The curious case of the missing purpose clause in the re-write of courts legislation

The New Zealand Parliament seems about to drop that country’s commitment to the rule of law from the Act underpinning the judicial branch. Retiring Supreme Court judge (and former Solicitor-General) John McGrath thinks that’s worrying. He’s right. There’s still time for ex-pat Kiwis to lobby the Minister of Justice.

One of the first legislative measures of the young colony, back in 1841, drafted in part by the Birmingham born first Chief Justice, was the creation of what is now know as the High Court of New Zealand. That legislation has been updated over the years, significantly in the 1880s before consolidation in 1908 in the Judicature Act. The Judicature Modernisation Bill currently set down for its committee stage in Parliament is the first major overhaul of the provisions since 1908. Amongst other things it will incorporate the Supreme Court Act 2003. Along with the Constitution Act, the Bill of Rights Act, and some others, this is legislation of constitutional significance. It governs the operation of one of the branches of state.

The Justice and Electoral Committee of the New Zealand Parliament in the early 2000s returned a 66 page report (excluding appendices) on the 62 page Supreme Court Bill (which ended Privy Council appeals and set up a Supreme Court). One of the matters it dealt with was the content of the purpose clause. The purpose clause the Committee settled on recorded New Zealand’s continuing commitment to the rule of law and parliamentary sovereignty. It also referenced the Treaty of Waitangi.

Severing ties to the Privy Council and setting up an indigenous second level appellate court was a significant constitutional moment for New Zealand. Members of Parliament then, prudently, and after months of debate and hearings, thought that the constitutional innovation required for the first time an explicit statutory commitment to constitutional fundamentals. Their work was careful, considered, and based both on expert testimony and the views of a wide range of submitters.

The Judicature Modernisation Bill (running to over a thousand pages), reported back from the same Select Committee with a report of seven pages, drops the 2003 Act purpose clause. New Zealand’s commitment to the rule of law and parliamentary sovereignty is being deleted from the statute book. As to why, the Select Committee majority says nothing. The Minister of Justice’s second reading contribution (given by another minister, the lead minister being away in London) explained that the provisions, being constitutional in nature, were out of place in the new Bill; their place would be in the Constitution Act.

If Parliament were simultaneously amending the Constitution Act to include the provisions, New Zealanders might rest. It is not though. And in any event, the Judicature Act, and its replacement or replacements, are also “constitutional” (as is of course the Supreme Court Act 2003, which the new Bill gobbles up).

Concern about this came from the highest levels this month when former Solicitor-General and a founding member of the New Zealand Supreme Court, John McGrath said this at his final sitting on March 6, (references omitted):

“Today’s ceremony accordingly marks the end of my public service in two branches of government.  Bearing that in mind, I hope you will forgive me if I detour for a few minutes to raise a matter of constitutional kind that causes me some concern.

Our constitution is an informal one.  It is not set out in any single document.  It has been described as the product of a complex mass of forces of a political, legislative, prerogative and judicial kind.  As a result the New Zealand constitution is found in some rules that have been enacted by Parliament, some rules of common law stated by the Courts and a number of conventions which are practices based on established understandings as to the proper exercise of powers.  Most New Zealanders seem happy with this and so am I.  I do not favour replacement of our arrangements with a written constitution at the present time.  But I believe there are gaps in our constitutional arrangements which we need to be aware of if our informal constitution is to continue to provide a sufficient protection to our nation’s good government.  And we also need to ensure that we do not inadvertently create new gaps.

The Constitution Act 1986 provides that Parliament continues to have full power to make laws recognising, with clarity, that Parliament is the supreme law making power of the nation.  There is no equivalent provision stating the role of the judicial branch, or indeed the underlying concept of the judicial function which is to uphold the rule of law.

That gap was filled, to some extent, when this Court, the Supreme Court of New Zealand, was established in 2003.  The legislation stipulated that nothing in it “affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”.  Commitment to the rule of law is a simple but important constitutional concept.  It means our nation’s commitment to the principle that all persons and all bodies, whether public or private, must comply with the law and are entitled to exercise all rights that it gives them.  Upholding this principle is the central role of the Courts.

Interestingly, there is a provision, expressed in similar terms, in the Act of the United Kingdom Parliament, passed two years later, which provided for the establishment of the Supreme Court of the United Kingdom.  That statute states that the Constitutional Reform Act 2005 (UK) does not adversely affect “the existing constitutional principle of the rule of law”.

To my mind, the provision in the New Zealand Act of 2003 was an elegant way of addressing concerns that the establishment of the Supreme Court should not alter the generally understood position of the different branches of government under the constitution.  The roles of the Parliament and the Courts would remain the same.  The inclusion of this statement in the Act that established the Supreme Court was also in my view appropriate legislative recognition that under our constitutional arrangements there is a system underlying our constitutional values.  Parliament legislates and the Courts administer the law.  The explicit recognition of these roles sends an important signal to those in executive government, including the public service which supports the government and the Courts.  It also sends an important signal to the Courts themselves.  Commitment to the rule of law requires Judges to interpret and administer the law in accordance with constitutional principle.  Judges may not restrict the true scope of the law to accord with individual notions of fairness in cases before them.

So what is my concern?  It is that this statutory provision affirming our nation’s commitment to the rule of law will soon disappear from the statute book.  It will be repealed if the Judicature Modernisation Bill, which recently received its second reading in the House of Representatives, is enacted in its present form.  If that happens, in the new statute providing for senior Courts, we will no longer have this meaningful statutory recognition of both the judicial and the legislative roles.  It has been suggested that provisions such as section 3(2) of the Supreme Court Act might be better located in a revamped Constitution Act.  Fair enough.  But that outcome will take time to achieve, possibly a very long time.  In the meantime there is a risk that an important recognition of constitutional principle will disappear from the statute book”.

There are many admirable aspects to New Zealand’s pragmatic approach to public affairs. It makes the 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% vote in the single chamber legislature, or referendum approval. A commitment to the rule of law and an independent judiciary is another.

Dr Matthew Palmer (who has been Dean of Law at Victoria University, Wellington, worked at the heart of government as Deputy Solicitor-General for Public Law, and who, now in private practice is one of the country’s leading public lawyers), has written that he’s “not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm.” Further, that, “the rule of law and judicial independence is not reinforced by a New Zealand cultural value… [and] is a vulnerable constitutional norm in New Zealand.” (Matthew Palmer, “New Zealand Constitutional Culture” 22 (2007) New Zealand Universities Law Review 567, at 589.)

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, and only strengthens the warning Palmer sounds. It is also an odd message to be sending internationally (including for instance to regional neighbours such as Fiji).

The Judicature Modernisation Bill will not make the front pages, but it should. I’ve made similar points here, here, and here (in my submissions to the Committee). There is still space to lobby on this, but not much. Time for ex-pat Kiwis to log on and email the Minister.

Dr Richard Cornes, an ex pat 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. @CornesLawNZUK / A version of this blog also appears on the Pundit NZ website