Parliament and the Courts

September 11th, 2009 at 2:00 pm by David Farrar

The Australasian Study of Parliament Group had a seminar in the Beehive on Wednesday on the issue of Parliament and the Courts.

The first speaker was Professor Philip Joseph, who is widely considered the leading constitutional scholar in New Zealand.

Professor Joseph discussed the issue of parliamentary sovereignty and whether or not it exists or is absolute.  There were references to musings from and Chief Justice Elias that such sovereignty is not absolute.

This does not mean that the judiciary is sovereign either. In fact the theme pushed was neither institution was sovereign, and there is mutual respect for the roles of each, with boundaries between them.

There was a suggestion you could call this co-sovereignty, looking at it being the Crown through her Parliament and the Crown through her Courts being co-sovereign, but sovereignty tends not to be shared (the Roman Republic did effectively share it through having two Consuls but that didn’t work too well eventually).

The example by CJ Elias was whether the judiciary would uphold a law that (for example) said all blue eyed babies must be killed.  Of course that would never be passed (and if it was, the Governor-General might not assent to it) so it is an academic argument.

Professor Joseph said that the rule of law does exist outside of legislation and that it pre-dates the concept of parliament sovereignty by many hundreds of years.

An example would be in countries that have had a coup. Often the judiciary will adopt or refer to the doctrine of necessity to maintain the rule of law – even without legislative backing.

The second speaker was Labour MP , in his role as Chairman of the Privileges Committee. He had some interesting historical facts such as how Magistrates were not seen as Independent Judges until just a few decades ago, and how the Minister of Justice used to actually be accountable in the House for their decisions.

His main theme was respecting the boundaries between Parliament and the Judiciary, and how the Privileges Committee decision to recommend limitations on an MPs ability to breach a court suppression order, helps respect those boundaries – especially as it was initiated by Parliament voluntarily.

He took a swipe at both Justice Minister and his colleague for their recent comments, plus also at Attorney-General for not publicly defending the Judges concerned. Power criticised CJ Elias’ call for prisoners to be released early and Mallard criticised the lack of jail in the Moses exorcism manslaughter case, saying they would have got jail time if they were not Maori.

Chauvel said he thought both Power’s and Mallard’s comments pushed against the boundary of mutual respect, or comity.

In fact he revealed the Opposition was concerned enough about Mallard’s comments they their Justice Spokesperson wrote officially to the Chief Justice disassociating themselves from the comments, and saying he was speaking as a local MP only and not on behalf of Labour. The letter and response from the CJ was shown briefly on the screen.

The seminar was well attended and ably chaired by , with extra chairs having to be found for everyone. Definitely only a topic for constitutional geeks, but it is a fascinating area for New Zealand as one of the few countries with no written constitution.

26 Responses to “Parliament and the Courts”

  1. GPT1 (2,155 comments) says:

    Joseph is almost certainly the leading NZ constitutional expert. In some ways it is a shame that he is basically peerless – not because he isn’t bright enough or good enough but he is such a leader in his field that it can actually be difficult to get balance academic comment. This is particularly in the area of parliamentary soverignty which he says has been significantly eroded to the point that there is no such thing but rather this creative uncertainty between the courts and Parliament. James Allan had a crack at competing with Joseph (and I still enjoy his line about Baigent’s case being a piece of judicial treason) in a few articles a number of years back but realistically no one in the country has put the work into this area of law as anyone else.

    So, in short, I do not believe the erosion of Parliamentary Sovereignty to the Courts is a good thing but I have lost every time I have had this argument with Professor Joseph!

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  2. Alan Wilkinson (2,435 comments) says:

    Both sides are arrogant. Sovereignty rests with the people of New Zealand, not with either Courts or Parliament.

    Roll on binding citizens’ initiated referenda.

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  3. Johnboy (20,823 comments) says:

    Nice to see that even the Labour mob have some taste and have disassociated themselves from the insane ravings of the member for Wainui.

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  4. Buggerlugs (1,453 comments) says:

    so does that put chauvel at goff’s BBQ or at the other one(s)?

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  5. AG (1,949 comments) says:


    You need to get yourself to the Legal Research Foundation’s “Rule of Law” conference in Auckland, on 23 October. Philip Joseph and Jim Allan are going to debate “The Aspirational Concept of the Rule of Law”.

    Oh yes – there will be blood.

    [DPF: I hope someone attending will report back. Sounds great]

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  6. davidp (3,864 comments) says:

    Ultimately sovereignty is with the people of NZ. The people elect parliament, and so parliament has delegated sovereignty. No one elects judges. Despite what they think, they’re just well paid public servants employed to interpret the acts of parliament, to manage trials in court rooms, and at times to determine the outcome of those trials.

    I’m opposed to judges unilaterally granting themselves new powers. They’re appointed, not elected. I’m opposed to judges thinking that they should be immune to review or criticism. I’m opposed to judges having a lifetime contract of employment, regardless of performance. Anyone would think they were the Pope, or unionised teachers.

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  7. Alan Wilkinson (2,435 comments) says:

    Interesting that several have given my comment negative karma but no-one has put up a counter argument.

    Judges? MPs? Or some other elitists?

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  8. F E Smith (3,504 comments) says:

    I agree with GPT. I don’t have a problem with the Courts playing minor legislative role. In fact, I am a fan of the continuation of the common law, something I suspect many parliamentarians would see as anathema! Joseph’s use of the old Diceyan example is timeless, but then the question is raised as to whether the G-G would really refuse to sign it under the current view of that role’s authority.

    Perhaps there is room once again for a second house of Parliament? Of course, if DPF and his fellow republicans get their wish then the Courts would probably gain more power, not less, through the need to interpret the likely constitution that would accompany the change.

    Power and Mallard were both out of line, although Power more so than Mallard. The CJ’s comments were well within her rights and sphere of authority/influence.

    davidp, I disagree with you on the idea that judges are just well paid public servants. I do so because technically they sit in place of the Monarch in her position as judge. That is where the position comes from and that is why, when a High Court judge enters his/her courtroom, the crier tells those in the room to stand for ‘ the Queen’s judge’. They are not immune from criticism, but should not be criticised by politicians. The general public can, within reason, say what they want. Anyway, we have the Bill of Rights of 1689 because the judges were in ‘grace and favour’ positions and that led to abuses by the sovereign. I doubt that the politicians would be any less inclined to interfere if they had the opportunity and that is precisely what we don’t want.

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  9. gazzmaniac (2,842 comments) says:

    My 2c –
    If Chief Justice Elias makes a comment regarding a particular case or policy to the media, she is making a political statement, and inviting criticism from other people be they politicans or not. Why should a judge be any different than two solo mothers on the DPB in that respect?

    I also think that the Courts and the Parliament currently work on behalf of the Queen, and that it is really her call about which takes precedence. If one uses the recent example of the Foreshore and Seabed issue, in practise the Parliament has the right to overrule a court decision with legislation (obviously with the approval of the Queen, through the Governor General).
    Therefore, Queen’s call, although the current convention is for parliament to take precedence. Whether or not this is what the constitutional result should be is, I guess, the reason for this debate.
    We also have to consider who the judges answer to if the republic debate comes up – do they answer to the president or other head of state (considering that this will be a political post) or do they not answer to anyone? I know they don’t answer to anyone in the US, and I feel this has become a major issue as they are coveted political posts.

    I definitely agree that judges should be reviewed on a regular basis, say every ten years (not reviewed by other judges, perhaps by the GG?) Then if it is thought they are getting it wrong too often, they can be removed. Nobody should have a job for life in the public service.

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  10. burt (11,444 comments) says:

    <sarcasm>I thought parliament knew more about the law than anyone and was better placed to judge if laws had been breached than the judiciary who just work on a case by case basis. It’s valid for parliament to pass judgment on allegations that MP’s have broken the law and validate accordingly because after all parliament wrote the law so they know how it was intended to be applied </sarcasm>

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  11. annie (540 comments) says:

    I agree with davidp – the judiciary are unelected, and it is inappropriate of them to subvert the role or intention of parliament. They are there to apply the law, and interpret it where it is unclear, but not to revise the intent of parliament, as our current Supreme Court seems to think.

    Time to bring them back into line, this isn’t the USA.

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  12. nickb (3,765 comments) says:

    Agreed Joseph is outstanding. His “Constitutional and Adminsitrative Law In New Zealand” is THE definitive text in New Zealand public law.
    With regards to his peers though, I am not so sure Geoffrey Palmer doesnt deserve a mention. Unbridled Power is the seminal work on the fragility of our constitution, at least in my opinion.

    F E Smith, as a law student I really enjoy your excellent posts. On the note of this thread, I hope you wouldnt mind if I asked you a few questions…

    1. Are you a fan of a written constitution?
    2. Do you think the NZBORA needs more teeth?
    3. Do you think the separation of powers in NZ is as fragile as I do? The Clark government only seemed to heighten the tensions between the arms of state…

    Thanks a lot! Any advice for a person considering practising criminal law aswell? 🙂

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  13. burt (11,444 comments) says:

    I wish I had been there.

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  14. GPT1 (2,155 comments) says:

    AG – very tempted to book a flight!

    David P I heard a very interesting speaker from England on the subject of appointed Judges. Basically he said this ‘I know a lot of Judges, most of them are people I respect immensely. I know some politicians and generally I have little respect for thembut I will die in a ditch before I have appointed Judges making laws over elected politicians’.

    Now the anti Parliamentary Sovereignty crowd say what if Parliament passes a law saying all blue eyed babies are to be killed who is to stop it? Well the answer to that is fairly obvious. The people with the most guns because in such a situation law and order has broken down. One example I heard to promote the Judges vs Parliament debate in favour of Judges was that Zimbabwe Judges continued to uphold the rule of law despite the government. Although of course, other than earning themselves a potential beating, that meant little in practice because they had no way of enforcing the rule of law. Indeed, society had broken down.

    The Westminster democratic system might not be perfect but still brings some degree of accountability.

    Now Alan wants binding referenda. The problem with that is practicality. It is unwieldy, expensive and could has the potential for rather odd results. “Should everyone have access to free health care?” 85% vote yes. “Should tax be limited to 10%?” Another big yes. Anyone see the flaw?

    Nick B – Joseph’s book is his life’s work and it shows. I regard it as a must on the shelf.

    Personally not a big fan of written constitution. 400 years of evolution leading to the Westminster system seems to have more or less worked although some would point to exceses of Clark and Muldoon as reasons for a written constitution. Practically I don’t think NZ will ever work out one that we can all agree on due to the Treaty, amongst other things, and replacing Judges with politicians brings about its own set of problems (appointments politicised and I am not convinced Judges are in any better position to, effectively, make political decisions).

    For me NZBORA is ok as it is. FES will disagree. In fact it is a disgrace that it has any teeth at all given it was meant to be declaratory but that is an argument long gone. If anything the Courts seem to be dialing it back from the Cooke P court days. For instance, Cooke P regarded the remedy for a breach of the right to a trial without undue delay as, primarily, a stay (subject to a balancing act). That seems to have been dialled back somewhat without adequate address to other remedies (compensation if not guilty and reduced sentence if guilty). My concern is that the more things described as a right the less responsibility seems to be placed upon the individual. Not that protection of the individual from the state is not important and the NZBORA does provide an easy reference point for that.

    If you want to practice criminal lawyer build some networks in your area. Go to Court and watch, see if you can tag on with a barrister or group of barristers from time to time. If you are in a firm get them to put you through the Duty Solicitor and Intro to Criminal Law Courses so you can get time on your feet. You can’t go straight out as a barrister on your own until 3 years are up (that change comes in early next year for memory) but you can be employed by a barrister or chambers. The money starts off as pies but improves to livable after about 3 to 5 years but it is an enjoyable and interesting (albiet frustrating at times) area to practice. Good luck.

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  15. burt (11,444 comments) says:


    The Westminster democratic system might not be perfect but still brings some degree of accountability.

    However a half Westminster system allows parliament to do what the F they like in their own best interests.

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  16. burt (11,444 comments) says:

    nickb touches on one of the key faults with the half Westminster system. The separation of powers is without a written constitution merely a convention, which as demonstrated by Labour can be easily ignored when it is expedient to do so.

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  17. nickb (3,765 comments) says:

    Thanks heaps GPT. Not quite sure what I want to do with my law degree yet, perhaps not even practise as such. Should make up my mind soon though. Do you have any advice re taking the profs course? What kind of stuff is involved in it?

    Agree with you burt. Labour’s treatment of our constitution was absolutely disgraceful. A reason they must never be in government again. The foreshore and seabed legislation a case in point- comparable only to the clyde dam saga for the contempt of the rule of law.

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  18. GPT1 (2,155 comments) says:

    Take profs. It is good times. In my day it was on site only and I am bias towards that. It was not overly difficult but practical and good fun as well. Focus is on things that you might have to do on your first day or at least in your first year. Drafting affidavits, summary judgment applications, summary defended hearings, case preparation, interviews, negotiation and the like. I didn’t even know I wanted to do law until I did profs.

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  19. burt (11,444 comments) says:

    oops; premature submit: Back soon.

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  20. F E Smith (3,504 comments) says:

    nickb, sorry for the late reply- been at the movies.

    Thanks for your kind comment, I appreciate it. There is a little grouping of lawyers here on Kiwiblog and I always enjoy their additions to the debate. GPT and Mr Edgeler, Alex M and others, all I think contribute very well to the comments.

    My answer to your questions are:

    1. No;
    2. Absolutely, twice over; and
    3. Yes, I do.

    I don’t think we need a written constitution because the unwritten one can actually be more responsive and relevant due to the ability to change the finer (or not so fine) points as needed. Those countries that have written constitutions do tend to have a great deal of litigation surrounding laws and actually inflates the power of the Courts beyond what it they should have.

    With regards 2, I do disagree with GPT on this one, as I mentioned the other day. I think he disagreed with me then, as well! I support more teeth for the Bill of Rights simply because I don’t see any other way of actually ensuring that our basic human rights are allowed to remain, let alone observed. I see the state that the UK is getting itself into and worry that, with the Justice Ministry basing so much of our future law on the UK’s trends, we will also get to a situation where the general populace is being closely monitored and controlled. Right now there is nothing to stop that at all. Perhaps that is an argument for a written constitution!

    I feel that 3 is something that we haven’t really been too concerned about, and remain unconcerned, because we have had a relatively freedom embracing period since WW2. As GPT says, it hasn’t been a feature because the Westminster system more or less has worked for 400 odd years. The separation of powers isn’t actually a feature of that system, as the Judges do sit on behalf of the monarch of the day. However, since 1689 we have made it more so by practice rather than theory. The US is really the first country based on a true separation theory.

    Those of us who do not read history don’t seem to understand the dangers that we place ourselves in when we give our freedoms over to the government in the cause of ‘safety’. I don’t believe that we in the west are so enlightened that our governments naturally want to allow people control over their own lives. In fact, as per my previous paragraph, I think that in fact we are willingly allowing governments all over the globe to take away our freedom, bit by bit, so that we can believe that they are protecting us from domestic and international harm. A strong and robust court system is necessary to protect us from the state, as it has done from time to time in the past. Not consistently, but when it has been needed the Courts have often come through for us. And that is the danger of what wrong with gazzamaniac’s final paragraph at 5.13pm. When the state gets to vet judicial decision making and decide if it is ‘right’ or ‘wrong’, those definitions being according to the ideology of the government of the day, then we become a true tyranny, with the government able to control the courts with the threat of sacking. Gazzamaniac doesn’t seem to agree with my point re the 1689 Bill of Rights, but you will be able to remember your legal history and remind yourself of the removal of Sir Edward Coke because he wouldn’t accede to the views of the monarch. If the Chief Justice can be removed from their position because the government of the day disagrees with their decisions, then we may as well do away with the Courts and instead simply have decisions made by actual civil servants in an office somewhere. Why spend all that money on a court system if you want decisions to be whatever the government wants them to be? Actually, the current Archbishop of York suffered the fullest extent of what gazzamaniac is proposing as a judge under Idi Amin!

    GPT’s advice on practice is very good (as always!) and I agree with it totally. Funnily enough, the stats show that only about half of those who get a law degree ever practice, and even then we have a high drop out rate. That is probably when the newbies realise it is going to be a hard slog to get anywhere near a high income, if ever. I think GPT’s advice re a barrister’s chambers is the way to go, if you want to do litigation of any sort. Most firms are refusing to do criminal, other than small stuff for their regular, commercial, clientele. If you want court time then avoid civil litigation- criminal and family are the only ways to get that. I personally refuse to do family, but criminal law is very interesting and can be very rewarding on a personal level. The money isn’t that great for the first while but if you perservere it can get better relatively quickly. But find a chambers. Nothing worse than a criminal lawyer practicing without the support of his/her colleagues. And as a junior you definitely need a senior to learn off.

    And if it isn’t too late, to Evidence and whatever advocacy course you have at your law school.

    Profs is basically an introduction to the practice of law. You will have spent 4 or 5 years learing the theory, but the practice is very different. Two parts, litigation and general. It is worth doing profs even if you don’t expect to practice simply so that you can have that second career path if you want it. For 13 weeks and another $4500 it is worth it. Also, you get to wig up and go through an admission ceremony, which is seriously cool. I rate it as being far better than graduation.

    Good luck with your studies.

    Edit: I know that Joseph’s book is now the only one to have, but I can recommend reading the previous tome on our constitution, James Hight’s ‘Constitutional history and Law of NZ’, published (I think) in 1913. I have a copy and it makes for very good reading!

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  21. F E Smith (3,504 comments) says:

    GPT: “I didn’t even know I wanted to do law until I did profs.”

    Really? I already knew by then, but was thinking about the possibility of an academic career as well. I really got into it once I started doing the trial advocacy class. I think it was then I knew I wanted to do litigation. Told myself I wouldn’t do criminal, though, and look where that got me!

    Nickb, like GPT I did Profs on-site because it was the only way we could do it. I know that those of my colleagues who have done it the online version while working say they don’t really get the time off they are supposed to (I think 2 days a week) when doing the course. One thing you will quickly find is that law firms are very jealous of your time!

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  22. burt (11,444 comments) says:

    So who really would have the sovereignty if we had an upper house? Alan Wilkinson would say the people and I would like to agree with him that this is true. But who actually holds the final proxy over that sovereignty on their behalf?

    In the context of full Westminster parliament how would the constitutional experts position sovereignty? I guess by definition the people who make the laws are sovereign, as I concept I have no issues with that. But without something to constrain the law makers (other than their fear of full out rebellion ultimately causing them to loose their jobs and perks after they hive their assets into offshore accounts) we have the perfect environment for a dictator.

    Gov 2.0 also throws an interesting curve ball into the current thinking on govt.

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  23. nickb (3,765 comments) says:

    Ok, thanks very much for that F E.
    TBH burt, I am not sure I would be a fan of it. I am not an expert on the US senate and the House of Lords (which is not very powerful if I am correct) but I think a upper house in NZ would just lead to more govt spending and a more congested lawmaking process.
    Although with some of the laws rammed through by urgency lately, that my not be a bad thing…

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  24. Alan Wilkinson (2,435 comments) says:

    GPT, the experience of Switzerland for the last 160 years surely proves your fears entirely groundless for a similarly small country given appropriate constraints on the process and application?

    Personally, I have absolutely no wish to see any small group of elitists granted sovreignity and I do not cede that to any of them.

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  25. Tassman (238 comments) says:

    All that effort when logic suggests the law is independent of the government’s constitutional right or executive to become a valid judicial and not a convenience … The sovereign can be the state except for the state is currently not a pure entity. Entities can’t be all ‘blue eyes’ or at the same time be ‘biculturalism’.

    It is a priori establishment irrespective of their physical representation including various beliefs, culture, and politics. In this case there has to be a living principle bind in a contract, a treaty, or constitution to organise diverse or multicultural representations in the purity of the a priori. But Politics is a permanent human error on interpretation as in the case of Israel and Palestine, Fijians and Indians, etc.

    Since the two parties claim the same right in different interpretations, the law becomes a convenience for political ends and totalitarian raises a dictator. There are modern and recent examples of this I won’t mention in here, but that is why we need supreme guardians of the law outside politics. This level is related to the sovereign state, and no one has yet prove worthy of the role (except me!!!!!).

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  26. gazzmaniac (2,842 comments) says:

    It’s great to have a topic with reasoned debate (and no philu) for once.
    Sorry F E Smith, I am unfamiliar with Sir Edward Coke and the Bill of Rights 1689 as my knowledge of law and the constitution is limited to my own experiences and reading as I have no legal learning. I’m a geologist not a lawyer!

    The crux of our constitution is still the reigning monarch. We have to assume that absolute power ends there (even if in practise it doesn’t). In a simple sense, the King or Queen appoints the judges to act on their behalf, and therefore the monarch (or in our case GG) is responsible for them. I guess that this arrangement has changed a bit over the centuries, but I do think that judges should not be there for life. It is hard to make political statements with your judgements if you think the next lot won’t reappoint you.

    I do note that although the US has a major problem with political judges, the same is not apparent in Australia who also have a written constitution – what is different about their constitution that makes this so?

    Anyway, sorry for the rambling post.

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