We are all negotiators now, Andrew Ladley

Essays on the Constitution 
Philip A Joseph (ed)
Brookers, $57.78
ISBN 086472 1900

Rights and Freedoms — the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 
Grant Huscroft and Paul Rishworth (eds)
Brookers, $57.78
ISBN 0 864721781

There have been few texts and only two other collections of essays in New Zealand public law in the last 30 years. These two additions show how much ground can be covered when good minds gather. The historical and comparative elements in each collection place their subject matter in a much wider context than a dry text. The result is two valuable works, dealing with key current issues of governance. Not that they are the same: Rights and Freedoms focuses on the origins and development of the law relating to two major statutes: the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. These seek to shape the way “public power” can effect key areas of private and public activity. The authors are academics, the text thematic and scholarly. Essays on the Constitution, however, is more a vehicle for an impressive list of authors than a coverage of the field of constitutional law.

Among the leading figures in the law represented in Essays are the Chief Justice, two Court of Appeal Judges including its current and former Presidents, the Attorney-General, the Clerk of Parliament, the President of the New South Wales Court of Appeal (recently appointed to the Australian High Court) and several distinguished academics.

Sir Robin Cooke’s lead essay is titled “The Suggested Constitutional Revolution Against the Crown”. It might be subtitled “Beware republicans”. Can such a major constitutional change such as republicanism really be achieved by those who happened to be elected in one general election? Sir Robin is not sure. This is a parting shot at the doctrine of parliamentary supremacy. Generations of New Zealand lawyers, instructed on this doctrine from Dicey’s almost scriptural work, will shudder to their constitutional cores.

Sir Robin notes that public interest litigation has already cast exacting responsibilities on judges and that a “monarchy abolition case would be the epitome of this kind of litigation.” (p39) Whether the legislature can in law “cast itself adrift from its foundations” by abolishing the monarchy is thus left open. Further, he writes that none of the current controversies over Treaty of Waitangi grievances can “obscure the permanent significance of the treaty as the principal source of the national partnership. The reciprocal responsibilities created by it are indelible. Whether or not legally enforceable, they necessarily outlast settlements of particular grievances. They cannot be ignored in contemplating any major constitutional change”. (p40)

This is a warning that MPs should not assume that Parliament has the constitutional power either to abolish the monarchy or the Treaty of Waitangi. The legislation might not survive a challenge in the courts. This view has support from a leading academic republican, Professor (now Emeritus) Jock Brookfield. But he argued that if there was virtually a unanimous Parliament and a substantial majority in separate referendums of Maori and general roll voters, it would be brave courts who would not bow to the inevitable and recognise that a “legal revolution” had occurred — and quietly get on with their jobs… (p36) But these are, as Sir Robin effectively warns, big “ifs”.

Professor Brookfield argues that the constitutional order is founded on the raw assertion of colonial power — on “revolution” justified by continuous presence and hence recognised by the courts. To critics (especially Maori “radicals’) who would deny this as a source of legal power he indicates that it has been so throughout history — including Maori history. (pp47, 49) Still, much like Sir Robin Cooke, he wishes to see the evolution of the constitution so that the courts recognise express limitations on Parliament’s powers — particularly over the Treaty of Waitangi and basic human rights. (p55) He believes that the difficulties in developing these limits by judicial action alone suggest that it would be preferable — his “millennial hope” — for there to be a written, superior constitution, protecting both treaty (that is, group) rights and individual rights and freedoms.

Sir Ivor Richardson examines the sources for human rights protection, noting particularly the enormous influence of international law and comparative jurisprudence. But his real concern is in the balancing required of judges. And, as he indicates, many of the decisions of courts may have substantial budgetary effects — and almost no litigation is directed to informing the courts of these costs and benefits. (pp75, 80)

But the reader is not long away from the idea of limits on parliamentary power. The Clerk of the House of Representatives, David McGee, argues that Parliament is a creature of law itself. As such it is “below the law and its ‘punishment’, should it break the law, need not be left to divine authority” (p85) (in which he is disagreeing with Bracton that “the King is bound to obey the law, though if he break it, his punishment must be left to God”). Particularly, McGee notes that the House of Representatives is only a part of the law-making process and thus should not be regarded as immune from statute law. In such circumstances, it might well be that the courts could require the House to follow the law — notwithstanding the reverence for the 1688 Bill of Rights which provides that proceedings in the House shall not be called into question outside of the House.

The Chief Justice, Sir Thomas Eichelbaum, acknowledges that the appeal to the Privy Council will end reasonably soon, though he has not advocated that. This is a farewell following an extended visit by a learned old friend, not wanting it to be said that the visit was without value. His query is whether the Privy Council could be said from the evidence of its judgments, to have inhibited the development of New Zealand law. His analysis is that “notwithstanding any fetter imposed by the presence of the Privy Council appeal, New Zealand has evolved a distinct national legal identity”. Still, he recognises that “as in Australia, complete freedom to develop our own body of law and shape a separate New Zealand legal destiny will not be achieved until the Privy Council appeal is abolished”. (pp127, 128)

And so to bridge the Tasman with Judge Michael Kirby and Philip Joseph. They question whether the agreement providing for Closer Economic Relations between Australia and New Zealand would ever lead to any kind of constitutional relationship. Surveying the options, including the European Community models, they conclude it will not, at least currently. Still, they see a deep sense of kinship and belonging from the “ANZAC spirit” and wonder if this might possibly “lay the foundations of a new polity”. (p156) The real value of this essay is therefore not so much its non-conclusion, as in the careful setting out of options, from federation to the creation of a whole new polity.

The Attorney-General, Paul East, writes on the role and history of his office. His new contributions concern the role of the office in his tenure, though I regret that the recent International Court of Justice cases were not earlier in 1995 so might have been added. What distinguishes this chapter in my view is not the issues and examples but how dependent the office is on someone knowing and respecting the conventions which somehow allow it to function tolerably within its confused web of legislative, executive and judicial overlaps. As East indicates, if one was to write a new constitution, one could not possibly design such a mishmash of potentially confusing roles. He believes that this very dependency upon conventions and not clear law is a strength of the constitution, allowing it to offer “one of the fairest systems of government that the people of the world have witnessed.” (p212) I once tried to detail these sorts of intricacies to an American professor of constitutional law. It was like trying to retell a funny cultural joke to a stranger — you had to have belonged; so with the Attorney-General.

The scholarly tour-de-force of this collection is by Professor Michael Taggart of Auckland University. In 50 solidly researched and argued pages he puts the case for the rediscovery of a body of common law dealing with the duties of public utilities. Until recently in New Zealand this body of law was not really necessary because there were political and judicial controls on the state — the field of public law. But with privatisation this area of law potentially takes on the nature of a people’s charter against powerful business effectively exercising “public power”. Taggart argues for a key judicial role in managing the responsibilities of monopolistic utilities (like electricity). This is fairly old hat in the United States, but will be dramatically new in New Zealand. It is a warning to major players like Telecom and Tranzrail that the courts may be called upon to balance the powers in the citizen’s interest.

Taggart’s colleague, Professor Harris, picks up this theme in looking at the law making power of the judiciary. He notes that the judiciary is likely to play an increasing role in settling disputes, often over key social and economic issues. This prompts him to raise the old issues of the somewhat contradictory needs for independence and public accountability. In his view, accountability will come with “public confidence”, which “will be enhanced if the public is fully informed about, and identifies comfortably with, the judicial process”. (p279) A range of suggestions follows, from explaining judgments clearly, to removing the mystique of bewigged and berobed justice. In essence he argues that because the judiciary is engaged in more “political” law making it must be more politically acceptable. Their appointments must be made more openly — by a select committee of Parliament, for example, somehow immune from party whips (pp280-01). The selection should spread gender, race and social background reflective of the community. There must be much closer monitoring of judicial performance, reflected in promotion and perhaps in reappointment — since he proposes fixed judicial (potentially non-renewable) terms much like the Ombudsman. (p281) Why he does not go the obvious next step and recommend the popular election of judges as in some American states is not clear. Harris is for popularising, but not for completely politicising, the judiciary. We will return to this shortly.

The last chapter, symbolically, is on “Cutting the Imperial Link — Canada and New Zealand” by Peter Oliver of Kings College, London. The Canadian aspects of this have been done to death and the comparison with New Zealand’s 1986 Constitution Act is stretched. New Zealand’s imperial cord suffered a thousand cuts since 1840 so that any final snipping of hypothetical legislative threads by the 1986 act are of little general interest. We are now focusing on the final chains, the Privy Council and the Crown itself.

This book provides a great deal on which to reflect. The major absence is a searching treatment of the constitutional possibilities arising from the rebirth of the Treaty of Waitangi. Several authors flirt with the treaty, but no more. More significantly, there is an absence of overarching conceptual development emerging from the collection. The themes cover republicanism, the role of the courts, human rights, international legal influences, integration/federation with Australia and historical analysis. These add up to a major challenge to public lawyers. Something is happening to the state of New Zealand. By complex pressures internal and external, the state is being reconstituted. Essays on the Constitution is invites the development of public law theory — but this must await another occasion.

2

One key theme which emerges in the changing state of New Zealand, however, is that the judiciary is being increasingly called on to resolve major questions. Thus we may be seeing a dramatic constitutional shift in the relationship between Parliament and the courts. To explain this we should reflect first on Rousseau’s notions that the relationship between the people and their government is something of a social contract and, indeed, on the importance of “contract” generally.

Writing in the middle of last century, Henry Maine surveyed the development of law across all the legal systems known to him. In one of the great generalisations of jurisprudence, he argued that the historical development of legal systems had seen a shift from “status to contract”.

By this Maine meant that ancient laws had determined a person’s legal capacity from her or his “status”, such as nationality, religion, sex, or feudal position. These things shaped the legal life of the person, virtually unchangeably, in ancient Rome and in feudal Britain. By the mid-nineteenth century, however, “status” was collapsing — influenced by the industrial revolution’s destruction of the feudal systems, as well as by rising ideas of constitutional rights from the Americas, France and the Enlightenment. In its place, stood “contract”: the ability of a person to shape her or his own destiny by agreement.

Citizenship could be chosen, not just acquired by birth. And so could anything else. Government was no longer conceived as unquestionably monarchical — the American and French revolutions had seen to that. Government became conceptualised in a contract, where the people gave power through elections in return for public order; their wealth through taxation in return for government protection. This was epitomised in the first of these great contracts, the Constitution of the United States. The details of such “contractual” terms are constantly being renegotiated. Indeed, it is the essence of democracy that they should be.

Influenced by these notions, the amendments to the core constitution of the United States, known as the Bill of Rights, formed the bases for human rights standards which have since proliferated in constitutions all over the world. The two key elements are protection against the abuse of state power and non-discrimination. These would in the end be protected by the courts and ultimately by the Supreme Court.

The broad framework of a British “governmental contract” had been developed a century earlier. In essence the House of Commons had emerged as the key protector of the people’s rights and property against the abuses of despotic kings. The terms of this protection were spelt out in numerous protestations and statutes but most eloquently in the Bill of Rights of 1688. The courts, applying the common law, also developed doctrines of basic rights. But, since the victories of Parliament in the seventeenth century the English courts have largely deferred to representative legislatures in the “Westminster contract”.

These are related, but different traditions: parliamentary representation to protect the citizen and judicially-protected constitutional rights. It is not surprising that the British model has dominated our experience. Even where New Zealand innovated, it followed the parliamentary model. For example, this was the first common law country to introduce the Ombudsman in 1962 as the citizen’s protector against administrative abuse. But in constitutional form the Ombudsman is an adviser to Parliament, nothing more. It was not until 1990 that a charter of human rights was spelt out in the Bill of Rights Act.

This act and its companion the Human Rights Act 1993 form the basis for this second book. For the first time in New Zealand’s legal history we are on the edge of developing a substantial jurisprudence which reflects much more closely the American tradition of human rights protection. Some inkling of the possibilities of this model has already emerged in the litigation covering the various rights and protections under the Treaty of Waitangi, where it was mentioned in any statute. Any observer of the law over the 1980s and 1990s in New Zealand can see that most of the litigation in this area has been a total surprise to the government.

As the coverage of Rights and Freedoms suggests, there is a lot more surprise to follow. Let us turn to the book before ending with the notions of contractualism and the role of the judiciary which emerge.

3

In this second collection the editors have tighter themes. They explore the histories of the acts, their local and international contexts and how they have operated in their relatively short histories. A great deal of litigation promises from these acts, so it is very useful to have discussion on them grouped in one collection. With the texts of the statutes in the appendices, along with the key international treaties on which they are based, this will be a valuable book for the academy as well as specialist practitioners.

Paul Rishworth’s first chapter on “The Birth and Rebirth of the Bill of Rights” operates at a number of levels. First, he discusses the antipathy New Zealanders have traditionally shown to judicially-enforceable human rights — indeed, which they showed to the version which eventually emerged in 1990. I thought he took particular pleasure in unearthing some of the cogent arguments made against proposals for a Bill in the 1960s by Victoria University law staff, particularly “a young academic named Geoffrey Palmer” (p9) and also by Kenneth Keith (as he then was). (p7) But these two, and others, changed their minds, and by the 1980s were in positions of influence, eventually seeing the bill pressed through in its current form.

This was done for a rather disinterested populace struggling with the drama of Rogernomics. And, as I recall, on the night it was presented to the House for its final reading, a National Party member took great pleasure in making a successful point of order that there was not a quorum. The bells had to be rung to get a quorum to discuss the Bill of Rights Act…

In the dying days of the fourth Labour Government the bill many thought to be a toothless wonder was passed — vigorously opposed by the National Party. The other sense in which it was then “born again” has been the way that it has sprung to life in litigation over the last few years.

Rishworth shows where the pressures for the bill originated domestically. The next chapter, on “The International Law Dimension of Human Rights in New Zealand”, sets out the international context. International activity on human rights has developed phenomenally since the formation of the United Nations in 1945. Indeed, it has been the fastest growing area of international law. This has considerable implications, not least for the old notions of state sovereignty. Along with other international standards (eg trade), the effective room for state variation from such standards is rapidly declining.

In chapter 3 Rishworth explores the effect of the Bill of Rights and Human Rights Acts on New Zealand law. He starts from the “entrenchment” issues and shows that despite not being entrenched as superior law these statutes will have enormous significance — some statutes are more equal than others. General operative provisions, especially on human rights, may well be interpreted by the courts to override other provisions in statutes unless there is express intention to the contrary. This possibility was explicitly denied to the Bill of Rights Act, but it remains open for the Human Rights Act after the lapse of a contrary clause in 1999.

Grant Huscroft’s chapter on the Attorney-General provides one of two direct points of comparison with the equivalent chapters in Essays on the Constitution. True, he is at a certain disadvantage in writing against the Attorney himself. But his purpose here is limited — it is to explore the role of the Attorney in relation to the Bill of Rights only and hence he has more room for detail. The Attorney’s warning certificate to Parliament where the provisions of any Bill may contravene the Bill of Rights Act is the explicit reflection of the parliamentary tradition. At least Parliament and Her Majesty’s subjects might be publicly warned if any contrary law was contemplated.

The next chapter on “Defamation, racial disharmony and freedom of expression” also provides a point of comparison with Professor Burrow’s analysis of freedom of the press. Both agree that freedom of expression appears surprisingly seldom as an issue in New Zealand law. We have, it seems, borne restrictions lightly. And both draw extensively on comparative precedents, especially from Canada, the United States and the European Court of Human Rights.

I thought the next chapter, by Rishworth again, on freedom of religion, was one of the unusual pieces in this collection. Drawing again on the Canadian experience, he suggests that this provision in the Bill of Rights Act may be litigated in all sorts of unusual areas: religious instruction in state schools, religious displays on public property and state funding to private schools, for example. The counterpart to the Bill of Rights guarantee of freedom of religion, is the protection against discrimination on grounds or religious or ethical belief. The special possibilities of arguing issues of Maori spiritual significance, particularly under the Resource Management Act, are intriguing. Concluding, he argues that the “wall” between the state and religion is not just to protect the state from the church, but vice-versa. With changing state orthodoxy, we may all “one day be grateful for autonomous institutions which are left to determine their own conception of “the good’”. (p254)

In a related chapter, Janet McLean asks whether the anti-discrimination provisions in both the Bill of Rights Act and the Human Rights Act amount to the same thing as the “equality” provisions in, say, the United States constitution. This grapples with hard issues — how to allow diversity and difference, but at the same time prevent unjust treatment because of differences? As she says, “the Human Rights Act cannot by itself change the world” (p281) and ultimately these issues involve very deep community values and the attempt to change basic personal behaviour. The exploration of the way the Human Rights Act might work in these hard areas is the best I have seen in this field.

The detailed discussion by Scott Optican on “Search and Seizure” is tackled from what is ringingly an American perspective. His search is to give some meaning to what the courts have decided is the critical key to understanding this protection — viz, when is a search “unreasonable”? To non-lawyers it might sound extraordinary that this one word should be the subject of a host of cases, but so it is. It must also seem unbelievable that courts will decide on the “reasonableness” of searches months after the events and often when confronted with categoric evidence of guilt. Thus, a constable was judged to have had reasonable suspicion of a drug offence and so was entitled to search a person. But the court was unable to decide whether it was reasonable also for the constable to have looked in the rucksack being carried by the person, in which the drug paraphenalia was in fact found. (p314) The question was whether the evidence thus found, which constituted the key to the prosecution, should be excluded — which would inevitably result in an acquittal. Ye Gods!

Two other chapters consider in more detail the questions of what should be the response of the courts when violations of the Bill of Rights have occurred. The first is an analysis by one of the key counsel, Rodney Harrison QC of the decisions in the combined cases of Simpson v Attorney-General and Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General. The essential issue in both is that they were searched by police in dubious circumstances. Both sought damages, although Crown tort liability was excluded by statute for any matter connected with “judicial process” — which clearly covered searches by warrants. In both cases, the Court of Appeal decided that a new “public law remedy for damages” lay directly against the Crown in order to give some effective remedy to protecting the Bill of Rights protections. This bypassed the law of tort (trespass here) and allowed a direct claim for damages. A brilliant bit of advocacy persuaded a full bench of the Court of Appeal to adopt what in legal terms is a quite extraordinary new cause of action. Watch the press for many claims here.

Finally, Richard Mahoney repeats much of the ground argued by Optican, for the total exclusion of all evidence gained by police following some breach by them of the Bill of Rights Act. He is against all attempts to weight up the consequences, the overall factors of the case, the relevance of the breach to inducing the production of the evidence and, indeed, the overall veracity of the evidence itself as may be proven by any amount of collateral verification. This is, in essence, the position in the United States and Canada.

The cumulative picture from the essays on which I have focussed, is surely evident. The operation of public power in New Zealand is increasing being subjected to standards protecting human rights. These are closely analogous to the judicially enforceable rights in the United States (also Canada, Europe and through the United Nations system and international treaties). The courts monitor the boundaries of these basic rights which spell out the terms on which public power should operate. This reflects an increasingly contractual nature to the relationship between government and citizen in New Zealand. Evidence for the rise of contractualism is everywhere: the Employment Contracts Act, the health and educational systems, the Reserve Bank Act, the State Sector Act, performance agreements, privatisation, everything.

It is as if New Zealand discovered contract in the last decade. Before that, relations between the people and government in New Zealand seem to have been largely reflected in the two major parties sparring for office in Parliament: employers and trade-unionists, farmers and city workers, and so on. This was Westminster parliamentarianism in all its New Zealand glory. Small wonder that they had to ring the bells in the House to get a quorum to pass the Bill of Rights Act.

The new contractualism has split the old concepts, creating myriad “agreements” and accompanying possibilities for litigation through the courts. It is, in a sense, a move from the state to contract. Westminster kiwi politics has been privatised and, often, shifted from Parliament to the courts. We are all negotiators — and litigators — now. It is in this contracting climate that the Treaty of Waitangi has been rediscovered and massively litigated, with new contracts between “the Crown” and iwi struck across the land. No moral assessment of this is made here. Politics have been reordered, democracy is altered — the state is changing and public law with it. We had better look to a solid judiciary in the litigation winds that will surely blow. It is ironic that just as New Zealand received the notion of “public law” as conceptually distinct from “private law”, so the boundaries between the two have blurred in the contracting state. Professor Brookfield’s “millennial hope” of a written constitution is surely to be shortly up for negotiation?

Andrew Ladley teaches constitutional law at Victoria University of Wellington.

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