The Judicial Power

Address to the Annual Conference of the Judges’ Clerks

Rt Hon Sir Geoffrey Palmer QC

Friday 31 March 2017

Old High Court Building, Wellington


 

Introduction

The clerks who provide research assistance to the Judges in New Zealand are often regarded as the best and the brightest of the young law graduates.

The institution of Judge’s Clerk is a relatively new innovation in New Zealand. In the United States, the position confers prestige upon holders of the position, especially in the Federal Courts and the Supreme Court. It helps holders of the office to enjoy a glittering legal career.

I hope all of you have satisfying careers in the law and be sure to take a continuing interest in the wider world of public affairs.

Your habits of close analysis, academic rigor and clear thinking have much to contribute.

Too many lawyers in my experience become narrower and more specialized as they progress. Increasingly it seems to me that they fail to see the world as a whole and to read widely.

Do not stop thinking as your careers develop. Thinking and analysing are the most important activities that you can undertake.

The law is a general discipline.

As an autonomous discipline law has declined.

Increasingly effective lawyering requires insights into many disciplines—economics, social sciences, politics and increasingly science. Think climate change.

I want to talk to you today about public power. In your work you are currently surrounded by the machinery of government which affords you a unique insight into how public power is exercised. I hope that you will take this knowledge with you in your careers.

 

Some constitutional history

The slow march of New Zealand from colony to nation and constitutional independence that followed the enactment of the New Zealand Constitution Act 1852 (UK) has produced a situation in which New Zealand has never considered its constitution and governance on the basis of first principles, from the ground up.

There never seemed to be an opportunity for the fundamentals of New Zealand’s constitutional arrangements to be systematically considered between 1852 and the present.

The system just evolved from the colonial constitution, though sometimes with substantial innovation, adaptation and change.

The establishment of responsible government arrived early, in 1856, along with power to repeal most of the 1852 Act save 21 provisions, made by an amendment Act in London in 1857.

The abolition of the provinces came in 1876. Dominion status was acquired in 1907.

New Zealand sat in its own right at the negotiations leading to the Treaty of Versailles, which ended the First World War. New Zealand joined the League of Nations as an independent nation. The Balfour Declaration of 1926 was followed by the Statute of Westminster 1931 (UK).

The passage of the Statute of Westminster Adoption Act in New Zealand occurred in 1947. Abolition of the Legislative Council followed quite quickly.

A case can be made that it is New Zealand’s own constitutional history that has stood in the way of constitutional development.

We have altered features of the constitutional arrangements sometimes in novel ways (such as the introduction of MMP, the entrenchment of various provisions of the Electoral Act and the enactment of the Bill of Rights Act) from time to time.

However, we have never given the whole system an overall audit, analysis and review to see if it is fit for purpose. Partly that is because things have just evolved without a plan.

The 1852 Act was gradually but remorselessly whittled away; abolition of the Legislative Council in 1950 was part of that development.

Final repatriation was not achieved until the Constitution Act 1986 halted the application of the 1852 United Kingdom Act in New Zealand.

Tinges of its colonial origins sit uneasily upon the constitution still.

 

The Constitution Aotearoa New Zealand project

It was concern with a number of inter-related issues that gave birth to the Constitution for Aotearoa New Zealand project:

  • the standards of governance
  • the method of law making in the Executive and in the Parliament
  • the performance of the mechanisms of accountability
  • the rule of law
  • adherence to strong democratic principles
  • the protection of human rights[1]

There have been two recent public inquiries into New Zealand’s constitutional arrangement, one by a Select Committee chaired by Hon Peter Dunne in 2005 and another led by Professor John Burrows and Sir Tipene O’Regan that reported in 2013.[2]

Neither of these inquiries led to any change.

Andrew Butler and I thought if there were a concrete proposal out there it may help to focus the debate and cause it to move forward.

We wrote a book that was as short and accessible as we could make it in order to raise the issues.

It was not written for lawyers since lawyers are not the most important actors in this arena.

It is ordinary people who have to be convinced.

Furthermore, as a profession lawyers are, by and large, a conservative bunch.  As Sir Robin Cooke once remarked, there are two kinds of judges: conservative and more conservative!

Law looks backwards, based on precedent.

A Constitution has to be capable of dealing with the problems of the future.

Our political system does not deal well with the future. Again, think climate change.

It is true to say that the language of politics is the language of priorities.

The Executive decides the priorities and they generally are focused on the next general election.

Some more checks and balances may help to cure that tendency.

We have been taking submissions on our website and we have had a great many: www.constitutionaotearoa.org.nz

Not all our submitters have had the benefit of the educational background and insights of Judges’ Clerks.

I do hope you can find time to make submissions. Please have your say.

We will publish two books in 2018. The first will be a revised version of our written codified constitution.

What is proposed is likely to vary considerably from the first draft Constitution that appears in the 2016 book.

The second will be a longer scholarly treatment, providing a more detailed set of reasoning for the choices made.

 

Rights and the Judicial Power

Let me start with rights since that is where this project began.

Some people who have no political experience are inclined to say of this project, “It will never happen.”

Well, people told me when I was an MP we would never get a Bill of Rights either.

They were equally adamant that the recommendations of the Royal Commission on the Electoral system that led to MMP would never be implemented. But the new system was adopted despite the opposition of both main political parties.

We have had the Bill of Rights more than 25 years and now are accustomed to the Bill of Rights, and is time to consider taking the next step.

In those 25 years of experience the New Zealand Parliament has passed legislation contrary to the Bill of Rights on at least 37 occasions.

Some of those occasions have involved serious incursions into human rights.

Let me read part of our book to you: [3]

… in 2013 Parliament enacted the New Zealand Public Health and Disability Amendment Act in a single sitting day. Its principal effects were first to prevent anyone ever making a complaint to the Human Rights Commission or bringing a court proceeding against any Government family carer policy no matter how discriminatory, and second, to exclude retrospectively the provision of remedies for past discrimination. It followed a decision of the Court of Appeal that had upheld the human rights of some of the most vulnerable people in our community—the disabled and family members who cared for them. There was no warning that the Bill was to be introduced; there was no public consultation on it; there was no Select Committee consideration of it. By any measure, it was a shocking piece of legislation that ousted well-known constitutional protections and removed New Zealand citizens’ rights to be free from discrimination in certain cases. Yet it passed in a single sitting day despite almost immediate public outcry. Only another Act of Parliament can alter or remove it. That is how fragile our constitutional system currently is.

We think the Bill of Rights should not be capable of being over-ridden, except by a majority of 75 per cent of MPs after a judgment from the Supreme Court.

That is the way we currently protect the vital democratic provisions of the Electoral Act such as the secret ballot.  If politicians think that they shouldn’t trust the electoral system to a majority of 1 in Parliament, why should the populace entrust their rights to a majority of 1?

Minority rights and fundamental values need better protection than they receive in New Zealand at present.

We think Parliament should be bound by the law and not be above it.

And that should include the Bill of Rights.

We are convinced that a written, codified constitution is inevitable.

And we are not alone.  The 2013 Constitutional Advisory Panel reported that there was a widespread consensus in favour of a written consensus and strong support for exploring further protection of human rights in our constitutional system.

Indeed, a written constitution will be necessary should New Zealand become a republic.

There are three main sources of both power and function in any constitution: executive, legislative and judicial.

The position of the Head of State is another consideration.

Our draft constitution endeavours to outline the powers and functions of all three branches of government, as well as the head of state.

Our constitution proposes enhancing the functions and powers of the judiciary in a way that is relatively unfamiliar in New Zealand of recent time, although well established in most places and indeed a feature of New Zealand’s early constitutional history.

Remember, that for many years provisions of the General Assembly and provincial assemblies could be, and were, struck down by New Zealand courts if contrary to the Constitution Act 1852 (UK).

The novelty for New Zealand lies in three features of the proposal.

First, the Constitution will be written and therefore subject to interpretation.

Second, the familiar provisions of the New Zealand Bill of Rights Act will be entrenched and supreme and thus ordinary legislation inconsistent with the guarantees can be struck down by the Supreme Court.

We provide that a Bill passed by a 75 per cent majority of the House can over-rule the decision of the Supreme Court. In the case of an amendment or repeal of an Article in the Constitution this could also be done with a simple majority in a referendum of the people.

Third, we have added new provisions to the Bill of Rights:

  • the right not to be deprived of security of the person, except in accordance with the principles of fundamental justice;
  • the right not to be held in slavery or in servitude or required to perform forced or compulsory labour;
  • the right not to be subject to arbitrary or unlawful interference with privacy, family, home or correspondence;
  • the right to be treated as equal before the law and be given equal protection of the law;
  • the right to be free from discrimination on the grounds of gender;
  • the right to property;
  • the right to free enrolment and free education at any state primary or secondary school; and
  • the right to an environment that is not harmful to health or wellbeing.

Let me say a little more on this important right.

Here is the environmental right we propose in Article 105:

Everyone has the right—

(a) to an environment that is not harmful to his or her health or wellbeing; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—

(i) reduce pollution and ecological degradation:

(ii) promote conservation:

(iii) pursue ecologically sustainable development and use of natural resources while promoting justiciable economic and social development.

The importance of elevating such a right to a constitutional level, so that it is protected by a superior law constitution would be three-fold:

  • it would be binding upon Governments of the day and they would have to think more carefully and do better analysis before allowing water quality to decline rapidly, as has been the case with the intensification of agriculture in New Zealand over the last few years;
  • it would provide an avenue for matters to be tested through independent analysis in the courts free from political spin, in much the same way as the Ruataniwha Dam proposal has been tested;
  • it would ensure that vital issues of importance to future generations are not brushed under the carpet.

On social and economic rights we have provided in Article 106 that the Parliament should be guided by a number of non-justiciable principles.

We have thought it not practicable to make these rights the subject of judicial determination but left it to the processes of politics and Parliament.

One important issue regarding the distribution of power proposed is whether it is acceptable for judges to make judgments that involve ruling on the matters set out above.

Our view is that it is appropriate for a number of reasons.

The answer sometimes heard at our public meetings and in some of the submissions is that the Judges are not elected so they should not have this power.

There are several answers to that.

The first is if a superior law constitution of the type we proposed is adopted by referendum, as we suggest, then it is law and the law has to be interpreted.

In our system it is the orthodox understanding that the Judges interpret what the statute law means and how it applies in individual cases.

Were it not so Cabinet will be an autocracy.

The lay public perhaps does not appreciate the degree of judicial power Judges have in this respect already.

Second, it is the Judges who created and still create the common law.

Are we saying they should be elected on this account?

I hope not. The excesses of Jacksonian democracy led to that in the United States and with poor results in my opinion.

Third, the Judges already exercise considerable jurisdiction over administrative decisions made by Government as a result of the provisions now contained in the Judicial Review Procedure Act 2016.

It is sometimes said that the provision in section 5 of the Bill of Rights Act, borrowed from Canada, that the rights and freedoms “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” is a standard that is too elastic for judicial management and best left to the final say of MPs.

What MPs cannot always bring to such a task is analytical detachment, careful analysis of complex materials, rational thought and independence beset as they are by the hurly burly of politics.

They are very busy, they must reflect the public concerns and they must think of the next election.

Some of our cherished rights and freedoms are subtle and cannot withstand the blow torch of popular prejudice.

We do not want the ministers or the MPs to have unbridled power and neither do we want to give it to the Judges.

We want each to have a share.

Most questions great and small should be decided by a simple majority in Parliament.

But where a provision in a superior law constitution is at stake there is a place for the least dangerous branch of government—the Judiciary—to lay down markers.

 

Parliamentary supremacy

A prime reason for giving the judges some increased role relates to the notion of parliamentary sovereignty or supremacy that holds sway in New Zealand.

If what Professor A V Dicey meant by this doctrine was that parliamentary sovereignty is a necessary condition for the supremacy of law, then the statement is neither logical nor politically accurate. Power can be distributed by a formal constitution, as Dicey well knew.

Dicey published his first edition in 1885 at a time before the franchise was universal in England. Indeed, Dicey himself was an implacable opponent of votes for women and he was also opposed to proportional representation.

The range and nature of the doctrine was simple and absolute. Dicey asserted that parliamentary sovereignty was an undoubted legal fact:[4]

It is complete both in its positive and on its negative side. Parliament can legally legislate on any topic whatever which, in the judgment of Parliament, is a fit subject for legislation. There is no power which, under the English constitution, can come into rivalry with the legislative sovereignty of Parliament.

There are no legal limitations, Dicey said, on the absolute authority of Parliament: “This doctrine on the legislative supremacy of Parliament is the very key-stone of the law of the constitution.” The absolutist cast of this assertion raises suspicion that such a bright line rule can hardly be valid for all time, in all situations and without exceptions.

So it is perhaps not surprising that Dicey himself retreated from his own doctrine when confronted with political decisions relating to home rule in Ireland to which he was strongly opposed. In an article published in 1893, he remarked:[5]

The defects of Parliamentary Government as now practised in England result from the unchecked though temporary supremacy of any Party which can obtain a majority in the House of Commons.

He was at pains to draw a distinction between the sovereignty of Parliament and the sovereignty of the House of Commons. This led him to advocate referenda put to the people because such a referendum “places the nation above parties or factions”.[6] It would ensure that in matters affecting the constitution the country always came to a decision on a clear and plain issue. And it gives due weight to the wishes of all voters.

Dicey was saying that parliamentary sovereignty must bend to the wishes of all the voters. He was not saying all contentious questions should be decided by referendum, only questions that touch upon the constitution.

The rules of the game – the most basic constitutional rules – should not be so easily altered in the exigency of the moment. There is an echo of this position contained in s 268 of the New Zealand Electoral Act 1993 shortly to be discussed.

Dicey’s ideas enjoyed considerable support in New Zealand at the time they were enunciated and have done since. Certainly, they were not contested by the foremost New Zealand jurist of the time, Sir John Salmond.

In his classic study of jurisprudence, the first edition of which appeared in 1902, Salmond dealt with the issue by saying that legislation was either supreme or subordinate and supreme legislation emanates from the sovereign power of the State. He went on to say, quoting Sir William Blackstone: “The legislation of the Imperial Parliament is supreme, for ‘what the Parliament doth, no authority upon earth can undo’.”[7]

The 1957 edition of Salmond’s work repeated the statement in the 1902 edition about the supremacy of the Imperial Parliament and the quote from Blackstone. But there is a significant addition worth quoting in full:[8]

In England, the doctrine of Parliamentary supremacy goes beyond this; Parliament is not only supreme, but legally omnipotent. It is now a clear rule that an Act of Parliament cannot be held void for unreasonableness, or indeed upon any other ground. The doctrine of the sovereignty of Parliament, in the sense that there is no legal limit on the power of Parliament (except the inability of Parliament to bind its successors) was expounded by Dicey in his classic treatise, and is now a common place of books on constitutional law.

It may be worth pausing to reflect that one reason why the doctrine of parliamentary supremacy developed in the United Kingdom was that there was a need, in an unwritten constitution with a high degree of fluidity, to anchor the final authority somewhere.

Where power is allocated and divided between the three branches of government as we propose, that need dissolves. The doctrine of parliamentary sovereignty acts to protect the Parliament and decision makers and legislation from New Zealand Bill of Rights Act. The Ministers can cause to be enacted legislation inconsistent with it. And they do.

Parliamentary supremacy encourages them to fashion the constitutional limits for their own convenience of the political moment. To say that they do this in the name of democracy is politically naïve and neglects to explore the counterfactual concerning the methods of how political decisions are made and enacted.

In a small Parliament with 121 members it is easy for the Executive to dominate Parliament. Even MMP has not materially reduced this domination and the absence of a second chamber exacerbates the control. In New Zealand it tends to be, as Margaret Wilson has said, the sovereignty of the executive.

Governments act to remain in power as long as they can and they tend to try and get away with whatever they can. They will observe no limits so long as there are none. It is not so much the public interest that the executive in the name of the Crown is representing, as the executive’s political interest.

The doctrine of parliamentary sovereignty disguises issues about the distribution of public power, creating an erroneous impression that the present situation is immutable and cannot be altered.

That does not comport with any realist approach to the distribution of public power in a democracy. Clearly power can be reallocated. But the doctrine of parliamentary sovereignty in its modern formulation is defended on the ground that members of parliament are elected so there is democratic control and thus popular sovereignty exists and all is well.

The theory fails to face the realities concerning the exercise of political power by a Cabinet in the Parliament, the machinations of parties, methods by which law is made and the techniques used to manipulate public opinion and pressures to secure partisan advantage.

Furthermore, the doctrine produces conclusionary reasoning: do not examine how power is exercised in fact and whether those features are normatively desirable because the doctrine teaches the outcomes must be good because parliamentarians are elected.

The absolute character of the doctrine and its superficial simplicity hides the reality that general elections are a blunt instrument and not usually about a single issue.

Take the action of the Government in the Atkinson case in 2013 mentioned earlier. No general election has remedied that injustice. The idea that because the electors can throw the government out all will be well, is not borne out by experience. The majority of people do not vote on issues like that in a general election. The hip pocket nerve is the most sensitive in politics.

It is accepted that almost all matters of policy should be decided by a simple majority. It does not follow that the most basic constitutional rules should be so easily altered in the exigency of the moment. In logical terms it is a simple non-sequitur.

 

Conclusion

I have tried to outline in this speech why Judges can be entrusted with some further responsibilities. But remember Judges are not and never will be the most important constitutional actors. They are, however, a vital part of system of government in which power must be shared to avoid autocracy. They are the custodians of the rule of law.

Please make submissions to us. We need your help.


 

Notes

[1] Geoffrey Palmer & Andrew Butler A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016). The immediate cause lay with the performance over 25 year of the New Zealand Bill of Rights Act 1990: see Geoffrey Palmer “What the New Zealand Bill of Rights aimed to do, why it did not succeed and how it can be repaired” (2016) 14 NZJPIL 169. Some of that article appears later in this speech.

[2]  Constitutional Arrangements Committee Inquiry to review New Zealand’s existing constitutional arrangements (10 August 2005); Constitutional Advisory Panel New Zealand’s Constitution: A Report on a Conversation (November 2013).

[3] Atkinson v Attorney-General [2012] 3 NZLR 260 (CA).

[4] AV Dicey in JWF Allison (ed) The Law and the Constitution (Oxford University Press, Oxford, 2013) at  41.

[5] AV Dicey “The Referendum” (1894) 23 National Review 65. Dicey made it clear in this article that he favoured a referendum before any proposals for changing the constitution.

[6] At 71.

[7] John W Salmond Jurisprudence (Stevens & Haynes, London, 1902) at 116. There is no reference to Dicey by Salmond in 1902 despite the fact that Dicey published his first edition in 1885. The last edition produced in Salmond’s lifetime in 1924 still contained no reference to Dicey, who by that time had died and could be regarded as an authority.

[8] Glanville Williams (ed) Salmond on Jurisprudence (Sweet & Maxwell, London, 1957) at 141–142.