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Madison Dobie Final Thesis September 2020

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Madison Dobie Final Thesis September 2020 NORMS IN COMPETITION The Influence of Parliamentary Sovereignty and the Rule of Law on Human Rights Protection in New Zealand A thesis submitted in fulfillment of the requirements for the Degree of Master of Laws at University of Otago by Madison Karen Dobie University of Otago 2020 1 ABSTRACT In 2018 the New Zealand Supreme Court issued judgments in three cases which indicated that the Court was reconsidering their role in respect of rights protection in New Zealand; Ngāti Whātua Ōrākei Trust v Attorney-General,1 Attorney-General v Taylor,2 and Ngaronoa v Attorney-General.3 Building on the apparent shift in the dominance of the judiciary which is exhibited by these cases, the aim of this thesis is to explain the division of power between the judiciary and Parliament in respect of rights protection in New Zealand. I suggest that this relationship is dictated by, what I term, foundational norms. These foundational norms are social rather than legal rules which exist and draw their authority from outside the legal system but which the legal system reflects. In the context of rights protection by Parliament and the judiciary, the relevant foundational norms are parliamentary sovereignty and the rule of law. I suggest that these norms exist in a state of constant competition where when one gains a degree of dominance, the other must give way to an equal and opposite degree. This normative zero sum game has emerged due to the rise of human rights. Human rights have effectively supercharged the rule of law and given it a substantive element such that parliamentary sovereignty can no longer be absolute. It is against this backdrop of norms in competition that the New Zealand Bill of Rights Act 1990 (NZBORA) was enacted. I argue that NZBORA, while enacted as a parliamentary bill of rights, failed to clearly define the role of the judiciary. Parliament and the judiciary were left to determine, between themselves, the appropriate level of power for the judiciary to exercise in rights protection. I suggest that Parliament has failed to fulfil the role which it was expected to fulfil in 1990. As a result, the judiciary need to fill the gaps if rights are to be protected. In 2018, the judiciary rose to this challenge by issuing a declaration of inconsistency for the first time but they remain hesitant to use the interpretative method to ‘cure’ inconsistencies. I conclude that, as there has been a shift in the foundational norms, NZBORA has given the judiciary significant interpretative powers and Parliament has failed to fulfil its role in rights protection, it is necessary and acceptable that the judiciary assert further dominance if rights are to be protected. 1 [2018] NZSC 84. 2 [2018] NZSC 104. 3 [2018] NZSC 123. 2 ACKNOWLEDGMENTS I would first like to thank my thesis supervisor Professor Andrew Geddis of the Faculty of Law at the University of Otago. This thesis would not have been possible without his guidance, support and faith in me. I would also like to thank the many experts who discussed and debated ideas with me throughout this process. These insights were invaluable and enabled me to constantly question my own thinking. I would also like to acknowledge Hayden Wilson, Linda Clark and all my colleagues at Dentons Kensington Swan for their support, understanding, encouragement and endless patience through the process of researching and writing this thesis. I must also express my profound gratitude and love to my family (in particular: Karen, Tam and Shiloh) and friends for providing me with never-ending support and inspiring me to achieve my goals. This accomplishment would not have been possible without all of you. Finally, I acknowledge Chief Justice Sian Elias, whose bold actions in three 2018 Supreme Court cases were the catalyst for this research. I acknowledge and thank Her Honour for guiding our judiciary into a time of constitutional leadership and for inspiring generations of female lawyers. 3 TABLE OF CONTENTS Chapter I ................................................................................................................................... 7 INTRODUCTION ..................................................................................................................... 7 Chapter II ................................................................................................................................ 10 FOUNDATIONAL NORMS OF THE NEW ZEALAND CONSTITUTION ..................... 10 Introduction ...................................................................................................................... 10 The New Zealand Constitution .................................................................................... 11 Foundational Norm Theory .......................................................................................... 13 Identifying the Foundational Norms .......................................................................... 14 Extra-legal Nature of Foundational Norms .............................................................. 17 Foundational Norms as a ‘Rule of Recognition’ ..................................................... 20 Changing Foundational Norms: A Question of Social Change .......................... 21 Conclusion ........................................................................................................................ 22 Chapter III ............................................................................................................................... 24 PARLIAMENTARY SOVEREIGNTY .................................................................................. 24 Introduction ...................................................................................................................... 24 History of Parliamentary Sovereignty ....................................................................... 25 Parliamentary Sovereignty in New Zealand ............................................................. 29 Recent challenges to Parliamentary Sovereignty: Māori Land Rights ............. 34 Conclusion ........................................................................................................................ 38 Chapter IV .............................................................................................................................. 39 THE RULE OF LAW AND HUMAN RIGHTS .................................................................... 39 Introduction ...................................................................................................................... 39 Procedural vs substantive theories ........................................................................... 39 Rise of Human Rights .................................................................................................... 42 Conclusion ........................................................................................................................ 47 Chapter V................................................................................................................................ 48 ALIGNING SOCIAL AND LEGAL RULES: The Clyde Dam and Foreshore and Seabed .................................................................................................................................... 48 Introduction ...................................................................................................................... 48 The Clyde Dam (1982) .................................................................................................... 49 Foreshore and Seabed .................................................................................................. 52 Conclusion ........................................................................................................................ 54 4 Chapter VI .............................................................................................................................. 55 NEW ZEALAND BILL OF RIGHTS ACT 1990: An Ambiguous Judicial Role ............. 55 Introduction ...................................................................................................................... 55 Background to NZBORA ............................................................................................... 55 Parliamentary Role under NZBORA ........................................................................... 57 Judicial role under NZBORA ........................................................................................ 59 Conclusion ........................................................................................................................ 61 Chapter VII ............................................................................................................................. 62 PARLIAMENTARY PROTECTION OF RIGHTS.............................................................. 62 Introduction ...................................................................................................................... 62 Parliament’s failure to safeguard human rights ..................................................... 63 Why has Parliament failed to safeguard human rights? ...................................... 65 Executive dominance ................................................................................................... 65 Select Committee process ........................................................................................... 69 Inconsistencies arising after introduction .................................................................
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