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Speech to the Law Association

Thank you for the invitation to come and speak to the Law Association. I’ve just come from announcing the opening date for the City Rail Link in Auckland. It may not surprise you to learn that my address to you today is not as exciting as that news! It is a real privilege to be the Attorney-General. All Ministers and officeholders in New Zealand say that about their jobs, but I genuinely mean it. For someone interested in politics and public law and who is deeply interested in our constitution, it is a dream job. I am not ashamed to admit that when I entered politics in 2014 I hoped I would be the Attorney one day. I grew up around the law as my mother did honours at Vic and then profs when I was in primary school. Apparently I spent many an hour at the back of public law lectures sitting quietly while Mum concentrated on the class. Obviously something seeped in. Some will know from my CV that I studied law at Vic where I had the privilege of being taught by legends like John Prebble, Matthew Palmer, Claudia Geiringer and Campbell McLachlan. Somewhere between debating, mooting, witness examination and the Law Students’ Society I managed to fit in an honours degree. I summer clerked at Russell McVeagh and the Crown Law Office, back when they took summer clerks. I am told I am the first ever ex-Crown Law summer clerk to be the Attorney-General. Sadly in these days of modern document management software, I am also the first Attorney-General to have their work as a 23 year old stored on their agency’s computer system. I am told that the electronic records shows a mad rush to look up my work after the PM issued the press release announcing my appointment! Sovereignty In the hallway outside my office in the Beehive is a framed copy of the entire judgment of Fitzgerald v Muldoon. Some people have asked me why it is there. The first answer is because it was a gift from two of my best friends, both now highly credentialled lawyers themselves. The second is the most important. Because it stands for propositions that are core to my own philosophy as a politician and as a lawyer. That government is not above the law and must follow the law. And that Parliament is supreme and sovereign. It is that second theme that I want to spend a bit of time talking about today. So what does it mean to say that, of the three arms of government, Parliament is sovereign? The answer I want to expand on, is that Parliamentary sovereignty means that significant public policy choices should be made by Parliament. This is because - of the three arms of government - Parliament has by far the best claim to both a democratic mandate, and the necessary institutional expertise, to make public policy choices. This position used to be uncontroversial and long-standing, but I think the time has come for a robust assertion of the traditional, orthodox view that Parliament is our country’s supreme law making body. The courthouse remains an attractive forum for those who have yet to persuade the public - and therefore Parliament - of the merits of their cause. It is, therefore, worthwhile setting out why such choices belong to Parliament, and why the judiciary must continue to protect its processes against attempts to use the courts to relitigate Parliament’s choices. The history Let me start with the simple proposition that Parliament is supreme because Parliament is representative. Of the three arms of government, only Parliament represents the people it governs. Its choices have the best claim to represent the views of the people. Peter Hogg was a New Zealand lawyer who became a leading authority on Canadian constitutional law. I note in passing he was born in the greatest city in the world, Lower Hutt. He captured the link between Parliamentary supremacy and its democratic mandate as follows: “The idea underlying parliamentary sovereignty is that in a democratic society important public policy choices should be made in the elected legislative assemblies, and not by non-elected judges” (The late Sir Kenneth Keith made a similar point in the introduction to the Cabinet Manual). Even where issues are hotly contested, and a broad consensus is not forthcoming, Parliament’s democratic mandate means that everyone has had the opportunity to have a say, whether or not their view ultimately holds sway. Through the democratic process all voters are respected as equal, and therefore each voter is treated as a bearer of rights. If voters don’t like the choices made by Parliament, they can vote to change Parliament’s composition. Parliament’s mandate must be renewed every three years. We are about to go through the process again in three months. Parliamentary supremacy is part of our common law heritage. The principle developed not through abstract discussions between political philosophers, but to justify a series of attempts to wrest authority from the Stuart kings in seventeenth-century England. To quote former Deputy Prime Minister Michael Cullen, writing in the NZ Law Journal in 2004, “the sovereignty of Parliament is not a historical artefact…. It is the assertion that has been the major driving force of English constitutional history.” First, in the English civil wars the army justified its overthrow of Charles I on the basis that Parliament represented the will of the people. Although the Rump Parliament was hardly representative, the link was firmly made between the will of the people and parliament, which therefore needed to sit regularly and be elected frequently. Second, the exclusion crisis from 1679-1681. After the restoration of Charles II, opposition arose to the succession of his (Catholic) brother James. In justifying their position that Parliament could pass legislation to disrupt the royal succession, the Whigs developed their constitutional thinking to further link the legitimacy of government with the consent of the governed. John Locke wrote his Two Treatises of Government during the exclusion crisis, refuting the divine right of kings and arguing that where a government rules without the consent of its people it forfeits its power, which the people may take back. Locke’s social contract theory later influenced the American revolutionaries. Third, the Glorious Revolution of 1688. When James II was deposed and replaced by the protestant William III of Orange and his wife, Mary II, Parliament enacted the Bill of Rights 1688. This statute, which is part of our law and can be found on New Zealand’s new legislation website, confirmed that “Parliaments ought to be held frequently”, and that James II had subverted the “laws and liberties of this kingdom” by, among other things, “assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament”. The supremacy of Parliament to make laws was established. There are two key points I want to draw from this sprint through 17th-century English history: In wresting sovereignty from the Stuarts, Parliament linked its legitimacy to the consent of the people. As Parliament has become more representative that legitimacy has been strengthened. Parliament’s authority to make law stems from its democratic mandate. Secondly, the shift in power to Parliament arose not just because of an argument about who should rule, but because of fundamental differences about the kind of country England should become (eg Anglican or Puritan). While the religious arguments are of another place and time, New Zealand continues to make choices about what kind of country we want to live in. Those choices should be made by the arm of government that has the best claim to represent the people of New Zealand. I return now to Fitzgerald v Muldoon. I note that 2026 marks the 50th anniversary of this celebrated judgment. I do find it surprising there has not been more academic or civic commentary about this. The rule of law and Parliamentary sovereignty does seem to be unfashionable at the moment. We dismiss our heritage at our peril. The arguments in 17th-century England about who should govern were relied on Fitzgerald v Muldoon. In 1976 Prime Minister Muldoon sought to put a stop to compulsory contributions to superannuation in advance of Parliament’s repeal of the New Zealand Superannuation Act. Wild CJ drew directly on the terms of the constitutional settlement of 1688 to explain why the Prime Minister’s action was unlawful and then said: It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years. Parliament’s institutional capacity As illustrated by the history I’ve outlined, Parliament’s authority to make public policy choices is grounded in its democratic mandate. But Parliament’s claim to supremacy is also based on its institutional expertise, relative to the executive and the judiciary. That is not to diminish the executive or the judiciary, but to recognise the distinct roles and expertise of each of those three institutions. The processes of Parliament, and the resources available to it, qualify it to make the kind of important public policy choices necessary in a modern nation. Parliament is supported by public service officials, who have the necessary policy expertise to develop policy and legislative options for complex problems. Even before government legislation is introduced into the House, the responsible minister will have received detailed advice from officials with relevant expertise. Officials are able to organise consultation with any relevant stakeholders. Once the responsible minister is happy with the policy, it goes to other Cabinet ministers for consultation and feedback, and then to Cabinet Committee for consultation. Once the policy is approved by Cabinet, drafting instructions are provided to the Parliamentary Counsel Office, who have a deep knowledge of New Zealand’s statute book. Once the responsible minister is happy with the draft Bill, it goes to other ministers for consultation and then to Committee for approval to be introduced as a government bill. The PCO drafters and the ministry officials continue to provide support as the Bill goes through Parliament, including at the Select Committee stage. At Select Committee, the people of New Zealand have an opportunity to directly comment on the Bill and its impacts. The depth of experience and expertise that Parliament is able to draw on gives it particular expertise when dealing with what are sometimes called “polycentric” problems. These are problems where there are a number of overlapping issues, often requiring varied expertise, and a solution to one part of the problem may create other downstream issues. The American scholar Lon Fuller famously explained polycentric issues using the metaphor of a spider web: “A pull on one strand will distribute tensions … throughout the web as a whole”. If you want to address any big social problem – whether that’s housing, the environment, or infrastructure – you need to be able to foresee issues across a number of different sectors. You will need access to a range of expertise, and you will probably need to make difficult trade-offs. You may want to consult with the stakeholders who will be applying the legislation. These are things Parliament is good at, or at least better at than the courts. In short, it has the necessary institutional capacity. Is Parliament perfect? No. Could it be a better check on the Executive? Undoubtedly. I have my own views on that question, which is the subject for another day. The select committee system could work better. There is a case for a Parliamentary Budget Office. The asymmetry of resources and information available between the Opposition and government makes sensible Opposition work difficult. We legislate too much and probably too quickly. MPs misbehaving is nothing new. Think of Muldoon and the Moyle Affair. There have been punch-ups in the lobby. Pens thrown across the Chamber, one fingered salutes, and so it goes. But, as some have said, the idea “we are in trouble as a society and as a democracy” is, respectfully, and in my view, not quite right. We are a mature, robust and lively democracy. Long may it be that way. The Judiciary Turning now to the judiciary. Obviously, the courts lack a democratic mandate, which is why important public policy choices are made by Parliament, not the courts. But the courts have a vital role in determining disputes by applying the general law to specific situations. As part of this, the courts have an important constitutional role in interpreting legislation and developing the common law. The courts’ institutional capacity reflects its distinctive role. The judiciary’s authority comes from its legal expertise, its apolitical nature and its independence. Those three characteristics distinguish the judiciary from Parliament, whose members have a broad range of backgrounds, are inherently political, and who are at risk of losing their seats every three years. In the inquiry into the conduct of Judge Aitken, the Panel linked the high threshold for removal of a judge to the importance of an independent and apolitical judiciary. The harder it is to remove judges, the more independent they are, free from political interference. But the Panel also emphasised that comity goes both ways: judges need to exercise self-restraint and avoid commenting on political issues. They are both protected from political interference and obliged to avoid politics. A judiciary that is both independent and apolitical promotes public confidence in the courts as an institution. The judiciary’s independence qualifies it to determine disputes between individuals and between individuals and the Crown. In contrast, the legislature’s strongly political character will generally disqualify it from engaging in private disputes. Of course, the courts have a long tradition of upholding individual rights, whether against the executive, like Entick v Carrington, or by interpreting legislation consistently with human rights (as now required by the Bill of Rights Act). But let me say this. There is a difference between adopting a reasonably-available rights-consistent interpretation and interpreting a statutory provision to advance a public policy choice that the legislature has not adopted. The courts’ processes and the resources and expertise available to the courts make it challenging for the courts to respond to polycentric problems. Judges do make law, through development of the common law. But they do so in the context of discrete disputes, which means that judge-led developments in the law are necessarily piecemeal and incremental. Nor are courts likely to have access to the breadth of expertise and resources necessary for addressing complex public policy or making radical systemic change. The separation of powers The distinctive characteristics of each of the three arms of government dictate how the tasks of government are allocated between them. As Aileen Kavanagh wrote: In a constitutional democracy, we typically need an institution with energy and efficiency to initiate and propose new policies (the executive); a deliberative and representative body to scrutinise policy proposals and make clear, open, prospective, stable and general rules for the community (a legislative assembly); and an independent body to adjudicate legal disputes about what the law requires in individual cases (the courts). Separation of powers is not about the separate arms of government standing in “splendid isolation” but about recognising each arms’ distinct specialisation and authority so that they can interact responsibly and with self-restraint. The comity principle captures the expectation that the executive, legislature and judiciary each exercise self-restraint in acknowledgement of each others’ distinct roles. Examples of comity include when ministers refrain from delegitimising the courts, and (as the Judge Ema Aitken Panel explained) when judges refrain from commenting on current political matters. Judicial Review The orthodox rules of judicial review have been developed to reflect the distinct roles and expertise of the three arms of government, as I have outlined. The courts uphold Parliamentary sovereignty by reviewing executive decisions to ensure they comply with the intentions of Parliament. The courts are also careful to ensure that they themselves do not step into the shoes of the statutory decision-maker (eg the minister), through a variety of techniques: Parliamentary intent The picture I have outlined, with the legislature, executive and judiciary each shouldering its share of the labour of government and exercising self-restraint in recognition of the others’ distinct roles, only works when Parliament makes its choices clear. The judiciary cannot be expected to show self-restraint and respect Parliament’s choices if Parliament fudges the hard questions. As a previous Chief Parliamentary Counsel George Tanner KC put it: “If an unpleasant message has to be communicated, and not all legislative messages are pleasant ones, the message ought not to be hidden in a mass of words”. Clear expression of Parliament intent is an important issue of democracy: First, because a state in which people cannot plainly understand the laws might as well be a lawless state. Secondly, because if we want legislation that reflects the democratic will of the people, then the House should express them clearly in the first place. Section 10 of the Legislation Act sets out a long-established principle that: “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context”. I worry that Parliament has lost sight of the importance of legislating clearly. Often we do use, to adopt George Tanner’s words, a “mass of words” when fewer would be better. Or political compromises result in imprecise and difficult drafting. MMP has probably made that more not less likely. This is not the fault of Parliamentary Counsel, who do an outstanding job. It is the fault of elected politicians. To quote Cooke P, as he then was, in the Lands Case. “If the judiciary has been able to play a role to some extent creative, that is because the legislature has given the opportunity.” To ensure the courts can be in no doubt of a statute’s purpose (or to put it another way, “to not give the opportunity”) Parliament needs to be as clear as possible. This is especially where the legislation is intended to have an effect that is inconsistent with values that are fundamental to our common law traditions. For example, when introducing a Bill to Parliament, if the government is asking the House to enact a Bill that is retrospective, or that limits a right in the Bill of Rights Act, or that makes property rights less secure, the government should say so clearly. Parliament should be put on notice as to what it is being asked to do. The government should use Parliament’s processes, including the debates in the House and any explanatory material, to be as clear as possible about the intended effect of the legislation, the rationale for this, and any ways in which these effects have been mitigated. If legislation is intended to be interpreted in a way that will limit rights in the Bill of Rights Act, the Attorney-General’s s 7 BORA report is an important mechanism that puts the House on notice. The government can then make its case in the debate. This better promotes transparency and democracy, as well as ensures both the public and the courts can be of no doubt as to the intended effect of the legislation. The courts should then be under no illusion about the clear intent of Parliament and will uphold it under the usual purposive interpretation rule. The flip side of Parliament being clear and deliberate is also true. Parliament expects the courts to apply clear legislation. Development of statute law is for Parliament, not for the courts. Changing social values and mores are reflected in the democratically elected legislature, not an unelected and by definition unrepresentative judiciary. International Law The distinct qualifications of the three arms of government have a direct impact on the way that international law is incorporated into New Zealand’s domestic law. The traditional approach was that the executive could sign New Zealand up to international law obligations, but they were only enforceable in the domestic courts if Parliament incorporated the international obligation into domestic law. The rationale for this rule is the same one Chief Justice Wild considered in Fitzgerald v Muldoon: the executive government should not be able to change domestic law. The traditional dualist rule is complicated now by the interpretive presumption of consistency with international law. And in some circumstances an international obligation may support a mandatory relevant consideration. But the traditional rationale remains persuasive: the courts must continue to be cautious in relying on international law because of the risk that domestic law ends up altered by the executive rather than Parliament. Parties will often rely on international instruments in advancing an interpretation of the relevant statute that supports their claim. But there are many international instruments that do not amount to an international obligation or that have not been ratified by New Zealand. These instruments should not support a presumption of consistency or a mandatory relevant consideration. Finally, reliance on international law still needs to reflect the different strengths of the courts and legislature. Where the international law obligation engages important public policy choices, it is less likely to be appropriate to be read in as a mandatory relevant factor or a constraint on a statutory discretion: it should be left to the legislature to decide whether to incorporate the international obligation into domestic law because of the legislature’s democratic mandate and institutional capacity. Smith v Fonterra Climate change is a good example of the kind of public policy that should be made by the legislature. The coalition government has introduced legislation creating a statutory bar preventing climate change litigation. The statutory bar will apply to the Smith v Fonterra proceeding. The government’s decision reflects the views I have set out that the legislature is the institution best placed to make significant public policy choices, including those with polycentric issues and complex trade-offs. The Supreme Court found on a strike out application that it should wait to hear the evidence before making a decision. But I agree with the Court of Appeal, which held: In effect Mr Smith is seeking a court-designed and court-supervised regulatory regime. The design of such a system requires a level of institutional expertise, democratic participation and democratic accountability that cannot be achieved through a court process. Courts do not have the expertise to address the social, economic and distributional implications of different regulatory design choices. The court process does not provide all affected stakeholders with an opportunity to be heard, and have their views taken into account. Climate change provides a striking example of a polycentric issue that is not amenable to judicial resolution. The government agrees and we were faced with a dilemma. Let the legal process play out, which could have taken years, and await a final decision from almost certainly the Supreme Court. In the meantime there would be ongoing anxiety about the possible development of the law and flow-on effects for regulatory certainty in a market economy. Despite what some may say, that matters. The alternative option was the one the government chose, which is to act swiftly and make the position clear – that climate change should be dealt with through the Climate Change Response Act and ancillary legislative instruments, not through a court-designed regime. In my view Parliament has been a poor legislator in recent years. But we have also been too passive about acting swiftly on developments that take the law in an unhappy direction, or where it is tolerably clear that the result of a particular case was not what Parliament intended. I will be recommending to my colleagues in Parliament a couple of important things. One, that we should legislate more clearly and more deliberately. Two, that when the law takes the wrong direction, we should say so clearly and deliberately through legislation. That, after all, and to return to where I started, is what Parliamentary sovereignty means.