1 Public Law in the Supreme Court

Public Law in the Supreme Court: The First Ten Years

Philip A Joseph Professor of Law University of Canterbury

A Introduction

The first 10 years of the Supreme Court was a period of consolidation. The Court’s gestation (2000- 2003) was bumpy and at times strained, with groups within the profession lambasting the proposal to end Privy Council appeals. From 1 July 2004, when the Court commenced hearing appeals,1 it worked hard to establish its reputation and disarm the naysayers, who claimed that our legal community lacked the depth to sustain a court of final appeal in Wellington. Now, 10 years on, the Court has consolidated its position at the apex of the judicial hierarchy, with no discernible nostalgia for the historical past. Apex courts typically take time to build reputation and standing.2

The establishment of the Court was a significant milestone. The Privy Council appeal had compromised New Zealand’s nationhood and was long overdue for replacement by a locally- exercised right of final appeal. Yet, there was no “constitutional moment” or national celebration. The Chief Justice and the four most senior members of the Court of Appeal were appointed to the new Court and they went about the Court’s business without pomp or ceremony.3 The most notable changes were architectural and stylistic: the fit-for-purpose court-house building in central Wellington and the use of footnotes in judgments.

This chapter singles out for discussion a clutch of decisions that reflect the Court’s thinking in public law cases. I record the significance of each decision without reflecting too closely on the reasoning

1 Supreme Court Act 2003, s 55. 2 The United States Supreme Court, the High Court of Australia and the Supreme Court of Canada each lacked prestige upon their establishment. In its early years, the United States Supreme Court had little business to transact and spent much of its time on circuit (http:/www.infoplease.com/encyclopedia/history/supreme- court-united-state-history.html). The High Court of Australia experienced a similar reception, with some believing the Court would be “a redundant tribunal with little work to do and no real status” (http/:www.hcourt.gov.au). The Supreme Court of Canada likewise lacked prestige for many years, with the Privy Council appeal remaining until 1949. The Court occupied a “humble” place in Canadian jurisprudence: “[u]known, and uncelebrated … overshadowed and frequently overruled by the Privy Council” (JG Snell and F Vaughan The Supreme Court of Canada: History of the Institution (University of Toronto Press, Toronto, 1985) at i). Each Court had to consolidate its position before it won acceptance. 3 The inaugural Supreme Court bench comprised Elias CJ and Gault, Keith, Blanchard and Tipping JJ.

deployed. These decisions are (in chronological order): Taunoa v Attorney-General,4 Unison Networks v Commerce Commission,5 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd,6 Ye v Minister of Immigration,7 Hamed v R,8 Attorney-General v Leigh9 and Attorney-General v Chapman.10 Two of those decisions (Taunoa and Chapman) are New Zealand Bill of Rights Act cases, which are separately covered under the Human Rights title, but they are also examined here because of their constitutional importance. Reflective comment on selected decisions over a ten year period conveys little more than snapshots of decision-making in the Court. These decisions nevertheless anchor the discussion as commentary not tied to actual decisions would risk lapsing into meaningless generality. However, I do offer some initial observations on the Court’s modus operandi over the first 10 years.

B Institutional setting

At its inception, there were musings of the Court becoming a quasi-constitutional court. Some thought it would exercise functions beyond those of error correction and law clarification and development. It was expected to exercise closer supervision over legal developments than had the Privy Council, and capitalise on the judges’ knowledge of local conditions to initiate changes and produce optimal legal outcomes. The Supreme Court hears over twice the number of cases that were heard in the Privy Council (around 20 plus substantive decisions per year), which does suggest closer supervision and direction by the Court. But, in other respects, New Zealand’s institutional arrangements militate against any greater role than traditionally associated with common law adjudication. Supreme Courts elsewhere, such as in the United States of America, Canada and South Africa, discharge “higher order” roles in policing legislation under constitutional bills of rights, entrenched separations of powers and federal allocations to central and state governments. These courts are the final arbiters of what is and what is not law, and operate more visibly in the public eye as head of the third branch of government.

Our courts superintend legal development within a narrower compass. The formal superiority of the legislature pre-empts jurisdiction to rule on the validity of legislation, and confines the judicial role to the interpretation and application of legislation and incremental development of the common law. The Court has disclaimed even an inherent remedial jurisdiction to grant declarations of inconsistency under the New Zealand Bill of Rights Act 1990 (the NZBORA). It has balked at

4 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. 5 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42. 6 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35. 7 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104. 8 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305. 9 Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713. 10 Attorney-General v Chapman[2011] NZSC 110, [2012] 1 NZLR 462.

proffering normative judgments on legislation, preferring instead the “Hansen declaration” which is less potentially inflammatory than formal orders of the Court declaring legislative inconsistency.11 A Hansen declaration entails the application of s 4 (inconsistent enactments prevail over the NZBORA) without the risk of fracturing political-judicial relations.12 Applying s 4 entails a finding of legislative inconsistency presented as part of the reasoning of the court.

The Court’s record comports generally with the observations of the Advisory Group established in October 2001 to explore the proposal for a Supreme Court. The Advisory Group affirmed the standard appeal functions of error correction and law clarification and development.13 It believed that the new Court would have particular responsibility for clarification and development of the law but that this would not mark a departure from the traditional role of appellate courts. The Advisory Group did not envisage for the Court a general advisory jurisdiction to address general questions of public law, such as exercised by the Supreme Court of Canada.14 Its jurisdiction would be anchored by actual cases before it, where there was a lis or dispute between identifiable parties.15 Nor did the Advisory Group believe that the new Court would signal a departure from the common law as it then stood. Decisions of the superior courts in the common law jurisdictions would continue to be persuasive, “thus ensuring consistency in the application of the common law”.16 Those observations accurately anticipated the Court’s modus operandi across most areas of the law. Precedents from the leading common law jurisdictions feature in many of the Court’s judgments, preserving the unity of the common law across different jurisdictions.17

11 “Hansen declarations” are named after the Supreme Court decision in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 (discussed in this chapter). 12 See Belcher v Chief Executive of the Department of Corrections [2007] NZCA 174 at [13], [16]; Belcher v Chief Executive of the Department of Corrections [2007] NZSC 54 at [6]; Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229; McDowell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770. 13 Terence Arnold Replacing the Privy Council: A New Supreme Court: Report of the Advisory Group (Office of the Attorney-General, April 2002) at [29]-[33]. 14 See for example, Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1 (SCC) where the issue for the Court was whether constitutional convention required the consent of the Canadian provinces before the federal authorities might request the United Kingdom Parliament to enact legislation to “patriate” the Canadian constitution. 15 Replacing the Privy Council: A New Supreme Court, Report of the Advisory Group, above n 15, at [47]. The Supreme Court has disclaimed jurisdiction to issue advisory opinions: see Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] NZSC 35, [2013] 2 NZLR 397 at [7]. 16 Replacing the Privy Council: A New Supreme Court, Report of the Advisory Group, above n 15, at [48]-[49]. 17 See, for example, Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (examined below) where the Court followed decisions of the Supreme Court of Canada (Canada (House of Commons) v Vaid 2005 SCC 30, [2005] 1 SCR 667) and the Supreme Court of the United Kingdom (R v Chaytor [2010] UKSC 52, [2011] 1 AC 684) in reaching decision on the scope of Parliament’s privilege of freedom of speech. The irony is that these decisions may have been followed in error as they each concerned the common law privilege of exclusive cognisance, not Parliament’s freedom of speech privilege which is sourced in statute.

C Public law adjudication

Two features of the Court’s public law adjudication invite comment: its apparent reluctance to pen single-opinion judgments and the relatively high incidence of dissenting opinions. From 1 July 2004 until the end of 2013, the Court delivered 202 substantive decisions. Twenty of these were decisions in public law cases covering constitutional law and administrative law. Of the 182 non-public law decisions, the Court delivered 113 single-opinion judgments, representing 62 per cent of the Court’s decisions. Of the 20 public law decisions, the Court delivered eight single-opinion judgments, representing only 40 percent of the decisions. The incidence of single-opinion judgments was even less with the sample of decisions examined here. The Court delivered single-opinion judgments in two of the seven cases, representing 28 percent of the decisions.18 These statistics invite speculation whether public law cases are more prone to raise issues of fundamental principle, necessitating value judgments that are fully contestable. Public law adjudication has never aspired to the clinical certainty that is sometimes associated with commercial and other areas of private law.

The lower percentage of single-opinion judgments in public law cases may account in part for the second feature of the Court’s record: the relatively high incidence of dissenting opinions. Fourteen of the 20 public law decisions were unanimous (all judges agreed on the outcome of the case) but this statistic does not reveal the patchwork of dissenting opinions on specific issues, even where the outcome is unanimous. A good many of the Court’s decisions are characterised by shifting cohorts of judges dissenting on a raft of legal issues. Might this be because apex courts are expected to engage more fully with issues of principle in order to provide future clarity and guidance (rather than confine their decisions solely to the facts of cases)? Whatever the reason, wide-ranging dissents on matters of principle have flow-on effects: they thwart legal clarity, weaken the precedent-value of decisions and raise contested issues that will themselves, sooner or later, require clarification.

Our sample of decisions illustrates the patchwork nature of decision-making in the five-member Court. Four of the seven decisions contained dissenting opinions on one or more issues. Elias CJ recorded the most dissents. The Chief Justice sat in six of the decisions and dissented on discrete issues in four of them (whether or not the outcome was unanimous).19 Issues of public law principle included: whether the segregation, isolation and confinement of prisoners amounted to cruel, degrading or disproportionately severe treatment under the NZBORA;20 whether exceptional

18 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 (per McGrath J); Attorney- General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (per Tipping J). 19 Elias CJ did not sit in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35. 20 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

circumstances of a humanitarian nature made it unduly harsh to deport a person lacking lawful authority to be in New Zealand;21 whether the Crown qua executive may claim the residual freedom that individuals enjoy to do anything not forbidden by law;22 and whether Baigent damages were available for judicial breach of the NZBORA.23 Six decisions handed down over a 10 year period is, on any view, a small sample. Nevertheless, four dissents by a judge in six decisions is a notable statistic.

D Palpable tension

The tension in a court of final appeal is palpable: whether to promote clarity and certainty of the law through judicial unanimity, or intellectual autonomy and rigour through judicial independence. Clarification and development of the law are key responsibilities of apex courts. They function as final expositors of the law, resolving legal uncertainties and providing guidance for the application of legal principles. Their aim is to lay down clear, coherent and reasoned rulings for the lower courts and the profession (and ultimately the people) to follow. Decisions riddled with dissenting opinions, on the other hand, send conflicting signals that compromise legal clarity and certainty. The Court may address multiple issues in a case and a patchwork of dissents leaves the law in a state of flux.

Appellate court adjudication exemplifies the role of small group dynamics. Group dynamics offset the autonomy of individual judges and promote the Court’s organisational interdependence. American scholars have explored the complex interactions between appellate judges and the organisational context of their decision-making.24 These interactions and the organisational context affect, not only how decisions are made, but also the outcome of decisions themselves, including whether they are unanimous, single-opinion or majority decisions. Ideally, members of an apex court should encourage collegiality that can lead to compromise and allow differences within the court to be reconciled. Minimising the need for dissents is a value in its own right. But other values, too, such as judicial independence, also define the judicial role.

Judicial independence of mind is the ultimate guarantee of impartial decision-making. Decision- making autonomy, detached objectivity and intellectual rigour represent the ultimate values associated with adjudication.25 These values are fundamental to the capacity of courts to do justice

21 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104. 22 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305. 23 Attorney-General v Chapman[2011] NZSC 110, [2012] 1 NZLR 462. 24 See JM Cohen Inside Appellate Courts: The Impact of Court Organisation on Judicial Decision Making in the United States Courts of Appeals (University of Michigan Press, Michigan, 2002) and the leading studies cited at p 21. 25 Valente v The Queen [1985] 2 SCR 673 (SCC) at 685; R v Lippé [1991] 2 SCR 114 (SCC) at 136; R v Généreux [1992] 1 SCR 259 (SCC) at 283-284. See PA Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [21.3.1].

and maintain public confidence in the judicial system. Judges bear a fundamental obligation of fidelity “to do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.26 Judges are intellectually autonomous actors and hold to differing judicial persuasions, and naturally view issues through a lens which may differ from those of their judicial colleagues. No amount of doctrine, learning or experience in the law can trump the human condition that separates one judge from another. Legal meaning is ultimately the interpretations which judges, as individuals, bring to the law. How they interact within the appellate organisational context will determine whether internal differences can be reconciled and dissents avoided.

The following sections present a public law mosaic. The decisions examined were chosen because of their importance for public law pedagogy, and because they reveal much about the Court’s thinking in public law matters.27

E Corrections and the inherent dignity of the person

Taunoa v Attorney-General28 revealed the vulnerability of prison inmates placed under the custodial control of Corrections officers. The decision was a reassuring affirmation of New Zealand’s commitment to its human rights obligations under the NZBORA and the International Covenant on Civil and Political Rights. Persons incarcerated under a custodial sentence of law may not be deprived of their rights to be treated with humanity and respect for the inherent dignity of the person. Even difficult inmates, intent on disrupting prison life, could not be deprived of these universal and inalienable rights.

(a) Facts and decision

Several inmates claimed public law damages under the NZBORA after they had been subjected to the Behaviour Management Regime (the BMR) introduced to manage difficult prisoners. Segregation was “at the heart of the BMR”, which imposed a highly controlled environment.29 There was no smoking, no radios, no stereos, no watches, no physical exercise and no personal clothing.

26 Oaths and Declarations Act 1957, s 18. 27 I disclose that I have reviewed three of the seven decisions examined here and have expressed views critical of the reasoning of some members of the Court: see “Constitutional law” [2012] NZ Law Rev 515 at 519-527, 527-523 (critiquing respectively Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 and Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713), and Constitutional and Administrative Law in New Zealand, above n 25, at [18.3.3] (reviewing the issue in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 involving the Crown’s claim to the residual freedom to do anything not prohibited by law). 28 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. See also Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC); Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC); Taunoa v Attorney-General [2006] 2 NZLR 457 (CA). 2929 Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) at [37]; Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [16].

Inmates endured cramped and unhygienic cells, dirty or soiled bedding, inadequate ventilation, lack of natural light and routine strip-searching. Toilet paper was limited to two rolls per week, which the High Court described as “pointlessly punitive”.30 Inmates were segregated from other prisoners and kept in solitary confinement in cells for 22-23 hours each day. The degree of isolation and restriction on conditions depended on prisoners’ progression through several distinct phases of the programme. Minimum periods were prescribed for each phase, although prisoners typically spent longer periods on each. Only one inmate was known to have served the minimum period on the BMR.31 The prison authorities conceded that the programme was unsuitable for psychologically unstable inmates or inmates at risk of self-harm.32

The High Court and Court of Appeal held that the BMR was unlawful on two counts. It was in breach of the Penal Institutions Act 1954 and regulations, and it contravened s 23(5) of the NZBORA guaranteeing the rights to be treated with humanity and the inherent dignity of the person. In the Supreme Court, the Attorney-General did not contest those rulings but cross appealed that declarations rather than public law damages were a sufficient remedy to vindicate breach of the prisoners’ rights. The Court dismissed the cross appeal and held that the breaches of s 23(5) justified awards of public law damages. Damages were the only practicable, effective remedy. However, the majority (Elias CJ dissenting) considered that the sums the High Court had awarded were excessive and reduced the quantum of awards by up to 50 per cent. Taunoa’s award was reduced from $65,000 to $35,000 and other awards from $40,000 to $20,000, $25,000 to $15,000 and $8,000 to $4,000.

It was also argued that the BMR was unlawful in breach of ss 9 of the NZBORA, which prohibits cruel, degrading or disproportionately severe treatment or punishment. However, the majority of the Supreme Court resolved that the s 9 threshold had not been met. Section 9 was concerned with state conduct which was to be condemned as unacceptable in any circumstances, and the BMR did not meet that standard. Elias CJ dissenting took a more robust approach. She thought that the BMR did breach s 9, as did Blanchard J in the treatment meted out to Taunoa. He had spent the longest time on the BMR, which made the isolation and confinement disproportionately severe.

(b) Comment

Taunoa did not break new ground in terms of legal principle. However, the decision was important for another reason: it thrust a stake in the ground concerning basic human rights. It sent a strong

30 Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) at [276]. 31 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [17]. 32 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [21].

message that state institutions must treat citizens with humanity and respect for human dignity. It was irrelevant that Taunoa involved prison inmates who had committed serious offences and were causing disruption to prison life. Lord Steyn once solemnly pronounced: “[E]ven in unprepossessing cases, fundamental principles must be upheld. The rule of law requires it.”33 Two members of the Court (Blanchard and Tipping JJ) suggested that courts applying ss 9 and 23(5) might consider adopting standards that would place New Zealand in the vanguard of human rights: “That is because, in this country, more may be required of persons in authority than adherence to minimum standards that can realistically be applied and enforced internationally.”34 New Zealand takes seriously its human rights obligations, which suggests that local rather than international values and standards should apply.35

Taunoa champions the protection of human rights when state institutions fail to treat citizens with humanity and respect. Custodial sentences are imposed by authority of the law and inmates are no less entitled to protection of the law. The BMR was an affront to human dignity and was “an unfortunate chapter in the administration of New Zealand prisons”.36

G Administrative law orthodoxy

(a) Unison Networks

Unison Networks Ltd v Commerce Commission37 catalogued the orthodox application of administrative law principles. The Commerce Commission set thresholds under the Commerce Act 1986 that required electricity lines companies to maintain their current market prices, and Unison Networks sought judicial review. The appellant argued that the thresholds were an effective price- freeze and did not promote the statutory purpose of policing price-gouging. Dismissing the appeal, the Court observed that the thresholds were designed to achieve broad economic objectives and the Court would not intervene in the absence of proof of ulterior motive, misuse of power or material error of law. Economic regulators such as the Commerce Commission exercise a complex, specialist

33 R (Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, [2004] 1 AC 604 at [36] (emphasis added). 34 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [179] per Blanchard J. See also at [276] per Tipping J. 35 At [279] per Tipping J. 36 At [276] per Tipping J. 37 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42.

jurisdiction and the courts will generally defer to the decisions of such bodies.38 They will entertain review only in extreme cases of manifest illegality, bad faith, or Wednesbury unreasonableness.39

(b) Administrative law orthodoxy affirmed

Unison Networks is New Zealand’s Padfield.40 It is destined to be cited whenever it is claimed that public powers have been misapplied. As of April 2014 (a period of roughly 6½ years from the date of decision), the courts had cited Unison Networks 115 times (18 citations on average per year).41

The Court affirmed the following principles:

(i) the grounds relied on to establish invalidity overlap to a considerable extent;42 (ii) public bodies abuse their powers if they make decisions outside the limits of their powers;43 (iii) public bodies must act within the scope of the authority conferred by Parliament and for the purposes for which the powers were conferred;44 (iv) public bodies abuse their powers where the decision-maker misconstrues the statute and applies the wrong legal test or exercises them for an unauthorised purpose;45 (v) Parliament must have intended that a broadly framed power conferred in unqualified terms should be exercised to promote the policy and objects of the Act which subjects the power to legal limits;46 (vi) a power must be exercised for the authorised statutory purpose but the pursuit of an ulterior purpose will not invalidate its exercise if the authorised purpose is being pursued and the ulterior purpose does not thwart or compromise the authorised purpose;47

38 At [55]. 39 At [55]. See also Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [139] (similar observations apropos the expertise of professional disciplinary bodies). 40 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL). 41 This number of “hits” was obtained from a Briefcase search using a Westlaw data base. 42 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50] (citing PA Joseph, Constitutional and Administrative law in New Zealand (2nd ed, Brookers, Wellington, 2001) at [21.2.4]). 43 At [51]. 44 At [50]. 45 At [52]. 46 At [53], citing Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1030. 47 At [53].

(vii) the courts seek to identify the legal limits of the power conferred rather than assess the merits of its exercise, and must avoid crossing the line between the legality and merits of decision-making;48 (viii) the courts will not intervene to review a public body exercising broadly expressed powers to achieve economic objectives in the absence of bad faith, material misapplication of the power or improper statutory purpose assessed on a Wednesbury standard (“has [the body] exercised the power in a way which cannot rationally be regarded as coming within the statutory purpose?”).49

Padfield was previously the standard citation for the above principles but Unison Networks has overtaken the authority of that decision. Padfield was one of a clutch of standout House of Lords decisions that spearheaded administrative law developments in the post-war era.50 It established that there was no such thing as an unfettered statutory power, even if Parliament should attempt to create such a thing (statutory powers are never at large but are circumscribed by the statutory policy and objects).51 Unison Networks internalised that principle and obviated the need to refer to English authority.

H The bias rules in administrative law

The Court’s decision in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (Saxmere (No 1))52 effected the long-awaited clarification of the bias rules in administrative law. However, this case will be remembered not for any clarification of the law but for the resignation of Supreme Court judge, Justice Bill Wilson. The Wilson saga was a sorry story for the judge and the Court.

(a) Justice Wilson’s resignation

Justice Wilson resigned from the bench in October 2010 after a protracted dispute over his private business interests. In Saxmere (No 1) the Supreme Court rejected the plaintiff’s claim that the judge

48 At [54]. 49 At [55]. 50 See Ridge v Baldwin [1964] AC 40 (HL); Conway v Rimmer [1968] AC 910 (HL); Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL); Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL); R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (HL); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL). For commentary, see PA Joseph “The Contribution of the Court of Appeal to Commonwealth Administrative Law” in R Bigwood (ed), The Permanent New Zealand Court of Appeal: Essays on the First 50 Years (Hart Publishing Ltd, Oxford, 2009) 41 at 42-45. 51 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1060. 52 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.

was biased when he sat in the Saxmere proceedings in the Court of Appeal, before his elevation to the Supreme Court. It had been alleged that the judge was disqualified owing to his close business relationship with counsel for the appellant, Allan Galbraith QC, in whose favour judgment had been given. But, in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) (Saxmere (No 2)),53 the Court recalled its judgment in Saxmere (No 1) on the ground of a reasonable apprehension of bias. The Court reversed its earlier decision after the judge had made further disclosures which revealed he owed an “indirect indebtedness” to counsel.

The Court’s decision precipitated further action. Complaints lodged with the Judicial Conduct Commissioner alleged that the judge had improperly failed to recuse himself and had persistently refused to make full disclosure of his business interests. The Commissioner investigated and recommended that the Attorney-General appoint a Judicial Conduct Panel to inquire whether there might be grounds to remove the judge from the bench. The Acting Attorney-General announced that a Panel would be appointed, whereupon the judge commenced judicial review proceedings to challenge the Commissioner’s recommendation to appoint a Panel.54 The judge succeeded in his challenge but resigned from office before the Commissioner could remedy his omission (failure to particularise the judge’s conduct warranting investigation). The Full Court made a prescient ruling that left the judge in a dire position: moral turpitude, while determinative where it could be established, was not a necessary element of misbehaviour as would justify removal of a judge from office. A serious error of judgment might suffice where it threw into doubt a judge’s suitability to hold office.55

The Wilson saga attracted prolonged media coverage and threatened to destabilise New Zealand’s highest court. Seldom has public controversy dogged the superior courts as Wilson’s intransigence and subsequent resignation.56 Superior court judges must elevate themselves above the activities of everyday social and commercial intercourse, lest the “tangled web we weave” exposes them to public scrutiny. Judges are expected to adhere to scrupulous standards of conduct so as to preserve their independence, integrity and standing.

(b) The bias rules

53 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76. 54 Wilson v Attorney-General [2011] 1 NZLR 399 (HC) at [65]. 55 Hearing on the Report of the Tribunal to the Governor of The Cayman Islands: Madam Justice Levers (Judge of the Grand Court of The Cayman Islands): Referral under Section 4 of the Judicial Committee Act 1833 [2010] UKPC 24. 56 The last public controversy involved Justice Robert Fisher, who was found to have visited porn sites on his work computer following a routine computer audit. Fisher resigned as High Court judge in 2004.

The rulings in Saxmere (No 1) were blessed relief for commentators (who must synthesise the law) and trial judges (who must apply the law). It is a convoluted story.57 In former times, the courts viewed allegations of bias through the eyes of the hypothetical lay observer, who was fully informed and fair-minded.58 This test gave proper weight to public perception vital to maintaining public confidence in decision-making.59 Then, in Auckland Casino Ltd v Casino Control Authority,60 the Court of Appeal jettisoned the objective test in preference for a new test the House of Lords laid down in R v Gough.61 Under the Gough test, bias allegations were assessed through the eyes of the presiding judge rather than the informed lay observer. A hypothetical standard was superfluous as the judge was in full receipt of the facts and personified the fair-minded observer.

The story then took a twist. For the United Kingdom, Strasbourg posed a problem: the Gough test required “modest adjustment” to bring it into line with the jurisprudence of the European Court of Human Rights.62 “Modest adjustment” euphemistically meant abandoning the Gough test. So, in Porter v Magill, the House of Lords reinstated the objective test in accordance with the law of the European Court, and that of Australia63 and Canada.64 This left New Zealand alone among the common law jurisdictions applying the subjective test, based on the discredited “real danger/likelihood” standard of bias. Saxmere (No 1) provided the much-needed opportunity for reappraisal. The Court grasped the nettle and followed the Court of Appeal decision in Muir v Commissioner of Inland Revenue,65 which had earlier departed from Auckland Casino and plumped for the objective standard of the lay observer. The law had turned full circle, “albeit not without shaking of heads and audible sighs.”66

Saxmere (No 1) also signalled a further rationalisation of the law. Tipping and McGrath JJ recommended conflating the separate limbs of presumptive and apparent bias under a unitary test, regardless of the nature of the disqualifying interest (whether pecuniary or non-pecuniary). They saw no reason to retain a presumptive rule of bias where the disqualifying interest was pecuniary in

57 This part of the commentary follows the analysis in PA Joseph, Constitutional and Administrative Law in New Zealand, above n 25, at [22.5.4(1)]. 58 Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA). 59 Webb v R (1994) 181 CLR 41 (HCA) at 50-53; Erris Promotions Ltd v Commissioner of Inland Revenue (2003) 16 PRNZ 1014 (CA) at 1021-1022. 60 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA). 61 R v Gough [1993] AC 646 (HL). 62 Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 (CA) at [35], [85]; Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at [103]. 63 Webb v R (1994) 181 CLR 41 (HCA); Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337. 64 Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369 (SCC) at 394-395; R v S (RD) [1997] 3 SCR 484. 65 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495. 66 PA Joseph, Constitutional and Administrative Law in New Zealand, above n 25, at [25.5.4(1)].

nature.67 These dicta were obiter and technically not binding but the lower courts need not await a definitive ruling on the conflated test. A unitary bias rule is both sensible and workable, and simplifies the law. Tipping and McGrath JJ were usefully discharging an apex court’s law clarification and development function in proposing a unitary test.

I Immigration removal processes

(a) Immigration procedures clarified

The decision in Ye v Minister of Immigration68 is most interesting for the insights it provides on the Court’s understanding of judicial review method.69 The decision itself was important, too, for settling important questions concerning New Zealand’s immigration legislation. The court below had divided over how the Immigration Service must reach decisions to grant or cancel removal orders for persons unlawfully in New Zealand.70

The issues requiring decision reduced to ones of statutory interpretation. Sections 54 and 58 of the Immigration Act 1987 confer the powers to make or cancel removal orders but stipulate no criteria to govern their exercise. The question was whether the criteria contained in s 47(3) of the Act applied by implication, and the Court was unanimous that they did so apply. Section 47(3) sets out the basis on which the Removal Review Authority may permit a person unlawfully in New Zealand to remain. This provision reads:

“(3) An appeal may be brought only on the grounds that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the person to be removed from New Zealand …”

The Court ruled that it would be an unaccountable gap in the legislation if the powers under ss 54 and 58 were to be exercised other than in accordance with the humanitarian considerations set out in s 47(3).71 The question then was whether s 47(3) established a sequenced tripartite test for establishing “exceptional circumstances”, or a unitary test positing a single composite standard. The Court divided with Elias CJ dissenting, although all members of the Court agreed on the outcome. The Immigration Service manual contained a humanitarian questionnaire that failed to direct the

67 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [42], [89]-[92]. See also Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337 at [54]-[56]; Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [37]-[43]. 68 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104. 69 See the following section titled, “Exchange between bench and bar”. 70 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 (Chambers and Robertson JJ dissenting). 71 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [5], [17]-[21].

immigration officers’ minds to the governing criteria under s 47(3). The officers had not asked themselves the right questions and had not made their decisions on the correct legal basis.

The majority settled the law in favour of a sequenced tripartite test. Section 47(3) had three ingredients, each of which had to be separately established: (i) exceptional circumstances (circumstances exceptional to overstayer cases generally); (ii) of a humanitarian nature; (iii) that would make it unjust or unduly harsh for the person to be removed from New Zealand.72 Elias CJ, in contrast, believed that s 47(3) established a single composite standard. There must be humanitarian circumstances, she acknowledged, but the threshold “exceptional” took its meaning from the defining clause: “that would make it unjust or unduly harsh for the person to be removed from New Zealand”. The “exceptional” standard was reached if the humanitarian circumstances made it unjust or unduly harsh for a person to be removed.73 This approach avoided the possibility of what Elias CJ termed an “unattractive result”.74 Under the majority’s tripartite test, humanitarian circumstances might make it unjust or unduly harsh to remove a person but the effect may not be “exceptional” when compared to similar overstayer cases.

(b) Exchange between bench and bar

Ye is notable for an exchange between bench and bar captured in the transcript of the hearing of the case.75 The exchange was an extended one involving four members of the Court (Elias CJ, Tipping, McGrath and Anderson JJ) over issues of pedagogy. What emerges is that the judges have little appetite for administrative law notions of deference or variable intensity review. Parts of the exchange are worth recounting:

Elias CJ: “I don’t think that degrees of reasonableness help.”

Tipping J: “No.”

Elias CJ: “It’s just, it’s got to be contextual. What is reasonable takes its colour from the context. Really, there’s so much dancing around on the heads of pins in this area.”

72 At [34]-[38]. 73 At [7]. 74 At [8]. 75 Ye v Minister of Immigration (NZSC transcript, 21-23 April 2009, SC 53/2008) at 179-182. D Knight “Mapping the Rainbow of Review: Recognising Variable Intensity” [2010] NZ L Rev 393 reproduces the relevant part of the Court’s transcript at 400-401. See also PA Joseph “Exploratory Questions in Administrative Law” (2012) 25 NZULR 73 at 81-87.

Tipping J: “I, together with I think the Chief Justice … think there’s a lot of nonsense talked in this area and it’s unhelpful to start trying these adjectival or adverbial adornments [‘hard look’, ‘heightened level of intensity’, etc] of the sort of review you’re undertaking.”

Counsel: “I think the lingo, if you like, Your Honour, is a question of deference, less deference where the rights are more fundamental and more deference where it’s …

Elias CJ: “That’s a dreadful word.”

The exchange reveals two things: the Chief Justice disdains deference talk and the Court rejects the idea of intensities of review. Consider, first, intensities of review. The Court opposed variable intensity review but experienced anxiety in explaining why. The judges talked themselves into a conceptual muddle:76

“The Chief Justice juxtaposed two propositions: (1) degrees of unreasonableness do not help, and (2) what is reasonable depends on context. So are there, or are there not, degrees of unreasonableness? The second proposition logically challenges the first (reasonableness is a matter of degree depending on context).”

The exchange in Ye is symptomatic of the confusion that envelopes a ground of review founded on tautology (a decision is unreasonable if no reasonable authority could have come to it). The third judge to engage in the repartee, Anderson J, chimed in with “It’s really intensity of anxiety”, which mixes the judicial metaphors of “variable intensity” review and “anxious scrutiny” review. “Anxious scrutiny” is the English adornment to describe rights-driven review at the intensive-end of the review continuum but it makes no sense to muse over the “intensity of anxiety” in judicial review.

Secondly, consider the Chief Justice’s dismissal of deference (“a dreadful word”). Her reaction is perfectly understandable, and arguably a “saving grace”.77 New Zealand lawyers have been spared the complexities English lawyers have dreamed up in developing complex models of deference to explain the judicial role.78 English rule of law theorist Trevor Allan despaired at the lengths to which

76 PA Joseph “Exploratory Questions in Administrative Law” (2012) 25 NZULR 73 at 86-87 77 PA Joseph “Exploratory Questions in Administrative Law” (2012) 25 NZULR 73 at 86. 78 See ADP Brady Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach (Cambridge University Press, Cambridge, 2012); P Daly A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012). See also the respective essays in Proportionality, Deference, Wednesbury: Taking up Michael Taggart’s Challenge published in [2010] NZ L Rev 229-431, and the several citations in PA Joseph Constitutional and Administrative Law in New Zealand, above n 31, at [22.5.1(n 172)].

formalist legal analysts would go: “The elevation of deference to a separate level of analysis reflects an exaggerated faith in the capacity of legal doctrine... to unravel complex questions of law, fact and policy.”79 There is no need to build deference into a separate stand-alone concept. As Allan explained, deference as a methodological tool is internal to any standard legal analysis of public decision-making. The courts respect the ambit of administrative discretion and the limits of the judicial role, without imposing more distracting doctrine. Judicial review is both discretionary and contextual and each of these characteristics factors into legal analysis calibrated notions of deference.

J The Crown’s residual freedom to act

(a) Tama Iti and the Urewera camps

Hamed v R80 involved Maori activist Tama Iti and 10 others associated with Tuhoe, who had taken part in quasi-military training camps in the Urewera ranges. The media covered each stage of the proceedings in the High Court, Court of Appeal and Supreme Court. The appellants were charged with criminal wrongdoing under the Arms Act 1983 and/or Crimes Act 1960 and they appealed against the rulings below, admitting evidence gathered from scene examinations and covert video surveillance. Was the evidence lawfully obtained and was it, in any event, properly admissible under s 30 of the Evidence Act 2006? Allowing the appeals in part, the Court examined a raft of issues: admissibility of evidence, legality of search warrants, implied licences to enter on land, the concept of “search” under s 21 of the NZBORA, the reasonableness of searches and reasonable expectations of privacy. The Court held that all evidence derived from the video surveillance and scene examinations had been unlawfully obtained. The police search warrants were anticipatory in nature and they could not authorise surveillance by covert filming.81

This commentary concerns an issue that the Chief Justice addressed: whether the Crown qua executive enjoys the same residual freedom as private citizens to do what is not prohibited by law. This question poses one of the pressing issues for Westminster constitutional law. For Elias CJ, the Crown lacked any residual freedom but must be positively authorised by law to discharge acts of government. The “reasonably incidental” doctrine, developed under 19th century public utilities law, supplied implied powers to perform all associated administrative acts and functions.82

79 TRS Allan, “Judicial Deference in Judicial Review: Legal Doctrine and Legal Theory” (2011) 127 LQR 96 at 116. 80 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305. 81 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [145] per Blanchard J. See also at [6] per Elias CJ. 82 I, too, subscribe to this view: see PA Joseph Constitutional and Administrative Law in New Zealand, above n 25, at [18.3.3].

(b) Residual freedom or positive empowerment?

The positive empowerment theory of government offers an alternative narrative to the Crown’s residual freedom.83 The Chief Justice held, first, that the 1979 decision of the Chancery Division in Malone v Metropolitan Police Commissioner84 could not survive the enactment of the NZBORA; and, secondly, that the police had acted unlawfully as they did not have statutory authority to conduct covert surveillance. Malone had upheld the Crown’s residual freedom to act in common with private citizens, without need of legal authority under statute or the prerogative. The Crown had legal personality which clothed it with the ordinary capacities of a natural person (subject to any constraints as the law might impose). The Crown could do whatever was not legally forbidden, subject to two qualifications: the Crown must point to a specific power conferred by law where it overrides or restricts legally recognised rights or liberties,85 and Parliament must not have prescriptively legislated for the activity in question.86 Legislation that has “occupied the field” displaces any residual freedom to act.87

Elias CJ developed a textual argument based on protected rights under the NZBORA and the “justified limitations” clause (s 5). Section 21 conferred protection against unreasonable search and seizure, and, under s 5, protected rights may be subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Any limits must be “prescribed by law” which necessitated specific statutory authority for the police to engage in covert surveillance contrary to s 21. The Chief Justice anchored her reasoning to the NZBORA but the issue has broader implication than for the NZBORA and protected rights. Is the Crown qua executive at liberty to act without positive authority or empowerment of law?

The decision in Malone88 captures the urgency of this question. The post office in Britain could tap telephones on request of the police because no law prohibited it from doing so. Malone affirmed

83 This section draws on my commentary in PA Joseph, Constitutional and Administrative Law in New Zealand, above n 31, at [18.3.3]. 84 Malone v Metropolitan Police Commissioner [1979] Ch 344 (Ch). 85 Entick v Carrington (1765) 19 St Tr 1029; Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [97]; Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [78]. 86 R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148, [2008] 3 All ER 548 at [50], Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [79]. 87 Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [80]. 88 Malone v Metropolitan Police Commissioner [1979] Ch 344 (Ch).

the threshold principle of British constitutional law that anyone, including the political executive, may do whatever is not legally forbidden:89

“If the tapping of telephones by the Post Office at the request of the police can be carried out without any breach of the law, it does not require any statutory or common law power to justify it: it can lawfully be done because there is nothing to make it unlawful.”

The implications are troubling. Telephone tapping, although distasteful, was permissible as it was not legally proscribed (at least in the context of 1979). No comfort can be had that the exercise of the residual freedom is in principle reviewable in the courts.90 Judicial review will be perfunctory without there being an exercise of legally circumscribed power. Illegality as a ground of challenge has no application and allegations of mala fides will seldom, if ever, succeed. The Court of Appeal has suggested a challenge might be mounted on the ground of irrationality (or Wednesbury unreasonableness)91 but this ground erects an almost unattainable threshold of review (manifest absurdity or perversity).92 All a court might ask are three questions: (1) Does any legal rule prohibit the action? (2) Does the action interfere with the rights and liberties of citizens? (3) Has Parliament legislated for the activity (“occupied the field”)?93

Residual freedom protagonists advance a straw argument. They claim that it would cause a logistical nightmare if positive law had to authorise all public action. Governments would be powerless to perform the manifold administrative tasks that facilitate their public functions – “concluding contracts, entering leases, employing staff, purchasing paperclips (the list is endless)”.94 These tasks are so multiple and varied, they argue, that empowering legislation would need to be in language of “meaningless generality”.95 Codifying all government power would require powers so broadly expressed as to make any democratic advantage “illusory”.96 This made it imperative that the Crown retain a residual freedom to act in common with citizens.

This reasoning is unconvincing. The “logistical nightmare” is notional only; there would be no public sector paralysis. The courts developed the reasonably incidental doctrine in the late-19th century to

89 At 367 (emphasis added). 90 Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [98]; Minister for Canterbury Earthquake Recovery v Fowlers Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [81]. 91 Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [81]. 92 See PA Joseph, “Exploratory Questions in Administrative Law” (2012) 25 NZULR 73 at 83-84. 93 Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [80]. 94 At [18.3.3(3)] and see also at [7.6.1]. 95 At [7.6.1]. 96 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [96].

facilitate the commercial functions of public utilities established under statute. This common law doctrine has general application to the exercise of public powers and supplies any omission in the law:97

“The Crown may do whatever is reasonably incidental to, or consequential upon, the achievement of its authorised purpose (or purposes). Implied power is the engine of the doctrine: the conferment of express power confers also implied power to do all that is reasonably incidental to make effective the express power.”

The question concerning the Crown’s capacities is pressing. A residual freedom to discharge acts of government is inimical to the rule of law and constitutional government. “Government according to law” was Dicey’s first meaning of the rule of law.98 Treating the Crown (meaning the government) no differently from private individuals lacks conceptual foundation and invites abuse. In R v Somerset County Council, ex parte Fewings,99 the Queen’s Bench observed that a public body “has no heritage of legal rights which it enjoys for its own sake”. Every public body was subject to a “public responsibility … which defines its purpose and justifies its existence”.100 Private persons may act out of malice, revenge or caprice and incur no legal liability, but the Crown must act lawfully, reasonably and in good faith. Tapping telephones, for instance, even if not prohibited by law, is an unethical invasion of personal privacy not authorised by law.

The question the Chief Justice addressed is too fundamental to leave dangling. Citizens enjoy residual freedoms, government ministers and public officials do not. The positive empowerment theory places the Crown qua executive in the same position as Crown entities under the Crown Entities Act 2004. A Crown entity enjoys the powers of a natural person but only for the purpose of performing the entity’s statutory functions.101 This, in effect, codifies the reasonably incidental doctrine. An entity’s functions expressly include “any functions that are incidental and related to, or consequential on, its [core] functions”.102 There seems no reason why the capacities of the Crown qua executive should differ from those of its statutory entities, which are equally given to the State’s public functions.

97 PA Joseph, Constitutional and Administrative Law in New Zealand, above n 25, at [18.3.3(3)]. 98 AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed, Macmillan & Co, London, 1959) at 202. 99 R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513 (DC) at 524. 100 At 524. 101 Crown Entities Act 2004, ss 17-18. 102 Crown Entities Act 2004, s 14(1)(c).

In Hamed the Chief Justice was alone on the Court in advancing the positive empowerment paradigm.103 Her Honour was kite flying but in a wholly constructive way. Judicial authority supports the residual freedom doctrine,104 which illuminates the Chief Justice’s challenge to orthodoxy. Her judgment drove a stake in the ground, as a counterpoint to the received view. The battle lines are drawn for a contest the law cannot avoid.

K Parliamentary privilege

(a) Troublesome decision

Attorney-General v Leigh105 was, it must be said, a troublesome decision. It prompted a Privileges Committee review and legislation to reinstate the status quo.106 The decision recast the boundaries of Parliament’s privilege of freedom of speech and threatened the ability of the House of Representatives to discharge its bedrock functions. Article 9 of the Bill of Rights 1688 (Eng) codifies the privilege in statutory form but the Court adopted a common law test of necessity to delineate its scope. This test diverted analysis away from the text of art 9 and collapsed the scope of the privilege to unknown extent. Article 9 of the Bill of Rights 1688 (Eng) reads:

“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

(b) Facts and decision

The plaintiff sued a deputy secretary of the Ministry for the Environment in defamation on account of a briefing he gave to his Minister. A written question for oral answer by the Minister in the House that day had been tabled and the Minister sought the deputy secretary’s briefing before answering

103 Contrast Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [217] per Tipping J (affirming the residual freedom thesis). 104 See, for example, Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277 at [110]; Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [45]-[46]; Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [217], [271]; Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 279 at [37]; Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588, [2014] 2 NZLR 587 at [75]-[85]. The English courts have likewise upheld the Crown’s residual freedom: see, for example, R v Secretary of State for Health, ex parte C [2000] 1 FLR 627 (CA); R (New College London Ltd) v Secretary of State for the Home Department [2013] UKSC 51, [2013] 1 WLR 2358 at [28]. 105 Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713. 106 This commentary on Leigh and the Parliamentary Privilege Act 2014 is based on my writings in “Constitutional Law” [2012] NZ L Rev 515 at 527-533, and Constitutional and Administrative Law in New Zealand, above n 25, at [13.1], [13.5.12].

the question. The plaintiff claimed that the deputy secretary had defamed her in his briefing to the Minister and issued proceedings.

The defendant argued that his communications were a proceeding in Parliament and absolutely privileged under art 9. In a judgment running to just six pages of the reports, the Supreme Court rejected the defendant’s argument and affirmed the decisions below. It must be necessary, the Court held, “for the proper and efficient conduct of the House for the occasion in question to be classified as one of absolute privilege”.107 It was unnecessary to extend the absolute protection of parliamentary privilege as the defendant had available the defence of qualified privilege under the law of defamation.108

The Privileges Committee reported that, in its view, the Supreme Court had applied the necessity test in error.109 Previously, the focus was intently on interpreting the limiting language of art 9: in particular, the phrase “proceedings in Parliament” and the verbs “impeached” or “questioned”. But in Leigh the Supreme Court introduced a common law test of necessity which it borrowed from the Canadian and United Kingdom decisions in Canada (House of Commons) v Vaid110 and R v Chaytor.111 However, neither of those decisions involved Parliament’s privilege of freedom of speech in debate. Each decision was concerned to delineate the scope of Parliament’s exclusive cognisance (its right to regulate its own proceedings), which is sourced in the common law, not statute. A common law test might logically be used to delineate a common law privilege (exclusive cognisance) but not a privilege defined by statute (freedom of speech). The latter privilege should logically be delineated by using standard techniques of statutory interpretation.

On a proper reading of art 9, the official’s briefing to the Minister was part of a proceeding in Parliament and covered by absolute privilege. Under the Standing Orders, notices of questions for oral answer by ministers must be lodged with the Clerk of the House between 10.00 am and 10.30 am on the sitting day in question.112 The inclusion of the question on the order paper for that day creates a proceeding in Parliament and all that follows between then and the answering of the

107 Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 at [5]. 108 Defamation Act 1992, s 19. Quaere if proceedings were commenced for contempt of court for breach of a court suppression order. Semble Leigh could be distinguished as no defence of qualified privilege may be pleaded for contempt. 109 Report of the Privileges Committee Question of Privilege concerning the defamation action Attorney- General and Gow v Leigh (I.17A, June 2013) at 19-20. 110 Canada (House of Commons) v Vaid 2005 SCC 30, [2005] 1 SCR 667. 111 R v Chaytor [2010] UKSC 52, [2011] 1 AC 684. 112 Standing Orders of the House of Representatives 2011, SO 378.

question in the House is logically part of that proceeding. The deputy secretary’s briefing was at the Minister’s request (ministers typically request officials’ briefings once notified of a question for oral answer that day) and was part of a chain of events that led to the Minister’s statement in the House. Parliamentary privilege should have applied and the action against the deputy secretary stayed. Ministry officials and parliamentary staffers who facilitate the core business of the House engage in proceedings in Parliament and are protected under art 9.

(d) Legislative response

Leigh triggered a decisive response. The Parliamentary Privilege Act 2014 introduced a suite of reforms that restored Parliament’s privilege of freedom of speech to the position it occupied pre- Leigh. The legislation did not codify the privilege but enacted general principles that would secure its proper application as it had developed at common law.113 The Act includes a “for the avoidance of doubt” definition of the phrase “proceedings in Parliament”;114 provides guidance on how to interpret the words “impeaching and questioning” in art 9;115 makes clear that officials’ briefings to ministers on parliamentary questions are proceedings in Parliament;116 and prohibits the use of a necessity test to determine the application of art 9.117 The Act also reforms or consolidates several further aspects of the law of parliamentary privilege,118 including the exclusion in the parliamentary context of the effective repetition doctrine under the law of defamation.119 Leigh was a timely opportunity to enact a suite of reforms that were considered overdue.

(e) Leigh: a cautionary tale

The famous case of Stockdale v Hansard120 finally settled the jurisdictional conflict between Parliament and the courts. The courts exercised jurisdiction to define the existence and scope of parliamentary privilege, while Parliament retained the exclusive right to determine its manner of exercise. Special caution is needed, however, as Leigh demonstrates. Parliamentary privilege is part of the special corpus of rules that define the political-judicial relationship, and neither branch enjoys a prerogative unilaterally to alter that relationship and the constitutional balance it secures. It was

113 Parliamentary Privilege Act 2014, s 3(2)(a). 114 Sections 3(2)(c), 10. 115 Sections 11, 15. 116 Section 10(3). 117Section 10(4)(5). 118 The Parliamentary Privileges Act 2014 replaces several remaining provisions of the Legislature Act 2008 and certain provisions of the Defamation Act 1992. 119 See 3(2)(d) for acknowledgement. See also Jennings v Buchanan [2004] UKPC 36, [2005] 2 NZLR 577 and the Report of the Privileges Committee Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings [2005] AJHR I17G (recommending legislation to exclude the effective repetition principle). 120 Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 (DC).

commendable that in 2011 the House of Representatives strengthened its sub judice rule to secure more robustly the “constitutional relationship of mutual respect that exists between the legislative and judicial branches of government”.121 The legislative sequel to Leigh also specifically affirmed that relationship. The Parliamentary Privilege Act 2014 enjoins the courts in interpreting the Act to promote the principle of comity that each branch must recognise, and the “mutual respect and restraint that is essential to their important constitutional relationship”.122 Caution and restraint must be exercised when courts delineate Parliament’s privileges, lest they upset the “apple cart”.

L Baigent and the judicial branch

(a) The majority decision

Attorney-General v Chapman123 was a NZBORA case but it also raised serious constitutional issues concerning judicial/state immunity and the exercise of judicial power. The decision was unquestionably controversial, inviting staunch criticism from the academy and profession.124 The joint judgment of McGrath and William Young JJ (Gault J concurring) held that an action for public law damages under the Baigent precedent125 did not lie for judicial breach of the NZBORA. This ruling overruled sub silentio earlier decisions which had held to the contrary.126 The decision scotched the widely held view that, as the NZBORA explicitly applied to the judicial branch,127 Baigent damages were available.

The Baigent remedy comprises public law damages against the State where there is no other effective remedy to vindicate rights. Baigent established that the liability of the State is direct, not vicarious, lying in public law, not tort.128 In Chapman the majority distinguished NZBORA breaches by the judicial branch and confined Baigent actions to transgressions by the executive or legislative branches. McGrath and William Young JJ’s sole concern was to protect judges’ personal immunity from action. Therein the majority’s Achilles heel: a Baigent action lies against the State, not against

121 Standing Orders of the House of Representatives 2011, SO 112(3)(b). 122 Parliamentary Privilege Act 2014, s 4(1)(b). 123 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 (Elias CJ and Anderson J dissenting). 124 See S Woods “Judicial immunity: State immunity?” [2012] NZLJ 6; R Harrison QC “Attorney-General v Chapman: Negating effective remedies for judicial breach of the Bill of Rights” NZLawyer extra (online ed, 20 January 2012); PA Joseph “Constitutional Law” [2012] NZ Law Rev 515 at 519-527. 125 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA). 126 See Upton v Green (No 20 (1996) 3 HRNZ 179 (HC) (Baigent damages awarded where the plaintiff was sentenced in breach of the principles of natural justice guaranteed by s 27(1) of the NZBORA); Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) (Baigent damages might issue to vindicate breach of the right to trial without undue delay guaranteed by s 25(b)); Rawlinson v Rice [1997] 2 NZLR 651 (CA) (Baigent damages available where judicial breach of the NZBORA caused prejudice to the plaintiff). 127 NZBORA, s 3(a). 128 See Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC) at 399.

judges personally.129 For the majority, policy rather than the law drove the outcome. Their Honours explained:130

“Judicial immunity gives effect to systemic public interest considerations, the most important of which is judicial independence … allowing a claim of this kind [alleging judicial breach of the NZBORA] to proceed would be as inimical to those public interest considerations as allowing a personal claim against judges.”

McGrath and William Young JJ’s ruling logically had to establish a nexus between Baigent actions and judicial independence. So, they deployed literary technique and personified the defendant to the action – the State – as being the transgressor in person – the judge or judges personally. Personifying the defendant wilfully discounted the dynamic of the remedy; that it lies against the State directly for acts of government carried out in its name. The transgressor is not a party to the action and is exposed to no liability or sanction. But, when the judicial branch was the alleged transgressor, McGrath and William Young JJ treated the action as lying against the judge or judges personally. Personifying the defendant transformed the nature of the Baigent action and redirected the focus on to matters extraneous to it. Their Honours engaged in speculative reflection on matters that might affect judicial independence, when none of those matters had any bearing on the Baigent action.

One feature of the decision was troubling: the composition of the Court. Blanchard and Tipping JJ had sat in Chapman’s first criminal appeal, which necessitated the sitting of the two Acting Judges, Gault and Anderson JJ. The former’s presence on the Court was concerning: did he bring an open mind to the issues? Gault J was the sole dissenter in the original damages claim in Baigent where he refused to recognise the remedy of public law damages.131 In Chapman his Honour was disarmingly frank and refused to resile from his earlier views. In a judgment that ran to less than one page of transcript, he began:132

“I have previously set out in my dissenting judgment in Simpson v Attorney-General [Baigent’s case] my views on the status to be accorded the Bill of Rights Act in our legal framework. At the level of this Court, I need not depart from them.”

129 See S Woods “Judicial immunity: State immunity?” [2012] NZLJ 6; PA Joseph “Constitutional Law” [2012] NZ Law Rev 515 at 519-527. 130 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [97]. 131 Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA). See also Auckland Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 (CA). 132 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [211].

Gault J did not support the Baigent action in 1994, and he did not support it in 2011. The judge brought to the proceedings a closed mind not ordinarily associated with the judicial role. By refusing to recognise the Baigent remedy, Gault J did not “reach” the issue for decision: whether or not the remedy should lie for judicial breach of the NZBORA.

The issue in Chapman was an important one for the operation of the NZBORA. It called for a reasoned and principled decision. Gault J did allude fleetingly to the principle of judicial independence and was “content to express agreement” with the joint judgment of McGrath and William Young JJ.133 But these were pro forma concessions that fell short of a genuine exercise of judicial power. Refusing to engage with the issues before the court and bring independent judgment to bear, in a reasoned and impartial manner, amounts to a failure to discharge the judicial office. If Gault J’s judgment were discounted, the Court would split two-two, leaving it with unfinished business.

M Conclusion

The brief to assess the Supreme Court’s first 10 years was a challenging one. In 2008 I assessed the Court of Appeal’s contribution to Commonwealth administrative law to mark that Court’s 50th anniversary of permanent appointments to the Court.134 That, too, proved a challenging assignment, although a timeline of 50 years provided a more meaningful period to monitor developments than a court’s first 10 years. Perhaps the most noteworthy feature about the Supreme Court was that it came into being at all. It was conceived notwithstanding irrational debate over its independence, the depth of talent to sustain appointments to it and the Attorney-General’s power to stack it with political appointees.135 This made the Court’s first decade a period of much needed consolidation. It was imperative to calm the shrill voices that greeted it.

The inventory of Supreme Court decisions provided listed 202 substantive decisions (excluding leave and costs judgments and recall applications). Twenty of those decisions were classified as public law cases covering constitutional law or administrative law. This number represents barely 10 percent of the decided cases, which is a surprising statistic. On any assessment, this percentage understates the importance of public law adjudication at the appellate level. Might this be explained? Is error correction in the intermediate appellate court more effective in public law cases than in other areas of the law? Might the Court be more reluctant to grant leave in public law cases? No obvious

133 At [213]-[214]. 134 PA Joseph “The Contribution of the Court of Appeal to Commonwealth Administrative Law” in R Bigwood (ed) The Permanent New Zealand Court of Appeal: Essays on the First 50 Years (Hart Publishing, Oxford, 2009) 41. 135 See PA Joseph, Constitutional and Administrative Law in New Zealand, above n 31, at [20.5.5(1)].

explanation comes to mind, although the Court does decline leave where applicants seek to appeal the reasons for decision rather than the decision itself, even in appeals involving important issues of public law.136

The decisions chronicled here have each left their mark on the law, whether or not one agrees with the reasoning or outcome of the case. Taunoa, Saxmere, Hamed and Leigh involved matters of public interest that attracted considerable media attention. The other decisions (Unison Networks, Ye and Chapman) likewise raised important questions but without exciting the same media interest. These decisions represent a fair cross-section of public law cases to have come before the Court, covering the primary areas of constitutional and administrative law. Might these decisions reveal a particular judicial preference, indicating either a conservative or a liberal leaning? This is a commonly asked question of apex courts around the world but the answer is “no”. Distinctive preferences might attach to individual members of the Court but not to the Court itself. The Court is no greater than the sum of its individual parts (the judges who comprise the Court), which is true of apex courts around the world.137 The interactions of the judges and their organisational interdependence must mould their individualised preferences into decisions that are fairly representative of the Court’s thinking.138

I end as a started by acknowledging the milestone that the new Court established. In 1903, exactly 100 years before the Privy Council appeal was abolished, members of the bench and bar gathered in a Wellington courthouse to express indignation at their Lordship’s aspersions about the Court of Appeal in Wallis v Solicitor-General.139 Judges of the Court who spoke, supported by the local bar, fiercely defended the Court’s independence and ruminated whether it might be time to end the appeal (“a question worthy of consideration”).140 Remarkably, it took another 100 years for that to happen. But when it finally did happen, the new Court was welcomed as a judicial institution that would superintend legal developments in ways appropriate for New Zealand and its people.

136 See Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2013] NZSC 35, [2013] 2 NZLR 397. 137 But compare the observations of Sir Edmund Thomas in PA Joseph “The Contribution of the Court of Appeal to Commonwealth Administrative Law” in R Bigwood (ed) The Permanent New Zealand Court of Appeal: Essays on the First 50 Years (Hart Publishing, Oxford, 2009) 41 at 48. Sir Edmund, a former judge of the Court of Appeal, sat under successive Presidents of the Court, Sir Robin Cooke and Sir Ivor Richardson. The Richardson Court, he believed, was innately conservative in contrast to the Cooke Court, which he believed had propelled New Zealand ahead of the other common law jurisdictions in the field of administrative law. 138 See JM Cohen Inside Appellate Courts: The Impact of Court Organisation on Judicial Decision Making in the United States Courts of Appeals (University of Michigan Press, Michigan, 2002). 139 Wallis v Solicitor-General [1903] AC 173 (PC). The protest is reported in “Protest of Bench and Bar, April 25, 1903” (1840-1932) NZPCC App 730. See PA Joseph, Constitutional and Administrative Law in New Zealand, above n 25, at [4.9.2(2)]. 140 (1840-1932) NZPCC App 730 at 756 per Williams J.