covers a wider range of property rights than the corresponding English text. The English text guarantees to Maori their “Lands and Estates, Forests, Fisheries and other properties”. However, the Maori version also guarantees to Maori their “taonga”. A taonga is something that is prized or valued. Accordingly, that term is more expansive in scope than the English word “property”, and extends to cover intangible things, such as the Maori language.

4. The Treaty makes provision for the purchase of Maori land by the Crown, but the English and Maori versions of the Treaty suggest different regimes for such purchases. The English version gives the Crown a right for pre-emption over Maori land. The term is not well chosen in the English text. It is clear that the Crown intended to obtain an exclusive right to purchase land from Maori. However, the term “preepmtion” refers instead to the right of first refusal if the owners decide to sell their property. As for the Maori version, it is not clear that the Crown is to gain any right of pre-emption over the sale of Maori land, still less that it should have any exclusive right to buy it.

Given these differences between the English and Maori texts, the question has arisen, which version should take precedence over the other? Section 5(2) of the Treaty of Waitangi Act 1975 provides that the Waitangi Tribunal must have regard to both versions of the Treaty, and does not state that one version should be preferred to the other. It appears, however, that the Waitangi Tribunal does give considerable weight to the Maori version, given that most chiefs signed this version.

9.4 The status of the Treaty at international law

As far as the Treaty of Waitangi is concerned, the orthodox view has been that the Treaty was not a valid treaty of cession at international law, because the party ceding sovereignty (the Maori) did not have legal personality under international law. That is because tribal societies have traditionally been regarded as possessing an insufficient level of political organisation to have legal personality at international law. For this reason, Prendergast CJ famously declared the Treaty a “simple nullity” in Wi Parata v Bishop of Wellington.

A contrary view has been put forward in more recent times. Sir Kenneth Keith has argued that the view expressed in Wi Parata is itself inconsistent with previous practice, and that it was a well-established practice before 1840 for western governments to enter treaties with tribal societies.

9.5 The status of the Treaty in domestic law

Under English (and NZ) law, international treaties have no direct legal effect in the domestic legal system unless they are incorporated into domestic law by Act of Parliament. Thus, in Hoani Te HeuHeu Tukino v Aotea District Maori Land Board, the Privy Council held that the Treaty of Waitangi did not confer on Maori any rights that could be enforced against the Crown in the domestic Courts, unless the Treaty is incorporated into domestic law.

- Further, the traditional view is that the Treaty of Waitangi cannot fetter the legislative powers of Parliament, because Parliament is the supreme lawmaking body under our constitution, with power to make and unmake any law. There have been occasional suggestions that the Treaty may in some instances operate as a fetter on Parliament’s legislative powers.

Less controversially, it now seems that the Treaty may be used as an aid in interpreting ambiguous legislation. In New Zealand Maori Council v Attorney-General [1987], Cooke P accepted that when interpreting ambiguous statutes, the Courts will be reluctant to ascribe to Parliament an intention to legislate contrary to the principles of the Treaty of Waitangi.

- The principle may be applicable even where the statute does not refer to the Treaty of Waitangi. Thus Chilwell J stated in Huakina Development Trust v Waikato Valley Authority that the Treaty was part of NZ’s social fabric, and could be used to interpret statutes that do not refer to the Treaty. In that case, Chilwell held that the Planning Tribunal had to consider Maori spiritual and cultural values when exercising its statutory powers under the Water and Soil Conservation Act 1967.

The Treaty may also be used in some cases to determine the relevant considerations to which statutory decision makers must have regard, and judicial review may lie where the Treaty has not been considered by a person exercising such a statutory power.

- In Attorney-General v New Zealand Maori Council [1991] (the Radio Frequencies case), the NZ Maori Council challenged the Crown’s plans to put out to tender radio frequencies before the Waitangi Tribunal had published its report on a claim relating to Maori broadcasting. Cooke P, Casey and Bisson JJ (Richardson and Hardie Boys JJ dissenting) upheld the High Court’s decision to grant interim relief delaying this tender, on the ground that the Court was bound to consider the tribunal’s recommendations before deciding whether to tender

out the radio frequencies. The majority arrived at this conclusion, despite the fact that the relevant legislation (the Radiocommunications Act 1989) did not refer to the Treaty.

9.6 The principles of the Treaty of Waitangi

Although the Treaty has not been incorporated into domestic law, an increasing number of statutes over the past two decades have referred to “the principles of the Treaty of Waitangi”, and have required the Courts to interpret those stautes in accordance with these principles or those charged with administering the statites to have regard to these principles.

- Examples are found in s 9 of the State-Owned Enterprises Act 1986, and s 8 of the Resource Management Act 1991. That raises the question of, what, if anything, are “the principles of the Treaty of Waitangi”?

In New Zealand Maori Council v Attorney-General [1987], the CA considered for the first time what these principles were. In his judgment Cooke P identified the following Treaty principles:

1. The Treaty of Waitangi is a partnership between Maori and the Crown, which required each to act reasonably and in good faith towards the other;

2. The relationship between the Treaty partners created responsibilities analogous to fiduciary duties;

3. The Crown had a duty to actively protect Maori and their taonga;4. If a breach of the Treaty is demonstrated, it is the duty of the Crown to insist it is honoured;5. Maori have undertaken a duty of loyalty to the Queen.

Subsequent cases have refined what the principles of the Treaty of Waitangi are. In the Lands case, the Court rejected a broad duty to consult. That said, the obligations cast upon the Crown are not absolute. The Privy Council has held in New Zealand Maori Council v Attorney-General [1994] that the Crown is simply required to do what is reasonable in the circumstances.

There is no doubt that the treatment accorded the Treaty of Waitangi by the CA in the Lands case has led to the increasing importance of, and a greater constitutional role for, the Treaty. Yet there are signs that at least in some quarters, patience with the Treaty is wearing thin. In 2005 NZ First introduced the principles of the Treaty of Waitangi Deletion Bill into Parliament that sought to remove all references to the Treaty in Acts of Parliament and secondary legislation. Later in 2005 Rodney Hide MP introduced a Bill designed to define in legislation the principles of the Treaty of Waitangi. Both Bills were defeated.

9.7 The Waitangi Tribunal and settlement of claims

The Treaty of Waitangi Act 1975 established the Waitangi Tribunal, which was empowered to hear and determine claims brought by any Maori that Crown policies or acts were in breach of the Treaty of Waitangi and prejudiced Maori.

The CA has confirmed that a Treaty grievance may be founded on the terms of an Act of Parliament: Te Runanga o Ngai Tahu v Waitangi Tribunal. As originally enacted, the Act permitted claims only arising since the Act was passed, but amending legislation in 1985 permitted the Tribunal to hear most claims dating back to 6 February 1840.

Generally the tribunal’s power where a claim is made out is limited to recommending to the Crown what remedies it should provide. Thus, the tribunal’s recommendations are not usually legally binding. However, the tribunal can order the return to Maori of land where that land is still held by the Crown (and, in some instances, where the Crown formerly held the land).

- Once a report has been issued, the relevant iwi or hapu and the Crown enter into negotiations for a full and final settlement of the claims and determine what redress the Crown should provide for the Treaty breaches. This redress often takes the form of an apology from the Crown, monetary compensation and the return of Crown land to Maori. Such settlements are effected by Act of Parliament (such as the Waikato Raupatu Claims Settlement Act 1995) to Maori, which also provide, since the settlement is full and final, that iwi or hapu’s ability to return to the tribunal for historic claims is removed.

Since 1985 there has been a broad political consensus that supported the Waitangi Tribunal process and recognised the importance of, and need for, addressing historical claims by Maori.

- In recent years there are signs that this consensus is becoming strained as the process drags on. Many political parties entering the 2005 election campaign supported time limits or bringing historic claims to the tribunal and some supported a deadline for completing claims.

Finally it is important to note that the Treaty of Waitangi Act 1975 does not incorporate the Treaty into domestic law.

9.8 Maori customary title and customary rights

Although the English version of the Treaty of Waitangi guarantees to Maori full, exclusive, and undisturbed possession of their properties, there has been a growing realisation in recent decades that the common law of England protected these, quite apart from the Treaty.

In Mabo v Queensland the High Court of Australia confirmed that, although the Crown obtained a “radical title” over Australia when it acquired sovereignty, the common law would generally recognise the interests that the existing inhabitants had in their land. Where such interests amount in effect to a possessory title, they are known as aboriginal customary title, or, in New Zealand, Maori customary title.

- The concept of “radical title” is part of the common law’s rules regarding land ownership. Those rules are based on the assumption that the Sovereign formally holds title to all land, and that all the other rights held by anyone else are granted to that other person by the Sovereign. Accordingly the Sovereign is said to have a “radical title” over the land.

o When the Crown assumed sovereignty over NZ, those land tenure rules began to operate. Because all title derives from the Crown, European settlers in NZ could only acquire legal interests in land from the Crown, not by buying them directly from Maori.

R v Symonds (1847):

It was held here that the Crown could extinguish customary title, but that it could not be extinguished by Maori selling their land to settlers. It was also stated that customary title could be extinguished only by legislation, or by Maori voluntarily selling their land to the Crown.

However in Wi Parata (1877):

Prendergast CJ stated that the Crown could unilaterally extinguish customary title without any Court being able to question its decision to do so.

In Wallis v Solicitor-General (1903):

The Privy Council criticised Wi Parata, but the NZ Courts and Government objected to the Privy Council’s approach.

Under the Native Land Act 1909 and the Maori Affairs Act 1953, customary title was unenforceable in an action brought by Maori against the Crown.

- The Te Ture Whenua Maori Act 1993 repealed the 1953 Act’s bar to the enforcement of customary title. However, the 1993 Act also amended the Limitation Act 1950 so as to prevent Maori from enforcing customary titles if more than 12 years have passed since the date on which the right to bring an action arose. Maori thus cannot sue the Crown for interference with customary titles that occurred in the 19th century. Very little land is today held under Maori customary title, because the Crown encouraged Maori to have their customary titles converted into statutory property rights under the Native Land Act 1865.

In Attorney-General v Ngati Apa the CA held that the Maori Land Court retained jurisdiction to determine claims by Maori to the foreshore and seabed as Maori customary land, and that the fact that the adjacent title had been investigated and converted into a Crown grant did not extinguish any customary rights that Maori might have in relation to the foreshore. While it was doubtful whether many iwi or hapu would be in a position to show sufficient connection to foreshore over the preceding 163 years to successfully make out a claim to customary title, Parliament intervened to enact the Foreshore and Seabed Act 2004 to reverse the decision. The 2004 Act abolishes customary title to the foreshore and seabed in language of considerable comprehensiveness, and vests the land in the Crown. However, Maori rights short of customary title can still be recognised under the 2004 Act.

Even if customary title to land has been extinguished, Maori customary rights can continue to exist. Customary rights are rights to use land rather than exclusive rights of ownership. They permit Maori to use land owned by others for activities such as fishing and hunting.

Evidence that Maori traditionally exercised specific rights over a specific area of land is required before the Courts will recognise a customary right.

In Te Weehi v Regional Fisheries Officer the High Court held that Maori had customary rights to fish in the sea, although successive governments had assumed that no such rights existed. Together with various fisheries claims before the Waitangi Tribunal, the case led to the 1992 Sealord deal. The deal resulted in the enactment of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The Act

extinguished all commercial Maori customary fishing rights (s 9). In return Maori received money with which to buy half of Sealord Products Ltd – NZ’s largest fishing company quota. Under s 10 non-commercial fishing rights continue to exist, but only to the extent permitted by regulations made in consultation with Maori.

Common pitfalls:

If the Treaty were incorporated into NZ law by a statute, the government would have to comply with it whatever it does. It would be part of the law just like the New Zealand Bill of Rights Act 1990 and the law of contract or torts. Sometimes it is said that the Treaty has been “incorporated in relation to a particular statute”. This simply means that the statute contains a Treaty clause. It does not mean that the Treaty has been generally incorporated into NZ law.