LAW 211 Public Law

Lecture outline 2023

Semester One, Weeks 1-6 (27 February-5 April)

Part I: Introduction
Part 2: The Legislature

Dr Jane Norton
jane.norton@auckland.ac.nz

Office: Building 810, Level 7, Room 729 (corner Short

Street and Eden Crescent)
Office hours: Mondays and Wednesdays, 12-1pm (weeks
1-6)

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 Introduction

This course introduces you to:

 the principles and working of the New Zealand constitution

 the system and institutions of government that make, administer and enforce the
law

 the place of the Treaty of Waitangi/Te Tiriti o Waitangi and other sources of
indigenous rights in New Zealand public law

 the ways public power is exercised and controlled, including the role of the New
Zealand Bill of Rights Act 1990, judicial review, and other mechanisms for
protecting citizens’ rights.

You will see that much of public law concerns the relationship between citizens and the
state. As a lawyer, it will be important for you to know how our constitution and
government institutions operate (or should operate) to ensure the proper exercise of
public power.

In these lectures with me you will learn about one of the branches of government – the
legislature. Later lectures will cover the two other branches of government – the executive
and the judiciary.

We will be focusing in particular on how to analyse public law case law and how to apply
statute and case law to public law problems.

General reading

 Matthew Palmer and Dean Knight, The Constitution of New Zealand: A Contextual
Analysis (Thomson Reuters 2022).

 Philip Joseph, Constitutional and Administrative Law in New Zealand (5th ed,
Thomson Reuters 2021).

 Bruce Harris, New Zealand Constitution: An Analysis in Terms of Principles (Thomson

Reuters 2018).

 Rishworth, Huscroft, Optican & Mahoney, The New Zealand Bill of Rights (OUP
2003).

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  Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary
(2nd ed, LexisNexis 2015).

1. What is public law?

“public law seems smoky and misty; not capable of being understood and therefore not of
great importance, especially if you want to get a high paying job in some big commercial
firm. Such a view is fundamentally mistaken. Public law is the mainspring from which all the
other law flows. Public law sets out the ground rules on which the whole of the society and the
whole of the legal system works. Public law is, from a practical point of view, extremely
important.”
Sir Geoffrey Palmer

 Constitutional Law + Administrative Law = Public Law

 The exercise and control of public power

 Individual v state

 A story of ever-changing power or a story of enduring values and practices?

2. What is a constitution?

‘a transient thing, changing like the colours of a kaleidoscope’

Sir Ivor Jennings

‘A constitution is about public power and how it is exercised’

Matthew Palmer

1.1 Features and functions

 Narrow v broad conception

 Written v unwritten

 What do constitutions do? What is their purpose?

 What are the features that all constitutions have?

1.2 Does New Zealand have a constitution?

“With an unwritten constitution there is a sense in which anything and everything is

potentially constitutional.” – Paul Rishworth
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  Does New Zealand have the features of a constitution even though it is “unwritten”?

 Assuming that New Zealand does have a constitution, what are its distinguishing
features?

1.3 The ‘political’ constitution

 “A political constitution is one in which those who exercised political power (let us say
the government) are held to constitutional account through political means, and
through political institutions (for example, Parliament).” Adam Tomkins

 “a law directing the killing of all blue-eyed babies would be valid. The fact that such
laws remain unenacted is thanks to “political constitutionalism” as opposed to “legal
constitutionalism”: it is political, not legal, factors — including, one hopes, legislators’
own sense of morality — that operate as the restraining force.” Mark Elliott,
“Parliamentary Sovereignty” (15 October 2014) Public Law for Everyone

 To what extent does NZ have a political constitution? Is it evolving towards a more

legal one?

3. Elements of New Zealand’s constitution

ESSENTIAL READING:

- Sir Kenneth Keith, “On the Constitution of New Zealand: An Introduction to the
Foundations of the Current Form of Government” in Cabinet Office Cabinet Manual
2017, pp.1-6
- He Whakaputanga Declaration of Independence 1834
- Instructions from The Secretary of State for War and Colonies, Lord Normanby to
Captain Hobson 14 August 1839
- Te Tiriti o Waitangi (Maori Text); The Treaty of Waitangi (English Text) and IH
Kawharu “Literal Translation of Mā ori text” and “A reconstruction of Mā ori text”
- Constitution Act 1986 – what rules/groups of rules does it include?
- New Zealand Bill of Rights Act 1990 (in particular ss 3-6 – you don’t need to
understand how they operate together at this stage but just note what they are
saying)

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3.1. Sources of constitution

 Can we identify sources of New Zealand’s constitution without a written constitution?

 Why is it important what the sources of the constitution are?

 Constitutional sources found in a variety of places, are often contested and range from
the formal to the informal.

Conventions

 What are constitutional conventions and how do we identify them? What are their
functions and purpose? When does a custom or practice become a convention? How are
conventions enforced?

 EXAMPLES:

o Governor-General to exercise powers on the advice of the elected minister.

o Individual and collective ministerial responsibility

 “… conventions, understandings, habits or practices which, though they may regulate the
conduct of … officials, are not in reality laws at all since they are not enforced by the
courts.” – Dicey, Law of the Constitution, 10th ed., 1959, p. 23

 “[Conventions] … provide the flesh which clothes the dry bones of the law; they make the
legal constitution work; they keep it in touch with the growth of ideas.” – Jennings, The
Law and the Constitution, 5th ed., 1959, p. 81

 “‘constitutional conventions’ are recognised customs, norms, or practices that are generally
understood to be important to government and worth following. They can be just as
important as constitutional ‘laws’ …. Conventions are not enforced by the courts as ‘law’
and they can change over time as general understandings of what is important change.
They are ‘enforced’ by the pressure of informed public. opinion, politics, and history. This
means that conventions have the advantage of being flexible and able to adapt to different
circumstances. But they can also be vulnerable to abuse.” – Geoffrey WR Palmer and
Matthew SR Palmer, Bridled Power (4th ed, Oxford University Press, Melbourne, 2004)
at 3

3.2 Constitutional moments

 EXAMPLES:
o He Whakaputanga Declaration of Independence 1834
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 o Instructions from The Secretary of State for War and Colonies, Lord Normanby to
Captain Hobson 14 August 1839
o Te Tiriti o Waitangi / The Treaty of Waitangi
o New Zealand Constitution Act 1852
o Constitution Act 1986
English
o Magna Carta 1215
o Petition of Right 1627
o Bill of Rights 1689
o Act of Settlement 1700

4. Constitutional principles

4.3 The rule of law

 What does the rule of law mean, who enforces it and how does it relate to other
sources of law?

 “The rule of law enforced by the courts is the ultimate controlling factor on which our
constitution is based” – Lord Hope in Jackson v Attorney-General [2005] 3 WLR 733
[107]

 “There is … no principle more basic to any proper system of law than the maintenance
of the rule of law itself.” Bennett v Horseferry Road Magistrates’ Court [1994] 1 AC 42
at 67

 “The phrase the “rule of law” has a power or force of its own. To criticise governmental
action as contrary to the rule of law immediately casts it in a bad light.” Paul Craig,
“Formal and Substantive Conceptions of the Rule of Law” [1997] PL 467

 “the rule of law, supported by the principle of judicial independence, is and should be a
cornerstone of New Zealand’s constitution. In terms of my formulation of the notion, it
is a key constitutional instrument by which the coercive powers of the state can be
contained. But I sound a word of warning to the legal establishment. I am not
confident that New Zealanders currently understand the rule of law or, in a crunch,
would necessarily stand by it as a fundamental constitutional norm.” Matthew SR
Palmer, “New Zealand Constitutional Culture” (2007) 22 NZULR 565 at 586

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  “The rule of law thus stands in the peculiar state of being the preeminent legitimating
political ideal in the world today, without agreement upon precisely what it means.”
Brian Z Tamanaha, On the Rule of Law (Cambridge University Press, Cambridge,
2004) at 91

 “the rule of law … is a principle routinely invoked by the leaders ofilliberal and
authoritarian regimes, who rely on it as meaning that people should obey thelaws
which the government makes, and be punished if they disobey.” Lord Bingham, “The
Rule of Law and the Sovereignty of Parliament?” (2008) 19 King's LJ 223, 225.

Functionalist approach

 “At its most basic, the rule of law expresses the ideal that it is the law itself that should
rule rather than those individuals who make, administer or interpret the law” –
Palmer & Knight, p.8.

 Dicey’s doctrine of the Rule of Law:

(1) Absence of Arbitrariness

(2) Equality before the Law

(3) Secured through the Common Law

What more is required beyond this functionalist approach?

A “formal” conception

 Law has certain minimal requirements.

eg: Joseph Raz:

o “the basic intuition” underlying the rule of law is that “the law must be
capable of guiding the behaviour of its subjects”.

o Identifies precepts that arise from this basic intuition:

“the law should be general, prospective, open and clear. (b) the law should be
relatively stable and not subject to frequent and unnecessary alterations. (c) open,
stable, clear and general rules should government executive law making. (This means,
for example, that delegated legislation should be enacted in the context of more
detailed ground rules that have been laid down in general laws). (d) the independence
of the judiciary must be guaranteed. (e) the application of the law should be in accord
with the rules of natural justice. (This includes the right to a fair hearing and the right

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 to have a decision made free from bias). (f) courts should have the power of review
over law-making and administrative action to ensure compliance with the rule of law.
(g) courts should be easily accessible. (h) discretion of the police, prosecuting
authorities and courts should not be allowed to pervert the law.”

o “The rule of law is essentially a negative value. The law inevitably creates a great
danger of arbitrary power—the rule of law is designed to minimize the danger created
by the law itself. Similarly, the law may be unstable, obscure, retrospective, etc., and
thus infringe people’s freedom and dignity . The rule of law is designed to prevent this
danger as well. Thus the rule of law is a negative virtue in two senses: conformity to it
does not cause good except through avoiding evil and the evil which is avoided is evil
which could only have been caused by the law itself.”

o “the rule of law is just one of the virtues which a legal system may possess and by
which it is to be judged. It is not to be confused with democracy, justice, equality
(before the law or otherwise), human rights of any kind or respect for persons or for
the dignity of man. A non-democratic legal system, based on the denial of human
rights, on extensive poverty, on racial segregation, sexual inequalities, and religious
persecution may, in principle, conform to the requirements of the rule of law better
than any of the legal systems of the more enlightened Western democracies. This does
not mean that it will be better than those Western democracies. It will be an
immeasurably worse legal system, but it will excel in one respect: in its conformity to
the rule of law. …”

Joseph Raz, “The Rule of Law and its Virtue” (1977) 93 LQR 195

A “substantive” conception

 Law also has a moral requirement eg: must not interfere with the rights of
individuals

eg: Ronald Dworkin; TRS Allan

o “The rule of law is an amalgam of standards, expectations, and aspirations: it encompasses

traditional ideas about the individual liberty and natural justice, and, more generally,
ideas about the requirements of justice and fairness in the 10 relations between the
government and the governed. Nor can substantive and procedural fairness be easily
distinguished: each is premised on respect for the dignity of the individual person …” – TRS
Allan

As explained by Paul Craig:

o “Formal conceptions of the rule of law address the manner in which the law was
promulgated (was it by a properly authorised person, in a properly authorised manner,

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 etc.); the clarity of the ensuing norm (was it sufficiently clear to guide an individual’s
conduct so as to enable a person to plan his or her life, etc.); and the temporal dimension of
the enacted norm, (was it prospective or retrospective, etc.). Formal conceptions of the
rule of law do not however seek to pass judgment upon the actual content of the law itself.
They are not concerned with whether the law was in that sense a good law or a bad law,
provided that the formal precepts of the rule of law were themselves met. Those who
espouse substantive conceptions of the rule of law seek to go beyond this. They accept that
the rule of law has the formal attributes mentioned above, but they wish to take the
doctrine further. Certain substantive rights are said to be based on, or derived from, the
rule of law. The concept is used as the foundation for these rights, which are then used to
distinguish between “good” laws, which comply with such rights, and “bad” laws which do
not.” Paul Craig, “Formal and Substantive Conceptions of the Rule of Law” [1997] PL 467
at 467.

4.1 Separation of powers

 Governmental power can be divided into three: legislative power (making law),
executive power (administrating law) and judicial power (interpreting law).

 “When the legislative and executive powers are united in the same person, or in the
same body of magistrates, there can be no liberty … Again, there is no liberty if the
power of judging is not separated from the legislative and executive. If it were joined
with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; for the judge would then be the legislator. If it were joined to the executive
power, the judge might behave with violence and oppression. There would be an end to
everything, if the same man, or the same body, whether of the nobles or the people,
were to exercise those three powers, that of enacting laws, that of executing public
affairs, and that of trying crimes or individual cases.” Montesquieu, De l’Espirit des
Lois (1748)

 Is there separation of powers within the NZ constitutional framework? Where might

there be overlap?

5. Case studies

 When we read these cases, we are not just looking for the facts and what the court
decided. We are looking for general principles or themes – what do these cases say
about our constitution and public law more broadly?

 Entick v Carrington (contrast with Liversidge v Anderson [1942] AC 206 and note
Lord Atkins influential dissent in Liversidge and the dangers in the courts being

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 “more executive minded than the executive” – you do not need to read Liversidge v
Anderson)

 Fitzgerald v Muldoon [1976] 2 NZLR 615 (it is essential that you read this case)

o “Fitzgerald v Muldoon is an occasion for dancing in the streets.” (Geoffrey Palmer,

“New Zealand and the Glorious Revolution” [1976] NZLJ 265 at 265)

o “it is a salutary thing that the great features of our Constitution – the supremacy of
Parliament and the limits upon executive power – should be brought to public
notice. That it can it occur without leaving blood on the carpet is in the best
traditions of 1688.” (Palmer)

 R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768
(Admin), [2016] WLR(D) 564

o “the powerful constitutional principle that the Crown has no power to alter the
law of the land by use of its prerogative powers is the product of an especially
strong constitutional tradition in the United Kingdom (and the democracies
which follow that tradition – see for example the New Zealand decision in
Fitzgerald v Muldoon [1976] 2 NZLR 615 at 622). It evolved through the long
struggle … to assert Parliamentary sovereignty and constrain the Crown's
prerogative powers. …

Questions for you to prepare for Fitzgerald v Muldoon case study:

i) Prepare a case brief noting:

 the court,
 the facts,
 the legal issues (there are several),
 the lawyers’ arguments on both sides (if they are mentioned),
 the decision on each issue and the reasoning in support of that decision
 the overall result.
Try to articulate what the case stands for (and the limits: what it doesn’t decide).
ii) What constitutional rule did the plaintiff rely on and from where does it derive?
Why is it still part of the law of New Zealand and ought it to be?
iii) Apart from s 1 Bill of Rights 1688, would the PM’s press statement have been
lawful? What other law was relevant?

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iv) Does this decision also reflect –
a) democracy?
b) the rule of law?
c) the separation of powers?
v) What remedy was granted and why did the judge grant it? Do you agree with this
remedy?
vi) Are there other circumstances, including recently, where the executive might want
to make law? What is the justification that is often provided?

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 II. The Legislature
This part of the course focuses on the legislature (also known as Parliament). The
objectives for these lectures are to:
 assess the meaning and strength of the principle of parliamentary sovereignty
in the NZ legal system
 assess the extent to which it has been challenged /eroded/reconceptualised
 assess the extent to which parliamentary sovereignty remains a basic norm
 introduce the concept of the principle of legality
 examine problems relating to legislative delegation of power, conflict
between statutes (or their application) and common law rights/principles
 develop your statutory interpretation skills and your case law reasoning

1. What is Parliament?

 How is Parliament constituted? What are its functions and processes?

- Legislative function

- Scrutiny function

 Legislative powers of Parliament and the Executive

 EXAMPLE: Health Act 1956, s 70(f) and (m).

→ Do these two paras authorise nation-wide orders
- to close all public places except for essential services?
- for everyone to stay at home in their bubbles except for
essential personal movement or to access or provide an essential
service;?
- prohibiting congregating in outdoor places for recreation of
any kind or description?

2. Delegated legislation

 Parliament regularly delegates rule-making powers to the executive to act without

Parliament.
 Delegated legislation is also known as secondary legislation, subordinate
legislations, Orders etc
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  Why might this power to make these secondary rules be a good thing?
 How is this power lawful and what are the controls on such powers?

Parliamentary controls on delegated powers

 Standing Orders of the House of Representatives 326-333

 Legislation Act 2019 Part 5 ss 113 ff
 Regulations Review Committee
https://www.parliament.nz/en/pb/sc/scl/regulations-review/
 “Henry VIII clauses”: Canterbury Earthquake Recovery Act 2011 s 71 (see also
Tutorial 4), Covid 19 Public Health Response Act 2020 s 13(1)

Judicial controls on delegated powers

 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA)

 Liversidge v Anderson [1942] AC 207 (for example only)

3. The principle of ‘parliamentary sovereignty’

3.1 History

 The “absolute” sovereignty of Kings

 Dr Bonham’s case 1610, 8 Co Rep 113
 Bill of Rights 1688

3.2 The Diceyan conception

 “Dicey produced in me a state of intellectual revulsion and he still does.” Geoffrey

Palmer, “The New Public Law: Its Province and Function” (1992) 22 VUWLR 1 at 6

 Nineteenth century formulations of the doctrine of Parliamentary sovereignty: A V

Dicey, An Introduction to the Study of the Law of the Constitution 1885 (republished
until 1987)

(but recall Dicey’s

“the right totwin
makepillar of the “Rule
or unmake any of Law”)
law whatever, and further, that no
person or body is recognized by the law of England as having a right to
override or set aside the legislation of Parliament”

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 Three limbs:

o “Positive” Limb
(Parliament can make or unmake any law)

o “Negative” Limb
(No body can question an Act of Parliament)

o Theory of Continuing Sovereignty

(No Parliament can bind or be bound by another Parliament)

 Judicial support:

o FIRST LIMB

“For us, an Act of Parliament duly passed by Lords and Commons and
assented to by the King, is supreme, and we are bound to give effect to its
terms.” (Mortensen v Peters (1906) 14 SLT 227 at 230.)

“what the statute itself enacts cannot be unlawful, because what the statute
says and provides is itself the law, and the highest form of law that is known
in this country. It is the law that prevails over every other form of law”
(Cheney v Conn [1968] 1 All ER 779).

o SECOND LIMB

“All that a Court of Justice can do is look to the Parliamentary Roll: if from
that it should appear that a Bill has passed both Houses and received the
Royal assent, no court of Justice can inquire into the mode in which it was
introduced into Parliament . . .” (Edinburgh & Dalkeith Rly Co v Wauchope
(1842) 8 Cl & Fin 710, at 725.)

When an enactment is passed there is finality unless and until it is amended

or repealed by Parliament. In the courts there may be argument as to the
correct interpretation of the enactment: there must be none as to whether it
should be on the Statute Book at all” (British Railway Board v Pickin (1974))

Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 at [94]-[95]

Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84; [2019] 1

NZLR 116 [114]: “Parliament speaks to the courts only through enacted
legislation.”

Morgan v R [2022] NZCA 112

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  THIRD LIMB – Theory of Continuing Sovereignty

o Parliament is created anew every time it meets

o Each Parliament enjoys the same legislative power

o No Parliament can bind future Parliaments

 Where did the doctrine come from!?

- Statute?
- The Courts?
- ?
 But see judicial challenges….

o Jackson v Attorney-General [2005] 3 WLR 733

Lord Hope: “The rule of law enforced by the courts is the ultimate controlling
factor on which our constitution is based.” [at 107]

Lord Steyn: “The classic account given by Dicey of the doctrine of the supremacy
of Parliament, pure and absolute as it was, can now be seen to be out of place in
the modern United Kingdom. Nevertheless, the supremacy of Parliament is till
the general principle of our constitution. It is a construct of the common law. The
judges created this principle. If that is so, it is not unthinkable that
circumstances could arise where the courts may have to qualify a principle
established on a different hypothesis of constitutionalism. In exceptional
circumstances involving an attempt to abolish judicial review or the ordinary
role of the courts, the Appellate Committee of the House of Lords or a new
Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a
complaisant House of Commons cannot abolish.” [at 102]

3.3 The normative rationale

 What are the values that unpin Parliamentary sovereignty?

o Procedure and deliberation
o Democratic mandate
 “If we are committed to a democratic form of government, then one of
the fundamental norms of government must be the supremacy of the
body elected by the people as its representative.” – Michael Cullen,

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 Deputy Prime Minister (available at
https://www.beehive.govt.nz/speech/parliament-supremacy-over-
fundamental-norms )
 Is Parliamentary sovereignty a good basic principle of our constitutional system?

3.4 Only Parliament can make or unmake the law (Dicey’s first limb)

 Fitzgerald v Muldoon [1976] 2 NZLR 615

 Borrowdale v D-G of Health [2020] NZHC 2090

- Paras [140] – [226] about the first 9 days of the first March 2020 lockdown
(especially [227]-[240])
- What was the statute which the plaintiff alleged that the Prime Minister had
allegedly suspended?
- Can you identify which of the Prime Minister’s statements were potentially
problematic?
- In what ways does this case share similarities with Fitzgerald v Muldoon, and
Entick v Carrington?
- The High Court distinguished Fitzgerald v Muldoon. What was their
reasoning?
- Did the government effectively suspend the law during the first nine days of
the lockdown?
3.5 No body can question an Act of Parliament / Parliamentary processes (Dicey’s second
limb)

 Can a court generally inquire into whether Parliament has followed its
own procedures, been misled or made a mistake?
o British Railways v Pickin [1974] AC 765 (HL) (See cases cover later in class
also – Thomas J in R v Poumako [2000] 2 NZLR 695, 713, Thomas J and Elias
CJ in R v Pora [2001] 2 NZLR 37
o Te Rununga o Wharekauri Rekohu Inc v Attorney-General (Sealords) [1993] 2
NZLR 301 (CA)
o Ngati Whatua Orakei v Attorney-General [2018] NZSC 84

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  Can a court inquire into whether the Attorney-General should have provided a s7
Report that a bill was inconsistent with a right protected under the NZ Bill of Rights
Act 1990.
o Boscawen v Attorney-General [2009] 2 NZLR 229
- Section 7 of the NZ Bill of Rights Act 1990 (BORA) requires the Attorney-
General (A-G)10 to report to Parliament if s/he considers a Bill to be
inconsistent with BORA.

(1) What did the Electoral Finance Act 2007 provide and why was
this said to be inconsistent with BORA? See brief details at [9]–
[10]

(2) Our main interest is in claim (b) set out at [4], which raises
issue (a) at [7]: Can a court rule on whether the A-G has
breached the s 7 duty?

i. Which way did the Court of Appeal decide?

ii. What difficulties did the Court see in such a challenge?

iii. Can you think of possible arguments in favour of

allowing such challenges?

(3) What was Mr Boscawen’s other claim, and what remedy did he
seek? How would that be unusual?

 Timaru District Council v The Minister of Local Government [2023] NZHC [244]
3.6 No Parliament can be bound by another – the doctrine of implied repeal (Dicey’s third
limb)

 The doctrine of implied repeal arises where there is a conflict between two Acts of
Parliament.
 Traditional doctrine of implied repeal: if both statutes cannot be given effect, the
later statute implied amends or repeals the earlier one.
 But what if one of those statutes protects common law rights or matters of
fundamental principle or constitutional structure?
 What if the earlier statute says that it cannot be repealed by the later one?

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 o Vauxhall Estates Ltd v Liverpool Corp at 733, 742-743 and 745-746

o Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 at 593, 595 and
597

These cases involve a conflict between:

- 1919 Act regarding any compulsory acquisition:
compensation = market value (full compensation)
- 1925 Act regarding slum clearance:
compensation = land value (limited compensation)

Which Act prevailed and why?

How does this relate to parliamentary sovereignty?

What if it had been the other way around, ie:

- 1919 Act regarding slum clearance:
compensation = land value (limited compensation)
- 1925 Act regarding any compulsory acquisition:
compensation = market value (full compensation)

4. Procedural entrenchment – ‘manner and form’ restrictions

‘Legal sovereignty’ is merely a name indicating that the legislature has for the time being
power to make laws of any kind in the manner required by law . . . If this is so, the ‘legal
sovereign’ may impose legal limitations upon itself, because its power to change the law
includes the power to change the law affecting itself.”
Jennings, The Law and the Constitution (5th ed, 1959) p. 152

(Another writer, Heuston, developed these ideas and raised what is termed the ‘manner
and form’ argument)

 Is it really true that Parliament can never bind its successors? What if Parliament
wanted to restrict the law-making power of future Parliaments? What if New
Zealand wanted to adopted an entrenched constitution or entrench certain aspects
of the constitution (or even just basic policy)?

4.2 What are ‘manner and form’ restrictions?

 ‘manner and form’ provisions prevent certain legislative provisions from change by
ordinary Parliamentary means. They do not bar amendment or repeal of specific
provisions completely, but they typically require some more onerous enacting

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 procedure before particular provisions can be changed, eg: special majority;
referendum.

 Examples:

o Electoral Act 1993, s 268

o New Zealand Parliamentary Standing Orders, rule 270 (entrenched

provisions)

o ‘magic word’ formula, eg: Canadian Bill of Rights 1960, s 2

o requirement that inconsistency with NZBORA should be reported to

Parliament.

 What does this mean for Dicey’s third limb?

 Self-embracing (Jennings) v Continuing (Dicey) theories of parliamentary

sovereignty.

4.3 Are ‘manner and form’ restrictions enforceable?

 Will a court uphold a “manner and form” provision requiring a special procedure for
the amendment or repeal of an earlier statute? Could a later statute that was passed
without the prescribed procedure be treated as invalid law?

 Bribery Commissioner v Ranasinghe [1965] AC 172 (PC) (Ceylon).

 Harris v Donges [1952] 1 TLR 1245 (SC) [South Africa]

 A Bill of Rights for New Zealand White Paper at 56-57

 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40, at 40-41 & 61-63 and [91]-
[95]

 Attorney-General v Ngaronoa [2018] NZSC 104 [1]-[22], [35]-[70], [76] & [121]-
[138].

4.4 Is entrenchment ever desirable?

 Why might entrenchment be problematic? Are there ever circumstances in which

entrenchment might be desirable?

 Nick Barber, ‘Why Entrench?” (2016) 14(2) International Journal of Constitutional

Law 325:
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 o ‘entrenchment has proved a polarizing topic: scholars tend to either regard it as a
boon or a vice. Entrenchment has been praised as a device that lends certainty and
stability to law, and has been commended as the hallmark of constitutionalism. On the
other hand, others have warned that entrenchment runs contrary to democratic
values, making it hard for legislatures to modernize the law, and can cause friction
between constitutional institutions … entrenchment rules are at their most attractive
when there is a connection between the reason for entrenchment, the manner of
entrenchment adopted, and the area of law entrenched.’

 For a recent controversy see Andrew Geddis, ‘What happens when MPs ‘entrench’
legislation, and why does it matter?’ The Spinoff (27 November 2022):
https://thespinoff.co.nz/politics/27-11-2022/what-happens-when-mps-entrench-
legislation-and-why-does-it-matter

5. The principle of legality – can common law rights limit on

parliamentary sovereignty?

 What happens when a broad or ambiguous statute (which typically confers

discretionary decision-making power as opposed to rule-making power) conflicts
with a common law right or constitutional fundamental principle?

 The common law principle of legality requires that any limitations on fundamental
rights be clearly expressed.

 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at
115-131 (note that this was prior to the UK Human Rights Act 1998, which is similar
to NZBORA).

- What policy is challenged?

- What are the terms of the authorising provisions in the rules
(delegated legislation) and in the Act?
- What rights are said to have been breached by the policy, and how are those
rights breached?
- What is the source of the rights, and how does the court go about establishing
their existence?
- Was the limit on the rights justified or excessive here? Why?
- On its face, do the terms of the statutory power and of the rules authorise the
challenged policy?

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 - May the courts imply limits on the apparent broad scope of powers granted by
statute or delegated legislation, in order to protect rights? If so, when is that
permissible: what is the test?
- How are any such implied limits reconciled with PS?
- How does Lord Hoffmann explain the reason for the ‘principle of legality’? What
does it achieve according to him?
- What does Lord Hoffman mean when he said “Parliament must squarely
confront what it is doing and accept the political cost.”?

 With the prospect of greater rule by executive regulation in the Brexit transition, the
UK Supreme Court has further strengthened the principle in R (on the application of
Unison) v Lord Chancellor [2017] UKSC 51 at [1]-[3], [5], [16]-[26], [31]-[32] and
[65]-[102]
- What provision in delegated legislation is challenged here?
- What right is said to have been breached by this provisin, and how?
- What is the source of the right, and how does the court go about establishing its
existence?
- Was the limit on the right justified or excessive here? Why?
- What are the terms of the empowering statute?
- On its face, do the terms of the statutory power authorise the challenged
provision?
- May the courts imply limits on the apparent broad scope of powers granted by
statute, in order to protect rights? If so, when is that permissible: what is the
test?
- How much does this case extend the principle as earlier stated? Have they gone
too far?

New Zealand

 Some early examples from (even though the courts do not refer explicitly to the
principle, that is what this is)
o Choudry v Attorney-General [1999] 2 NZLR 582
o Cropp v Judicial Committee [2008] 3 NZLR 774 “the courts will presume that
general words in legislation were intended to be subject to the basic rights
of the individual.”(doesn’t refer to principle of legality but that is what this
is)
 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (Cooke J at 395-400 (up to

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line 22), 402 (up to line 38) and under the heading "Applying the principles" at 404-

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 406) ("Some common law rights presumably lie so deep that even Parliament could
nor override them.”)

- What provision in delegated legislation is challenged here?

- What right is said to have been breached by that, and how?
- What is the source of the right, and how does the court go about establishing its
existence?
- What are the terms of the statutory power?
- Does the Court accept that provisions limiting the right should be interpreted
narrowly? Is the principle applied here similar to the principle of legality in
Simms?
- Does the Court here adopt a narrow interpretation? Why (not)?

 Choudry v Attorney-General [1999] 2 NZLR 582 at 582-589 and 591-593

- What was challenged here?
- What are the terms of the statutory power?
- What is the Court’s reason for interpreting this narrowly? Is it to do with rights?
Is the principle applied here similar to the principle of legality in Simms?
- Is Choudry similar to Entick v Carrington, which we looked at in the introduction?
Is there any significant difference?

 How does all this fit with Parliamentary Sovereignty:

o “It is unsurprising, therefore, that courts do not seek out conflict with Parliament,
preferring instead to confer a degree of protection on fundamental constitutional
values by interpreting legislation … consistently with them, rather than refusing to
apply it on the ground that it infringes such values. This sort of interpretative
approach, of course, must have its limits: if legislation is sufficiently explicit, then there
is little, if any, room for interpretative manoeuvre. However, just as courts are not
eager to provoke a constitutional crisis, so Parliament is not anxious to do so. As a
result, both sides, for the most part, exercise a degree of self-restraint born of healthy
concern as to how the other might react in the event of an excessive use of legislative
or judicial power. It is this sort of constructive institutional tension — together with
the restraining effect of democratic politics — that forms the context in which the
practical significance of parliamentary sovereignty falls to be understood. It follows
that even if we accept the Diceyan orthodoxy that Parliament possesses unlimited
legislative power, this does not mean that Parliament is in a position to exercise the
full width of that authority.” (Mark Elliott, "Parliamentary Sovereignty" (15 October
2014) Public Law for Everyone).

 Do we still need the principle of legality given we now have NZBORA?

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 o D v New Zealand Police [2021] NZSC 2; (2021) 1 NZLR 213 [75]-76]: “even without
considering the Bill of Rights, if it is intended the legislation will impose a greater
penalty than that applicable at the time the offence was committed, the legislation
needs to be clear to achieve that result.”

o Fitzgerald v R [2021] NZSC 131 at [51]: “There has been some debate as to the
relationship between s 6 and the principle of legality. The latter is a common law
principle of statutory interpretation which exists independently of the Bill of Rights,
to protect and uphold certain rights and values that the common law has identified
as fundamental or as having a constitutional nature. Although it operates to protect
the rights and freedoms affirmed in the Bill of Rights, it is not displaced or confined
by the Bill of Rights. As a common law principle it continues to develop…”

o Four Midwives v Minister for COVID-19 Response [2022] 2 NZLR 65 at [62]-63]:

“application of the principle of legality does not depend on the generality or
ambiguity of the legislative text. The principle is always speaking. It is now clear that
the principle of legality applies in New Zealand common law. We have been
influenced by the United Kingdom in adopting it. It is a free-standing principle of the
common law, independent of the interpretive direction of s 6 of the Bill of Rights.
But its application will usually overlap with the application of s 6. So far, in New
Zealand, the principle of legality has played a largely supporting role to s 6. The
judicial observations in Fitzgerald suggest the reverse is more likely to be the case.”

 And what about international treaties?

o TUV v Chief of New Zealand Defence Force [2022] NZSC 69; [2022] 1 NZLR 78 [92]:
“because these provisions directly affect the rights and interests of persons with
disabilities, they fall to be interpreted against the backdrop of New Zealand’s obligations
under the United Nations Convention on the Rights of Persons with Disabilities. It is well
established that legislation should be read, so far as possible, consistently with New
Zealand’s international obligations.”

6. The modern human rights era - constitutional statutes?

 What if the earlier statute does not include a manner and form provision (is not
entrenched) but has as its substance matters fundamental to the Constitution (eg
the Constitution Act 1986, Treaty of Waitangi Act 1985) or protects fundamental
rights including those also recognised by the common law principle of legality (eg
NZ Bill of Rights Act 1990)? Is there a category of “constitutional statutes” which
cannot be impliedly repealed, and requires more by way of explicit or unambiguous
language before it can be amended or repealed?

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  Is this simply another application of the principle of legality or does it potentially go
further to erode the traditional view of Parliamentary sovereignty?

 What does it mean for an “unwritten” constitution?

 Is this close to being the judicial imposition of a magic word formula ie only allowing
amendments to the NZ Bill of Rights Act 1990 if the 1990 Act is explicitly referred
to?

 What does this mean for implied repeal?

 “some distinguished academic authors, and also some judges in extra-judicial utterances and
obiter observations, have suggested that Parliament is not, or is no longer, supreme and that
in some circumstances the judges might, without the authority of Parliament, hold a statute to
be invalid and of no effect because contrary to a higher, fundamental, law or to the rule of law
itself. If this is the correct view, the rule of law and parliamentary sovereignty are not, as one
might have hoped, a happily married couple but are actual or potential antagonists.” Lord
Bingham “The Rule of Law and the Sovereignty of Parliament?” (2008) 19 King's LJ 223,
225.

6.2 The general principle

 Thoburn v Sunderland City Council [2003] QB (UK) (you do not need to understand
the detail of EU law and how it applies or applied in the UK – focus instead on what
Laws LJ identifies as the characteristics of constitutional statutes.). Focus in
particular on [60]-[64].

o This reasoning has not yet been fully adopted or approved by UKSC but
received a degree of approval in Miller (No 1) v A-G [2017] UKSC 5 who
agreed that the European Communities Act 1972 had a constitutional
character.

o Is this simply another application of the principle of legality or does it

potentially go further to erode the traditional view of Parliamentary
sovereignty?

 R v Pora [2001] 2 NZLR 37 at [119]-[121] per Thomas J

 Fitzgerald v R [2021] NZSC 131, per Arnold and O’Regan JJ at [221] and [224]

6.3 The New Zealand approach

 Note the different way the NZ judges go about establishing what makes a statute
constitutional in contrast to Laws LJ in Thorburn. What are the implications of the

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 different approaches of the judges for the efficacy of human rights protections? How
do the judges differ in the way they view Parliament?

o R v Poumako [2000] 2 NZLR 695 (CA) (in particular [27]-[43]; [58]-[64];

[70]-[78]

 Recall the principle of the ‘rule of law’ from our Introduction lectures. Why is
retrospective legislation unjust or objectionable? Are there some circumstances
were it is not objectionable? What laws guarantee the presumption against
retrospectivity? In what circumstances must the courts nevertheless apply
retrospective legislation? How did the judges in Poumako mediate these tensions.

o R v Pora [2001] 2 NZLR 37 (CA) (in particular [22]-[40], [44], [49]-[60], [89]-
91], [100]-[117])

(note that Poumako and Pora are the subject of tutorial three)

 D v Police [2021] NZSC 2 is a more recent case involving retrospective penalties in

which the Majority found that the later legislation was not clear enough
retrospectively to impose a power to place a person on a Child Sex Offender’s
Register who had committed an offence before the statute came into force but had
not been convicted or sentenced until after the statute came into force. The Majority
explicitly invoked the principle of legality (Winkelmann CJ and O’Regan J with whom
Ellen France J agreed [75-76]). Note Glazebrook J’s dissent.

o Note: the legislation was rapidly amended to clarify that Parliament did
indeed mean to impose a retrospective penalty (placing someone on a Child
Sex Offender Register) a month after the Supreme Court’s judgment. (You are
not required to read D v Police)

6.4 Te Tiriti/Treaty of Waitangi as a constitutional document?

 “If we are prepared to entertain the possibility that Parliament is not truly sovereign
in protection of something deeper and constitutional, then perhaps we could
consider that the very document [Te Tiriti] that plants the seeds of parliamentary
supremacy might also temper its powers.” Ruru, J., & Kohu-Morris, J. (2020).
‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty
of Waitangi in Aotearoa New Zealand. Federal Law Review, 48(4), 556–569.
 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021]
NZSC 127: “If Parliament intends to limit or remove the [Treaty of Waitangi’s] effect

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 in or on an Act, this will need to be made quite clear” at [296] see also [8], [150-
151].
6.5 The push back: - recent proposals in the UK

 Ekins & Laws, “How to legislate about small boats”

https://policyexchange.org.uk/publication/how-to-legislate-about-small-boats/

o Summarised here:
https://www.theguardian.com/world/2023/feb/11/children-fleeing-
danger-in-small-boats-should-be-deported-says-tory-thinktank

o “But this new regime for speedy removal from the UK will not work if each and
every step in its implementation is challenged in the courts. As the report makes
clear, new legislation needs to specify very limited grounds on which removal might
be questioned, narrowly confining the role of the courts in order to avoid derailing
the policy. Relatedly, the legislation must disapply the Human Rights Act 1998 and
must require removals to go ahead, regardless of what the European Court of
Human Rights may say. How to change the law is a question for Parliament and it
would be madness to make implementation of new legislation wait on the goodwill
of human rights lawyers.” (p.5)

o “Legislating to enable the swift removal of persons arriving in the UK on small boats
requires that Parliament makes careful provision to minimise the extent to which
removal may be obstructed or unduly or indefinitely delayed by litigation. If each
removal is capable of being challenged, the policy will fail, even if the Home
Secretary ultimately prevails in every case. It is necessary for the legislation to
anticipate the likely grounds of litigation and to disarm them and the remedies to
which litigation may give rise: to pre-empt all the ways in which litigation might be
used unreasonably to delay or frustrate the implementation of the policy.” (p.15)

o “new legislation is required, to mandate removal and to avoid the policy being
sabotaged by judicial intervention …” (p.20)

o “new legislation should disapply the Human Rights Act and in that way should not
be exposed to human rights litigation in the domestic courts, litigation that may
either delay removals or may distort the legislation and frustrate its intended
operation. The lawfulness of the Government’s policy should be settled
authoritatively by a new Act of Parliament that mandates removal.” (p.21)

 Re Allister [2023] UKSC 5 [66]:

‘The debate as to whether [the statutes] are statutes of a constitutional character … and as to
the correct interpretative approach when considering such statutes or any fundamental rights,
is academic. Even if it is engaged in this case, the interpretative presumption that Parliament
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 does not intend to violate fundamental rights cannot override the clearly expressed will of
Parliament. Furthermore, the suspension, subjugation, or modification of rights contained in
an earlier statute may be effected by express words in a later statute. The most fundamental
rule of UK constitutional law is that Parliament, or more precisely the Crown in Parliament, is
sovereign and that legislation enacted by Parliament is supreme.’

What does all this mean for Parliamentary sovereignty? Is it the constitution
that is sovereign such that we have Constitutional sovereignty?

~ ~THE END ~ ~

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