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The Rule of Law

 
 20180807 ( see Supreme Court Decision against Mangawhai Ratepayers under the Latest News Tab )

 

This week marks a significant event in New Zealand’s unwritten constitution. It concerns the “rule of law” – an important constitutional concept – and how we recognise that concept. It also concerns the way the system operates, and the value of having an interested and engaged Opposition in Parliament.

 

First off, let’s look at what the rule of law is. I’ve said that it’s important, but it’s not an easy concept to describe. At quite a simple level, it is the idea that the vast power of the state should be controlled by law. Parliament makes laws, and courts enforce laws, so that there are expectations and restrictions on how public power is exercised. That’s important from a philosophical point of view, because constitutions like to control public power, but it’s also an important protection for individual citizens who want to live in a free society.

 

Because it’s an amorphous concept, it’s not always clear how the rule of law gets recognised in New Zealand. One important way it is recognised is in s 3(2) of the Supreme Court Act, which provides “Nothing in this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament”. That’s a symbolic reference, and not something that the courts have applied directly, but that symbolism is still important. It’s included in the legislation that establishes the highest court in New Zealand precisely for the reason that we want to show how important the rule of law is as a fundamental value.

 

Is s 3(2) of the Supreme Court Act all there is to the rule of law in New Zealand. No, clearly not. But it’s important nonetheless because it shows Parliament takes its rule of law obligations seriously in the most obvious way it can – through legislation.

 

So far, so good, except that last year the Government decided that the legislation governing the courts needed to be updated. And part of that update would remove s 3(2).

 

The Government defended that decision by arguing that s 3(2) didn’t do much anyway, and the rule of law was such an obvious and pervasive constitutional protection in New Zealand that a statutory reference to it wasn’t needed. That thinking wasn’t very convincing, as I have noted elsewhere (see “Legislative Reference to the Rule of Law” [2015] New Zealand Law Journal 251‑252 which I co-wrote with Alexandra Blair). But the Government was unmoved, and the proposal to remove s 3(2) remained on foot.

 

Until yesterday, that is. For whatever reason, Labour Opposition MP Jacinda Ardern chose to take issue with the Government’s proposal. She worked behind the scenes to drum up support for a Supplementary Order Paper that would reinstate s 3(2). It took some time, but it worked. Statutory recognition that the rule of law is a constitutional value in New Zealand will remain.

 

I think that’s important for 2 reasons. First, because the rule of law is important, as I’ve already mentioned. But second, and perhaps most interestingly, this episode has given us something of an insight into how Parliament deals with constitutional issues. Section 3(2) will be retained because one MP decided that its constitutional significance was important, and she managed to convince enough other Parliamentarians that they should take it seriously as well.

 

New Zealand’s constitution is sometimes maligned for being flexible and uncertain, but Jacinda’s efforts show that it still works well (eventually) when enough people in power take constitutional values seriously. At for the moment, at least, they do.

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This month, my friend and former colleague Alex Blair and I published a short article in the New Zealand Law Journal. The purpose of the article was to note a particular example where the New Zealand Parliament has acted to protect very important constitutional values. When we wrote the article (some months before publication) we came to the view that this example was an interesting (albeit limited) counter narrative to the push for New Zealand to adopt a written constitution.

 

The draft text of the article - Reprieve for Statutory Reference to the Rule of Law - is set out below. Hopefully it serves as a useful contribution to the current constitutional debate. 

 

Introduction

The rule of law encompasses the ideal that public power should be constrained by law. It implies that Parliament acts through law, the courts enforce the law, and the government is always subject to the law. It also means that all persons, whether public or private, are entitled to the protection of the law and to all rights available under it. This organisation and application of public power through law is a vital aspect of New Zealand’s commitment to modern democratic government.

 

Section 3(2) of the Supreme Court Act 2003 provides that nothing in the Supreme Court Act affects “New Zealand’s continuing commitment to the rule of law”. In 2015 the Judicature Modernisation Bill 2013 (the Bill) sparked debate with its proposal to repeal s 3(2). This provision is an important piece of our constitutional architecture because it is the primary source of statutory recognition for the rule of law in New Zealand. The authors have previously argued that repealing s 3(2) might carry symbolic connotations regarding New Zealand’s commitment to the rule of law. The proposed repeal of s 3(2) put something of constitutional value at risk, with no convincing arguments as to what was being gained in the process (Alexandra Blair and Edward Willis “Legislative reference to the rule of law” [2015] NZLJ 251 at 252). That was a matter of real concern.

 

As it happened, this risk was averted before the Bill passed into law. The political system, playing out in the arena of the House of Representatives, moved to secure one of New Zealand’s primary constitutional values in the face of possible statutory repeal. This was, in the circumstances, the ideal outcome. It should be both acknowledged and celebrated. In that vein, the purpose of this brief follow up to our previous analysis is to describe how the process appears to have worked, and to make some comments on the critical role of politics in safeguarding our constitutional arrangements.

 

The value of s 3(2)

Section 3(2) is valuable in part because it confirms the function of the courts within New Zealand’s wider constitutional structure. It sends an “important signal” to those in executive government and the courts themselves that judges must “interpret and administer the law in accordance with constitutional principle” (John McGrath, Supreme Court Justice “Final Sitting Speech” (New Zealand Supreme Court, Wellington, 6 March 2016)). This reaffirms the central role of law in the structure of constitutional government.

 

So why would there be any impetus at all for repeal? At the time the issue first came to public attention, the Minister of Justice defended the proposed repeal of s 3(2) on the basis that it does not itself establish the rule of law as a constitutional principle (Amy Adams “Constitutional principles in legislation” (2015) 864 LawTalk 19). Rather, it is an intrinsic value. New Zealand’s constitutional arrangements are such that fundamental principles such as the rule of law take effect even in the absence of express statutory recognition.

 

The authors agree with the Minister’s comments to the extent they recognise something ‘constitutional’ exists apart from, and independently of, statutory incorporation. Yet, as we have previously argued (see Blair and Willis, above), express recognition of constitutional issues is still significant. It demonstrates explicitly Parliament’s commitment to the rule of law in a tangible, accessible way. Legitimate government can continue in its absence, but without s 3(2) an important constitutional reference point is missing.

 

Parliamentary process

In the event, it appears that the House of Representatives was convinced by the type of argument the authors have previously advanced. As the Bill moved through the House, the provision repealing s 3(2) was dropped.

 

The device that prevented the repeal of s 3(2) was the passage of Supplementary Order Paper 2015 (62) Judicature Modernisation Bill 2013 (the SOP), introduced by the Opposition Spokesperson for Justice, Jacinda Ardern. The rationale for the SOP seems to have been directly related to the constitutional significance of the provision earmarked for repeal. The Comment attached to the SOP quotes at length from McGrath J’s Final Sitting Speech (above) in which his Honour publicly raised concerns that such an “elegant” constitutional provision would face repeal. Dialogue theorists may have reason to smile — in this case the judiciary appears to have brought the constitutional significance of the repeal to Parliament’s attention.

 

To have an Opposition SOP successfully navigate the floor of the House is far from a regular occurrence. As with the Bill itself, the SOP required majority support in order to be passed.

The opacity of the political process means that we will likely never know the exact level of support for the SOP among Members. However, we can glean a few insights from the Hansard reports. The speech of Labour Member David Parker, in particular, provides an interesting glimpse of the events that unfolded.

 

We learn through Mr Parker’s speech that the National Party sought to have the Bill debated in the House as one question. The Labour Party Opposition was initially “reluctant” to agree to this debate structure ((23 August 2016) 716 NZPD 13072). At that point the SOP appears to have gained strategic importance. Hansard suggests a direct trade took place between opposing parties, with Labour agreeing to a single debate on the Bill in return for National’s support of the SOP ((23 August 2016) 716 NZPD 13072). As a result, the SOP ended up receiving broad, bipartisan support.

A superficial reading of this deal might suggest that Parliament’s support for the SOP was merely a matter of political convenience. Both parties — the National Party as the major party in Government and the Labour Party Opposition – were able to secure “wins” that advance their respective political agendas. In politics, such conclusions cannot be immediately discounted. However, the authors prefer an interpretation that regards our politicians as having recognised the constitutional significance of the rule of law reference and having acted accordingly to uphold the provision. In his speech, Mr Parker went as far as to suggest that the importance of the provision is what prompted Labour to reach an agreement with National on the structure of the debate ((23 August 2016) 716 NZPD 13072). If we take Mr Parker at his word, the constitutional significance of the rule of law was the primary motivator of any political deal.

 

Analysis

A number of observations seem relevant at this point. First, it is reassuring to note from Hansard that the National Party never intended to repeal statutory reference to the rule of law on a permanent basis. The concern was one of a more technical nature — that the appropriate place for such a provision was the Constitution Act 1986 ((23 August 2016) 716 NZPD 13072). Perhaps more could have been done to explain that position earlier in the debate, but ultimately it isa position that is reassuring. Despite the proposed repeal, the constitutional importance of the rule of law was never in doubt.

 

Second, express recognition of the provision’s constitutional value seems to have elevated the issue of repeal above party lines. Perhaps politicians do treat constitutional issues differently, as Matthew Palmer suggests (Matthew SR 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 141):

 

Almost all Ministers and Members of Parliament and all officials, with whom I advised or interacted as a senior public servant, would behave differently if clearly advised against, or in favour, of a course of action on the grounds of its constitutional propriety. Perhaps they were simply aware of the derived political effect of public value accorded to the constitution but I like to think that they also perceived some value in the constitution themselves.

 

In this case, the constitutional significance of s 3(2) was given real credibility. Supported by the arguments of non-political commentators such as McGarth J and Dr Richard Cornes (“Retain ‘rule of law’ in courts legislation” (2015) 865 Lawtalk 29), the issue’s prominence seemed to grow to the point where it transcended political differences. In our view, this is precisely how issues of constitutional significance ought to be treated.

 

Nowhere is this suggestion clearer than in the speeches of the Members themselves. The SOP’s sponsor, Jacinda Ardern, was on the face of it driven to act on the basis that s 3(2) is “an incredibly important provision” ((23 August 2016) 716 NZPD 13070). Other Members expressed similar sentiments. Denis O’Rourke, speaking on behalf of New Zealand First, referred to the rule of law provision as “extremely important” and noted that its reinsertion into the Supreme Court Act “makes it possible for New Zealand First to vote in favour of the Bill” ((23August 2016) 716 NZPD 13073). Labour Member David Parker added that even if the original reference to the rule of law was not necessary, to subsequently omit this provision from the replacement legislation for the courts would “have created uncertainty that is best avoided” ((23 August 2016) 716 NZPD 13072). Such statements could be taken as evidence of the rule of law’s continuing significance to Parliament. At the very least, the authors see some evidence of a willingness to deal with constitutional matters outside of ordinary partisan politics.

 

Third, the outcome here—ongoing statutory recognition for the rule of law — demonstrates how New Zealand’s parliamentary system can operate effectively to protect constitutional principles. Constitutional theorists often understand politics in terms of a series of compromises, with the associated risk that constitutional values may suffer where politicians compromise too readily. Here, however, we have a tangible example of a political compromise operating to secure constitutional values. Politics in New Zealand can and does recognise and protect those things that are constitutionally important. With luck this is not an isolated incident, as it reflects well on the maturity of New Zealand’s system of government and our elected representatives.

 

Conclusion

This example of the political system moving to accommodate and reinforce constitutional fundamentals takes on new significance in the current intellectual climate where there is a serious push for New Zealand to adopt a written constitution (see Andrew Butler and Geoffrey Palmer A Constitution for Aotearoa New Zealand (Victoria University Press, Wellington, 2016)). The case for constitutional reform is built, at least in part, on the view that successive New Zealand Governments can too readily disregard constitutional principles in favour of transitory and electorally convenient outcomes. In response, the authors offer the SOP as something of a counter example. While it certainly does not imply that New Zealand’s constitutional arrangements are perfect or always operate with laudable efficiency, it does seem to demonstrate the inherent promise of the current system. The gravity of constitutional provisions is still such that the politics of the day is irresistibly bent towards them. Even where such provisions do not win out, their potential to shape our political discourse is profound. Our politicians have cooperated to ensure continued statutory recognition for the rule of law, and we should be thankful we live under a constitutional system where this is demonstrably the case.

 

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Richard Cornes: Don't drop commitment to the rule of law

Labour's Jacinda Ardern has lodged papers to reinstate the missing provisions. Photo / Brett Phibbs 7 Apr, 2015 5:30am
NZ Herald
By: Dr Richard Cornes

Parliament seems about to drop New Zealand's commitment to the rule of law and parliamentary sovereignty from the act underpinning the judicial branch in New Zealand. That really is quite odd.

The main act being replaced dates back to 1908. It was passed when our longest serving Chief Justice, Shetland-born Sir Robert Stout, was in office. Sir Robert, who had a hand in the 1908 act (and its predecessors) is one of the great New Zealanders. As well as Chief Justice he held office as Premier, Attorney-General, and Minister of Education. What Parliament is now considering would have him turning pale.

In 2003, we decided to cut off appeals to the Privy Council (something Sir Robert had called for over 100 years ago). That was a major constitutional moment for New Zealand. After months of hearings and deliberation, the then Justice and Electoral Committee, while recommending the bill to establish the Supreme Court back to Parliament, also recommended including a carefully balanced purpose clause.

In the committee's view, cutting off the Privy Council appeal needed to be joined with setting down in statute, for the first time, a commitment to the rule of law and parliamentary sovereignty. They also included reference to the Treaty of Waitangi. Sir John McGrath, just retiring from the Supreme Court (and also a former Solicitor-General), in his final sitting at the Supreme Court has just called the balance struck in 2003 "elegant".

The Judicature Modernisation Bill (running to over 1000 pages) is at its committee stage before Parliament now. The seven-page majority report back from the current Justice Committee contained no explanation for dropping New Zealand's commitment to these constitutional fundamentals. McGrath took time in his final sitting address to note his concern about this move.

The minister speaking for the Minister of Justice in the second reading debate said that the provisions, being constitutional in nature, were out of place in the new bill; their place would be in the Constitution Act. Now, if Parliament were simultaneously amending the Constitution Act to include the provisions, New Zealanders might rest. It is not though.

There are many admirable aspects to New Zealand's pragmatic approach to public affairs. It makes our nation agile. It likely contributed to the country leading the world with labour and social welfare reform in the 1890s, giving women the vote before any other nation, and having the guts as a small country to set out an independent foreign policy, an attitude which has just seen New Zealand take up a seat on the Security Council.

However, New Zealand's disinterest in too much formality carries within it a threat. Some things do need to be formally noted and marked off as requiring more than usual thought. That's why changing the term of Parliament requires a special 75 per cent vote in the single chamber legislature, or referendum approval. A commitment to the rule of law and an independent judiciary is another.

The Supreme Court Act's reference to the rule of law was a small, positive contribution to New Zealand's constitutional culture. Dropping that language is alarming. It is also an odd message to be sending internationally (including for instance to regional neighbours such as Fiji).

Labour's Jacinda Ardern has lodged papers to reinstate the missing provisions. I'd hope though that a matter of constitutional significance would not get caught up in partisan concerns. This is something all parties should be working together on in the interest of our shared constitutional future.

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The Judicature Modernisation Bill will not make the front pages, but it should. I've made similar points in my submissions on the bill. There is still space to lobby on this, but not much. Time to log on and email the minister.

Dr Richard Cornes, @CornesLawNZUK, an expat Kiwi lawyer, is a visiting fellow at the University of Otago's Centre for Legal Issues, and senior lecturer at Essex University in the United Kingdom.