Friday 29 October 2004
Hon Michael Cullen Address to Public Law Conference: “Parliament: Supremacy over Fundamental Norms?”
Legislative Council Chamber, Parliament Buildings
It is an honour for me to share a platform with Rt Hon Lord Slynn of Hadley, and, as it were, to lead off the batting
for the Parliamentary team.
And, to move immediately onto the front foot, I would like to take issue with the very question posed in the title for
this session – Parliamentary Supremacy over Fundamental Norms?
It suggests a dichotomy which I would argue does not exist. To affirm parliament as the supreme authority in the land
does not in any way imply an abandonment or subordination of fundamental norms in the formation, interpretation and
administration of the law.
My first reason for this belief is self evident. If we are committed to a democratic form of government, then one of the
fundamental norms of government must be the supremacy of the body elected by the people as its representative. Certainly
that norm is one among many, although I would argue we should treat it as first among equals. In other words, any
application of norms which threatens to disenfranchise the electorate should be regarded with suspicion, if not rejected
outright for that reason alone.
Having said that, I would be quick to distance myself from any rose-spectacled view of parliament. To say that
parliamentary democracy is the best form of government is not to say that it is a perfect one. And it can be especially
frustrating if one is hoping for government that conforms neatly to a set of fundamental norms. As John Locke said in
his Essay on Human Understanding, “Truth scarce ever yet carried it by vote anywhere at its first appearance.”
However, the lack of any pretentions to perfection or finality is part of the genius of parliamentary democracy.
Although Parliament’s sovereignty is at the heart of our constitutional system, that does not place its decisions beyond
criticism or reversal. Indeed, quite the opposite, and one might argue that it is that feature, the capacity to contest
and revisit, that makes the sovereignty of Parliament a more stable and just form of government than the sovereignty of
monarchs which preceded it.
The sovereignty of parliament is moderated by a number of factors:
First, it is bound to follow established processes and conventions, rules of the game that can, at the end of the day,
be changed, but only with great difficulty. These processes include, of course, important norms such as natural justice.
Second, it is in some specified areas subject to international obligations which we have freely entered into by treaties
and conventions.
And third, it is subject to the electoral cycle, whereby each parliament has, at most, three years before its mandate
expires, and during that time cannot place any substantive fetter on what its successors may do.
These constraints provide the opportunity – and I would argue ample opportunity – for testing legislation and remedying
any faults it may have. The bulk of the time MPs spend in Wellington is given to the improvement of the nation’s laws.
In this task they are aided by a sizeable army of advisors, extending from parliamentary staff, through policy and legal
advisors in the public service, to statutory bodies such as the Law Commission.
They are also aided by the interpretation that the Courts make of the existing law, by the actions of a free press in
highlighting perceived weaknesses in the law, and – not to forget to mention the hosts for this conference – by the
analysis and critique provided by academics.
My point is that law-making in New Zealand is not an arbitrary process. If it appears to be so, it is due in large part
to the tendency of the news media to pay attention to it only when the passage of a piece of legislation is subjected to
one of those vertiginous last minute deals that make good copy, but are thankfully rare and atypical occurrences.
Therefore it is fair to assume that fundamental norms have been taken into account and worked through with any piece of
legislation that makes it to the statute books. For that reason, it is imperative that we preserve a very clear
distinction between the roles of parliament and the judiciary.
Under our current system those respective roles are quite clear. Parliament proposes, debates and enacts laws, and
appoints from its own elected members an Executive to administer those laws and perform the functions of government. The
role of the Courts is to apply the law to individual cases, which may include ordering the Executive to modify any
exercise of power that is ultra vires. Where the law is found to be ambiguous, the Courts must interpret the statute to
the best of their abilities, taking into account the intent of Parliament in passing the law. Where such ambiguities are
uncovered, the deficiencies of the law should be brought to light and examined. However, it remains the prerogative of
Parliament to make new law or to amend existing law to clarify its intent.
I accept that this can be a messy process, and that often it is difficult for the outside observer to discern within it
the forging of a consensus based on fundamental norms. But to my mind it is the best available option.
There are those who have argued for judicial review of legislation in New Zealand under an entrenched constitution and
bill of rights. An entrenched higher law offers the prospect of enshrining a set of fundamental norms in a nation’s
constitution and subjecting both executive decisions and legislation to those norms.
This is of course a feature of many jurisdictions which recognise higher law in some form or other, and entrust to
constitutional Courts the responsibility for ensuring that legislation is consistent with it.
I believe there are good reasons for not going down this route. Where the concept chiefly breaks down, in my view, is in
requiring a formal separation of powers that would lead inevitably to a politicisation of the judiciary and to
protracted and possibly intractable disputes over turf.
Our current constitution features an informal separation of powers, based upon convention, upon an agreed modus vivendi,
rather than a precise specification of boundaries. It is not unlike a set of road rules, in which it is clear for the
most part who has right of way, and outside of exceptional circumstances everything runs smoothly. A formal separation
of powers requires a precise specification of roles, because it involves alternative sources of law making, one
representative and one judicial.
I accept that there are arguments in favour of this system. Some argue that it is a better option for those who are
promoting minority interests and who fear the majoritarian nature of parliament may be inimical to their goals. This is
a moot point, however. To illustrate this one has only to examine the struggle for minority civil rights in the United
States, which has an entrenched constitution, with the parallel struggles in jurisdictions such as the UK and New
Zealand.
What should be acknowledged is that any significant change to the roles of parliament and the courts is a matter
essentially of swapping one set of problems for another. For us to move in that direction in New Zealand would
necessitate a lengthy period of adjustment and experimentation with boundaries. And I am not convinced that it is a
journey worth taking.
That is not to say I am constitutionally conservative. We have taken other journeys, and they have been worth the
effort. We have fundamentally changed the nature of our democracy by the shift to proportional representation. That has
made the parliament more representative of the New Zealand population, provided for a broader airing of different
viewpoints, led to better representation of minorities, and reduced the influence of the executive over the legislative
agenda and process. Whether it has overall contributed to national welfare is, of course, a different issue and best
left to future historians.
I would point out that these changes were preceded by years of analysis and debate, and by two referenda. Democracy in
New Zealand was reconfigured by the use of democratic means.
If we are to head down the track of a higher law and a constitutional court, I would argue that must also be via
democratic means. However, those who advocate that position today should take into account the fact that New Zealanders
have already considered the question, most recently in the mid 1980s when Sir Geoffrey Palmer put forward legislation to
entrench a higher law for New Zealand, including a formal recognition of the Treaty of Waitangi. At that time the notion
was emphatically refused, including amongst Maori. I would be surprised if public opinion has swung to a more positive
view of entrenched constitutions in the intervening period.
Earlier this year I expressed my concern over the questioning of the principle of Parliamentary sovereignty in a number
of recent statements and judgements by New Zealand judges. My particular issue was the suggestion that Parliamentary
sovereignty may have a precarious foundation in law, specifically that it had been merely ‘assumed’ by the Courts in
years past, and that correspondingly the Courts could ‘find’ that a higher law exists which modifies the constitutional
status of the New Zealand Parliament.
My concern was threefold. First, as a parliamentarian, historian and Leader of the House, I must take issue with the
suggestion that Parliament’s sovereignty is based upon a set of ‘assumptions’ made at particular points in our
constitutional history, ‘assumptions’ which may be proved incorrect. The sovereignty of Parliament is not an historical
artefact, which could be proved to be bogus. Unlike the sovereignty of a monarch, it is not dependent upon establishing
proof of lawful succession. It is less an ‘assumption’ than an ‘assertion’; but in that respect it is the assertion that
has been the major driving force of Western constitutional history, namely that executive and legislative power should
be exercised by a representative and democratically elected body, rather than a monarchy, aristocracy or even a
meritocracy.
My second concern is that, whatever the merits of that argument, the challenging of Parliamentary sovereignty in the
Courts would amount to constitutional change by stealth. It is for the public to grant the Courts a larger
constitutional mandate; not for the Courts to build one upon an interpretation of constitutional history.
And third, any suggestion of advocacy of constitutional change by sitting judges invites the inference that the Courts
may not be impartial in their decision-making. If a judge has made it clear that he or she is not content with current
judicial practice and favours an expanded role for judges, then litigants may perceive that their case may, for good or
ill, be used as a test case to this end. Any perception that the Courts are working to develop a common law
jurisprudence which imposes new limits on the power of the Parliament and the legitimacy of the laws it enacts, would
threaten the credibility of both institutions.
I do not wish to place too much stress on this issue. I think New Zealanders have every reason to be confident in their
Parliament and their Judiciary. They are both robust institutions, pursuing their mandates with skill and determination.
Some testing of the boundaries is necessary from time to time, and possibly healthy. It is a challenging task to
reconcile the glacial movement of the common law, as precedent upon precedent exerts its force, with the dance of
legislation, for the most part modestly paced, but occasionally speeding up to a jig. However, I am confident that that
reconciliation can leave both institutions stronger, and better serve the people.
Thank you.
ENDS