Lars Puvogel I. Introduction

III. The Demise of Parliamentary Sovereignty in New Zealand

Although the doctrine has been criticised time and again, there has been little doubt about the core of the doctrine and the courts accepted the sovereignty of Parliament and thought it undesirable for the judiciary to be given power to invalidate statutes. But recently this very basis of the doctrine has been challenged, by judges and academic lawyers in the United Kingdom, New Zealand and Australia. Sir Robin Cooke, as the President of the New Zealand Court of Appeal, was the first eminent judge to do so publicly. In Britain, several senior judges have explored the question, in extra-judicial speeches. The Master of the Rolls, Lord Woolf of Barnes, has asserted that there are 'limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold'.⁵³ The arguments put forward among those advocating limited parliamentary powers have been backed by the increasing recognition accorded to fundamental human rights. Fear that majoritarian governments will erode the rights which serve to protect the individual or the freedoms enjoyed by minority and ethnic groups has generated a quest for an independent adjudicator.⁵⁴ In response to those concerns more and more countries with legal systems rooted in the common law have adopted bills of rights.⁵⁵ These experiences have given rise to the fundamental question of how bills of rights fit into common law structures and to what extent they have altered those structures.⁵⁶ For the purposes of this paper it is of special importance to examine the impact on the traditional maxims of statutory interpretation.

This section focuses on the development of the doctrine of parliamentary sovereignty in New Zealand. It explores Sir Robin Cooke's concept of fundamental 'common law rights' and discusses the validity of Dicey's propositions in the light of recent decisions of the New Zealand Court of Appeal. Consideration will be given to the Court's understanding of orthodox rules of statutory construction and its implications for the doctrine of parliamentary sovereignty as explained by Dicey. In this context the role of the Bill of Rights Act 1990 will be examined. The central point will be the question of to what extent the trend of the Court of Appeal incrementally to endow the Bill with increasingly stronger powers is compatible with strict Diceyan theory.

Lord Cooke's Theory of Fundamental 'Common Law Rights'

A profound challenge to the orthodox understanding of parliamentary sovereignty occurred in a series of Court of Appeal decisions between 1979 and 1984. Lord Cooke's comments indicated a belief that Dicey s assessment of parliamentary power was mistaken and actually presented a direct attack on the absolutist sovereignty doctrine.

Lord Cooke's Controversial Comments⁵⁷

The first instance in which Cooke J (as he then was) suggested that there was a restriction on Parliament's law-making powers was the case of L v M.⁵⁸ With regard to an ouster clause⁵⁹ he commented:

It would be a strong and strange step for Parliament to attempt to confer on a body other than the Courts power to determine conclusively whether or not actions in the Courts are barred. There is even room for doubt whether it is self-evident that Parliament could constitutionally do so.⁶⁰

In 1982, in the case of New Zealand Drivers' Association v New Zealand Road Carriers⁶¹ Cooke J returned to this theme and, again in the context of an ouster clause, noted:

Indeed, we have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the rights of citizens to resort to the ordinary Courts of law for the determination of their rights.⁶²

And two years later his comments became even more direct. In Fraser v State Services Commission⁶³ he warned:

This is perhaps a reminder that it is arguable that some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them.⁶⁴

In Taylor v New Zealand Poultry Board⁶⁵ the 'doubt', earlier expressed in 1979, that Parliament's competence was limited, later became a 'reservation' in 1982, and finally turned into a 'presumption'. In discussing the question of the so-called right to silence Cooke J made his opinion about the role of the judiciary with regards to the legislature very clear. He said:

I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.⁶⁶

Exploring the Concept of Fundamental 'Common Law Rights'

Implications for Dicey's proposition of sovereignty

The above quotations illustrate a substantial departure from the expected function of the judiciary as expounded by Dicey. Indeed they can be regarded as challenging the very basis of parliamentary sovereignty. The process has therefore been described as a 'quiet revolution which has been occurring on the Benches of the Court of Appeal'.⁶⁷ This observation is certainly correct, given the fact that the dicta not only challenged the doctrine of parliamentary sovereignty but inherently questioned the location of ultimate decision-making in New Zealand's legal system. If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe unwritten rights, they would be claiming that ultimate authority for themselves. Moreover, it appears that Lord Cooke is suggesting not only that there is a set of fundamental rights that lie so deep that Parliament cannot abrogate them, but that in the absence of any clear indication as to what those rights are, it is the responsibility of the courts to define and protect them. This, it was argued, could be seen to parallel the institution of substantive judicial review, giving the courts the power to review the substance of legislation passed by a legislature.⁶⁸

That this would have put an end to Dicey's doctrine of sovereignty has been publicly stated by Lord Cooke himself in a subsequent article published in the New Zealand Law Journal.⁶⁹ Discussing the subject of the relationship between the courts and Parliament he observed: 'Before any serious discussion of the subject it is necessary to get Dicey out of the way'.⁷⁰

The legal reality

It is certainly no surprise that the comments created something of a stir in legal and political circles both in New Zealand and overseas. While some commentators praised Lord Cooke's views as the seeds of a novel and simpler foundation for legal legitimacy to replace an antiquated doctrine of sovereignty, others criticised them as the purest heresy. Hushcroft and Rishworth⁷¹ have pointed out that a series of events between 1975 and 1984 contributed to a view in some quarters that the government of the day was prepared to act, and did act, in a manner which was unconstitutional. They suggest that these events may not have been irrelevant to Lord Cooke's warning dicta and that therefore they are to be seen in context. The comments have, however, not had any revolutionary constitutional effect in practice. And although occasional reflections on Lord Cooke's dicta have arisen before the courts, the judges always refused to overturn legislation passed by Parliament on grounds of overriding common law rights and have always affirmed Parliament's sovereignty.⁷²

However, the courts have — despite their obedience to the doctrine of parliamentary sovereignty — recently warned that lack of goodwill and disregard of convention would impact on the legitimacy of legislative power.⁷³ And although it is probably true to assert that the debate over fundamental common law rights remains 'theoretical' and 'extra-judicial'⁷⁴ these comments leave at least room for the possibility that the judiciary may assert a power to review extreme legislation which places in jeopardy fundamental rights and freedoms. The resulting uncertainty, it has been argued, serves a valuable constitutional function.⁷⁵ Uncertainty as to whether the courts will intervene to strike down legislation perceived to undermine representative government and destroy fundamental rights can act as a brake upon Parliament's conception of its omnipotence and remind those in power to have regard to and respect fundamental rights and freedoms.