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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
A Teleological Approach to the Collaborative Enterprise of Government
George William Peart Sabonadière
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws with Honours at the University of Otago – Te Whare Wānanga o Ōtākou
October 2023
Acknowledgements
To Professor Andrew Geddis, for your support, guidance and pragmatic advice, and for letting me keep the train story.
To Associate Professor Edward Willis, for your helpful pointers at the outset and useful questions at my seminar.
To Mihiata Pirini, for helping me believe in myself and my ideas.
To Associate Professor Anna High, for your kindness and understanding, and for taking my mind off the constitution from time to time.
To Archie, Bella, Shani and Merlin for all the coffees, yarns and advice, and for handling the existential crises.
An Cirão, für deine Ideen, Einsichten, und anhaltende Freundschaft trotz der Jahre und der Entfernung.
To Kelly, for riding all the highs and lows and always believing in me. To Zozo, Lil and Boobah, for making me who I am—for better or worse.
And, finally, to Mum and Dad, for being fantastic parents and even better flatmates.
“In all chaos there is a cosmos, in all disorder a secret order.” Carl Jung
Introduction
Parliamentary sovereignty has traditionally been considered the fundamental premise of New Zealand’s constitution. It is reaffirmed in s 15(1) of the Constitution Act 1986, which reads: “The Parliament of New Zealand continues to have full power to make laws.”1 It traces its roots to the Glorious Revolution, and finds expression in the writings of Dicey and his adherents.2 It is not, however, a diktat from the divine; it is a political claim which rests on a consensus between the institutions of government and, ultimately, on the acceptance of the population at large. As former Chief Justice Sian Elias said, it would be wrong to assume that such deference and acceptance is limitless.3
What the limits might be, and when, if ever, the courts might be justified in attempting to enforce them, is a topic of perennial interest—so much so that a dissertation on the topic is at risk of being clichéd. But Lord Cooke’s warning in his seminal paper “Fundamentals” should be taken seriously:4
... to dismiss [the question] as purely theoretical, a mere intellectual puzzle, could be a profound mistake. If all goes well in a given society, it will not seriously arise. But all does not go well.
This dissertation carries on the conversation by identifying a guiding purpose—the maintenance of stability in accordance with constitutional tradition—as the animating feature of the common enterprise uniting Parliament and the courts. Additionally, it explores the idea of revolution—starting from the claim that any judicial attempt to undermine parliamentary sovereignty would be “revolutionary”—as a useful conceptual tool to understand the relationship between Parliament and the courts. Although normative themes inevitably come through, the goal is a relatively practical account. As Archibald MacLeish wrote: “It is not in the world of ideas that life is lived. Life is lived for better or worse in life.”5
1 Constitution Act 1986, s 15(1).
2 See generally AV Dicey Introduction to the study of the law of the Constitution (10th ed, Macmillan, London, 1959).
3 Sian Elias “Mapping the Constitutional” [2014] NZ L Rev 1 at 14–15.
4 Robin Cooke “Fundamentals” [1988] NZLJ 158 at 159.
5 Archibald MacLeish “Return from the Excursion” in Riders on Earth (Houghton Mifflin, 1978).
Chapter I details the constitutional conversation prompted by Cooke’s “Fundamentals” and identifies two useful theories which have emerged from it. Chapter II introduces the concept of revolution properly, providing a definition and explaining why it is a useful tool to understand the relationship between Parliament and the courts. Chapter III investigates the historical and empirical foundations of the claim that parliamentary sovereignty is the fundamental rule of recognition in New Zealand. Chapter IV proposes a teleological theory of the constitution based on the idea that the maintenance of stability in accordance with constitutional tradition is the guiding purpose of our constitution. Finally, Chapter V explores the implications of this theory in practical terms.
I “Fundamentals” and the Constitutional Conversation
This Chapter introduces Lord Cooke’s influential views on fundamental constitutional principles and the judicial role, and works through to the current parameters of constitutional debate in New Zealand. The discussion assumes a general understanding of the orthodox position regarding parliamentary sovereignty and the judicial role vis-à-vis Parliament. For completeness, AV Dicey famously expounded that position as follows:6
The principle of Parliamentary sovereignty means neither more nor less than this, namely that [the King-in-Parliament] has ... the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law ... as having a right to override or set aside the legislation of Parliament.
The New Zealand courts have traditionally been deferential toward this Diceyan view.7 The story does not, however, end there.
6 Dicey, above n 2.
7 See for example Rothmans of Pall Mall (NZ) Ltd v Attorney-General [1990] NZHC 632; [1991] 2 NZLR 323 (CA) at 330 per Robertson J; and Berkett v Tauranga District Court [1992] 3 NZLR 206 (HC) at 211.
A Starting from Fundamentals
The political turbulence of the 1970s–80s “awoke New Zealand from its complacency” and “engendered a groundswell for constitutional change”.8 A wave of constitutional reforms followed.9 Against this backdrop, Cooke¾a judge of the Court of Appeal from 1976 and its President from 1986–1996¾began to openly contemplate the notion of judicially enforceable limits on Parliament’s legislative power.10 In a series of dicta, starting with L v M in 1979 and finishing with Taylor v New Zealand Poultry Board in 1984,11 Cooke repeatedly questioned the extent of parliamentary sovereignty, staking out the ground on which he would ultimately build his thesis in an extra-judicial paper titled “Fundamentals”.12
Cooke’s thesis in “Fundamentals” was that the sovereignty of Parliament is not the most fundamental rule of New Zealand’s constitution. Strengthening his earlier ‘presumption’ in Taylor, Cooke argued that Parliament’s power is indeed limited by fundamental constitutional principles.13 The principles Cooke floated as fundamental are the operation of a democratic Parliament and independent courts (and possibly “the existence and functioning of the Crown”14), and basic respect for rights.15 Both are rooted in Cooke’s proposition that our legal system “should be seen to have a free and democratic society as its basic tenet”.16
8 Philip Joseph Joseph on Constitutional and Administrative Law (online ed, Thomson Reuters) at [1.2].
9 See for example Official Information Act 1982; Constitution Act; State Sector Act 1988; Public Finance Act 1989; New Zealand Bill of Rights Act 1990; and Electoral Act 1993.
10 See Michael D Kirby “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” (1998) 24 CLB 496 at 498–500 for a more detailed traversal of these dicta.
11 L v M [1979] NZCA 59; [1979] 2 NZLR 519 (CA) at 527; and Taylor v New Zealand Poutry Board [1984] 1 NZLR 394 (CA) at
398. See also the dicta in the intervening cases of Brader v Ministry of Transport [1981] 1 NZLR 73 (CA) at 78; New Zealand Drivers’ Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA) at 390; and Fraser v State Services Commission [1984] 1 NZLR 116 (CA) at 121.
12 Cooke, above n 4.
13 At 164–165.
14 At 164; and see Robin Cooke “The Suggested Revolution Against the Crown” in Philip A Joseph (ed) Essays on the Constitution (Brookers Ltd, Wellington, 1995) 28.
15 At 164.
16 Cooke, above n 4, at 164.
“Fundamentals” made a legal—rather than merely moral or political—claim; Cooke made clear that these deep-lying principles were in his view justiciable, arguing that if they were significantly breached by Parliament:17
... it would be the responsibility of the Judges to say so and, if their judgments to that effect were disregarded, to resign or to acknowledge frankly that they are prepared to depart from their judicial oath and to serve a state not entitled to be called a free democracy.
The suggestion that a judge might resign in protest rather than apply an unjust law is hardly earth-shattering.18 But Cooke went further than that, calling on judges to enforce limits on parliamentary power. This is the component of Cooke’s thesis which attracts the charge of inciting revolution.
This set of ideas is referred to as “Cooke’s thesis” throughout, but Cooke has been far from the sole exponent of this point of view. Former Chief Justice of Canada Beverly McLachlin and Professor Trevor Allan have expressed similar ideas.19 Prominent English judges such as John Laws and Lord Woolf have joined the chorus.20 In New Zealand, Cooke’s torch was carried to varying extents by Chief Justice Elias, Justice Ted Thomas and Professor Philip Joseph.21
While judges typically comment on this only in an extrajudicial capacity, the topic emerges occasionally in judicial decisions. For instance, dicta in the Fox Hunting Case purported to toll the end of parliamentary sovereignty as an absolute and ultimate rule of recognition in the
17 At 164 (emphasis added).
18 See Tom Campbell “Judicial Activism – Justice or Treason?” (2003) 10 OLR 307 at 326; AM Gleeson “Judicial Legitimacy” (2000) 12(6) JOB 41; and Jeffrey Goldsworthy The Sovereignty of Parliament: History and Philosophy (Oxford University Press, 2001) at 267.
19 Beverly McLachlin “What is Going On?” (2006) 4 NZJPIL 148 at 159–160.
20 John Laws “Law and Democracy” [1995] PL 72; and Lord Woolf “Droit Public – English Style” 7 ERPL 267. 21 See for example Sian Elias “Sovereignty in the 21st Century: Another Spin on the Merry-go-round” (2003) 14 PLR 148; Edmund Thomas “The Relationship of Parliament and the Courts: A Tentative Thought or Two for the New Millennium” (2000) 31 VUWLR 1; and Philip Joseph “Parliament, the Courts and the Collaborative Enterprise” [2004] 15 KCLJ 321, inter alia.
United Kingdom;22 and similar sentiments were recently endorsed—albeit in more muted terms—in the UK Supreme Court’s Privacy International decision.23 In the New Zealand Court of Appeal’s judgment in the Taylor Declaration Case, Wild and Miller JJ said:24
To say that government is a collaborative enterprise is to recognise, as even Dicey did, that Parliament does not exercise arbitrary power. It experiences constraints of various kinds. Those that concern us are legal in nature.
It would be wrong to dismiss these contributors as constitutionally illiterate. Cooke’s thesis has stirred an important and nuanced debate which continues to deserve careful attention.
B Critiques and the Charge of Revolution
Cooke’s thesis and others like it have not, however, been without their critics. Justice Michael Kirby, then of the High Court of Australia, branded Cooke’s ideas “heresy”.25 This is not an uncommon sentiment. Those committed to the orthodox view and the democratic credentials it claims are suspect of suggestions that judges have any power to subvert what they see as the settled rule of recognition.26 New Zealand’s then-Deputy Prime Minister Michael Cullen exemplified this attitude in his response to a speech delivered by then-Chief Justice Elias in
22 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262 [Fox Hunting Case] at [102] per Lord Steyn, [104] and [107] per Lord Hope, and [159] per Baroness Hale.
23 R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22,
[2019] UKSC 22; [2019] 2 WLR 1219 at [132]–[134] and [144] per Lord Carnwath.
24 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 [Taylor Declaration Case] at [53], and see
at [46]–[51]; but see Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213 at [66] per Ellen France
J. Note the Court of Appeal did not specify the nature or outer limits of those constraints, so this is far from a full-throated endorsement of Cooke’s thesis.
25 Kirby, above n 10, at 512.
26 See generally HLA Hart The Concept of Law (Clarendon Press, Oxford, 1994) at 110–116.
2003, in which her Honour called into question the doctrine of parliamentary sovereignty.27 Cullen published an article expressing his “concern” about Elias’s “unsettling” comments:28
For the Courts to now “find” that a higher law exists which modifies the constitutional status of the New Zealand Parliament would amount to constitutional change by stealth. ... If it is to occur, constitutional change should be subject to the democratic process – as it has been in the past – and not through decisions of appointed Judges.
This concern about unelected judges usurping constitutional power from elected politicians represents the principal objection to Cooke’s thesis and the aggrandisement of judicial power more broadly.29 Tom Campbell has gone so far as to say that undermining parliamentary sovereignty from the bench “can be so wrong as to be treasonable, because it is a breach of trust and an abuse of judicial power that undermines the foundations of constitutional democracy.”30 Richard Ekins, whose work is discussed below, has been similarly outspoken on this subject.31
Three common threads run through many critiques of the ideas underpinning Cooke’s thesis. First, that parliamentary sovereignty is the clear rule of recognition in the Hartian sense, due to both constitutional history and current consensus.32 Secondly, that promoting the judiciary from a subordinate position will erode or undermine democratic decision-making.33 Thirdly, that judicial attempts to unsettle what has traditionally been regarded as settled will create
27 See Michael Cullen “Parliamentary sovereignty and the Courts” [2004] NZLJ 243, responding to Elias, above n 21.
28 Cullen, above n 27.
29 See for example John Smillie “Who wants Juristocracy?” (2006) 11 OLR 183; Richard Ekins “The Authority of Parliament: A Reply to Professor Joseph” (2005) 16 KCLJ 51; Campbell, above n 18; James Allan “Thin Beats Fat Yet Again – Conceptions of Democracy” (2006) 25 L & Phil 533 at 548 and following; and Jeremy Waldron “A Rights-Based Critique of Constitutional Rights” (1993) 13 OJLS 18.
30 Campbell, above n 18, at 312.
31 Richard Ekins Protecting the Constitution: How and why Parliament should limit judicial power (Policy Exchange, 2019) at 15; and Ekins, above n 29.
32 See Goldsworthy, above n 18; Ekins, above n 29, at 52–53, 56–57 and 68; and Campbell, above n 18, at 308–
310.
33 See Jeremy Waldron “The Core of the Case Against Judicial Review” [2006] YaleLawJl 35; (2006) 115 Yale L J 1346 at 1386–1401; Kirby, above n 10, at 504–505; and Ekins, above n 29, at 55.
instability and uncertainty in the law.34 These critiques temper the discussion throughout this dissertation, particularly regarding the relationship between the judicial and political branches in Chapters IV and V.
Another common thread is the use of emotive language to condemn the suggestion of expanded judicial power. Cullen spoke of “constitutional change by stealth”;35 Kirby of “dangerous heresy”;36 Campbell of “treason”;37 Goldsworthy of “chaos”;38 and Ekins of “revolution”.39 This last word is most interesting to me.
2 The charge of revolution
Ekins has spoken of revolution in a pejorative sense to counter suggestions that judges might, in some circumstances, decline to apply an Act of Parliament:40
This course of action would be revolutionary – it would be an attempt by judges to unravel or to overturn the legal foundation of our parliamentary democracy – and should not be tolerated.
It is noteworthy that Ekins separates his claim that such action would be revolutionary from his claim that it would be normatively undesirable.41 Although Ekins’s references to revolution are clearly meant disapprovingly, this distinction emphasises that judicial disobedience may not be unjustifiable purely by virtue of its being revolutionary.
This highlights an important point. Revolution, unlike “heresy” and “treason” and so on, does not have conclusive normative connotations. Nor is it a term of legal art, as Cooke himself recognised.42 It is, to some extent, a real, observable phenomenon, the merits of which cannot
34 See Ekins, above n 29, at 53 and 63; Cullen, above n 27, at 242; Campbell, above n 18, at 314–325; and Goldsworthy, above n 18, at 241.
35 Cullen, above n 27, at 243.
36 Kirby, above n 10, at 512.
37 Campbell, above n 18.
38 Goldsworthy, above n 18, at 241.
39 Ekins, above n 31, at 15.
40 Ekins, above n 31, at 15; and see similar comments in Ekins, above n 29, at 65.
41 Ekins, above n 29, at 56–57 and 65.
42 Cooke “The Suggested Revolution Against the Crown”, above n 14, at 30.
be conclusively settled in the abstract. These factors may explain why the idea of revolution is so often invoked in discussions of the relationship between the formal legal system and political and constitutional realities.43 The next chapter explores how revolution, so conceived, can help us to understand the constitution in practical terms without resort to contentious claims about legality. In later chapters, it is deployed as a conceptual tool to explain how constitutional conflict might be avoided—or at least, in the unfortunate case, resolved.
C A Way Forward
On the one hand, a string of senior judges and scholars have expressed doubt regarding the orthodox view of parliamentary sovereignty, and called for judges to rise to the occasion in the event of a parliamentary assault on fundamental principles. On the other, there is hostile opposition to this idea from many prominent sources, going as far as suggesting that any such action would be revolutionary. Clearly, there is disagreement as to what the constitution is fundamentally, and specifically what it allows the courts to do in extremis. There is also disagreement about what the constitution ought to be. These questions are not answerable purely by reference to historical fact or reason. As Gustave Le Bon said: “When any question gives rise to violently contradictory opinions we may be sure that it belongs to the province of beliefs and not to that of knowledge.”44
In the wake of Cooke’s thesis, two useful theories have emerged in New Zealand that both cohere with constitutional practice while acknowledging the growing discontent with orthodox sovereignty theory. This dissertation seeks to fill some gaps left by both theories to produce a
43 See for example HWR Wade “Sovereignty–Revolution or Evolution?” (1996) 112 LQR 568; TRS Allan “Parliamentary Sovereignty: Law, Politics and Revolution” (1997) 113 LQR 443; Cooke “The Suggested Revolution Against the Crown”, above n 14; and Richard Kay and Joel Colón-Ríos Adjudicating Revolution: Courts and Constitutional Change (Edward Elgar, 2022).
44 Gustave Le Bon (translated by Bernard Miall) The Pscyhology of Revolution (University of Virginia, 1995) at 4.
stronger, pragmatic theory to guide constitutional practice in New Zealand. This section sets out the theories and their merits, and identifies the gaps to be filled.
(a) Collaborative enterprise
The Court of Appeal’s invocation of a “collaborative enterprise” in the Taylor Declaration Case references Professor Joseph’s theory.45 Joseph argues that rather than an arrangement of strict hierarchy, supremacy or subordination, the political and judicial branches of government are instead engaged in a common enterprise in which each depends on the other for recognition of its authority.46 I think, for the reasons Joseph gives and which the Court of Appeal—and even, in the end, Goldsworthy—have accepted, this is an appropriate way to describe the relationship between the courts and the political branches.47 They depend on one another in symbiotic fashion to maintain stable governance.48 I also agree with Joseph’s critique of the continued use of the concept of sovereignty to describe constitutional power.49 As Joseph says: “Language has normative force. The word “sovereignty” (or “supremacy”) conveys a skewed conception of legislative power that forces closure on debate about the true relationship of the branches.”50 Sovereignty talk also contributes to a one-sided conception of revolution, because it suggests that unseating the ‘sovereign’ is the sole—or at least inherently most egregious— form of revolutionary conduct. As discussed in the next chapter, this is an unhelpful mode of thinking. In sum, the collaborative enterprise is a useful characterisation.
However, Joseph’s theory is silent on the purpose of the collaborative enterprise. Joseph mentions “complementary goals” and “mutual respect and good will”, but does not elaborate
45 Taylor Declaration Case, above n 24, at [53]; Joseph, above n 21; and note earlier judicial recognition of Joseph’s theory in R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (CA) at [167] per Thomas J.
46 Joseph, above n 21.
47 Jeffrey Goldsworthy “Is Parliament Sovereign? Recent Challenges to the Doctrine of Parliamentary Sovereignty” (2005) 3 NZJPIL 7 at 15; and see David Dyzenhaus “The Politics of the Question of Constituent Power” in Martin Loughlin and Neil Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2008) 129 at 144.
48 See Robin Cooke “The Myth of Sovereignty” (2005) 3 NZJPIL 39.
49 Joseph, above n 21, at 321–323; and see Robin Cooke “The Basic Themes” (2004) 2 NZJPIL 113.
50 At 345; and see Joseph, above n 8, at [16.7].
on the nature of these goals or the incentive—other than altruism—to show mutual respect.51 Likewise, the majority in the Taylor Declaration Case referred to “each branch exercising ... complementary powers to a common end”, but did not specify what that end was.52 Many scholars have highlighted the importance of purpose in understanding and guiding constitutional practice.53 Without a clear common purpose, institutions may inadvertently pull in different directions, causing disaccord and instability. This dissertation accordingly aims to sketch the blueprint of a teleological understanding of the constitution which defines the common end animating the collaborative enterprise.
(b) Uncertainty thesis
Justice Thomas’s theory considers what action, if any, the courts should take in response to violations of fundamental constitutional principles. Thomas makes the pragmatic but slightly startling suggestion that:54
An answer should be deferred until such time as the courts are in fact confronted with legislation which raises a fundamental constitutional issue ... Until then, the answer need not be known; it can, as it were, be left up in the constitutional air.
He justifies this by arguing that the uncertainty and tension within the relationship between Parliament and the courts in fact “serves a valuable constitutional function”.55 This is an attractive thesis. As Edward Willis has observed, it acknowledges the courts’ potential role in upholding fundamental principles without requiring wholesale reinterpretation of the
51 Joseph, above n 21, at 334 and 345.
52 Taylor Declaration Case, above n 24, at [51] per Wild and Miller JJ (emphasis added).
53 See for example Timothy Endicott “The Purpose of a State” (2021) 66 Am J Juris 69 at 70; NW Barber The Principles of Constitutionalism (Oxford University Press, 2020) at 35; Friedrich Hayek Law, Legislation and Liberty (Routledge & Kegan Paul, 1973) at 112–114; and Aristotle “Politics” in H Rackham (ed and translator) Aristotle in Twenty-Three Volumes, Volume XXI (Harvard University Press, Cambridge, 1990) at 1252a1–7, as cited in Henk E S Woldring “On the purpose of the State: Continuity and Change in Political Theories” in Brandan Sweetman (ed) The Failure of Modernity: The Cartesian Legacy and Contemporary Pluralism (The Catholic University, Washington, 1999) at 156, n 1.
54 Thomas, above n 21, at 3–4.
55 At 4.
constitution, it seems to accord with current judicial and parliamentary practice, and it is consistent with some literature on unwritten constitutions.56
That said, attention ought to be paid to Elias’s view that:57
There are real risks for any society in which there is such confusion as we have about what is fundamental. It puts our institutions of government under great strain when there is conflict between them or at times of social stress if they march to a beat no one else hears.
Thomas’s suggestion only avoids the issue of reinterpreting the constitution until such time as the courts might choose to take the plunge, leaving us in a state of disarray at the critical juncture—as Elias points out—and constitutionally confused in the meantime. At such a juncture, Cooke’s suggestion that “working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility” may not suffice.58 As Elias added, identifying constitutional fundamentals is not “solely a judicial responsibility.”59 Jurisprudence tends to fixate on the views of judges and senior officials, but a more open conversation ought to be had about what our constitution is really all about, beyond trading blows over differing conceptions of sovereignty.60
HWR Wade was right that:61
... to a lawyer the boundaries of the law need not be obscure, and his conscience may be easy if, by observing them, he avoids attempting to give legal answers to political questions.
56 Edward Willis “Limits on Constitutional Authority” [2014] WkoLawRw 6; (2014) 22 Waikato L Rev 87 at 110–111.
57 Sian Elias “Fundamentals: A Constitutional Conversation” [2011] WkoLawRw 1; 19 Waikato L Rev 1 at 2; and see BV Harris “The Treaty of Waitangi and the Constitutional Future of New Zealand” [2005] NZ L Rev 189 at 191 regarding the uncomfortable uncertainty surrounding te Tiriti o Waitangi.
58 Cooke, above n 4, at 165.
59 Elias, above n 57, at 7; contrast Lord Irvine “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] PL 59 at 77.
60 See TRS Allan “Parliamentary Sovereignty: Lord Denning’s Dexterous Revolution” (1983) 3 OJLS 22 at 33, n 36; and see Thomas, above n 21, at 18–19 and 22, and compare at 23.
61 HWR Wade “The Basis of Legal Sovereignty” (1955) 13 CLJ 172 at 197.
Questions of fundamentals can irritate the legal mind, and Thomas’s suggestion—simply kicking the issue to touch—is a soothing balm. But it is cold comfort for judges, who may occasionally be called upon to give legal answers to essentially political questions.62 How they should approach that task, and how the political branches should approach their roles so as to avoid constitutional conflict, are questions which we must all endeavour to answer in a manner that respects our history, values and constitutional identity. For the reasons outlined by Cooke’s critics and by Thomas, such answers ought not to unduly legitimise potentially revolutionary judicial interventions in advance—but they also ought not to leave everything hanging on a captain’s call from the bench. The aim is a clearer blueprint, based on generally acceptable political facts and consistent with current practice, which can steer the collaborative enterprise away from conflict and revolution rather than toward it.
II Revolution
A A Working Definition
As discussed, Ekins invoked the language of revolution to brand suggestions that judges are not bound by parliamentary sovereignty as unlawful. Interestingly, Cooke himself used the term “revolution” in a similar way when describing the mooted abolition of New Zealand’s monarchy.63 It helps to understand how exactly the term is understood when used in this way.64 Ekins and Cooke both seem to use it in a relatively narrow sense, like Charles Ellwood’s account of revolution as “a change in the location of sovereignty”, which he derived from the theory of Jean Bodin.65 The problem with that definition is self-evident: it begs the question of the locus and nature of sovereignty, which has no simple answer in contemporary New Zealand.
62 See Wade, above n 61, at 173 and 192; and TRS Allan “The Common Law as Constitution: Fundamental Rights and First Principles” (1996) in Cheryl Saunders (ed) Courts of Final Jurisdiction 146 at 161.
63 Cooke “The Suggested Revolution Against the Crown”, above n 14, at 30.
64 See Armand Leroi “On revolutions” (2020) 6(4) Palgrave Commun 1 at 2.
65 Charles A Ellwood Sociology in Its Psychological Aspects (D Appleton & Co, 1912) at 163; see generally Jean Bodin (translated by MJ Tooley) Six Books of the Commonwealth (Blackwell, Oxford, 1955); and see Dale Yoder “Current Definitions of Revolution” (1926) 32 Am J Soc 433 at 435–438.
The definition provided by Noel Parker is more useful: “a sudden, profound, deliberately provoked crisis about legitimate power over a society ...”.66 This is preferred to more formal conceptions because it captures the substance and import of the term without relying on hotly contested notions like sovereignty. This avoids undue emphasis on a purely formal view of political and constitutional arrangements, acknowledging that profound changes in power relations can occur whether or not there is an identifiable change in the “location” of the metaphysical notion of “sovereignty”.
B Why is Revolution a Useful Concept?
Implicit in Parker’s definition is the notion that revolutions can be of different magnitudes depending on how sudden and profound they are, and the extent to which they unsettle understandings of legitimate authority. This notion is useful because a constitutional crisis is unlikely to be a contest between status quo and radical alternative, or revolution and not- revolution. Rather, situations are imagined in which one institutional actor unsettles the constitutional balance with an unconventional act, provoking an unconventional response. For example, if Parliament legislated to indefinitely suspend elections, the courts might respond by declaring the enactment invalid and ordering elections to continue. Both might be revolutionary acts, notwithstanding that only the latter breaks the ‘rule’ that Parliament is sovereign. The question at the heart of the crisis would be which revolutionary act was of greater magnitude.
This leads to a wider point. Revolution can transcend the contested notions of legality and constitutionality. Avoiding questions of legality is helpful because if Parliament’s authority rests on official consensus, then a broken consensus would constitute a breakdown in parliamentary authority and therefore a crisis of legality. As Lon Fuller said: “At some point we take leave of the gravitational field within which the distinction between law and not-law
66 Noel Parker Revolutions and History (Polity Press, 1999) at 4.
makes sense.”67 Avoiding questions of constitutionality is helpful for similar reasons. If constitutionality derives from consensus—both official and popular—it can be assessed only by reference to such a consensus. The concept loses utility where there are multiple conflicting notions of constitutionality at play.68
Having set aside those contested notions, I advance three general propositions about revolution which I hope will be generally acceptable. First, revolution—namely, judicially-instigated revolution—is a practical possibility, whether one agrees with it or not. Secondly, such a revolution could be accepted as legitimate by officials and/or wider society in certain circumstances—the question of legitimacy being separate and anterior to the question of whether revolution has in fact occurred. Thirdly, revolution is presumptively undesirable in a constitutional state. This last proposition is explored further below.
It is safe to assume that when proponents of parliamentary sovereignty brand alternative theories as revolutionary, they do so—whether implicitly or explicitly—in a pejorative sense. Indeed, in a modern society which cherishes order and stability, revolution is generally perceived as “a calamity of the direst order and a thing to be avoided at any cost”.69 Something about revolution seems at odds with the very concept of a constitution.70 While in some societies, “the stories of successful revolutionary changes are the most cherished traditions ... carefully implanted in the minds and hearts of each succeeding generation”, it is a relatively foreign concept in New Zealand.71 Despite the attention which Professor Brookfield’s seminal work brought to some arguably revolutionary elements of our post-colonial history,72 Stephen
67 Lon Fuller The Morality of Law: Revised Edition (Yale University Press, 1969) at 117.
68 See Allan, above n 60, at 32.
69 Yoder, above n 65, at 433.
70 See Stephen Gardbaum “Revolutionary Constitutionalism” (2017) 15 ICON 173 at 181–184; and David C Williams “The Constitutional Right to “Conservative” Revolution” (1997) 32 Harv C R–C L L Rev 413.
71 Yoder, above n 65, at 433–434.
72 FM Brookfield Waitangi and Indigenous Rights: Revolution, Law and Legitimation (Auckland University Press, Auckland, 1999); but see the critique of Brookfield’s expansive definition of “revolution” in John Battersby “[Review] Waitangi and Indigenous Rights: Revolution, Law and Legitimation” (2002) 36 NZJH 204; and the characterisation of Crown-Māori relations as anti-revolutionary in Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25 NZULR 703 at 714.
Turner’s assessment remains accurate: to most New Zealanders, the notion of revolution in this country is “alien”, even “disturbing”.73 So, while there may be some appreciation that revolution could in some circumstances be justifiable, we unsurprisingly do not recognise it as a function of our courts. On the contrary, as Lord Sales says:74
The courts act as guardians of long-term constitutional principles which promote stability and allow for the formation of a public will which is coherent and capable of being implemented in an effective way.
The remaining analysis proceeds on the basis that revolutionary action by the courts should generally be avoided.75
C Conclusions
These propositions leave us in a position of tension. On one hand, revolution is generally undesirable. On the other, the courts may take this action regardless,76 and that could tenably be perceived as legitimate depending on the circumstances.77 In this way, as Thomas alluded to, the courts speak softly but carry a big stick.78
This is the context in which revolution sits. It carries with it pejorative notions, particularly for the courts, serving as a reminder that deference to Parliament is the usual modus operandi. But it can come from different sources—including Parliament—and at different orders of
73 Stephen Turner “Quiet Revolution in Aotearoa New Zealand” (2002) 20 Arena J 67 at 67–68; and see the opening line in Goldsworthy, above n 47.
74 Lord Sales “In Defence of Legislative Intention” (2019) 48 Aust Bar Rev 6 at 20.
75 See Goldsworthy, above n 18, at 267.
76 See Joseph, above n 21, at 330; compare Ekins, above n 29, at 53 and 58; and see Niccolò Machiavelli The Prince (Arcturus Publishing, 2008) at 52.
77 This would compromise the authority of Parliament, just as the Trial of the Seven Bishops (1688) 12 St Tr 183 compromised the authority of the King.
78 Thomas, above n 21, at 35; and see Theodore Roosevelt “National Duties” in The Strenuous Life: Essays and Addresses (G P Putnam’s, New York, 1901) at 236. See also John Stuart Mill On Liberty and Other Essays (Oxford University Press, 1998) at 269–270.
magnitude, leaving the door open for certain revolutionary conduct to be accepted as legitimate in certain circumstances (most likely when countering another more profoundly revolutionary act). The teleological blueprint outlined in Chapter IV would allow Parliament and the courts to regulate their conduct according to a common purpose and thereby steer away from actions likely to prompt a revolutionary response. At present, the doctrine of separation of powers and the principle of comity provide stopgap safeguards, but are deficient in one key respect. These principles focus on guarding spheres of authority from intrusion by other branches, rather than at furthering a particular common purpose.79 This derives from the suspicion and distrust which originally inspired the separation doctrine.80 As a result, institutional responses to breaches of comity are likely to be tit-for-tat measures aimed more at reasserting authority than any greater purpose, such as restoring/maintaining constitutional stability.81 Inserting a common purpose into the collaborative enterprise provides a reference point to formulate— and predict—proportionate responses to constitutional oversteps, avoiding constitutional turf wars. The tacit threat of revolution continues to have a deterrent effect in a necessarily blunt way. However, the teleological understanding reduces the destabilising potential of this threat by allowing revolutionary responses to be foreseen and avoided—or, in the worst case, approached in a principled rather than gung-ho manner. Chapters IV and V explain how this operates.
One issue remains with this view of revolution. Some believe parliamentary sovereignty is so entrenched as a rule of recognition, both amongst institutional actors and the public, that any unilateral move by the courts to overtly deny or undermine it would be inexcusable regardless of the circumstances.82 Campbell, for example, suggested that judges should simply resign if they refused to give effect to legislation.83 The empirical claim that parliamentary sovereignty
79 See Joseph, above n 8, at [9.2], [9.5] and [21.2]; and see Parliamentary Privilege Act 2014, s 4(1)(b).
80 See Joseph, above n 8, at [9.4].
81 See for example Andrew Geddis “‘Stick to your knitting’ principle a knotty one to apply” The New Zealand Herald (online ed, Auckland, 22 July 2009). Note that reasserting authority and maintaining stability are not necessarily contradictory aims.
82 See for example Ekins, above n 29; Campbell, above n 18, at 308 and 326; Gleeson, above n 18, at 42; and
Kirby, above n 10, at 502–505.
83 Campbell, above n 18, at 326.
is the ultimate constitutional rule is, however, suspect. The next chapter addresses this, clearing the undergrowth to make space for a less orthodox view.84
III Parliamentary Sovereignty as a Rule of Recognition
Aside from the common normative critiques outlined in the previous chapter, many arguments against expanded judicial power are premised on two empirical pillars: the historical foundations of Parliament’s claim to sovereignty, and contemporary public and institutional attitudes.
A Historical Foundations
The first pillar is not explored here in any depth. This dissertation does not seek to add to the extensive literature challenging claims that the Glorious Revolution made Parliament sovereign,85 that this doctrine was seamlessly imported into New Zealand,86 and that it has been unanimously affirmed throughout the country’s history.87 Furthermore, it makes little sense to determine our constitutional direction based on history alone.88 For that reason, it suffices to note that while the historical foundations of parliamentary sovereignty are shaky, a relatively
84 “Tūngia te ururua kia tupu whakaritorito te tupu o te harakeke” (2023) Te Aka Māori Dictionary
85 See for example Thomas, above n 21, at 18; Douglass C North and Barry R Weingast “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England” (1989) 49 J Econ Hist 803 at 804 and 815–819; Stephen Kós “Constitutional Collision: Fitzgerald v Muldoon v Wild” (2014) 13 OLR 243 at 247–248; and Steven C A Pincus and James A Robinson “What Really Happened During the Glorious Revolution?” in Sebastian Galiani and Itai Sened (eds) Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North (Cambridge University Press, 2014) at 220 and following.
86 See Waitangi Tribunal Te Taranaki Report: Kaupapa Tuatahi (Wai 143, 1996) at 20; Sian Elias “The Treaty of Waitangi and Separation of Powers in New Zealand” in BD Gray and RB McLintock (eds) Courts Policy: Checking the Balance (Brookers, Wellington, 1995) at 206; Jacinta Ruru and Jacobi Kohu-Morris “‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand” (2020) 48 FL Rev 556 at 558–559 and 564–566; and Hanna Wilberg “Judicial Remedies for the Original Breach” [2007] NZ L Rev 713 at 714–717.
87 See for example Elias, above n 57, at 4.
88 Cullen, above n 27, at 243; Hadley Friedland and Val Napoleon “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2016) 1 Lakehead LJ 16 at 17; and compare Berkett v Tauranga District Council, above n 7, at 213.
orthodox view of sovereignty continues to prevail in legal circles. The contemporary empirical claims are not, however, quite so easily disposed of.
B Contemporary Empirical Claims
Two common, fundamental assumptions regarding the contemporary status of absolute parliamentary sovereignty remain far from self-evident. The first assumption is that the doctrine is widely accepted by our political community—in the sense of the population at large—as being the fundamental constitutional rule of our legal system. The second is that it is reflected in and readily explains current constitutional practice.
The first point was raised by Geoffrey Palmer in a 2006 article,89 and echoed by Andrew Geddis a decade later.90 As general observations of constitutional culture, their descriptions of public opposition to expanding judicial power are accurate. However, we should be slow to take New Zealanders’ limited brushes with constitutional debate as ringing endorsements of absolute parliamentary supremacy. An argument that the orthodox view of the constitution enjoys broad approval from the population at large must include all of the following propositions if it is to do any work in establishing that Cooke’s thesis would strike ordinary people as illegitimate no matter the circumstances:
(i) That New Zealanders understand the orthodox view of the constitution, including Parliament’s unlimited legislative power and the courts’ subordinate role;
(ii) That New Zealanders approve of this view; and
(iii) That we can assume that New Zealanders would maintain that opinion even in the event of extreme parliamentary indifference to established constitutional norms.91
89 Geoffrey Palmer “The New Zealand Constitution and the Power of Courts” (2006) 15 Transnatl L & Contemp Probs 551 at 577.
90 Andrew Geddis “Parliamentary Government in New Zealand: Lines of Continuity and Moments of Change” (2016) 14 ICON 99 at 100.
91 Some might reject this third premise on the basis that the empirical claim relates only to popular opinion at present. However, to establish that unprecedented judicial action would be illegitimate regardless of
There is little empirical evidence to support any of these propositions. Much reliance has been placed on the findings of constitutional reviews concluded in 2005 and 2013, respectively.92 The 2005 report, while rich in analysis, recorded submissions from only 66 submitters, who were not broadly representative of the population.93 I accordingly place more emphasis on the 2013 report, which recorded submissions from 5,259 submitters.94 While the findings of these reports suggest that proposals to hand more power to the judiciary are viewed with suspicion and disapproval, and certainly do not demonstrate a strong desire for constitutional change, context is everything.
(a) The first proposition: New Zealanders understand the orthodox view
Both reports emphasised the concerning lack of public understanding of the constitution,95 including a recognition in the 2013 report that many submitters were surprised to learn that Parliament could pass laws contrary to the New Zealand Bill of Rights Act 1990 (NZBORA) or te Tiriti o Waitangi.96 That indicates that a significant number of people have very little understanding of what parliamentary sovereignty means at the margins, and that people are inclined to assume that ‘the state’ has effective in-built limits to prevent infringements of rights without leaving us totally at the mercy of judicial overlords. As discussed further in Chapter V, this assumption is arguably misplaced.
circumstances, the argument must address present public attitudes toward contemplated exercises of such a judicial power in extreme circumstances.
92 Constitutional Arrangements Committee Inquiry to review New Zealand’s existing constitutional arrangements: Report of the Constitutional Arrangements Committee (New Zealand House of Representatives, Wellington, August 2005); and Constitutional Advisory Panel New Zealand’s Constitution: A Report on a Conversation (Ministry of Justice, November 2013). See for example Geddis, above n 90, at 100.
93 At 122, and see Appendix A for a demographic breakdown of submitters to the 2005 review.
94 At 10.
95 Constitutional Arrangements Committee, above n 92, at 8–10; and Constitutional Advisory Panel, above n 92, at 15–16
96 At 17.
(b) The second and third propositions: New Zealanders strongly approve of the orthodox view
The findings from both reviews suggest that New Zealanders’ trust in Parliament, and their unwillingness to confer additional powers on the courts, are intrinsically linked to two assumptions which were not challenged in the methodology of the reviews.
The first implicit assumption was that observance of current constitutional practice and adherence to hitherto sacrosanct constitutional values would continue, such that submitters’ opinions ought to be read ceteris paribus. For instance, submitters to the 2013 review who opposed a judicial power to strike down legislation exceeding constitutional limits based their opposition on judges’ lack of democratic accountability relative to Parliament; but this basis is logically limited to circumstances in which Parliament remains committed to representative democracy.97 The guiding questions posed by the review did not prompt submitters to consider what should happen if this commitment were repudiated.98 This is hardly surprising; New Zealand’s pragmatic tendency to deal with problems only as they arise extends to matters as fundamental as the distribution of constitutional power, and as Paul Rishworth observes: “Constitutional reform tends not to be pushed in a nation that prides itself on pragmatism.”99 New Zealanders’ resistance to ‘fixing’ anything that has not thus far appeared broken has created an environment so resistant to serious constitutional debate that raising the possibility that absolute power might be abused is almost bad manners.100
The second assumption was that any limit to parliamentary sovereign would necessarily entail a broad judicial discretion to decide contested questions of political morality in place of elected representatives. The only questions regarding ‘supreme law’ put to submitters in the 2013 review were:101
Do you think our constitution should have a higher legal status than other laws (supreme law)?
97 At 25.
98 See at 92–93.
99 Paul Rishworth “Writing Things Unwritten” (2016) 14 ICON 137 at 140.
100 See Palmer, above n 89, at 574-575.
101 At 92.
Do you think the [NZBORA] should have a higher legal status than other laws (supreme law)?
These were coupled with questions which prompted submitters to think about sovereignty as a battle between two competing institutions which must have an ultimate winner and loser:102
Who should have the power to decide whether legislation is consistent with the constitution: Parliament or the Courts?
Who should have the power to decide whether legislation is consistent with the [NZBORA]: Parliament or the Courts?
Elevating the NZBORA or the text of te Tiriti to the status of supreme, judicially enforceable law would indeed be likely to unduly empower judges to decide controversial political disputes. So too might enacting a supreme written constitution. It is not surprising that submitters tended to assert a preference for democratic forms of decision-making in response to questions about entrenching the nebulous glob of law called “our constitution”, or expansive charters of rights, to be overseen exclusively by the courts. But there are more nuanced questions which remain unasked and unanswered.
The unchallenged assumptions addressed in this section—as well as the overall confusion and disinterest surrounding our constitution—cast doubt over the broad empirical claim that New Zealanders approve of the absolutist conception of parliamentary sovereignty to such an extent that questions of boundaries and extremes should be dismissed out of hand as revolutionary nonsense. New Zealanders seem to broadly accept the outputs of all branches of government as legitimate, viewing ‘the state’ as one entity which creates and enforces law.103 They generally expect decisions of policy and public morality to be made democratically, and institutions to work in tandem to produce outputs that are coherent and consonant with community expectations. Theorists may not find this as satisfactory as an unbending,
102 At 92.
103 See a brief sketch of the idea of “composite authority” in the summary of Adam Tucker “Composite Authority and the Significance of Parliamentary Imperfection” (seminar presented to Public Law Discussion Group, Trinity College, Oxford, 3 December 2015), published in Ewan Smith “Adam Tucker – Composite Authority and the Significance of Parliamentary Imperfection” (December 2015) University of Oxford Faculty of Law
hierarchical rule of recognition; but it may be a more accurate reflection of public opinion. More detailed research in this area would be illuminating.
The second empirical point regarding the current status of the doctrine of absolute parliamentary sovereignty is that it is reflected in and readily explains current constitutional practice, indicating that a departure form it would indeed be revolutionary. It is certainly the case that all branches of government pay considerable lip service to the doctrine of parliamentary sovereignty, and that judges generally feel constitutionally constrained by it. However, I argue there is a dissonance between doctrine and practice which, if not satisfactorily recognised or explained, risks obscuring the true nature of sovereignty and the separation of powers in New Zealand. This could lead us to confuse a paper revolution for a real one.
(a) Statutory reconstruction
The previous chapter noted that there is considerable disagreement about what our constitution is and ought to be. This is approaching a state of cognitive dissonance, wherein the words on the page—professing a commitment to an orthodox notion of parliamentary sovereignty—do not align with the reality of judicial decisions. For example, in Fitzgerald v R, which concerned a challenge to the ‘three strikes’ sentencing regime, the Supreme Court refused to uphold a statutory requirement that judges impose the maximum sentence when sentencing third-strike offenders where the resulting sentence would unjustifiably breach the offender’s NZBORA right not to be subjected to disproportionately severe punishment.104 This outcome is difficult to reconcile with the wording of the relevant provision:105
Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage- 3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.
104 See New Zealand Bill of Rights Act, s 9.
105 Sentencing Act 2002, s 86D(2) (emphasis added).
The majority mounted a spirited defence of its interpretation, arguing that Parliament had not had such unjust outcomes in mind when it established the regime and invoking the principle of legality to read in an NZBORA proviso.106 But Parliament’s intention to permit the infringement of rights was clear: legislators were warned from the outset that unjustifiable breaches of rights were on the cards, but the new regime’s backers were undeterred.107 Section 86D was not general and vague; as William Young J concluded, its wording was “extremely precise and peremptory” and its intended meaning “crystal clear”.108 The result—that Parliament’s unambiguous directive to judges was circumvented through clever mental gymnastics—cannot in honesty be reconciled with the more orthodox approach to section 6 followed unanimously by the Supreme Court in Hansen v R. The consensus in Hansen was that a meaning under section 6 must be genuinely “tenable”, “open” or “reasonably available” on the text of the enactment.109 If Parliament is supreme, then Anderson J was right: “the duty of the courts is to construe, not to reconstruct.”110
This is the sort of case which scholars like Ekins might simply dismiss as erroneous, in the way an umpire’s decision can be binding in the game but clearly “not cricket”.111 But the application of Fitzgerald in a string of subsequent cases, and toleration (thus far) by Parliament and the public, demonstrate that it in fact changed the game beyond the match at hand and must
106 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [119] per Winkelmann CJ; at [203] and [216]–[219] per O’Regan and Arnold JJ; and at [247] per Glazebrook J.
107 Christopher Finalyson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Sentencing and Parole Reform Bill (Ministry of Justice, 2009) at 3–5; Legislation Advisory Committee “Submission to the Law and Order Committee on the Sentencing and Parole Reform Bill 2009” at 3; and Human Rights Commission “Submission to the Law and Order Committee on the Sentencing and Parole Reform Bill 2009” at [1.4], [3] and following. See also ministerial recognition of this in (4 May 2010) 662 NZPD 10674, cited in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [10.14.6]; but see Fitzgerald v R, above n 106, at [196], n 272 and [202]–[204] per O’Regan and Arnold JJ.
108 Fitzgerald v R, above n 106, at [328] and [329] per William Young J dissenting.
109 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [25] per Elias CJ, [61] per Blanchard J, [150] per Tipping J, and [252] per McGrath J; but see Fitzgerald v R, above n 106 at [181]–[182] per O’Regan and Arnold JJ.
110 Hansen v R, above n 109, at [290] per Anderson J; contrast Fitzgerald v R, above n 106, at [58]–[73] per Winkelmann CJ.
111 Ekins, above n 29, at 58.
therefore be treated as legally correct, at least from the present perspective.112 Depending on the result of the next general election, the political branches may volley the issue back into the judicial court (pun intended);113 but this kind of constitutional dialogue does not particularly smack of ‘supremacy’ or the concentration of sovereignty in one branch alone.114 Judges’ reliance on the fiction of presumed parliamentary intention and the principle of legality to justify—and perhaps obscure—more aggressive assertions of judicial power do reflect an unwillingness to be seen to be stepping on Parliament’s toes.115 But the Chief Justice might struggle to step out onto Lambton Quay and explain to an average New Zealander how the result in Fitzgerald was achieved without interfering with Parliament’s purported legislative supremacy. To that individual, the practical reality would be clear: parliamentary sovereignty in its absolutist form does not currently define the relationship between Parliament and the courts in New Zealand.116
(b) Te Tiriti o Waitangi
This reality is also apparent in Tiriti jurisprudence. Willis has convincingly argued that modern Tiriti o Waitangi jurisprudence cannot be explained purely by reference to orthodox sovereignty theory.117 He suggests that representative democracy alone is insufficient to legitimise public power where te Tiriti is involved; independent legitimising functions are performed by Māori as Tiriti partner and the judiciary as adjudicator.118 There is also room to debate the consistency of orthodox sovereignty theory with the growing influence of tikanga
112 See for example Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661; Matara v R [2021] NZCA 692, (2021)
[2021] NZCA 692; 12 HRNZ 944; and R v Kawhe [2022] NZHC 1852.
113 See Andrew Geddis “Parliament, The Courts And The End Of Three Strikes (For Now)” (23 November 2021) Pundit <www.pundit.co.nz>.
114 Joseph, above n 21, at 345; and see Matthew S R Palmer “What Is New Zealand's Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-holders” (2006) 17 PLR 133 at 151– 152.
115 See Fitzgerald v R, above n 106, at [66] and [119] per Winkelmann CJ; and see Joseph, above n 21, at 327– 328.
116 See also Hilary Calvert “What a 16-year-old wants, and the rest” Otago Daily Times (14 September 2023) at 17.
117 Edward Willis “Constitutional Authority: Legitimising the Exercise of Public Power in New Zealand” [2014] NZ L Rev 265 at 289–300.
118 At 289–291 and 299.
Māori not just within, but also parallel to, the common law, including through its relationship with te Tiriti’s promise of tino rangatiratanga—though that is beyond the scope of this dissertation.119
C Conclusions
This chapter considered whether there are sound empirical grounds to conclude that parliamentary sovereignty is the fundamental rule of our constitution. Several conclusions were reached. First, that the doctrine enjoys general support in the legal community today despite its shaky historical foundations. Secondly, that there is no compelling empirical basis to support the proposition that New Zealanders support the orthodox view of parliamentary sovereignty as a fundamental rule—though there is little appetite for the expansion of judicial power as a matter of course. Finally, that an orthodox view of parliamentary sovereignty does not perfectly align with or adequately explain current constitutional practice, most apparently in respect of the interpretative practices of the courts and Tiriti o Waitangi jurisprudence.
In light of all this, proponents of orthodox theory may be too hastily conflating public support for the principle (representative democracy) with support for its formal manifestation (parliamentary sovereignty).120 They may also be underplaying the significance of other legal principles at play in our constitution, for instance principles derived from te Tiriti and tikanga and those implicit in the rule of law.121 As discussed, current practice does not reflect the orthodox understanding that such principles derive their legitimacy ultimately from Parliament and continue to hold authority only by the good graces of the transient occupants of the House.
Returning to the idea of revolution, if a judge were to follow Cooke’s directive and openly disapply an Act of Parliament, this would clearly be a significant revolutionary act from the perspective of institutional actors committed to parliamentary sovereignty. But that is a narrow
119 See Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [21]–[23] per curiam, [98], [107], [110]–[111], [116]–
[119] and [127] per Glazebrook J, [168]–[169], [172], [183] per Winkelmann CJ, and [260], [270]–[272] per
Williams J; see Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843, [2022] 3 NZLR 601 at [58], [355] and [587] per Palmer J; and see Law Commission He Poutama (NZLC SP24, 2023) at [8.56]–[8.60] 120 See TRS Allan, above n 43, at 449.
121 See generally Susan Glazebrook “The Rule of Law: Guiding Principle or Catchphrase?” [2021] WkoLawRw 2; (2021) 29 Waikato L Rev 2.
kind of revolution. It would also be revolutionary in terms of wider societal beliefs about legitimate power, insofar as it would always undermine the principle of representative democracy to some extent. That is more significant. Finally, however, Cooke presented his thesis on the basis that there were multiple fundamental principles governing the legitimate exercise of power, and that the courts ought only to resort to this extraordinary act where one or more of those principles was seriously imperilled. The remaining question is, therefore, in what circumstances the courts might be justified in doing so, notwithstanding that it would be revolutionary. Once the possibility is acknowledged that a parliamentary revolution could undermine fundamentally important principles, it may not be quite so simple as saying that judicial revolution is inherently illegitimate.
IV Cosmos, Taxis and the Collaborative Enterprise
A A Teleological Approach
In Chapter I, some gaps were identified in Joseph’s and Thomas’s theories. To recap, Joseph’s “collaborative enterprise” theory is a useful alternative to orthodox sovereignty theory, but fails to animate this enterprise by specifying the purpose which guides the constituent institutions of government in their shared kaupapa. Thomas’s uncertainty thesis has the advantage of not unduly legitimising any revolutionary act in advance, but ultimately leaves too much to chance and judicial discretion, and again does not shed light on a common end underlying the judicial- political relationship. Both theories, in my view, leave too much in the air and fail to provide a convincing blueprint which both resonates with current practice and provides the tools to navigate conflict and avoid revolutionary clashes going forward.
This dissertation seeks to provide such a blueprint. This chapter presents a teleological account of the collaborative enterprise, using Hayek’s theory of cosmos and taxis as a conceptual framework. The next chapter explains its implications for each branch of government.
B Hayek’s Theory of Cosmos and Taxis
In Law, Legislation and Liberty, Friedrich Hayek prefaced his jurisprudential analysis with the following:122
The central concept around which the discussion of this book will turn is that of order, and particularly the distinction between two kinds of order which we will provisionally call ‘made’ and ‘grown’ orders.
Hayek used the Classical Greek terms, with cosmos denoting a spontaneous or organic order such as a stable and cohesive community, and taxis denoting a made order such as an organisation. The idea of cosmos, in a pluralistic society, can be understood via the Rawlsian notion of “overlapping consensus”, whereby a governing consensus can be reached despite “considerable differences in citizens’ conceptions of justice provided that these conceptions lead to similar political judgements”.123 The cosmos/taxis dichotomy provides the framework for my teleological theory.
For present purposes, the relevant taxis is the state, comprising the institutions or organs of government.124 The cosmos is, quite simply, the spontaneous order of society.125 The overlapping consensus at the gravitational centre of our cosmos is, I suggest, a common respect for human dignity.126 Dignity is a controversial value; it can mean different things to different
122 Hayek, above n 53, at 35.
123 John Rawls A Theory of Justice (original ed, Belknap Press of Harvard University Press, 1971) at 340; see generally John Rawls “The Idea of an Overlapping Consensus” (1987) 7 OJLS 1; and compare Hayek, above n 53, at 95.
124 See Mill, above n 78, at 207.
125 Hayek, above n 53, at 43–48; and see Gus diZerega “Outlining a New Paradigm” (2013) 1 Cosmos and Taxis 3 at 12.
126 New Zealand’s conception of dignity focuses on fairness, whereas the American conception is more concerned with individual freedom: see generally David Hackett Fischer Fairness and Freedom: A History of Two Open Societies (Oxford University Press, 2012).
people.127 However, Christopher McCrudden’s argument that there is a near-universal consensus on a “basic minimum content” of dignity is convincing.128 He suggests this minimum core comprises three elements:129
... that every human being possesses an intrinsic worth, merely by being human. ... that this intrinsic worth should be recognized and respected by others, and some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth. ... [and] that recognizing the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa ...
This minimum core can be observed throughout our constitution, “in the tissue of our practice and institutions”.130 Representative democracy is based on the idea that individuals have intrinsic worth, and are therefore presumptively entitled to influence public decision- making.131 The rule of law, whether conceived in a thin or thick way, also reflects the dignity of human beings—the idea that they are entitled to be treated a certain way—and thus diametrically opposed to arbitrary treatment.132 Dignity also resonates with Māori ideas about “the importance and sanctity of the person”;133 and the Treaty of Waitangi, in Article III, recognises the dignity of Māori through the Crown obligation to afford them equal “rights and privileges”.134
127 See Samuel Moyn “The Secret History of Constitutional Dignity” (2014) 17 Yale Hum Rts & Dev LJ 39.
128 But see Andrew Geddis “The Philosophical Underpinnings of Human Rights” in M Bedggood, K Gledhill and I McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 19 at 51–52 for a discussion of general objections to the ‘core’ approach.
129 Christopher McCrudden “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19 EJIL 655 at 679.
130 Jeremy Waldron “How Law Protects Dignity” (2012) 71 CLJ 200 at 221.
131 See TRS Allan, above n 62, at 147; and see Waldron, above n 33, at 1387–1389.
132 See Joseph Raz “The Rule of Law and its Virtue” in The Authority of Law: Essays on Law and Morality
(Oxford, 1979) 210 at 221. See also the contrast with arbitrariness in Dicey, above n 2, at 188.
133 Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) at 65–66; and see Mihiata Pirini and Anna High “Dignity and Mana in the “Third Law” of Aotearoa New Zealand” (2021) 29 NZULR 623 at 634 and 646.
134 Treaty of Waitangi, art 3; and see in Paul Reeves, Governor-General of New Zealand “Commemoration of the Signing of the Treaty of Waitangi” (speech at Waitangi, 6 February 1987): “Our own dignity lies in creating dignity for others.”
To backtrack for a moment, dignity is the central value of the cosmos, not necessarily the taxis. It is not a legal ‘rule’, so to speak.135 This discussion simply illustrates the broader point that the taxis mirrors, in its institutional structures and guiding principles, the cosmos. The values of the cosmos, to put it another way, are ‘baked in’ to the taxis.136 Dignity is offered as a particularly important and ubiquitous example, but it applies to other principles, too.137 Of course, the taxis is never a perfect reflection of the cosmos, which is abstract and ever-evolving; but it must stay in relative alignment to maintain legitimacy and, as a result, stability.138
C The Collaborative Enterprise: Stability in Accordance with Constitutional Tradition
As discussed, Joseph’s account of the “collaborative enterprise” of government, while convincing, lacks a sufficient teleological explanation of this enterprise. Joseph says each branch “is astute to minimise the potential for disagreement” and that mutual respect and deference are “essential to maintaining the business and proprieties of government”, but does not explain what exactly that business is or what those proprieties are.139 We are left without a clear idea of the purpose for which comity is observed.140 My claim is that the guiding purpose of both Parliament and the courts is the maintenance of stability in accordance with constitutional tradition. This is not a claim that individual actors within these institutions actually have their minds turned to this purpose; just as biologists describe evolutionary changes as having occurred for a particular ‘purpose’, teleological language is a useful shorthand to describe the direction in which systems generally orient themselves over time.141 However, I make the additional claim that institutions and officials ought to consciously orient themselves toward this purpose to avoid constitutional conflict.
135 See Pirini and High, above n 133; and see generally Luis Roberto Barroso “Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse” (2012) 35 BC Intl & Comp L Rev 331 at 354–380.
136 See Rishworth, above n 99, at 143.
137 See generally Legislation Design and Advisory Committee Legislation Guidelines (September 2021) at 22– 27.
138 See Hayek, above n 53, at 66; and see Willis, above n 117, at 266.
139 Joseph, above n 21, at 337.
140 See Ronald Dworkin Law’s Empire (Belknap Press, 1986) at 47.
141 See Hayek, above n 53, at 38–39, 50–54 and 112–113 for further discussion of this ‘teleological shorthand’.
I suggest stability has two dimensions in this context.142 First, a state of equilibrium within the cosmos whereby people generally follow the law and coexist peacefully as a community.143 Secondly, the continued efficacy of the taxis in resolving disagreements, coordinating actions and enforcing rules.144 However, as Rawls said, stability:145
... does not imply that the institutions and practices of the well-ordered society do not alter. ... stability means that however institutions are changed, they still remain just or approximately so, as adjustments are made in view of new social circumstances.
Indeed, change is often necessary. Inter-institutional jostling—even if it appears to have an unsettling effect in the immediate term—may be required to restore equilibrium in response to destabilising forces, whether endogenous or exogenous.146 Reforms may also be needed, as stagnation and indifference to public opinion can themselves undermine stability.147
Stability in this sense is the first imperative of constitutional government, as the alternative— chaos and disorder—is antithetical to the constitutional state.148 There is, however, more than one way to maintain stability. Some regimes keep order and assert state authority through totalitarian repression, for example. But our institutions are committed to maintaining stability in accordance with constitutional tradition; this is clear from our institutional arrangements,
142 See both dimensions reflected in the findings in Constitutional Arrangements Committee, above n 92, at 7, as cited in Palmer, above n 114, at 141, n 41; and in John Stuart Mill Considerations on Representative Government (Harper & Brothers, 1862) at 13.
143 Rawls, above n 123, at 454 and 497–498; Woldring, above n 53, at 166–170; Gillian K Hadfield and Barry R Weingast “Constitutions as Coordinating Devices” in Sebastian Galiani and Itai Sened (eds) Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North (Cambridge University Press, 2014) 121 at 135– 136; and Eoin Daly “Austerity and Stability in Rousseau’s Constitutionalism” (2013) 4 Juris 173 at 173–174 and 179–180.
144 Endicott, above n 53, at 82; Rawls, above n 123, at 457–458 and 497; Hadfield and Weingast, above n 143, at 130, 136 and 148; and see Jeremy Waldron Law and Disagreement (Oxford University Press, 1999) at ch 5.
145 Rawls, above n 123, at 458. Rawls uses ‘just’ in the sense of ‘consistent with the overlapping consensus within society’, rather than in a natural law sense. See also Mill, above n 142, at 13.
146 See Rawls, above n 123, at 456–458.
147 The wave of discontent mentioned in Chapter I precipitated major reforms in New Zealand in this way: Geddis, above n 90, at 107–108.
148 See Mill, above n 142, at 28–29. Mill refers to “order” rather than stability, but the gist is the same.
history and prevailing values. Constitutions exist “on a certain territory of culture”,149 and “there is in the nature and soil of every country certain qualities which render a certain form of government more apt than others”.150 Any theory must take this status quo as the point of departure.151 Furthermore, as Willis argues, “by establishing a legitimate “right to rule”, constitutional authority is one of the most stable and effective forms of public power available to the state.”152 Rawls also recognised this:153
The most stable conception of justice ... is presumably one that is perspicuous to our reason, congruent with our good, and rooted not in abnegation but in affirmation of the self.
Maintaining legitimacy in this way allows the constitution to be largely “self-enforcing”, strengthening long-term stability and reducing the need for a resource-intensive and repressive enforcement apparatus.154 Achieving stability in a manner consistent with constitutional tradition and all the values and principles that entails—dignity, fairness, democracy and so on—would remain attractive, then, even if those in power were indifferent to our constitutional tradition. Once this is accepted, a degree of connection and harmony between taxis and cosmos becomes crucial to maintaining stability. The reflection in various facets of the taxis of values like dignity, which are central to the cosmos, has thus evolved as a necessary feature of our constitutional arrangements. This chapter explores the means by which the taxis remains tethered to the values of the cosmos as they evolve and shift over time.
As a final point, I do not suggest that stability serves any deeper constitutional end. Although many argue the fundamental purpose of the constitutional state is more substantive—for example, actively promoting citizens’ well-being155—a thinner conception is preferred here,
149 Woldring, above n 53, at 170; and see Mill, above n 142, at 11–13.
150 Jean-Jacques Rousseau Projet de constitution pour la Corse (Nautilus, 2000) as cited and translated in Daly, above n 143, at 183, n 46. This is not invoked to endorse traditional natural law theory or encourage a literal reading: see TRS Allan “Why the law is what it ought to be” (2020) 11 Juris 574 at 596.
151 See Philip Pettit and Chandran Kukathas Rawls: A Theory of Justice and its Critics (Polity Press, 1990) at 145, as cited in Daly, above n 143, at 176, n 4.
152 Willis, above n 117, at 271; and see Mill, above n 78, at 207–208 for further insight as to why.
153 Rawls, above n 123, at 499; and see in a similar vein Hadfield and Weingast, above n 143, at 130 and 135– 137.
154 Hadfield and Weingast, above n 143, at 123.
155 See Woldring, above n 53, at 156; and Barber, above n 53, at 35.
oriented toward creating stable conditions for people to live good lives on their own terms.156 The particulars of individual realisations of well-being are beyond the ambit of the constitution.157 This is not, however, a purely libertarian approach. First, the commitment to constitutional tradition as a means of supporting stability imports certain substantive values into the constitution.158 Secondly, as discussed later in this chapter, state institutions have a role in shaping the values and conduct of the public as a means of maintaining stability.159 Thirdly, governments can and do pursue substantive policy outcomes beyond their core duty to maintain stability, typically at the behest of the electorate.160 The point is that no arm of the state has an inherent or fundamental constitutional responsibility to directly promote any substantive form of well-being as an end in itself, and judges should not invent one.
To maintain stability in accordance with constitutional tradition, two things are necessary. First, the taxis must have internalised mechanisms to maintain a consistent constitutional story within the law and the exercises of public power it authorises. The courts have an important function here: Dworkin described it in terms of “fit” and “justification”;161 Lord Sales in terms of tempering public opinion and political will with “constitutional reason”;162 and Hayek in terms of “situational logic”.163 Parliament also contributes to constitutional coherence through the legislative process, assisted by the Attorney-General in cases affecting NZBORA rights.164
156 See Hadfield and Weingast, above n 143; Endicott, above n 53; Hayek, above n 53, at 112–114; and Rawls, above n 123, at 455.
157 See Hayek, above n 53, at 42–46 and 50–71; and Endicott, above n 53, at 73 and 75.
158 Hadfield and Weingast, above n 143, at 129–137; Rawls, above n 123, at 499; Hayek, above n 53, at 87–88; Daly, above n 143, at 183–184; and see Ellis v R, above n 119, at [164]–[166] per Winkelmann CJ.
159 Hayek, above n 53, at 45–46; Christopher Eisgruber “Civic Virtue and the Limits of Constitutionalism” (2001) 69 Fordham L Rev 2131 at 2133; and see Daly, at 173–174, 180, 184, and 199–200, but see at 201 and following. 160 See Endicott, above n 53, at 73; and Woldring, above n 53, at 169–170; but see Hayek, above n 53, at 131 and 141–144.
161 Dworkin, above n 140, at 67.
162 Sales, above n 74, at 20.
163 Hayek, above n 53, at 115; and see James Bernard Murphy “The Lawyer and the Layman: Two Perspectives on the Rule of Law” (2006) 68 Rev Pol 101 at 125.
164 See New Zealand Bill of Rights Act, s 7.
The executive, too, maintains internal standards of constitutional propriety.165 It is the courts, though, who take the lead in this function, fitting individual instances of law-application within the wider constitutional story. Secondly, the taxis must have mechanisms to maintain connection with the cosmos. Again, the taxis need not mirror the cosmos perfectly; the constitution operates at arm’s length from the day-to-day turbulence of public opinion and politics. The taxis must, however, be in harmony with the cosmos, to the extent that rules of law and public power must be explicable in terms of the values underpinning the cosmos. This state of harmony, and the legitimacy it brings to the taxis, cannot simply be assumed; it must be checked and reinforced through these connective mechanisms.166 Hayek explained the relationship between these two types of mechanism—internal and external—from the perspective of a judge:167
Although to the judge an existing position will often provide a presumption of right, his task is as much to assist change as to preserve existing positions. He is concerned with a dynamic order which will be maintained only by continuous changes in the positions of particular people. But although the judge is not committed to upholding a particular status quo, he is committed to upholding the principles on which the existing order is based.
I suggest there are three mechanisms keeping taxis tethered to cosmos in our system: representative democracy, the rule of law and the Tiriti partnership. These allow for evolutionary change within the bounds of the existing order, securing enduring stability in accordance with constitutional tradition.
Representative democracy, embodied in New Zealand by a unicameral Parliament elected via the Mixed Member Proportional (MMP) system, is our primary point of nexus between taxis and cosmos. Every three years, voters feed their values and opinions into the taxis by electing representatives and influencing the composition of the Government. Representative
165 See for example Legislative Design and Advisory Committee, above n 137; Cabinet Office Cabinet Manual 2023; and Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi Guidance” (22 October 2019) CO
(19) 5.
166 See Rawls, above n 123, at 453.
167 Hayek, above n 53, at 120; and in a similar vein see Allan, above n 150, at 575 and 582.
democracy makes a very significant contribution to the maintenance of stability in accordance with constitutional tradition, and exerts powerful normative force: even relatively grave injustices can be legitimated through the democratic law-making process.168 In these situations, disregarding the law created by Parliament would arguably undermine voters’ dignity by depriving them of the right to influence decision-making, which could be more destabilising than the affront to dignity constituted by the injustice itself.169 As is frequently pointed out, however, the ideal of representative democracy is self-limiting. While Hans Kelsen thought it was a necessary feature of democracy that “it may, by its own specific methods of forming the will of the state, abolish itself”,170 this view is irreconcilable with the idea of a collaborative enterprise committed to stability in accordance with constitutional tradition. The decision to abolish democracy—being the only decision inherently incapable of democratic self-correction—is uniquely at odds with the foundational logic of democracy itself, and cannot therefore be permitted by any institution committed to democracy.171 Abolishing democracy would also undermine stability by removing the primary reason for citizens to recognise the legitimate authority of the taxis and participate in the self-enforcement of legal rules.172
There are other limits to representative democracy’s normative power of justification, as well. Appeals to representative democracy cannot legitimise removing the other tethers between taxis and cosmos.173 Each is complementary, and without them our constitution would be altered fundamentally. Representative democracy is subordinate to the overall goal of stability in accordance with constitutional tradition. This is not just an assertion; certain features of our system demonstrate this is the case. For example, from the outset of the MMP system a threshold for entry—currently five per cent of party votes—has consciously been set so as to
168 See Geddis, above n 90, at 102; TRS Allan “Law, Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 OJLS 705 at 712–713; and see for example Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at 576 per Tipping J.
169 See Allan, above n 29, at 548 and following; and Campbell, above n 18, at 321.
170 Hans Kelsen “Foundations of Democracy” (1955) 66 Ethics 1 at 31.
171 Karl Loewenstein “Militant Democracy and Fundamental Rights” (1937) 31 APSR 417 at 430–432.
172 Hadfield and Weingast, above n 143, at 130–131, 136 and 148; and see Robert Jubb “Rawls and Rousseau:
Amour-Propre and the Strains of Commitment” (2011) 17 Res Publica 245 at 254.
173 See Joseph, above n 21, at 329; and see RA Edwards “Dr Bonham’s Case: The Ghost in the Constitutional Machine” [1996] Denning LJ 63 at 83 and 87.
avoid “a proliferation of minor parties in Parliament”174 and ensure “stable and effective governments”.175 Discarding validly cast votes on this basis—over 225,000 at the last election—is unquestionably unrepresentative and undemocratic, and yet we accept this in the name of stability.176 Attempting to remove other points of nexus under the auspices of representative democracy is the kind of revolutionary parliamentary action which might prompt a counterrevolutionary response from the courts. Due respect for constitutional tradition requires all three mechanisms to remain intact, at least to some recognisable extent.
The rule of law is a secondary mechanism of connection between taxis and cosmos. This section takes a functionalist approach to defining this controversial concept, setting out what it must do at minimum to maintain stability in accordance with constitutional tradition. In short, it must ensure that the law:
(a) can be understood, followed and judged by the population;
(b) connects with reality in a manner that meets community expectations; and
(c) ensures the minimum rights necessary for the continued connection between taxis
and cosmos.
There is some overlap between each of these functions and their implications for the collaborative enterprise.
(a) Rule by law
The first point reflects the accepted bare minimum of the rule of law, described by Waldron as “rule by law”, which requires:177
174 Report of the Royal Commission on the Electoral System: Towards a Better Democracy (December 1986) at [2.116]; and Independent Electoral Review Interim report: Our draft recommendations for a fairer, clearer, and more accessible electoral system (June 2023) at [4.9].
175 Report of the Electoral Commission on the Review of the MMP Voting System (29 October 2012) at 12–13.
176 Electoral Commission “2020 General Election and Referendums - Official Result” Election Results
<www.electionresults.govt.nz>.
177 Jeremy Waldron “The rule of law and the role of courts” (2021) 10 GlobCon 91 at 95–96.
... a framework of general laws, laid down in advance so that [people] know where they stand and so there is a general and more or less determinate basis, available to everyone in advance, on which they can approach the disputes and controversies that break out in any complex society.
This is essential to maintaining stability in accordance with constitutional tradition for three reasons. First, this ‘thin’ conception of the rule of law is a cornerstone of our constitutional tradition from which any major departure would constitute a revolution of great magnitude. This includes the requirement that laws be “general”; as Trevor Allan has observed:178
The bill of attainder is the paradigm example of a measure that singles out persons or groups for adverse treatment on arbitrary grounds that cannot plausibly stand as reasons of public interest, consonant with any morally defensible account of the public good.
Secondly, the stability which the law provides to society through being certain and prospective depends on its being publicly available and reasonably knowable in advance.179 Thirdly, if the law was not publicly available, or could not be applied to scrutinise exercises of public power, people’s ability to assess the system as a whole and influence its direction—whether through electoral democracy or by other means—would be severely limited, undermining the connection between cosmos and taxis. The continued existence of independent courts with jurisdiction to settle questions of law is therefore a fundamental component of the rule of law, connecting taxis with cosmos.180 Any attempt to destroy or significantly undermine this point of nexus might prompt a revolutionary response from the courts.181
178 Allan, above n 150, at 580.
179 See Raz, above n 132, at 214–215; and Jeremy Waldron “The Rule of Law” in Edward N Zalta and Uri Nodelman (eds) The Stanford Encyclopedia of Philosophy (Fall 2023 Edition) (forthcoming) at [6].
180 See Raz, above n 132, at 216–217.
181 See for example Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 (HL); and see Karen Grau “Parliamentary Sovereignty: New Zealand – New Millennium” (2002) 33 VUWLR 351 at 362 for a relevant discussion of its “revolutionary” implications. See also David Baragwanath “The Dynamics of the Common Law” (1987) 6 OLR 355 at 367 on the spring-like response of the courts to trespasses upon their jurisdiction.
(b) Community expectations
The second point emphasises that law must take account of circumstances in a generally acceptable way, and the courts must strive to do individual justice.182 The courts’ hostility toward overly prescriptive sentencing requirements, even in a general culture of deference to Parliament, speaks to the importance of this aspect of the rule of law.183 Furthermore, as the bill of attainder example highlights, laws which single people out for adverse treatment, thereby depriving them of the right to have their conduct assessed by general standards, do not accord with community expectations of justice.184 In extreme cases, violating community expectations can have deleterious effects on stability and the harmony between taxis and cosmos.185 The ancient institution of trial by jury is testament to the strength of commitment to this ideal in our constitutional tradition. That is not to say that particular institution is sacrosanct, but the ideal it represents is fundamental to the harmony of orders.
(c) Rights and connection
The third point is the most tentative, but still worthy of consideration. The suggestion is that certain substantive rights are necessary features of the rule of law for the purposes of maintaining the necessary connection between taxis and cosmos to achieve stability in accordance with constitutional tradition. This should not be read as encouraging the judicial invention of implied principles like ‘political communication’ as has occurred in Australia;186 that goes beyond what is necessary. However, some grave violations of rights would have such a detrimental effect on representative democracy that they would be tantamount to an untethering of the taxis from the cosmos, amounting to a revolution of great magnitude
182 See Jeremy Waldron “The Rule of Law and the Importance of Procedure” in James Fleming (ed) Nomos 50: Getting to the Rule of Law (New York, 2011) 1; and Waldron, above n 130, at 208–210.
183 See for example Fitzgerald v R, above n 106.
184 See Friedrich Hayek The Constitution of Liberty (University of Chicago Press, 1960) at 153–154.
185 See for example Trial of the Seven Bishops, above n 77, and related discussion in Tim Harris Revolution; the Great Crisis of the British Monarchy 1685-1720 (Penguin, 2006); and see Nadia Marzouki “The Call for Dignity, or a Particular Universalism” (2011) 3 MELG 148 for the more recent example of Mohammed Bouazizi, the martyr of Tunisia’s revolution.
186 See Nationwide News Pty Ltd v Wills [1992] HCA 46, (1992) 177 CLR 1; and Australian Capital Television
Pty Ltd v Commonwealth [1992] HCA 45, (1992) 177 CLR 106.
justifying a revolutionary response of arguably lesser magnitude. These fall into two categories.
First, restricting universal suffrage on arbitrary grounds. This may be controversial given the courts’ recent brushes with voting rights, but the present suggestion is not especially radical. If Parliament were to attempt to arbitrarily limit the franchise on the basis of any intrinsic element of identity, this would be a violation of rights of such a revolutionary nature that the courts might be justified in staging a revolutionary response. Sex, ethnicity and sexual orientation seem obvious. The tricky cases are religion, age and citizenship status. Criminal history or incarceration status are not in the ballpark; as objectionable as the prisoner voting ban challenged in the Taylor Declaration Case was, the discrimination was not totally arbitrary, nor did it target an intrinsic element of identity.187 Religion, while not necessarily a natural or inherent characteristic, is typically a cherished and deeply significant aspect of identity, such that it can properly be characterised as intrinsic. There is also a very strong constitutional tradition of protecting religious groups from persecution and disenfranchisement—a resolve which strengthened following the horrors of the Holocaust.188 Age and citizenship status are, however, different. Despite the Supreme Court’s declaration in Make It 16 v Attorney-General, age is not an intrinsic element of identity in the same way as sex, ethnicity, et cetera, because it is constantly changing.189 If everybody is expected to turn 18 after a finite period of time, it can hardly be intolerably discriminatory to require everybody to wait for that period to elapse before they may vote.190 Nor is an age threshold arbitrary; there is a discernible logic to the current setting, even if the Crown could not meet the section 5 threshold to the Court’s satisfaction.191 The decision in Make It 16 was the result of interpreting tricky (and perhaps ill-considered) statutory formulations, not bedrock constitutional principle. Finally, citizenship status can also be ruled out. Citizenship/residency is a legal representation of a person’s relationship with New Zealand, reflecting culturally
187 Taylor Declaration Case, above n 24.
188 Robert F Drinan Can God and Caesar Coexist? Balancing Religious Freedom and International Law (Yale University Press, 2005) at 8, as cited in A to Z of New Zealand Law (2021, online ed) Religious Freedom at [50.3.1], n 9.
189 Make It 16 Incorporated v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683. See Axel Gosseries “What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law” (2014) 43 NJLP 59.
190 But see Gosseries, above n 189, at 66–77.
191 Make It 16, above n 189, at [45]–[57]; and New Zealand Bill of Rights Act, s 5.
relevant factors such as place of birth, family ties, time in the country and so on. We do not extend voting rights to every person on Earth by virtue of their dignity as human beings; we require some recognised bond with New Zealand. Of course, if a law were introduced to determine citizenship status based on ethnicity or sex, we would be back to square one. This is a general sketch only; context remains important.
Secondly, violations of some rights unrelated to suffrage should arguably be treated in a similar manner. This is because such violations would have an intolerable chilling effect on the polity, altering the connection between taxis and cosmos so as to change the constitutional paradigm in a revolutionary way. Genocidal laws and laws implementing a system of apartheid would clearly have this effect, as citizens targeted by these laws could not tenably engage in democratic society and would no longer recognise the system as legitimate. There are other contenders as well—for example laws sanctioning the use of torture to compel testimony, which would make a mockery of the rule of law.192
The final mechanism of connection between taxis and cosmos is the Māori-Crown partnership created by te Tiriti o Waitangi.193 The partnership is emphasised, rather than te Tiriti or Treaty principles, because te Tiriti could conceivably be renegotiated or constitutionalised in different form by consensus. The partnership, however, must endure.194
(a) Te ao Māori as cosmos
Here, I draw attention to an often-overlooked component of Hayek’s theory: the idea of “spontaneous sub-orders” within the greater cosmos of society.195 Te ao Māori has a cosmos of its own within our system. The Crown undertook in 1840 to orient its taxis in harmony with
192 See Taylor v New Zealand Poutry Board, above n 11, at 398; and Jeremy Waldron “Torture and Positive Law: Jurisprudence for the White House” (2005) 105 Colum L Rev 1681 at 1726–1742.
193 I use “the Crown” here in the broader sense of “the state”, encompassing all branches of government.
194 See generally Jones, above n 72; and see Cooke “The Suggested Revolution Against the Crown”, above n 14, at 39–40.
195 Hayek, above n 53, at 47.
that order, in addition to the general order of society.196 Obviously, it has been far from consistent in honouring that promise;197 but we are now several decades into an emergent constitutional tradition of aspiring to remedy that. That aspiration is now part of the collaborative enterprise of government, and significantly undercutting it now would throw cosmos and taxis into disarray and undermine the pursuit of stability in accordance with constitutional tradition. It would also likely trigger a push for Māori self-determination outside the confines of the current taxis, per the internationally acknowledged principles laid out by the Supreme Court of Canada in the Quebec Secession Reference.198 This reflects Hadfield and Weingast’s observation that a legal system which does not afford sufficient influence or protection to certain constituent groups undermines its own stability by diminishing its value in the eyes of those groups.199 Te Pāti Māori President John Tamihere underscored this in a recent election debate, warning other parties:200
You either respect the rule of law, or we don’t have it. Now, if you’re gonna treat us like some new breed that just arrived here and wipe out our rights, there will be trouble in this country— not because we want it, but because we have practiced the rule of law over 183 years. If someone comes in and tries to run over our rights ... they’ve made a declaration ...
(b) Countervailing pressures
As Hanna Wilberg has acknowledged, however, there are countervailing pressures: many Pākehā remain uneasy about this partnership.201 Just as an attempt by Parliament to erase it from the legal landscape would be revolutionary, so too would a judicial attempt to cement it as constitutional bedrock.202 The consensus in our cosmos is fragile here; the taxis must tread
196 See FM Brookfield “The Monarchy and the Constitution Today – A New Zealand Perspective” [1992] NZLJ 438 at 439.
197 See for example Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.
198 Reference re Secession of Quebec [1998] 2 SCR 217 [Quebec Secession Reference] at [126]–[146].
199 Hadfield and Weingast, above n 143, at 130–131.
200 New Zealand Taxpayers’ Union “Taxpayers’ Union | The Working Group Party Policies Election Debate 2023” (video, 5 September 2023) YouTube <www.youtube.com> at [1:32:45]–[1:33:15].
201 Wilberg, above n 86, at 744 and following.
202 See Sian Elias, Chief Justice of New Zealand “Diversity and Law” (Ethel Benjamin Commemorative Address, Dunedin, 18 May 2000) at 10.
carefully.203 At present, a parliamentary move to erase Tiriti principles from legislation would probably not be so revolutionary as to warrant judicial intervention;204 but a revolutionary response might be more justified if Parliament attempted to wipe all trace of te Tiriti from the legal system, including the common law. The finding in Huakina Development Trust that “the Treaty is part of the fabric of New Zealand society” remains a statement of fact. That cannot be undone overnight by legislative fiat.205
(c) Implications
There are two implications here. The first is that neither the political branches nor the courts should push too hard, too fast in either direction if they are committed to continuing the collaborative enterprise. The second, though, is that the only way forward which maximises both stability and respect for constitutional tradition is a stronger consensus in support of the Tiriti partnership to which the Crown has committed. One of Hayek’s contentions was that “spontaneous orders result from their elements obeying certain rules of conduct”, and that rules of conduct can be imposed by a taxis.206 This is consistent with the “long and venerable tradition ... that constitutions shape the character of citizens living under them.”207 The precise outcomes of imposing rules on a society are unpredictable, but a general course can be charted.208 The taxis, then, has a means at its disposal to achieve this way forward, by upholding rules which steer the cosmos toward a stable partnership with Māori.
D Discussion
This chapter has introduced Hayek’s theory of cosmos and taxis as a conceptual framework to ascertain a common purpose driving the collaborative enterprise of government. The idea of maintaining stability in accordance with constitutional tradition was identified as that driving purpose, with the institutions of government achieving stability through both an internal
203 See also Harris, above n 57, at 191.
204 See for example Principles of the Treaty of Waitangi Deletion Bill 2006 (66–1).
205 Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC) at 210; and see Ellis v R, above n 119, at [126] per Glazebrook J.
206 Hayek, above n 53, at 43.
207 Eisgruber, above n 159, at 2133.
208 Hayek, above n 53, at 43–45.
commitment to fitting actions and rules within a coherent constitutional story, and keeping a connection with the evolving values and opinions of society over time. This connection, characterised as a state of harmony or balance, is maintained through three mechanisms: representative democracy, the rule of law and the Tiriti partnership.
These mechanisms all embody important constitutional principles. To call any one of them “supreme” would discount the necessity of balancing all three to achieve stable government. A sudden departure from any one would be to some extent revolutionary (recalling Chapter II), whether instigated by the courts or the political branches. Setting aside the contested notions of legality and constitutionality, all those engaged in the collaborative enterprise of government must recognise the risk that revolutionary acts might prompt revolutionary responses. Such is the nature of a constitution built on consensus and coordinate authority. In moments of major constitutional conflict, the calculus will be which revolutionary act would be the ‘least bad option’ with regard to the relative importance of each mechanism of connection and the overall goal of maintaining stability in accordance with constitutional tradition. This calculus can be understood in terms of David Williams’s theory of “conservative revolution”, which is intended:209
... to protect the constitution against invasion by the government, not to create a new politico- legal order. The revolution arises from an unremedied constitutional grievance, and the goal is to satisfy that grievance by reinstalling the constitutional regime.
Almost always, the courts should—and, as experience suggests, would—avoid outright defiance of Parliament, given the implications for representative democracy and the stability of the constitutional tradition, not to mention the potential undermining of their own legitimacy. This is especially so given the available alternatives to the ‘nuclear option’: strong interpretative methods, forceful declarations of principle, threats of future defiance if any further step is taken, resignation and so on. But if we enter the constitutional twilight zone of profound abrogation of deeply cherished constitutional principles, the courts may use their authority in a revolutionary way which could not be easily rejected as an illegitimate power- grab. This, it must be conceded, is possible.
209 Williams, above n 70, at 431. While Williams’s focus was popular revolutions, the same idea applies in this context.
E Conclusion
The virtue of a teleologically-defined collaborative enterprise is that it need not rely purely on altruism to secure a degree of constitutional propriety. The disorder caused by abruptly untethering from the cosmos, as well as the threat of disorder arising from a counterrevolutionary response, provides a check in realpolitik terms, even on malign actors. As discussed, stability is necessary for constitutional government, and adhering to constitutional tradition is the most reliable—and least resource-intensive—way of maintaining it. The next chapter discusses the implications of this account for governance going ahead.
V Implications for Governance
Shortly before putting pen to paper, I took the train from Christchurch across to the West Coast. The route followed the Waimakariri River, a crisscrossing braid of interwoven channels. The previous few chapters resemble that river, with streams of ideas intersecting at different points: parliamentary sovereignty, fundamentals, revolution, cosmos and taxis. This chapter is the gorge; the confluence of these ideas. I explore the implications of my theory for the political branches, the courts and New Zealand society more generally.
A Implications for Parliament
To some extent, this theory supports a move away from parliamentary sovereignty, but in practical terms it simply recognises what has always been true: in the normal order of things, Parliament enjoys primacy and the courts defer to it in the final instance; but the stability of this position derives from a consensus between the branches that this shall be so for implicit, normative reasons. Wade was right when he said the “rule” that courts defer to Parliament “is changed by revolution, not by legislation”.210 But Wade’s conclusion that this rule “lies in the keeping of the courts” misses the mark;211 this prevailing consensus is not a one-way street, and it lies in the keeping of all the governing institutions, as well as the public. This balance is key to understanding how stability is maintained in accordance with constitutional tradition.
210 Wade, above n 61, at 189.
211 At 189.
There are three lessons Parliament can take from this (noting that Parliament is largely controlled by the executive in reality).
Parliament ought to orient itself fully toward the goal of stability in accordance with constitutional tradition, and embrace the taxis’ internal function of ensuring actions and rules cohere with constitutional tradition and principles. At present, Parliament is not well-placed for this. It remains a unicameral legislature, limiting the degree of scrutiny applied to legislation.212 The short parliamentary term encourages legislative haste over sober deliberation.213 The select committee process, though robust, is undermined to an extent by the use of urgency and supplementary order papers (SOPs).214 For instance, a rogue SOP nearly resulted in the unprecedented and constitutionally objectionable entrenchment of a provision in the Water Entities Bill last year.215 Urgency is a substantial issue in itself.216 These concerns were enough to prompt Jeremy Waldron, renowned opponent of judicial review, to suggest stronger judicial oversight was justified in New Zealand if Parliament did not clean up its act.217 The fact these issues remain nearly two decades after Waldron’s critique may warrant some introspection.218
The discussion now turns to the three points of nexus between taxis and cosmos. Any attempt to sever or seriously weaken any of these would likely invite some revolutionary response.
212 See Jeremy Waldron “Parliamentary Recklessness: Why we need to legislate more carefully” (Annual John Graham Lecture 2008, Maxim Institute, Auckland, 28 July 2008) at 14–18.
213 Jonathan Boston, David Bagnall and Anna Barry Foresight, insight and oversight: Enhancing long-term governance through better parliamentary scrutiny (Institute for Governance and Policy Studies, Victoria University of Wellington, June 2019) at 183–184.
214 Hamish McQueen “Parliamentary Business: A Critical Review of Parliament’s Role in New Zealand’s Law- Making Process” [2010] AukULawRw 2; (2010) 16 Auckland U L Rev 1 at 10 and following.
215 See Andrew Geddis “What happens when MPs ‘entrench’ legislation, and why does it matter?” (27 November 2022) The Spinoff <www.thespinoff.co.nz>; Supplementary Order Paper 2022 (307) Water Services Entities Bill 2022 (136-2); and Water Services Entities Bill 2022 (136-3), cl 206AA.
216 McQueen, above n 214, at 19–22.
217 Jeremy Waldron “Compared to what? Judicial activism and New Zealand’s Parliament” [2005] NZLJ 441. 218 But see James Allan and Andrew Geddis “Waldron and opposing judicial review – except, sort of, in New Zealand” [2006] NZLJ 94 at 96.
Reasonable minds can differ as to whether a parliamentary assault on the foundations of representative democracy, the rule of law or the Tiriti partnership would technically be ‘illegal’. But attacking these points of nexus would clearly undermine constitutional stability by jettisoning the means by which the taxis stays in sync with the cosmos. Parliament would do well to remember that its continued primacy is based on consensus, which in turn depends on its commitment to performing its role in the collaborative enterprise diligently. As Lord Woolf said, “if one chain slackens, then another needs to take the strain”.219
At present, Parliament is not walking the walk regarding rights. On the one hand, it took the unusual step, of applying the NZBORA to its own legislative acts through section 3(a), projecting a message of strong commitment to rights.220 On the other, it barred the judiciary from disapplying any enactment found to unjustifiably limit protected rights.221 That would be justifiable if Parliament consistently held itself to a high standard—but it does not. Cautionary reports issued by the Attorney-General under section 7 of NZBORA are frequently ignored, with dozens of Bills having passed into law with rights-limiting provisions intact despite warnings that such limits were not demonstrably justifiable.222 Resistance to these reports has been described as “systematic and casual”, having stubbornly persisted across multiple governments since the Act’s passage.223 Of the three Bills subject to reports this year, two have been passed with the offending provisions intact.224 The third passed with cross-party support at first reading, with one legally-trained MP even concurring with the report “from an
219 Lord Woolf “Judicial Review: The Tensions Between the Executive and the Judiciary” (1998) 114 LQR 579 at 580.
220 New Zealand Bill of Rights Act, s 3(a); and see Fitzgerald v R, above n 106, at [170]–[171] per O’Regan and Arnold JJ.
221 Section 4.
222 Geoffrey Palmer “What the New Zealand Bill of Rights Act aimed to do, why it did not succeed and how it can be repaired” (2016) 14 NZJPIL 169 at 178.
223 Joseph, above n 8, at [28.4.7(3)].
224 David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Returning Offenders (Management and Information) Amendment Bill (House of Representatives, 2023); Returning Offenders (Management and Information) Amendment Act 2023, ss 4, 6 and 9; David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole Amendment Bill (House of Representatives, 22 August 2023); and Parole Amendment Act 2023, ss 4–6.
NZBORA perspective” before endorsing the rights-limiting measures “as a lawmaker more generally”.225 In a similar grain, Parliament’s response to a judicial declaration that the voting age unjustifiably discriminates against 16- and 17-year-olds was a proposed partial change, extending the franchise for local but not general elections.226
While these decisions are made by Cabinet in practice, the inconsistencies are formally Parliament’s to answer for. Greater attention to these alerts of inconsistency would uphold rights in a manner consistent with orthodox ideas about Parliament’s role and deter the courts from amending or neutering provisions through ever-stronger techniques of “interpretation”— techniques which may well register somewhere on the revolution scale.227 Committing to remedying inconsistencies might even encourage judges to think twice about making a declaration if there is any doubt or reservation; counterintuitive though it seems, the knowledge that a declaration would result in a law change might give some judges pause in more controversial cases.228 Above all, taking rights more seriously would enhance Parliament’s credibility as the foremost guarantor of stability in accordance with constitutional tradition.229
Finally, Parliament would do well to move on in general from an indignant view of its own supremacy and instead acknowledge the reality of the collaborative enterprise. Parliament is the predominant institution of government by virtue of its democratic credentials, but it is not shielded ipso facto from all charges of revolutionary conduct. Parliamentarians need not openly acknowledge the possibility of judicial revolution—this could itself undermine stability—but care should be taken to respect the coordinate authority exercised by the courts and its role in legitimising parliamentary authority, to avoid such a revolution from occurring.
225 David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Ram Raid Offending and Related Measures Amendment Bill (House of Representatives, 23 August 2023); Ram Raid Offending and Related Measures Amendment Bill 2023 (283–1); and (29 August 2023) 771 NZPD (Ram Raid Offending and Related Measures Amendment Bill – First Reading, Chris Penk).
226 Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill 2023 (279–1).
227 See Waldron, above n 217, at 443.
228 Contrast Andrew Geddis “Parliament, the Courts and the NZBORA: the cases of aid in dying and prisoner voting” (paper presented to Legal Research Foundation Conference, Auckland, 25 September 2015) at 25.
229 Andrew Geddis “Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed” [2011] NZ L Rev 443 at 461 and following.
Reciprocity is an important principle for maintaining a state of balance within the taxis, as in any human order.230
In practice, this means giving due consideration to the constitutional reason applied by the courts in their decisions and factoring this into expressions of political will. The foreshore and seabed saga remains a sore reminder of short-term political expediency trumping constitutional reason and long-term stability, and its impact on the harmony between taxis and cosmos was manifest.231 It also means allowing the courts to exercise their role properly in the interests of maintaining connection between taxis and cosmos through the rule of law. Hamstringing judges with overly prescriptive directives—for example in sentencing232—or denying jurisdiction altogether through privative clauses provokes conflict between the branches and undermines the maintenance of stability in accordance with constitutional tradition.233
It is not suggested that Parliament has any legal duty to heed these suggestions; that is a matter for the warring schools of jurisprudence. But as a practical matter, if Parliament wishes to maintain its position of primacy, it must remain committed to the purpose of the collaborative enterprise. There are obvious normative elements to the proposed teleological theory, but that simply recognises that our constitution is not, on any account, merely an empty vessel. Arguments from both sides are premised on some idea of preserving the essence of what we have. That suggests a common interest in stability in a manner that maintains the distinct character of our taxis.234 These suggestions for Parliament—and for the other branches too— proceed from an assumption of commitment to that ideal.
230 Compare Mead, above n 133, at 31–36.
231 See Ministerial Review Panel Ministerial Review of the Foreshore and Seabed Act 2004 – Volume 1 (30 June 2009) at 25–27.
232 See Sentencing and Parole Reform Act 2010.
233 See for example Anisminic v Foreign Compensation Commission, above n 181; and Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 133 per Cooke J; and see generally JG Pemberton “The Judicial Approach to Privative Provisions in New Zealand” (LLB(Hons) dissertation, University of Otago, 2014).
234 See Elias, above n 57, at 15–16.
B Implications for the Courts
Like Cooke, I do not intend to incite judicial revolution.235 The courts should approach the interpretative function relatively cautiously and generally defer to Parliament’s judgement on matters of policy and legal reform—with a specific exception in the case of NZBORA, where Parliament has given a broader mandate in section 6.236 However, they should not conflate deference with subservience. Their allegiance to Parliament is based on an understanding that both are committed to the collaborative enterprise for the purpose of maintaining stability in accordance with constitutional tradition. The rules which mediate relationships within the taxis, including the institutional ‘rule of recognition’ regarding Acts of Parliament, serve that end. Obeying Parliament is not the judiciary’s raison d’être. Sudden transformations of fundamental principles—most relevantly, those underpinning the mechanisms connecting taxis and cosmos—would be revolutionary, and therefore inimical to the purpose of the collaborative enterprise to some extent, regardless of the source of instigation.
But it is not just for Parliament to toe the line, and it would be unfair to suggest the political branches are the sole contributors to instability in the collaborative enterprise. Trevor Allan was wrong to dismiss concerns about judicial revolution as “dogmatic, and ultimately incoherent”.237 As Gavin Phillipson has observed, the constitution, in our tradition:238
... works most effectively when parliamentary and judicial forms of control and accountability, rather than being framed as antagonistic alternatives, or mutually exclusive directions of travel, work together, but with clearly defined, differentiated and mutually complementary roles.
This leads to three lessons for the courts in respect of their role.
235 Cooke, above n 4, at 164.
236 See Fitzgerald v R, above n 106, at [56]–[57] per Winkelmann CJ; and compare Hansen v R, above n 109, at
[252] per McGrath J.
237 Allan, above n 43, at 445; and see Goldsworthy, above n 18, at 234.
238 Gavin Phillipson “A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament” (2016) 79 MLR 1064 at 1089, as cited in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 at [254] per Lord Carnwath dissenting.
As already mentioned, the calculus at points of conflict and revolution will be which option is, on balance, the ‘least bad’, or the most conducive to the maintenance of stability in accordance with constitutional tradition. This will almost always be an option which does not openly deny or subvert Parliament’s legislative primacy. Representative democracy is the dominant means by which our taxis remains tethered to the cosmos. It is a highly effective feedback loop, allowing almost everybody in society to contribute to and evaluate public decision-making according to their personal values, the values of their community and wider societal values. As many note, it has served us reasonably well so far.239 It also enjoys a high degree of legitimacy; people generally accept Parliament’s authority by virtue of its democratic credentials.240 It would take something profoundly antithetical to the purpose of maintaining stability in accordance with constitutional tradition to justify a revolutionary departure from orthodoxy. I suggest the presumption of deference to Parliament ought only to be abandoned by the courts in response to an attempt to untether the taxis from the cosmos by destroying or fundamentally subverting any of the three mechanisms of nexus: representative democracy, the rule of law (as defined in Chapter IV) and the Tiriti partnership. Anything short of this would likely be, as Goldsworthy said, “to adopt a cure much more dangerous than the highly improbable disease”.241 Even in circumstances which may warrant such action, the courts should not consider this a power granted by law. It is essentially political, as Wade identified; a power in realpolitik terms to initiate a renegotiation of the rules governing the taxis—the constitutional “superstructure” which can create, but is not created by, law.242
One of the key reasons why judges ought to be so hesitant to use the ‘nuclear option’— disapplying a statute or otherwise repudiating Parliament’s legislative primacy—is that there are myriad other options available.243 The most obvious is the use of strong statutory
239 See for example Geddis, above n 90, at 99–100; and Geoffrey Palmer, above n 89, at 572–573.
240 Willis, above n 117, at 277–280.
241 Goldsworthy, above n 18, at 234.
242 Wade, above n 61, at 190. The characterisation of the constitution as an extra-legal superstructure comes from Hayek, above n 53, at 134–135.
243 See Kirby, above n 10, at 505 and following.
interpretation, including ‘reading down’ statutes and ‘reading in’ provisos.244 These techniques allow judges to maintain some degree of stability, coherence, fit with constitutional tradition and connection to cosmos without expressly repudiating Parliament’s authority.245 There is, however, the risk of crossing the line into essentially redrafting statutes. In cases which are extreme but nevertheless fall short of the kind of revolution which might justify upsetting the constitutional applecart entirely, the courts have a range of options, including but not limited to strong interpretation.
(a) Strong interpretation
First, if the text allows for a strained or unnatural interpretation, this interpretation could be preferred. In these cases, courts should be clear about what they are doing by openly balancing both the importance of parliamentary intention and the legitimacy of their interpretative function within the collaborative enterprise of government.246 This avoids obscuring the true nature of judicial decision-making. In cases of strong interpretation, the courts should also indicate to Parliament the manner and form required to give effect to the intention sought— and maintain consistency in this position from case to case—while warning against that course of action on the grounds of maintaining stability in accordance with constitutional tradition. This approach allows the court to perform its constitutional function, while maintaining clarity as to Parliament’s position as primary lawmaker and leaving the door open for Parliament to clarify its intent (noting that it must “squarely confront what it is doing and accept the political cost” of doing so).247
(b) Forceful declarations
Secondly, if the court cannot in all honesty interpret Parliament’s words to mean something else, it should give them effect but reprimand Parliament, including by use of the declaratory
244 See generally Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 421–422 and 473–475.
245 See Sales, above n 74.
246 See for example R v Pora, above n 45, at [167]–[169] per Thomas J.
247 R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33, [2000] 2 AC 115 at 131 per Lord Hoffmann.
jurisdiction, reminding the political branches of the shared purpose of the collaborative enterprise.248 Forceful declarations, if used sparingly and appropriately, provide a method of drawing attention and scrutiny to constitutionally objectionable laws without resorting to revolutionary means.
(c) Veiled or overt threats
If Parliament comes close to fundamentally undermining the collaborative enterprise, but the circumstances do not call for a revolutionary response, the courts could subtly or overtly indicate a red line which, if crossed, might prompt such a response. Cooke’s famous dicta are examples of this,249 as are the similar obiter comments from Lord Steyn, Lord Hope and Baroness Hale in the Fox Hunting Case.250 Despite Ekins’s protestations, such comments do not toll the end of parliamentary democracy as we know it.251 Rather, they remind Parliament of the reality underpinning the collaborative enterprise in a non-revolutionary way, providing ample opportunity for realignment with the purpose of maintaining stability in accordance with constitutional tradition.
(d) Novel options
Even in circumstances where judicial revolution might appear to be the best option available to salvage stability amid a breakdown in the collaborative enterprise, there may be novel alternatives to simply declaring an enactment void of legal effect. For example, some jurisdictions use grace periods which suspend judicial declarations of invalidity for a prescribed period to allow the legislature an opportunity to remedy the error.252 This encourages resolution of crises by more democratic means. An alternative would be a grace period
248 See for example R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695 (CA) at [70] per Thomas J; and see generally Declaratory Judgments Act 1908.
249 See for example Taylor v New Zealand Poultry Board, above n 11, at 398.
250 Fox Hunting Case, above n 22, at [102] per Lord Steyn, [104] and [107] per Lord Hope, and [159] per Baroness Hale.
251 See Ekins, above n 31.
252 See Ming-Sung Kuo “Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light” (2019) 36 UCLA Pac Basin LJ 157; and see for example Minister of Home Affairs v Fourie [2005] ZACC 19, 2006 (1) SA 524 (CC).
allowing the government to put the law in question to the public by calling a referendum or general election, rather than jumping to judicial revolution.253 This might not be appropriate in every instance—for example, letting the numbers count on the persecution of an ethnic minority would arguably be more inimical to stability in accordance with constitutional tradition than a revolutionary intervention from the courts.254 The appropriate response will be the one that meets the demands of the moment.
(e) Resignation
Finally, if push came to shove, judges could simply resign. This is the preferred suggestion of several opponents of Cooke’s thesis.255 For the reasons expressed below, resignation would not necessarily be preferable to revolution in every situation, but it probably would be if the judge were harbouring any doubts as to the righteousness of defying Parliament. Resignation, especially en masse, would be a powerful signal to the political branches and wider society, and might be enough to prompt a retreat from the twilight zone.
Underlying the theoretical debate about how the courts ought to respond to flagrant departures from constitutional tradition is one simple fact: real judicial power is relatively limited. The discussion so far has focused on the political fact of Parliament’s dependence on judicial recognition of its legislative authority. But this is a relationship of interdependence and collaboration. Without the concurrence of the political branches, the courts are reliant on a narrow sliver of inherent legitimacy. They have no democratic mandate to fall back on, nor any self-evident claim to superior moral judgement.256 They have only the gravitas of their office and the apparent merits of their decisions. However, this sliver is not nothing. I disagree with Lord Irvine’s assessment that the idea of judicial intervention holding back a
253 Compare DM Scher “‘The Court of Errors’: A study of the High Court of Parliament crisis of 1952” (1988) 13 Kronos 23 at 35 and following.
254 See Hadfield and Weingast, above n 143, at 130–131.
255 See for example Campbell, above n 18, at 326; Gleeson, above n 18; and Goldsworthy, above n 18, at 267. 256 Ronald Dworkin Freedom’s Law: The Moral Reading of the American Constitution (1996) at 74, as cited in Waldron, above n 33, at 1350, n 10.
parliamentary revolution is merely “romanticism”.257 Certainly, they could not do it alone; but judges could create an otherwise non-existent pathway of plausible legality upon which citizens could found their popular resistance.
The question in respect of which Erwin Schrödinger proposed his famous cat-related thought experiment was: “When does a quantum system stop existing as a superposition of states and become one or the other?”258 A similar question could be posed in respect of a constitutional system in crisis. In essence, if Parliament and the courts were to present two directly conflicting accounts of the law (a validly enacted statute, and a judgment declaring it void), it would create a sort of ‘Schrödinger’s constitution’: both accounts might be simultaneously law and not-law, constitutional and unconstitutional, until an institutional and societal consensus formed in favour of one over the other. Goldsworthy has said that judges ought not to do this because it would cause the legal system to “disintegrate into chaos”, citing HLA Hart’s comments on the 1950s South African constitutional crisis in support.259 Hart said that, had that crisis not been stopped, the legal system might have collapsed.260 The issue for both Hart and Goldsworthy is that the South African crisis did stop: the Government—despite its protestations—accepted the judicial rulings, called an election and was returned to power, after which it achieved its goals by means acceptable to the judiciary.261
Presenting an alternate conception of constitutionality is the most a court could do in such a profound crisis. Its decisions are ultimately words on a page, given effect and legitimacy only by a society which has kept the faith. Anna Barbauld, commenting on “enlightened” public officials, aptly noted that:262
257 Irvine, above n 59, at 77.
258 Erwin Schrödinger “Die gegenwärtige Situation in der Quantenmechanik (The present situation in quantum mechanics)” 23 Naturwissenschaften 807.
259 Goldsworthy, above n 18, at 241.
260 Hart, above n 26, at 118–119.
261 See Scher, above n 253, at 35 and following.
262 Anna Letitia Barbauld Sins of Government, Sins of the Nation: or, a Discourse for the Fast (4th ed, J Johnson, London, 1793) at 13–14.
The public is not always in the wrong for not giving into their views, even where they have the appearance of reason ... Freedom is a good thing, but if a nation is not disposed to accept of it, it is not to be presented to them on the point of a bayonet.
Judges, it is also worth noting, may be removed from office following a resolution of the House.263 The court’s jurisdiction is inherent, but the judge’s tenure is not. There is no such procedure, for obvious reasons, for sacking Members of Parliament or Ministers of the Crown by judicial decree. This imposes an additional limit.264
At this point, some may return to square one and ask why, if it is ultimately society’s decision, we cannot simply cut out the middleman. After all, the moral right to revolution rests with the people on any serious non-theological account.265 My answer is twofold. First, any organ of government committed to the maintenance of stability in accordance with constitutional tradition must hold that conviction until the bitter end. Judges swear to “do right to all manner of people after the laws and usages of New Zealand without fear or favour”.266 They cannot let the constitution go gentle into that good night; they must rage against the dying of the light.267 Secondly, this may actually serve a purpose. A court is recognised as an authoritative source of law, albeit not the only source. Law has a strong normative pull. People can do— and have done—unthinkable things on the basis that the law authorises or requires them so to act.268 A tenable alternative could be a powerful thing in the twilight zone. It is also relevant that in the modern world, where militias commanded by bellicose feudal lords are no more, it would take a lot for the average citizen to stand up to a state united in tyrannical consensus. A game theorist might not rate their chances going it alone.269
263 Constitution Act, s 23.
264 But see Campbell, above n 18, at 313–314.
265 See Goldsworthy, above n 18, at 232–233.
266 See Oaths and Declarations Act 1957, s 18. Note the conjunctive: “laws and usages”.
267 See Dylan Thomas “Do not go gentle into that good night” in In Country Sleep, And Other Poems (New Directions, 1952).
268 Herbert C Kelman and V Lee Hamilton Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (Yale University Press, 1989) at 16; and see Stanley Milgram Obedience to Authority (Harper Torchbooks, 1969).
269 See Barry R Weingast “The Constitutional Dilemma of Economic Liberty” (2005) 19 JEP 89.
C Implications for the Crown
Finally, I turn to the Crown. This is not, however, “the Crown” as traditionally conceived. The above discussion regarding Parliament is really addressing the political branches, fused as they are in our system. This part is about the public service; the bureaucracy; the so-called “administrative state”. The main point is that without the individuals who make up this arm of the state—from departmental heads to legal advisors, Defence Force officers to Police constables—Parliament’s authority, too, would be merely words on a page. Matthew Palmer has prominently addressed the under-recognised role of public officials within the constitution, but this analysis goes a step further than that.270 Without the concurrence of the administrators and enforcers of the law, neither law-making branch can have much of a practical effect on society at all. Taxis touches cosmos principally through their acts. Currently, they comprise
18.7 per cent of New Zealand’s working population, and reflect its diversity well.271 At a moment of constitutional crisis, with two conflicting legal narratives being presented by the principal organs of constitutional authority, the inclinations of the public service—who generally accept the authority of both legislation and judicial decisions—may be decisive. Given the public service is a relatively good proxy for the cosmos in general, this may not be a bad thing; and being employees rather than elected representatives or anointed servants of the constitution, they may have fewer qualms about simply declining to accept a particular directive or ruling. If Parliament were to find its enactment disapplied by the courts and rejected by the substantive component of the Crown, legality would have to give way to reality. The Emperor would be forced to put on some clothes.272
Conclusion
This dissertation has sought to continue the debate regarding the relationship between Parliament and the courts by proposing a teleological approach to the collaborative enterprise of government and exploring the dynamic of consensus between Parliament and the courts by
270 Palmer, above n 114, at 149 and following.
271 Te Kawa Mataaho – Public Service Commission Workforce data – Public sector composition (data and research report, 20 October 2022) at [02]; and Te Kawa Mataaho – Public Service Commission Workforce data
– Diversity and inclusion (data and research report, 20 October 2022).
272 See Hans Christian Andersen “The Emperor’s New Clothes” in Fairy Tales Told for Children (Third Booklet)
(C A Reitzel, 1837).
reference to the concept of revolution. This theory lends pragmatic support to general exhortations that Parliament and the courts should respect each other’s sphere of authority and maintain a commitment to upholding constitutional norms.
In closing, I acknowledge that our constitution has served us relatively well thus far. The points of friction and areas for improvement discussed in this dissertation should not detract from that bigger picture. There may not, therefore, be any urgent need for radical change in the way our constitution operates—though I acknowledge the continued denial of Māori self-determination as envisaged by te Tiriti qualifies this to an extent.273 That notwithstanding, our system is underpinned by balance and consensus, and so ought to work hard to maintain those bases. To that end, our constitution—which relies on legitimacy rather than authoritarian domination to secure public acquiescence—must remain connected to prevailing values and established norms by way of representative democracy, the rule of law and the Tiriti partnership. Parliament and the courts, as stewards of the constitution, should stay oriented toward preserving those points of connection and thereby maintaining stability in accordance with constitutional tradition. If that common purpose were repudiated in a serious way by either branch, such that the law risked detaching from society’s values and constitutional norms, a revolutionary response could be expected. Good constitutional practice, guided by a teleological blueprint, can avoid that eventuality. The rest, as they say, is politics.
273 See Moana Jackson “Changing Realities: Unchanging Truths” (1994) 7 Aust J of L & Soc 115; and see Jones, above n 72.
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Friedrich Hayek Law, Legislation and Liberty (Routledge & Kegan Paul, 1973). Friedrich Hayek The Constitution of Liberty (University of Chicago Press, 1960).
Richard Kay and Joel Colón-Ríos Adjudicating Revolution: Courts and Constitutional Change (Edward Elgar, 2022).
Herbert C Kelman and V Lee Hamilton Crimes of Obedience: Toward a Social Psychology of Authority and Responsibility (Yale University Press, 1989).
Gustave Le Bon (translated by Bernard Miall) The Pscyhology of Revolution (University of Virginia, 1995). Niccolò Machiavelli The Prince (Arcturus Publishing, 2008).
Archibald MacLeish “Return from the Excursion” in Riders on Earth (Houghton Mifflin, 1978). Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003). Stanley Milgram Obedience to Authority (Harper Torchbooks, 1969).
John Stuart Mill Considerations on Representative Government (Harper & Brothers, 1862). John Stuart Mill On Liberty and Other Essays (Oxford University Press, 1998).
Noel Parker Revolutions and History (Polity Press, 1999).
Philip Pettit and Chandran Kukathas Rawls: A Theory of Justice and its Critics (Polity Press, 1990).
Steven C A Pincus and James A Robinson “What Really Happened During the Glorious Revolution?” in Sebastian Galiani and Itai Sened (eds) Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North (Cambridge University Press, 2014).
John Rawls A Theory of Justice (original ed, Belknap Press of Harvard University Press, 1971).
Joseph Raz “The Rule of Law and its Virtue” in The Authority of Law: Essays on Law and Morality (Oxford, 1979) 210.
Theodore Roosevelt “National Duties” in The Strenuous Life: Essays and Addresses (G P Putnam’s, New York, 1901).
Dylan Thomas “Do not go gentle into that good night” in In Country Sleep, And Other Poems (New Directions, 1952).
Jeremy Waldron Law and Disagreement (Oxford University Press, 1999).
Jeremy Waldron “The Rule of Law and the Importance of Procedure” in James Fleming (ed) Nomos 50: Getting to the Rule of Law (New York, 2011) 1.
Jeremy Waldron “The Rule of Law” in Edward N Zalta and Uri Nodelman (eds) The Stanford Encyclopedia of Philosophy (Fall 2023 Edition) (forthcoming).
Henk E S Woldring “On the purpose of the State: Continuity and Change in Political Theories” in Brandan Sweetman (ed) The Failure of Modernity: The Cartesian Legacy and Contemporary Pluralism (The Catholic University, Washington, 1999).
E Journal Articles
James Allan and Andrew Geddis “Waldron and opposing judicial review – except, sort of, in New Zealand” [2006] NZLJ 94.
James Allan “Thin Beats Fat Yet Again – Conceptions of Democracy” (2006) 25 L & Phil 533. TRS Allan “Law, Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 OJLS 705.
TRS Allan “Parliamentary Sovereignty: Law, Politics and Revolution” (1997) 113 LQR 443.
TRS Allan “Parliamentary Sovereignty: Lord Denning’s Dexterous Revolution” (1983) 3 OJLS 22. TRS Allan “Why the law is what it ought to be” (2020) 11 Juris 574.
David Baragwanath “The Dynamics of the Common Law” (1987) 6 OLR 355.
John Battersby “[Review] Waitangi and Indigenous Rights: Revolution, Law and Legitimation” (2002) 36 NZJH 204.
Luis Roberto Barroso “Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse” (2012) 35 BC Intl & Comp L Rev 331.
FM Brookfield “The Monarchy and the Constitution Today – A New Zealand Perspective” [1992] NZLJ 438. Tom Campbell “Judicial Activism – Justice or Treason?” (2003) 10 OLR 307.
Robin Cooke “Fundamentals” [1988] NZLJ 158.
Robin Cooke “The Basic Themes” (2004) 2 NZJPIL 113. Robin Cooke “The Myth of Sovereignty” (2005) 3 NZJPIL 39.
Michael Cullen “Parliamentary sovereignty and the Courts” [2004] NZLJ 243.
Eoin Daly “Austerity and Stability in Rousseau’s Constitutionalism” (2013) 4 Juris 173. Gus diZerega “Outlining a New Paradigm” (2013) 1 Cosmos and Taxis 3 at 12.
RA Edwards “Dr Bonham’s Case: The Ghost in the Constitutional Machine” [1996] Denning LJ 63. Christopher Eisgruber “Civic Virtue and the Limits of Constitutionalism” (2001) 69 Fordham L Rev 2131. Richard Ekins “The Authority of Parliament: A Reply to Professor Joseph” (2005) 16 KCLJ 51.
Sian Elias “Fundamentals: A Constitutional Conversation” [2011] WkoLawRw 1; 19 Waikato L Rev 1. Sian Elias “Mapping the Constitutional” [2014] NZ L Rev 1.
Sian Elias “Sovereignty in the 21st Century: Another Spin on the Merry-go-round” (2003) 14 PLR 148. Timothy Endicott “The Purpose of a State” (2021) 66 Am J Juris 69.
Hadley Friedland and Val Napoleon “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (2016) 1 Lakehead LJ 16.
Stephen Gardbaum “Revolutionary Constitutionalism” (2017) 15 ICON 173.
Andrew Geddis “Parliamentary Government in New Zealand: Lines of Continuity and Moments of Change” (2016) 14 ICON 99.
Andrew Geddis “Prisoner Voting and Rights Deliberation: How New Zealand’s Parliament Failed” [2011] NZ L Rev 443.
Susan Glazebrook “The Rule of Law: Guiding Principle or Catchphrase?” [2021] WkoLawRw 2; (2021) 29 Waikato L Rev 2. AM Gleeson “Judicial Legitimacy” (2000) 12(6) JOB 41.
Jeffrey Goldsworthy “Is Parliament Sovereign? Recent Challenges to the Doctrine of Parliamentary Sovereignty” (2005) 3 NZJPIL 7.
Axel Gosseries “What Makes Age Discrimination Special? A Philosophical Look at the ECJ Case Law” (2014) 43 NJLP 59.
Karen Grau “Parliamentary Sovereignty: New Zealand – New Millennium” (2002) 33 VUWLR 351.
BV Harris “The Treaty of Waitangi and the Constitutional Future of New Zealand” [2005] NZ L Rev 189.
Lord Irvine “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] PL 59. Moana Jackson “Changing Realities: Unchanging Truths” (1994) 7 Aust J of L & Soc 115.
Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25 NZULR 703.
Philip Joseph “Parliament, the Courts and the Collaborative Enterprise” [2004] 15 KCLJ 321.
Robert Jubb “Rawls and Rousseau: Amour-Propre and the Strains of Commitment” (2011) 17 Res Publica 245. Hans Kelsen “Foundations of Democracy” (1955) 66 Ethics 1.
Michael D Kirby “The Struggle for Simplicity: Lord Cooke and Fundamental Rights” (1998) 24 CLB 496. Stephen Kós “Constitutional Collision: Fitzgerald v Muldoon v Wild” (2014) 13 OLR 243.
Ming-Sung Kuo “Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light” (2019) 36 UCLA Pac Basin LJ 157.
John Laws “Law and Democracy” [1995] PL 72.
Armand Leroi “On revolutions” (2020) 6(4) Palgrave Commun 1.
Karl Loewenstein “Militant Democracy and Fundamental Rights” (1937) 31 APSR 417. Nadia Marzouki “The Call for Dignity, or a Particular Universalism” (2011) 3 MELG 148.
Christopher McCrudden “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19 EJIL 655. Beverly McLachlin “What is Going On?” (2006) 4 NZJPIL 148.
Hamish McQueen “Parliamentary Business: A Critical Review of Parliament’s Role in New Zealand’s Law- Making Process” [2010] AukULawRw 2; (2010) 16 Auckland U L Rev 1.
Samuel Moyn “The Secret History of Constitutional Dignity” (2014) 17 Yale Hum Rts & Dev LJ 39.
James Bernard Murphy “The Lawyer and the Layman: Two Perspectives on the Rule of Law” (2006) 68 Rev Pol 101.
Douglass C North and Barry R Weingast “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England” (1989) 49 J Econ Hist 803.
Geoffrey Palmer “The New Zealand Constitution and the Power of Courts” (2006) 15 Transnatl L & Contemp Probs 551.
Geoffrey Palmer “What the New Zealand Bill of Rights Act aimed to do, why it did not succeed and how it can be repaired” (2016) 14 NZJPIL 169.
Matthew S R Palmer “What Is New Zealand's Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-holders” (2006) 17 PLR 133.
Gavin Phillipson “A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament” (2016) 79 MLR 1064.
Mihiata Pirini and Anna High “Dignity and Mana in the “Third Law” of Aotearoa New Zealand” (2021) 29 NZULR 623.
John Rawls “The Idea of an Overlapping Consensus” (1987) 7 OJLS 1. Paul Rishworth “Writing Things Unwritten” (2016) 14 ICON 137.
Jacinta Ruru and Jacobi Kohu-Morris “‘Maranga Ake Ai’ The Heroics of Constitutionalising Te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand” (2020) 48 FL Rev 556.
Lord Sales “In Defence of Legislative Intention” (2019) 48 Aust Bar Rev 6.
DM Scher “‘The Court of Errors’: A study of the High Court of Parliament crisis of 1952” (1988) 13 Kronos 23.
Erwin Schrödinger “Die gegenwärtige Situation in der Quantenmechanik (The present situation in quantum mechanics)” 23 Naturwissenschaften 807.
John Smillie “Who wants Juristocracy?” (2006) 11 OLR 183.
Edmund Thomas “The Relationship of Parliament and the Courts: A Tentative Thought or Two for the New Millennium” (2000) 31 VUWLR 1.
Stephen Turner “Quiet Revolution in Aotearoa New Zealand” (2002) 20 Arena J 67. HWR Wade “Sovereignty–Revolution or Evolution?” (1996) 112 LQR 568.
HWR Wade “The Basis of Legal Sovereignty” (1955) 13 CLJ 172.
Jeremy Waldron “A Rights-Based Critique of Constitutional Rights” (1993) 13 OJLS 18.
Jeremy Waldron “Compared to what? Judicial activism and New Zealand’s Parliament” [2005] NZLJ 441. Jeremy Waldron “How Law Protects Dignity” (2012) 71 CLJ 200.
Jeremy Waldron “The Core of the Case Against Judicial Review” [2006] YaleLawJl 35; (2006) 115 Yale L J 1346. Jeremy Waldron “The rule of law and the role of courts” (2021) 10 GlobCon 91.
Jeremy Waldron “Torture and Positive Law: Jurisprudence for the White House” (2005) 105 Colum L Rev 1681. Barry R Weingast “The Constitutional Dilemma of Economic Liberty” (2005) 19 JEP 89.
Hanna Wilberg “Judicial Remedies for the Original Breach” [2007] NZ L Rev 713.
David C Williams “The Constitutional Right to “Conservative” Revolution” (1997) 32 Harv C R–C L L Rev 413. Edward Willis “Constitutional Authority: Legitimising the Exercise of Public Power in New Zealand” [2014] NZ
L Rev 265.
Edward Willis “Limits on Constitutional Authority” [2014] WkoLawRw 6; (2014) 22 Waikato L Rev 87. Lord Woolf “Droit Public – English Style” 7 ERPL 267.
Lord Woolf “Judicial Review: The Tensions Between the Executive and the Judiciary” (1998) 114 LQR 579 at 580.
Dale Yoder “Current Definitions of Revolution” (1926) 32 Am J Soc 433.
F Parliamentary and Government Materials
Cabinet Office Cabinet Manual 2023.
Cabinet Office Circular “Te Tiriti o Waitangi / Treaty of Waitangi Guidance” (22 October 2019) CO (19) 5. Constitutional Advisory Panel New Zealand’s Constitution: A Report on a Conversation (Ministry of Justice,
November 2013).
Constitutional Arrangements Committee Inquiry to review New Zealand’s existing constitutional arrangements: Report of the Constitutional Arrangements Committee (New Zealand House of Representatives, Wellington, August 2005).
Christopher Finalyson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Sentencing and Parole Reform Bill (Ministry of Justice, 2009).
Human Rights Commission “Submission to the Law and Order Committee on the Sentencing and Parole Reform Bill 2009”.
Independent Electoral Review Interim report: Our draft recommendations for a fairer, clearer, and more accessible electoral system (June 2023).
Law Commission He Poutama (NZLC SP24, 2023).
Legislation Advisory Committee “Submission to the Law and Order Committee on the Sentencing and Parole Reform Bill 2009”.
Legislation Design and Advisory Committee Legislation Guidelines (September 2021).
Ministerial Review Panel Ministerial Review of the Foreshore and Seabed Act 2004 – Volume 1 (Ministerial Review Panel, 30 June 2009).
David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Ram Raid Offending and Related Measures Amendment Bill (House of Representatives, 23 August 2023).
David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Parole Amendment Bill (House of Representatives, 22 August 2023).
David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Returning Offenders (Management and Information) Amendment Bill (House of Representatives, 2023).
Report of the Electoral Commission on the Review of the MMP Voting System (29 October 2012).
Report of the Royal Commission on the Electoral System: Towards a Better Democracy (December 1986). Supplementary Order Paper 2022 (307) Water Services Entities Bill 2022 (136-2).
Te Kawa Mataaho – Public Service Commission Workforce data – Public sector composition (data and research report, 20 October 2022).
Te Kawa Mataaho – Public Service Commission Workforce data – Diversity and inclusion (data and research report, 20 October 2022).
Waitangi Tribunal Te Taranaki Report: Kaupapa Tuatahi (Wai 143, 1996). (4 May 2010) 662 NZPD 10674.
(29 August 2023) 771 NZPD (Ram Raid Offending and Related Measures Amendment Bill – First Reading, Chris Penk).
G Papers and Reports
Jonathan Boston, David Bagnall and Anna Barry Foresight, insight and oversight: Enhancing long-term governance through better parliamentary scrutiny (Institute for Governance and Policy Studies, Victoria University of Wellington, June 2019).
Richard Ekins Protecting the Constitution: How and why Parliament should limit judicial power (Policy Exchange, 2019).
Andrew Geddis “Parliament, the Courts and the NZBORA: the cases of aid in dying and prisoner voting” (paper presented to Legal Research Foundation Conference, Auckland, 25 September 2015).
H Internet Resources
Electoral Commission “2020 General Election and Referendums - Official Result” Election Results
<www.electionresults.govt.nz>.
Andrew Geddis “Parliament, The Courts And The End Of Three Strikes (For Now)” (23 November 2021) Pundit
Andrew Geddis “What happens when MPs ‘entrench’ legislation, and why does it matter?” (27 November 2022) The Spinoff <www.thespinoff.co.nz>.
New Zealand Taxpayers’ Union “Taxpayers’ Union | The Working Group Party Policies Election Debate 2023” (video, 5 September 2023) YouTube <www.youtube.com>.
Ewan Smith “Adam Tucker – Composite Authority and the Significance of Parliamentary Imperfection” (December 2015) University of Oxford Faculty of Law <www.law.ox.ac.uk>.
“Tūngia te ururua kia tupu whakaritorito te tupu o te harakeke” (2023) Te Aka Māori Dictionary
I Other
A to Z of New Zealand Law (2021, online ed) Religious Freedom.
Hilary Calvert “What a 16-year-old wants, and the rest” Otago Daily Times (14 September 2023) at 17.
Sian Elias, Chief Justice of New Zealand “Diversity and Law” (Ethel Benjamin Commemorative Address, Dunedin, 18 May 2000).
Andrew Geddis “‘Stick to your knitting’ principle a knotty one to apply” The New Zealand Herald (online ed, Auckland, 22 July 2009).
JG Pemberton “The Judicial Approach to Privative Provisions in New Zealand” (LLB(Hons) dissertation, University of Otago, 2014).
Paul Reeves, Governor-General of New Zealand “Commemoration of the Signing of the Treaty of Waitangi” (speech at Waitangi, 6 February 1987).
Jean-Jacques Rousseau Projet de constitution pour la Corse (Nautilus, 2000).
Jeremy Waldron “Parliamentary Recklessness: Why we need to legislate more carefully” (Annual John Graham Lecture 2008, Maxim Institute, Auckland, 28 July 2008).
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