Lord Cooke and the Bill of

Paul Rishworth Faculty of Law The University of

There is a special connection between Lord Cooke and bills of rights. In the course of the debate over the 1985 White Paper proposal for an entrenched Bill of Rights he made it clear that he was a firm supporter. More recently he has pronounced himself largely satisfied with the unentrenched version enacted as the New Zealand Bill of Rights Act 1990.1 And, as President of the Court of Appeal he participated in all important Bill of Rights decisions from 1990 down to his retirement in March 1996, bringing to bear an approach unique amongst the judges in his Court.2 But there is a further reason why the subjects of Lord Cooke and bills of rights are intertwined. It is that Lord Cooke is also well known to be a frequent visitor - indeed one of the very few visitors - to that shadowland where lie the rarely articulated bedrock principles of the New Zealand constitution.3 These bedrock principles he has called "fundamentals" and included amongst them are common law rights which lie so deep that even Parliament may not override them. It is the link between these "fundamentals" and the idea of a Bill of Rights that I explore in the first part of this paper.

The fundamentals, briefly stated, are these:

1 See "The New Zealand Bill of Rights Act", New Zealand Law Society Conference Papers (1993) 36, 37; "Launch of the Bill of Rights Reports" [1993] NZLJ 123 and "The Suggested Revolution against the Crown" in Joseph, ed, Essays on the Constitution (1995) 28, 38. 2 I suppose it might be said that every judge on the Court of Appeal in this period has had a unique approach on at least one Bill of Rights issue, as is attested by the multiple judgments in cases such as R v Jefferies [1994] 1 NZLR 290, R v Goodwin [1993] 2 NZLR 153, Ministry of Transport v Noort [1992] 3 NZLR 260, R v Te Kira [1993] 3 NZLR 257, and R v Barlow (1996) 2 HRNZ 635. A rather more comprehensive paper could indeed be written about the Bill of Rights in the Court of Appeal, but this one seeks to examine the approach of Lord Cooke. For valuable discussion of the Court of Appeal as a whole in the Cooke era see Adams, "Competing Conceptions of the Constitution" [1996] NZ Law Rev 368, some of whose conclusions are discussed below at text accompanying note 87-93. 3 "Constitutional bedrock" is a phrase of Lord Cooke's: see "The Liberation of English Public Law", Fourth Harnlyn Lecture, All Souls College, Oxford, 28 November 1996, p 21. The is the identifier the grundnorm. judiciary has historicaHy empowered Iegis1ature - choosing to its as lav.;. Ii: i.s this continuing st1prernacy".

Tvichdravn1 if v1ere passed subverted enabh:d therrL Examples are there an

there be a

set out the sa1rt{: i:o 'Nhich jY:rhaps not quite so hmdamfiltaI uverridir,g rnav 1r1.ore The basic the Padiarnent w judges. H is m s 6: en2;chn2nts are 1:o be i11tterprei:ed so as to cDnsistent v1ith the Bill The diffic,:clty is Rjghts states that the be are dernonsb:ably Ln a f--ree democratic predudes judges or refusing to In the its own terms anticipates dutiful application

is not reasonable :i.11 a and ill respect il

VVe shou1d no!: ii Bi!Ji to se:t out t1t1112 basic str~;"cl1Jxe~ of ,'JuT constitution1 sin,-:i'2 such rnaae:rs ""vouJd ,.-c.,,·,.o.·,,:·n,"written co:ttstituticn rafrter than a bill of rights. Thal: said, th2re are scme in£en~,ed fron"1 a statement or fair ,elections, fair a fair trial by an independent t:ribuna1 i;1 s irl relation lo the

(::;iven the recent search for a "o::::nrmc1,on lav1 constitutior1,"., to V•lhich reference is rri21de in tl-1e texi

note 25-261 it ls iJ1.teres;ing to :refl,2cl tha.t these structural inierences ha.-:,re been drcP,vn froIT~ the cornr.rion 1av1 i..rt the ,eg, in tl-1e viev,_1 th.at, at th.E; tin1e of 1~Je1N .Zealand's annexation in -::_s4G,. so e,,ti tle persons to be ur1d2r a That ccr:nmc:n la,v entit.\2ment vvas Council instead. The colonial 3 is an unusual sort of Bill of Rights.5 Lord Cooke's approach to it, in light of his previously articulated fundamentals jurisprudence, is therefore a worthy subject to examine. Part 1 therefore examines the interaction of the interpretative Bill of Rights with legislation enacted by Parliament.

Part 2 of the paper examines three major themes which emerge from Lord Cooke's approach to Bill of Rights cases generally. These themes I call Constitutionalism, Internationalism, and the Struggle for Simplicity. I conclude with a few thoughts about where the Bill of Rights had come to by the end of the Cooke era, and what might lie ahead.

Part 1

FUNDAMENTALS AND THE BILL OF RIGHTS

The fundamentals jurisprudence examined

In a series of cases from 1979 to 1984 Lord Cooke, echoing Coke CJ in Bonham's Case in 1610,6 suggested that there were limits on the legislative competence of Parliament. The suggested limits fell into two categories. First, legislation might be adjudged invalid if it were inconsistent with our basic constitutional design or structure. That design

5 But not unique. The Canadian Charter of Rights and includes s 33 which permits legislative override of certain rights: those in s 2 and ss 7 to 15. This leaves free from potential override the provisions relating to the sitting of federal and provincial legislatures every twelve months, the term of those legislatures, individual voting rights, mobility rights, language rights and sexual equality rights. It might be said of the Charter, then, that it too expressly allows the legislative imposition of, say, cruel and unusual punishment. There is this difference, however. Under the Charter the legislative override is to be made explicit in the legislation, and it ceases to operate after five years though is probably perpetually renewable (Hogg. Constitutional Law of Canada, 3rd ed, Carswell (1992), ch 36). The override, if used, precludes judicial inquiry into the consistency of the relevant law with the Charter. It has been used in Quebec in a global manner: in 1982 an override provision was deemed to be inserted in every Quebec statute. This was essentially a protest by Quebec against the legitimacy of the Constitution Act 1982 which included the Charter, and which was introduced into Canada over Quebec's opposition. Other than that the override has been used once only: in Saskatchewan in connection with "back to work" legislation to end a strike. Its use there turned out to be unnecessary given that the Supreme Court of Canada was later to hold that such legislation did not infringe a Charter right.

6 (1610) 8 Co Rep 114a. 4 postulates a nJ.nirnUITL a derrtocraticaUy elected continuing existence and possibly -.2xistence Cro,vn. 7 Ir, Brader v case under the novv reDea)ecl Econonlic Stabilisation 1

Et may be 2,dded here ttat the of Parliarnent thz,t Parliam.ent would ab::Uc2Ll:e its fu11cticJn. It is not the 1948 i",ct the I\Tev, Zealand

as to

It ,vould be a step for Parliaff,en/t to iLJther than the Court; ;po,,vEr determine i-1hether or not adions in the Coc:_,rl:s

are barred.. There is even rcoim for doubt v,;hEfll-.2r it is s:~If-

CC

Carriers Court i-\.ppeal VIas removed the i.n a ce,:tain type d:cspute. Cocke J was 0112 th.ree judges to be a exercise of !:he statutory power, took the opporh.mity to out, nonetheless:·i

bdeecl, we have reservations as to t.11e extent to which in New Zealand even an A.ct of Parliament can take away the of cicd.zens to resort to !111e Cotut."-s of la ~lv

The Hrnitation arises not fron:-t the nature in.stitutions vie In i:vvo jw:igrnents h.as suggested that persrn1s that Parliament not lav,rfuUy i:ntn1de Sl1ggestion fi::-st

7

281 38-39. Lord !Cooke does not only that it vvould be a change in the basic .strv.cture such that the can.. nct be assumed. It would fall to regirr1e are and the existene:2 of for fhe abolition of th2

NZLR 73, 78. 9 NZLR 519. 527.

10 1 l',fZLE 374, 390. 5

appeared in Fraser v State Services Commissfon in 1984 where, noting that natural justice required that a public official be told of allegations against him and to be allowed to respond, Lord Cooke observed: 11

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

A few months later in Taylor v New Zealand Poultry Board a specific example of a fundamental common law right was given. The question there was whether legislation should be interpreted to empower regulations requiring persons to answer questions even when their answers might incriminate them. In holding, as one of the two judge majority, that the legislation did permit abridgment of the "right" not to be forced to incriminate one's self, Cooke J said:12

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

In his extra-judicial writings and conference papers the fundamentals idea is developed a little more and, significantly, was explicitly linked to the "do we need a Bill of Rights debate" between 1984 and 1988. In a 1984 conference address shortly after the Labour .Government had commenced work on a proposed Bill of Rights he said: 13

If ever a Government indifferent at heart to basic rights were to hold office in this country, it could force through, possibly in a matter of hours and by the barest of majorities, legislation opposed to basic principles of justice. Orthodox theory has in the past been that the courts could not intervene. I am not so sure; the authority of Parliament itself - supremacy as it is often called - ultimately turns on judicial recognition. But a Bill of Rights would at least give the courts confidence in a crisis.

The emphasised words just quoted capture the essence of Lord Cooke's view. It has been a consistent view, spanning his legal career. In his 1954 Cambridge doctoral thesis on the concept of jurisdiction, he said that the fundamental legal norm of the English constitution was that "final authority to expound the law is vested in the courts of general jurisdiction". That assumption or postulate was, he said, "antecedent to the

11 [1984) 1 NZLR 116. 12 [1984] 1 NZLR 394. 13 "Practicalities of a Bill of Rights" [1986) Australian Bar Rev 189, 201. 6 principle of the sovereignty of Parliament".14 To the extent Parliament is supreme in its law-making power it is because judges have said so, pursuant to their authority to expound the law. He quoted Sir Ivor Jennings' observation that sovereignty of Parliament was "a form of expression which lawyers use to denote the relationship between the Courts and parliament. "15

A recent statement of the same idea formed part of the Hamlyn lecture delivered to an

English audience at Oxford in November 1996:16

[Q]uestions of law are always ultimately for the courts. The reason why the rule is of profound importance is that [it] is a manifestation of a fundamental constitutional principle - perhaps the only truly fundamental principle of the British constitution. Often that description is reserved for the sovereignty of Parliament. But, almost as often as the question is carefully examined, it is demonstrated that the sovereignty of Parliament is a doctrine evolved by the courts, based m their judgment of political reality. That so-called ultimate legal principle or grundnorm is, in the United Kingdom, a creation of judges. And it is for the Judges to modify it if they deem this essential ....

The notion that judges have an independent empowerment to bestow legitimacy and legality on parliamentary legislation has therefore been a consistent theme. It is perhaps remarkable that this series of cases and articles on fundamentals has not attracted more attention in New Zealand.17 Probably this is due to a perception that the type of legislation which would fall foul of fundamental principles is so unlikely that it can be discounted as a practical reality. To some extent that view is encouraged by Lord Cooke

14 "Jurisdiction", PhD thesis, Cambridge, England (1954), copy deposited in the Law Libraries at the University of Auckland and Victoria University of Wellington. 15 The Law and the Constitution (4th ed,1952) 144. 16 "The Liberation of English Public Law", delivered at All Souls College, Oxford on 28 November 1996, pp 21-22. 17 The fundamentals jurisprudence was first brought to wide attention amongst lawyers in an article by Caldwell, "Judicial Sovereignty: A New View" (1984] NZLJ 357, and a possible sixth case in the series, Keenan v Attorney-General (1986] ??? was noted by Joseph, "Literal Compulsion and Fundamental Rights" (1987] NZLJ 102. There is a brief general discussion in Joseph, Constitutional and Administrative Law in New Zealand (1993), pp 444-445. It is also mentioned by Brookfield in "Parliament, the Treaty and -Millennial Hopes and Speculations" in Joseph, ed, Essays on the Constitution (1995), 41, 54-56. The two lengthiest treatments are valuable articles arising out of undergraduate work at the University of Auckland: Ross, "Diluting Dicey" (1989) 6 AULR 176 and Conaglen, "Judicial Supremacy: An Alternative Constitutional Theory" (1994) 7 AULR 665. 7 who has pointed out that recourse to fundamentals such as these is likely to be reserved for the literally unexpected situation.18 What has been lacking in New Zealand, therefore - and we are probably fortunate in this regard - is a case or series of cases which raise these fundamental propositions and call for a decision. Were cases of this sort to arise, and especially were legislation to be invalidated for inconsistency with fundamental principles or common law rights, we could expect an explosion of media and academic commentary such as followed the decisions of the High Court of Australia in Australian Capital Television Ltd v CornrnonweaJth19 and Nationwide News Ltd v Wills.20 There, it will be recalled, a majority of the High Court held that the Commonwealth constitution implicitly limited the power of the federal Parliament so as to preserve freedom of expression on political matters from unreasonable or disproportionate invasion.

The ACTV decision might, I think, be seen by Lord Cooke as falling into the "basic structure" rather than the "common law rights" category of fundamentals, since the essence of the majority's reasoning was that democracy requires freedom of political expression, not that persons must be taken to have inherent (extending, say, to artistic expression). But either way, can it realistically be suggested that a New Zealand court, otherwise persuaded to take the same view of the offending legislation as the Australian High Court,21 would not be able to draw the same inferences from our own Constitution Act 198622 and its predecessors? And, as Lord Cooke has pointed out, that is essentially to say that some restrictions on Parliamentary power are implicit in the notion of democracy itself.23 What the Australian decisions have shown is that "fundamentals" may be more easily implicated by legislation than

18 "Judging the World: Law and Politics in the World's Leading Courts" (1988), 378. 19 (1992) 177 CLR 106. 20 (1992) 177 CLR 1. 21 An important proviso. Note that Lord Cooke himself has indicated he may not have been so persuaded. See below at text accompanying note 35. 22 This much appears to be accepted by Sir Ivor Richardson in "Rights Jurisprudence- Justice for All?" in Joseph, Essays on the Constitution (1993), 61, 64. 23 "The Dream of an International Common Law", in Saunders, ed, Courts of Final Jurisdiction (1996), 138. deveiopments suggest lirne 1s not are n:1ade here with some prospect ~J'lY.ccess. 2 4

Fundamentals: the criticisms

fond amen :al cm~ff.non judicial invaEdatic,n ts critics, The main natun2 principles it is rights a.re truly frmdarn2nf:al, nor for rredici:ir1g a fundarnental 1,vhir_h vv·ould a l31anchard Bill .2.r1rJ a of entrenched of rights i::mpowering Judges already nothing n.wre !heir discernment

other is an old, pmverfu1 that

made iLt less attr2dive to argue those of us whose constitutions are matters are necessarily such as Hence the some, both in 1.11 England1 for the

cons ti h1tior1,, ff

exannination our mNr, herii:a;ge OlU" cor.n.r:r1Gn nu1.erent freedom :s accounti~d , But as us m c,ne of a series on the

24

is an ziffirr:nation of fi1e orthodo>:

7) vvher2 the

on the fa:::.ts 1 not on the assu.rned suprern.aci of ParHan-1,2nt. 25 See "\Vinter'Con,. r:Extra-,ConsbJutiona.l I\Johons in J.\.ustralian C~onstitutiono.l La-:,v .. r Fed, LR (in telat?_on to

r11c)re recent Ivleans to Ends}", Const if:tif'.Jns 136. lavv as constitution",26 con1n10n l.avv canxtol: in fact be v,1hol.ly residuaL are ir as brirtgb1.g to l)ea.r a certai11 the corrm1.on la,v adr:ninish·a tive To have that effect the some source 27

fr1t2rnational h1nTtan moven1.ent is ,,ve have rights as hmT:.an civil

s01Yte state. In the lntemalional Covenant on Civil Political I:lights "'tecognition of ecmal and " IS fr2edor~1., ]Ustlce and derive inherent dig,Tuty person"',

In about fundarnentals whid, people is not v,,hether to judg,2s l:o declare and That is the point at fo.11.damenfals cease l:o operate as a sort arrangern.ents, and co1Ttro1IersiaL ./\t than Lord occasions. i"ul judge invalidated a statute through invocation fundamentals should recogn1se that Parliament be to enact Simon Lee called a Reaffirming Said Before l-\.ctf 28 or govem11,2nt continue to act as if no iudicial invalidation had

26 ;'Constit1.1tiona1 11 (Jix

27 A recent 1\lev1 Zealand case illustrates the In v Atkinson. HC .Auckland, ,o:, 434/95. 24 February 1997., p 8, Elias her evaluation of the interaction defamation la.w a.nd freedom of speech as follows:

Th.e modern la.1N of de:Farnation represents comprot111ises i"vI1ich seek to achieve balance betvveen Both z,re finteresi:s based on fund.an1ental hurrian rights.

Freedarn of speech has and repr1::,sentahve government freedam of has been 2ffi.1Tned in international covenan·ts to v1hich t~Jeiv Zealand a.dheres a:1.d bys 14 of the t,Jevv Zealand Bill of Act 1990, ii should b2 th.at the "is a consideration at least 2ts irnpor:~ant to the cornrnon Iavl as it is under G1e international ,conventions "tvhich it is also at 352 p.2r Lord 1.1Voolf).

28 See co:rnrci_ents by Lee ai: PubJ.ic Lav/ 632 on PJlan paper. 1 0 ' occurred at all. The likelihood of either of these consequences, the existence of public support for the Government's measures, and the likely effect of any judicial decision would all form part of the decision-making process. All this is expressly or implicitly accepted by Lord Cooke on each occasion the fundamentals are stated. What counts then, is judicial assessment of the political reality. The alternative for the judge is to resign, rather than lend judicial empowerment to legislation perceived to be unjust and hence to effectively serve under a new regime.29

One must still ask where the threshold is which marks out the truly bad law from the merely unwise. Here, there is nothing in the dicta or the conference papers to suggest that Lord Cooke would have withdrawn judicial enforcement of legislation lightly. Indeed, on almost every occasion he has mentioned fundamentals, it has been accompanied by express or implicit indicators that, in real life, the questions are presented very much as ones of degree and that it is only the most extreme case which implicates fundamentals. It is reserved for the unexpected case, the grossly unjust law. I shall return to this "th,reshold question" in a moment. For in the next section I explore whether, for Lord Cooke, the threshold of valid law marked out by a higher law Bill of Rights would have been the same as the threshold established by fundamentals.

The link between the Bill of Rights and fundamentals

Lord Cooke changed his mind about bills of rights. In 1982 - during the Muldoon years and before a Bill of Rights was a serious possibility- he said publicly that he had mixed feelings on the subject. And, as a sitting judge, he was reluctant to take sides.SO But by October 1984, when the government had changed and the Bill of Rights and White Paper were with the drafters, he revealed in a Conference paper his personal view: cautious enthusiasm for an entrenched Bill of Rights which would ensure that in cases of "truly gross injustice" the courts would not be powerless to grant a remedy.31 It was, incidentally, this address which included also the observation that legally effective

29 See the 1996 Harnlyn lecture, p 21-23 for recent discussion by Lord Cooke of the political dimension of fundamentals.

30 "The Courts and Public Controversy" (1983) 5 Otago LR 357, 358. This is the text of the Guest Memorial Lecture given in August 1982. 31 "Practicalities of a Bill of Rights" [1986] Australian Bar Rev 189, 202. This is the text of the F S Dethridge Memorial Address given to the Maritime Law Association of Australia and New Zealand in October 1984. 1 1 entrenchment of a bill of rights turned ultimately on judicial acceptance of its effectiveness, based upon the judicial view of the will of the people. That comment - an aspect of Lord Cooke's fundamentals jurisprudence - was subsequently quoted in the White Paper released in April 1985 to show that entrenchment of a bill of rights was possible notwithstanding the (then) widespread view that no Parliament could bid its successors. That comment alone would have been seen as welcome support for the idea of a Bill of Rights.

In 1985, during the White Paper debate, Lord Cooke was invited to speak to an ICJ conference in Wellington on the Bill of Rights. He said:

As a citizen I support the concept of a Bill of Rights. It is a view I have come to gradually and with hesitation, but in the end definitely. Perhaps the acid test for each of us might be something like this. Look at the rights and freedoms covered by the 29 clauses in the draft. If we really value them, how could it be right to oppose a national commitment? Gaps and problems there may be, but would it be honest to subscribe to such ideals yet not to support giving them special standing and protection? Surely the question is not what is not there, but what is there.

The underlying principle of the fundamentals jurisprudence was that laws produced under the democratic system must not be allowed to subvert the very system that enables them. That principle explains both the "individual rights" and "basic structure" fundamentals. In short the invalidation power for which Lord Cooke argued was reserved for statutes which ought to have no place in a democracy. There was, then, a close link with the "reasonable limits" clause - article 3 of the proposed Bill of Rights - which made the touchstone for validity whether the law was "demonstrably justified in a free and democratic society". This link he made explicit at the 1985 ICJ Conference in a passage which it is important to quote in full (with my emphasis):32

The separation of powers is a time honoured idea. Classically there are three powers. Today the fundamental division is more realistically into two: between those who initiate state action and those who can check whether what is being initiated is lawful; which in substance often means justifiable enough to be allowed to stand in a democratic society. Inevitably the Courts already have to decide whether persons in policy-making or administrative positions in the State, at however high a level, have acted in ways reasonably open to them. On the surface the Bill of Rights would add

32 Proceedings of the !CJ seminar on the Bill of Rights held at Wellington, 1985. pp 55-56. 1 2

significantly to the role of judges. In practical result it would add much less. The test whether limits are reasonable in a free and democratic society is not far removed from the standard approach in administrative cases. The main change is that the test would extend to ordinary Acts of Parliament. But can it be said seriously that a bare majority should be free to enact a law which cannot pass a test worded in that way?

Two important points flow from the above passage. First, the Bill of Rights was seen to augur only a slightly expanded form of judicial review of administrative action.33 Second, as to legislative actions, a Bill of Rights was said to require invalidation of law which a democracy ought not to allow. This observation suggested that the "reasonable limits" clause of the entrenched Bill of Rights, which would allow only such incursions into the listed rights as were "reasonable" and "demonstrably justified in a free and democratic society", might mark out the same boundary for valid law as the fundamentals doctrine.

Lord Cooke's 1988 Conference paper entitled "Fundamentals" expressed the same idea:

The argument [for fundamentals] can be summed up in some of the words of the Canadian Charter. Clause 1 states that the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits as can be demonstrably justified in a free and democratic society. My submission is that the modem common law should be seen to have a free and democratic society as its basic tenet and, for that reason, to be built m two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts.

In short, consistency with the Charter or a Bill of Rights amounted to consistency with the fundamentals of the common law constitution. This suggested, of course, a rather high threshold before a law was invalidated on the grounds it was unreasonable in a free and democratic society. There are, indeed, some indicators of the likely judicial role under an entrenched Bill of Rights for New Zealand, and particularly the stance of Lord Cooke himself. I list a few:

33 The accuracy of this proposition cannot yet be tested. The New Zealand Bill of Rights Act 1990 has, it would seem, almost the same potential for affecting administrative law as the entrenched version would have had, given that what is at issue in administrative law are actions of the executive and the control of discretionary power. But no significant impact of the Bill of Rights in administrative law has yet been seen. For a general discussion, see McLean Rishworth & Taggart, "The Impact of the Bill of Rights on Administrative Law" in The New Zealand Bill of Rights Act 1990 , Legal Research Foundation (1992), 62. (1) statement of Idea in. conference r•.::q:::•ers is roubT:cely

inciten1.ent to activism. Indeed,. in !:he Fund22mental2 paper 1n 1 not ha,.re invalidated the enachnent at l5SUl':, in iought over fundarnent2Js d octri:c1e ]n New Soui:h i!Vales.:34 iche merits of case 111 Zealand's legislaticm to passed r11t1ste1: tmL(ier comJJ:1011 Iavv on ParHarnentary Dovver.35 In the 1 paper he very broad has !the of there is a corresponding duty on the. courts to uohold. Cooke sat as Appeal 'W esten1 Sarnoa and the Cook respectively in the and hea.rd a case frorn each Each case concerned entrench::d easily characterise,d as fun.damental: the right to vote in in !the Cook Islands In crver- ruHng the at first instance in 'vVestern. case.

Bill idea ,vith the the same bom1.dary of invalidation is sketched out in each case. The of Ri..ghts would, he in a 1984 paper, reserved for gcross VVhen,, in a 1996 he the conversion of Lord 1/llooH \:o fundamentals idea he add.ed "he sees a Bill or

as having ?. ,nider ;Ls there i.n obsenraiion that he himself FJghts as a v,:1.aer• 1 scope,·-·~,.,,r:10

(4) cases rri in.duding some in

the ftmdar.ctf:'.r,,tals sen2s - fche actual cl.ecision S'1.Jme think as tJne rnost hkely to assert a

7 l\lSvVLR 372.

0 See '(Th,2 Dream. of an Inter.T1ation.al Cortn11on L2/\,V , p 1400 36 158.

37 V Olomalu 14 VU'/lLR 275. 38 Clarke v _Karika LRC: TD.. .39 Se2 "The J<_evolution the CrD\Nnu, ed. Lhe Constitution, 28 1 33. 1 4

' Parliament. In Taylor v New Zealand Poultry Board (the "no law can authorise torture" case) it was McMullin J who dissented, holding that the statutory provision there at issue could not be taken, absent clear words, to authorise regulations which removed the right against self-incrimination. In New Zealand Drivers' Association v New Zealand Road Carriers, which contains the "fundamentals" dictum by Cooke, McMullin and Ongley JJ as to whether Parliament can take away the right of resort to the courts, it may be noted that those three judges upheld the relevant regulation as intra vires, while Woodhouse p and Richardson J would have invalidated it.40

Mention should also be made of R v Salrnond,41 a case early in the Bill of Rights era, where the question was whether blood taken from a car occupant for alcohol testing after an accident could lawfully be used for DNA analysis to prove a charge of manslaughter arising out of that accident. This was one of those important civil questions upon which the Transport Act 1962 did not speak. Cooke P and two other judges were in the majority in holding that he blood sample could be so used: Casey and Hardie Boys JJ would not have allowed the use of the sample in that way. Hardie Boys J said that the Transport Act "authorises infringement of a basic human right"42 and it

40 It is interesting to explore the reasoning in more detail. The relevant Regulation (reg SA of the Wage Freeze Regulations 1982) purported to preclude the hearing of disputes of interest in the Arbitration Court during the wage freeze period. This would have removed, as well as the right to take wage claims, the ability to litigate non-remuneration conditions of employment such as protective clothing, ~boots, sick leave etc. The minority were not prepared to assume that the Economic Stabilisation Act 1948 authorised regulations precluding those claims: "the economic stability of New Zealand or inflation as an enemy to undermine it can hardly berelated to peripheral changes of a social welfare character or sensible precautions aimed at the avoidance of industrial accidents" (p 381). The majority, on this point, said: "We think that virtually all the claims made in virtually all disputes of interest are likely to have some bearing on economic stability, in that they will affect costs in some way" (p 389). That provided the needed underpinning for upholding Reg SA. It is not my point here to favour one view over the other. But it is interesting to note that a case arose about the same time under the Canadian Charter of Rights and Freedoms concerning the Ontario Inflation Restraint Act of 1982 which had similar provisions precluding the advancing of non-remuneration claims through grievance procedures. In that case, Re Broadway Manor (1983) 4 DLR (4th) 231 (Ont HC), the argument for the union was that the legislation infringed freedom of association. It was accepted that the evil of inflation justified the Inflation Restraint Act. But the Ontario Court was not persuaded, in the absence of evidence, that non-remuneration awards fueled inflation. In the New Zealand case the three-judge majority was effectively prepared to take judicial notice of the connection between freezing non-remuneration claims and control of inflation. That signified deference to the executive's assessment that the Regulation was justified. 41 [1992] 3 NZLR 8. 42 Ibid, 22. 5

• C H the st:a tuto-::;/ for another not mentioned. H is Lord routinely on the side the citizen against state irl of Indeed, no can reduced to proposition as as that

ext:,2nt that spe,:ulation is possibl-:? an of Lord Cooke enacted, I think th.e .:c\vailable is that to 11.:,arlian1.er,taJi:'ll. .. cl1oices" as. as befr1g :to the established lG lavv Jfrreedom a:ncI responsibility.

is it vvholly reaHstic to it might have been othervvise. As Cooke put it in at the an.cl Justice in

a BiH of Rights a.chieved bv., c::,rn:n:on nevv pov.rer relationship behveen courts, and Parliarnent vva:c of freedorns of speech, vvould have ca!Ti.12d no as to be weighed in the

likelvJ that dra-wrc in freedm:rts and competing interests This is essentially borne outby history of the A.ct 1990 in civil cases, at least potential to require re-evaluation cornn1on The basic freeciom cf expression c2,ses since has been that whil<:: more attention is

i!1 judgrnentz. to are not from. that vvhich ·would a one c01TGri1entator hz:s pointed oul:: could never have to assun1e

lead to an 01

43 [1986] 148. A theme repeated at the launch of foe Bill of in 1993: see [1993] 123.

44 See /\1.lla.n. "Constitutional and Conunon Lav," 11 Ox JLS 453 who observes that the statement or constitution2l stal:ernent of cannct say about the of the so introduced. 45 See "Freedon1 of the Press Under the Nevv Zeafand Bill of .,D... ct 1990/J in on the Cor,slitution" 299. 1.

16

that all new developments would be towards increasing freedom rather than restricting it. "46

The position is of course different in relation to those rights in the White Paper draft (and carried over into the 1990 Act) which had no exact common law analogue. But these are essentially criminal procedure rights imposing an obligation on the Executive - to advise arrested persons of certain information, not to unreasonably search and seize, and not to delay criminartriaI~'unduly. It is here that the principal effect of the 1990 Act has been felt, and this "ls an' arena where the contest is not between courts and Parliament. This area of Bill of Rights law is likely to have been much the same under an entrenched Bill of Rights.

It has to be said, in concluding this section, that it might have been otherwise. The enactment of an entrenched Bill of Rights could well have been taken as a signal to impose a more trenchant standard for Bill of Rights consistency than for "fundamentals" consistency. This would not have been because the Bill of Rights captained any non-fundamental rights and so broadened the category of suspect laws. Each right mentioned is, I think, well capable of being limited or abrogated in ways which could be fundamentally unjust. Rather, it is the assessment of competing interests which generally counts in Bill of Rights adjudication under entrenched instruments, together with the balancing of interests against the right.47 Here I think a different standard could have emerged because the criteria in the White Paper draft's "reasonable limits" clause could be applied with varying degrees of deference to legislative choices: as Canadian Charter experience attests.Ml Lord Cooke did say that a Bill of Rights

46 Ibid, P 301. I do not see the recent decision of Elias J in Lange v Atkinson HC Auckland CP 484/95, 24 February 1997 (expanding defamation defence of qualified privilege to pennit its invocation when alleged defamation arises out of discussion of political matters) as derogating from this conclusion. The Bill of Rights has its part to play in this development, but of more significance, probably, is that we were influenced by the recent trends in the United Kingdom and Australia towards greater scope for defences in such cases (see Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 and Theophanolls v Herald & Weekly Times Ltd (1994) 182 CLR 104). In short, this was a development whose time had come. 47 Even the rights for legal persons mentioned in s 29 could be seen as fundamental. This is not to say that every right weighs so strongly in the balance against competing interests. Plainly there is some sort of hierarchy both amongst the rights themselves (life being at the apex) and within a right according to the nature of the limits (eg, political speech appears to count for more than, say, pornographic speech: see, for example, R v Blltler [1992]1 SCR 452). 48 A convenient summary of Supreme Court trends in assessing reasonableness of limits in Canada is to be found in Stuart, Charter Jllstice in Canadian Criminal Law (1996), pp 8-21. 1 7 would give the courts "confidence in a crisis", but gave no real clues as to what would count as a crisis. It is readily conceivable that, say, a harsh and unfair reverse onus provision in a drugs statute might have triggered the invalidation power under an entrenched Bill of Rights. That type of invalidation would be unlikely to have had political overtones leading the courts into conflict with the other branches of government.

In any event, what is significant for present purposes is that Lord Cooke linked the idea of fundamentals - what limitations are implicit in the idea of democracy? - with the Bill of Rights idea - what limits are demonstrably justified in a free and democratic society? As it transpired, this country did not end up with an entrenched Bill of Rights but a statutory one. To this, and its implications for the fundamentals idea, I now tum.

The enactment of the New Zealand Bill of Rights Act 1990

New Zealanders' rejection of the White Paper proposal was interpreted by the Labour Government as a rejection of entrenchment as such, not of the enumerated rights and freedoms themselves. So the Bill of Rights idea carried on, now to be an ordinary statute.49 It was not to be a Bill of Rights imposed upon Parliament, but a Bill of Rights enacted by Parliament creating rights against the executive and requiring that judges interpret enactments so as to advance the rights it contains.

The New Zealand Bill of Rights Act 1990 was enacted on 28 August 1990, a party political measure opposed by the National party in opposition. There was a great deal of scepticism in the early days. The obvious problem surrounding the new Act was its profound ambiguity. It had the words of a constitutional instrument in the classic liberal bill of rights tradition, yet its status was simply that of one statute amongst others. That in itself might have been no serious hurdle to its staking out its own claim to constitutional significance.so But it had a special provision designed to ensure that it

49 A brief history of the Bill of Rights idea in New Zealand, including its transition from White Paper draft to ordinary statute, has been related elsewhere: see Rishworth, "The Birth and Rebirth of the Bill of Rights", ch 1 in Huscroft & Rishworth, Rights and Freedoms: the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brooker's, 1995). 50 Other enactments with no special status attached to them - that is, no attempt at entrenchment - have had significant effect and gained a measure of de facto sanctity such that their repeal or limitation is politically difficult. I am thinking here of the European Communities Act 1972 in the United Kingdom, although it is fair to say that the referendum held on European Union membership might have added sanctity there. A New Zealand example is s 9 of the State-owned Enterprises Act 1986. 1 8 could never prevail over inconsistent legislation: s 4.5 1 The new Act, especially withs 4, therefore posed a particular problem for an adherent to the fundamentals doctrine. To explain the problem, which revolves around the interaction of sections 4, 5 and 6, it is necessary to set those sections out in full, together withs 7. These provisions all fall into Part I of the Bill of Rights which is headed "General Provisions". Part II is headed "Civil and Political Rights", and it contains all the rights and freedoms mentioned in the Bill of Rights. Here, then, are ss 4 - 7:

4 Other enactments not affected-No court shall, in relation to any enactment (whether

passed or made before or after the commencement of this Bill of Rights),-

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any

way invalid or ineffective; or

(b) Decline to apply any provision of the enactment-

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5 Justified limitations-Subject to section 4 of this Bill of Rights, the rights and freedoms

contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as

can be demonstrably justified in a free and democratic society.

6 Interpretation consistent with Bill of Rights to be preferred-Wherever an enactment

can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights,

that meaning shall be preferred to any other meaning.

7 Attorney-General to report to Parliament where Bill appears to be inconsistent

with Bill of Rights-Where any Bill is introduced into the House of Representatives, the Attorney­ General shall,-

(a) In the case of a Government Bill, on the introduction of that Bill; or

(b) In any other case, as soon as practicable after the introduction of the Bill,-

bring to the attention of the House of Representatives any provision in the Bill that appears to be

inconsistent with any of the rights and freedoms contained in this Bill of Rights.

The rights set out in Part II, which then follow, are mostly expressed in a seemingly absolute form. For example, s 14 affirms the "right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." As is universally recognised, however, limitations on rights are commonplace in a

51 In a sense this vested the Bill of Rights with a lower status than the typical enactment of Parliament, since all others could at least aspire to implicitly repeal any inconsistent earlier provision. The Bill of Rights was expressly denied that possible effect. 1 9 democratic society. The general understanding- at least at the time of the White Paper draft and in the early days of the Bill of Rights Act 1990 - was that s 5 served to set the standard for an acceptable limitation.52

Section 5 was, of course, copied from s 1 of the Canadian Charter of Rights and Freedoms (itself derived from provisions in the European Convention on Human Rights and the International Covenant on Civil and Political Rights). The section was in the draft White Paper Bill of Rights from its beginnings in 1985. It is, in other words, a form of words designed for a system that envisaged judicial review of legislation either by domestic or external judges. Its place in the 1990 Act -which does not permit judicial review of legislation - was and remains uncertain. This is because s 5 was made subject to s 4.

Section 4 itself was a late addition to the Bill of Rights bill, added in 1990 in response to submissions made to the Select Committee in late 1989. Those submissions pointed out that even as an ordinary statute the Bill of Rights might have been taken to authorise judicial overriding - or "disapplying"53 - of inconsistent enactments.54 That the 1990 Bill of Rights might have had this effect without s 4 is now, incidentally, further supported by the 1991 Factortame decision in the House of Lords.55

The disconcerting message of s 4, however, was that Parliament had reserved to itself the right to impose legislative limits on rights even to a point which was not reasonable

52 There were, however, some rights which contained their own words of modification such that questions of degree would arise in deciding whether the right was prima facie infringed. Rights against "unreasonable" search and seizure, and "disproportionately severe" treatment are examples, for considerations of reasonableness and proportion are built into the very definition of the right. It was less likely that s 5 would be called upon to justify as reasonable an unreasonable search or disproportionately severe treatment, although that possibility should perhaps not be ruled out. 53 "Disapplying" is a concept which probably owes its origin to R v Drybones [1970] SCR 282. Section 2 of the Canadian Bill of Rights required judges to "apply" statutes so as not to abrogate rights. The Canadian Supreme Court took this to mean, as well, that they should not apply if to do so could only abrogate rights. 54 The argument is made in Rishworth, "A Canadian Bill of Rights for New Zealand?" [1989] NZ Recent Law Rev 83, although not as strongly as it could have been made in light of the Canadian Supreme Court decision in Re Winnipeg School Board and Craton (1985) 21 DLR (4th) 1. The argument is put more fully in "Affirming the Fundamental Values of the Nation", ch 3 in Huscroft & Rishworth, Rights and Freedoms: the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brooker's, 1995). 55 (1990] 1 AC 85 (HL).

THF LIBRARY UNIVER·?TY Of CANTERBURY CHfii;) iCILilC: ,, N.Z. -,

be rein!Toduced, on grounds th:rovgh procedEri,S

:so as: i:t ·v1/as cto11e the Bill of RJghts v1oukl no recogtt1i:ion cs as it vvas ,Nithout it ::?till,

at a sits uneasily 0Nith ll Is h·ae that invalidation, reascrn only' of would not preclude

of stat1.ii:es Perhaps h vv2,s fun dar:~:e1: i:a~ cor,unon that vva.s Ln the rn.ir.1ds as a

coIT:es ai: cost of clravvin.:g .r3.r~ esoteric • /:hirCk a "EilJ ]lot tc,

this seem..s one set Bill Rights to

Vlf ithout s 4,, of even as an a ,Nith the fL1ndamentals have penrdttec the reading in of into all even to point deny'mg in a case justified result. 58 Ircdeed, there ate sorrie fro:rn of ts as having 59 the rernains to see~n as LnslTuction to judges ~o do 'vVhich fomdamentals doctrin2 says not done: that judg,2::, mu.st " even

which so m1acceptable in 2_ free society,

56 Professor Brookfield mc:Kes a similar Hopes and on ihe (.... ~O?"".stiUdion i\.s to this see Brookfi,2ld. 53 See Allan, "The Limits of

'Jrr10.tter of cr.:irnrn2nta1yr C)rt

59 V/oolf, "Droit Public - [l Pub]ic La,;.v 57, 70. 21

It is this difficulty which, I believe, may explain Lord Cooke's approach to the Bill of Rights in the first, and really still the only, major case to explore in any detail the interaction between the Bill of Rights and statute law arguably inconsistent: Ministry of Transport v Noort. I tum now to consider Noort and then some other cases which involve the application of the Bill of Rights to legislation.

The Bill of Rights and legislation: the Noort case

The case concerned s 23(1)(b): the right of arrested and detained persons to consult and instruct lawyers and to be advised of that right. The ultimate issue was whether the provisions in the Transport Act 1962 about breath and blood testing implicitly ousted or limited the right to a lawyer. The Act did neither of these things expressly - it said nothing about access to legal advice at all. But the Crown's argument was that its "operating requirements" - that is, the need to get the tests done quickly (so that they were close to the time of driving) and to get officers back on the roads on patrol - implied that access to legal advice was intended by the legislation to be abrogated.60

The result of the case in the Court of Appeal was clear - detained persons must be told of their right to a lawyer and afforded a reasonable opportunity to contact one, generally by telephone. There was some li:qritation on the right: only a reasonable time could be allowed before testing was resumed, and this would preclude attendances of lawyers in person in all but atypical cases where the contacted lawyer was nearby. But the reasoning of the five judges differed significantly, and those differences revolved around the interplay between ss 4, 5 and 6 of the Bill of Rights. The case showed that these sections did not sit well together, and that this was not a mere technical problem but one raising important issues about the relationship intended between the courts and Parliament. The following is an attempt to sketch out the conundrum posed by these three sections.

First, s 6 instructs judges to prefer statutory meanings which are consistent with the Bill of Rights. Second, s 4 instructs judges that inconsistent meanings must prevail nonetheless. So far so good: one goes as far as one reasonably can to prefer a consistent meaning, but if at the end of the day the apparently inconsistent meaning is plainly

60 The phrase "operating requirements" comes from the Supreme Court of Canada's decision in R v Tizerens (1985]1 SCR 613. In Noort the judges held that "operating requirements" are to be regarded in New Zealand as an implication from the statute. 22 intended, then it must be applied. But then the question arises what is meant by "consistent with the rights and freedoms contained in this Bill of Rights". Section 5 of the Bill of Rights seems to provide the answer. It sets out the standard for permissible limitations on rights and so defines what is consistent with the Bill and what is not. That was, as I say, generally thought to be the whole point of s 5 - certainly when it was to be in an entrenched Bill. So, therefore, a statute imposing only reasonable limits on rights ought not properly to be seen as inconsistent at all, since s 5 expressly permits reasonable limits. One might then conclude that in order to apply s 6 - that is, to prefer consistent over inconsistent meanings - one must first establish in terms of s 5 that a choice between an inconsistent and a consistent meaning of the enactment under consideration is really available. The starting point to applying the Bill of Rights, therefore, would seem to be identifying the relevant right implicated by legislation and asking whether, under s 5, it has been reasonably or unreasonably limited.

But when one turns to s 5, one finds that as well as being "reasonable" and "demonstrably justified", acceptable limits on rights must also be "prescribed by law". In the context of cases about statutory interpretation, the whole purpose of the inquiry is, of course, to find out what the law actually does prescribe. So those words in s 5 seem out of place in an interpretative Bill of Rights.61 If one seeks to give them meaning nonetheless, then it seems one must decide what the law actually prescribes before assessing whether it is reasonable. But, if one determines what the law prescribes, it then becomes irrelevant whether that law is reasonable or unreasonable. If it is reasonable it must apply and the Bill of Rights ought not to affect it (for s 6 assumes an interpretative choice where at least one meaning is unreasonable); if it is unreasonable it must apply because under s 4 inconsistency with the bill of rights is not a reason for failing to apply an enactment.

In this way, although s 5 initially appeared to be pivotal to the Bill of Rights, it transpired to be full of complications which led to its apparent irrelevance in statutory

61 They may not be out of place in disputes about whether the romrron law prescribes unreasonable limits: see generally Robertson, ed, Adams on Criminal Law, 3rd ed, Ch10.3.05(b). 23 interpretation.62 This was the problem which the judges explored in various ways. My present concern is with Lord Cooke's approach:

Lord Cooke's analysis of the Bill of Rights arguments begins with reference to its "antecedents". Here he mentions the International Covenant on Civil and Political Rights, referred to of course in the preamble to the Bill of Rights, and its reference to inalienable rights derived from inherent dignity of the individual. This is as one would expect given his previous linking of the Bill of Rights with fundamental rights inherent in the individual, and with fundamental postulates of democracy. There is no suggestion here that the Bill of Rights creates rights which are somehow "different" from fundamental rights.

His answer to the ss 4, 5 and 6 conundrum is, superficially at least, somewhat counterintuitive. Lord Cooke concluded that s 5 was of no application to judges in the task of construing legislation. "[N]o question before the Court involves s 5", he said. The section might, he thought, be relevant to judges considering development of the common law in light of the Bill of Rights, and to Parliament in deciding whether parliamentary bills were inconsistent with protected rights. But it was not relevant to questions concerning the meaning of legislation. He found textual support for this conclusion in a rather subtle difference in terminology to be found in ss 4- 7. Whereas ss 5, 6 and 7 each speak about "the rights and freedoms contained in this Bill of Rights", section 4, in telling judges what they may not do in cases of inconsistency, uses the different formulation "inconsistent with any provision of this Bill of Rights". That, said Lord Cooke, indicated that the rights and freedoms set out in Part II of the Bill of Rights "have been treated by Parliament as different from the justifiable limits", and that the question for judges under s 6 is whether "a meaning consistent with those rights and freedoms is open, not with whether a meaning consistent with the Bill of Rights as a whole is open." In this way, s 5 is kept out of the statutory interpretation equation and thus one avoids the unpalatable conclusion that judges may have to inquire into whether legislative limits are

62 In "How Does the Bill of Rights Work?" [1992] NZ Recent Law Rev 189 I suggested thats 5 need not always be seen as being finessed in that way, and I make the point that Noort itself was a good example of a case where in fact it need not have posed a problem. For in Noori the real issue was whether the judges would read into the words of the Transport Act words of limitation on the right ins 23(l)(b). In other words, the question was "what sort of law would the judges prescribe through reading in words?" It ought not have been problematic to read in only such limits as satisfied the s 5 test. This is effectively what Richardson and McKay JJ did, and possibly Hardie Boys J also although he expressed his reasons a little differently. All that said, in many other cases the Bill of Rights does pose the problem which is identified in the text. reasonable in a only to be are noL The

the Bill of R\ghts for is therefore to J.::;e J..rl ss 6 i:1 atlor1.e.

/· the JG:ights enabled \ln not

lirnits are thus to discerned from competing as in Z..loo·rf or ov1r1 i:nhe:ent not fall to inteq:ireta tion there ,is it probably n:m1lJlTL!JH bas,:::line vvhich the fundar:nentals ··" .~,,·h,.,.,., 1n

i:h2 Bill Ri:zhts•i._i is containecl in s 5. Here ii: is the Ati:orney-GeneraL It is are those are justifi::,ble m a free of the Bill of iNhole seeks to affirrn its interpretative to foen1.selves".

On can be retained the proposition that laws are not justifiable in. a democracy ought not to be at all, despite what s 4 If the s 5

is seen to be mirmnur:n,, whJJe .•,,,.u•,.,c~u interpretative s 6 is to then there is no context !chat s 4 requires to b.e giver1 ·to legislation. ReHance on s :t signif~,r c,nly that standard set by the Bill Rights met in case~ It not fft22m th:: Bill Rights has cro:cosed. H that e--;ler the fundarcrtentals doch'i:ne t:o it for s 11 does not as ·we saw,. it (nor lt, if ctGch·i11.e is

53 The of this ci.istinctior1 is to be fc:rJ.11.d cases such as Solicilor-,General v Radio New Zealand Uri [I 1 NZLR 48 in conte;:-npt of comt does not fall ,,,vEhir. s a11.d Re B and B Director-(;ener.al 2 J\TZLR 134 free::lom of does ncl: irtclude to n-LJ1.::_.2 :11.echca.l decis].or~s about child ~Nh3.ch

aru:t in the other ca tegor_y: Comrmmicado Ud [1996] 2 ]\1:Z:LR 89 J..0 b2 construed v,rherher of court la1ds are a :eea:s::Jt1abl.i2 hrn.it is to bE clSsessed terms of s 5 of the Biil 25

Alternative conceptions of the intended operation of ss 4, 5 and 6 of the Bill of Rights are possible, as attested by the fact that everyone who has written about the interaction of these sections seems to come to a different view.64 But in the -end I think there are only two main camps and the distinction is the one already suggested. In the first camp, with Lord Cooker, are those see the rights in Part I as somehow separate from their justifiable limits so that one can prefer them without it being necessary to inquire where the borderline of reasonableness may lie for that right. In the second camp are those who see the Bill of Rights as seeking to enact only one basic proposition: that it is a Bill of Reasonable Rights and that legislation and governmental practice ought not to infringe them. What is "re~sonable" depends, obviously, on the context. But, on this second view, the s 5 calculus (or something like it) has to be undertaken in every interpretation case - is the limit (ie that which the possible interpretation would impose) reasonable and demonstrably justified in a free and democratic society? If it is reasonable, there is no problem in applying it; s 6 of the Bill of Rights does not speak to a situation where the meaning at issue is in fact a consistent meaning. If it is not reasonable, the judge should seek to avoid it. But if the judge cannot avoid it then the judge must apply it for that is what s 4 requires. On this second view, a judge could end up applying an enactment which has just been held to impose limits that are unreasonable in a free and democratic society. Lord Cooke's alternative approach avoids that possibility, which he would assuredly have found unpalatable. Any application of s 4 by Lord Cooke65 therefore amounts only to a concession that a meaning consistent with the "absolute" rights and freedoms was not available, not that the basic minimum standard of reasonableness in a democracy has been infringed.66

64 Compare Cooke P's suggested approach with that of Richardson and Hardie Boys JJ in Noort itself; and see my "Applying the New Zealand Bill ofRights Act 1990 to Statutes" [1991] NZ Recent Law Rev 337 and "How Does the Bill of Rights Work?" [1992] NZ Recent Law Rev 189; Professor Brookfield's view is in "Constitutional Law" [1992] NZ Recent Law Rev 231, 236; for Fisher J's view see Herewini v Ministry of Transport [1992] 3 NZLR 482. See also Allan, "The Operative Provisions: An Unholy Trinity" (1995) BRB 79; Harris, "Viewpoint neutrality and freedom of expression in New Zealand" (1996) 8 Otago Law Review 515 and Fitzgerald, "Section 7 of the New Zealand Bill of Rights Act 1990: A Very Practical Power or a Well-Intentioned Nonsense" (1992) 22 VUWLR 135. 65 And there have been some: see Temese v Police (1992) 9 CRNZ 425, and TV3 Network Services Ltd v R (1993) 10 CRNZ 132, 134 (CA). 66 Professor Brookfield has suggested that judges might, when applying s 4, comment nonetheless on whether the law imposes an unreasonable limit on a right. Lord Cooke responded to this suggestion in Temese v Police (1992) 9 CRNZ 425, observing that were the courts to do this it might be seen as 26

It is interesting to compare both New Zealand approaches to statutory interpretation under the Bill of Rights with the approach in Canada under the Charter. The interpretative effect of the Charter is, understandably, rather minimal. The point of the Charter, as a higher law, was to establish a benchmark for the validity of laws and practices affecting rights. Laws which are construed to be inconsistent with the Charter are invalidated and not generally rescued through interpretation. In particular, the Charter has never been seen as a constitutional mandate to prefer "the rights themselves" without consideration of the reasonableness of limits. And, as Sopinka J noted in Osborne v Canada (Treasury Board),67 any use of an interpretative approach such as "reading in" to remedy a Charter problem in a statute necessarily requires a prior finding that the statute otherwise infringes a Charter right in circumstances not saved by s 1. In other words, even when the Charter is a force for interpretation remedies rather than invalidation, it still operates as a "bottom line". The interpretation "remedy" when used is an alternative to a declaration of invalidity. In short, the Charter methodology in interpretation has an affinity with the second approach to our own Bill of Rights, rather than Lord Cooke's approach. But Lord Cooke's approach in Noort is explicable in light of the difficult interaction between ss 4, 5 and 6.68

Perhaps this already lengthy account of the Noort case should now be concluded with two short points. First, the different approaches of the judges in Noort did not affect the result. For Richardson, Hardie Boys and McKay IT the Transport Act's operating requirements imposed reasonable limits on the right to a lawyer. For Cooke P and Gault J the same limits were arrived at, not through s 5, but by simply giving as much effect to the right in s 23(1)(b) as was possible having regard to the need also to make the Transport Act work. Those two approaches come pretty close and there are not yet sufficient cases to consider whether there will be any practical difference between them.69 Second, it is unfortunate that ss 4, 5 and 6 of the Bill of Rights have spawned so

intruding a gratuitous advisory opinion on a matter within the legislative province: the assessment of the reasonableness of limits. That response is consistent with his approach in Noort. Section 5 is not addressed to judges dealing with the meaning of legislation, for the interpretive rule is in s 6 and that is to favour the rights themselves, not the "reasonably limited" extent of the right which the Bill of Rights as a whole envisages. 67 (1988) 82 DLR (4th)321, 344-345. 68 And, it should be said, his views were tentative in Noort. 69 in "How Does the Bill of Rights Work" I suggested a situation where it would matter which approach would be taken. If the presumption of innocence in s 25(c) were to be conceived as an absolute value without thought to reasonable limitations, then presumably it would require judges to prefer any statutory meaning which is available to keep the onus on the Crown in drug trafficking 2 !' much confusion. It is enough substanhve to over the of Rights was to operafte m

Th~ FT:lcldnger case

V 1S in te11x2fa,g statutes. It was Rights case w thought illustration of possible Rights. It concerned had jurisdictlcm to hear habeas High Court The orthodox it did not. This is vvhile s 66 the Judicah.,rre Act appeared to th,e •Court Appeal j1c1crisdiction ov,er the High Court, the and context it dear that section vvas confiI1e,d to matters. It appeals in easily have been taken to cases in vvhich T rejected the to habeas corpus.

All that notwithstanding, when delivering the of a five-member bench in s 6 of Bill Fights and s 66 can given a freedon1s contained in the Bill Rights,, must a right of existed, considered it. Later habeas corpus have adopted the s2.n:1e rn.earJJ.1.g of s in the rerxtain undecerrnirted vievv on the n,erits

calls 21 decision as to to allov,r it

There is no in the to provide for the Court

are COlTLiTtOn ru.1.d a.s legitirnat-2 ,.vh:2re a certain ar_nou_n·~ of

70 1 NZLR439. 2 NZLR 212 72 Page 0140. an appeal 1ighi: if that vvere possible. This into

/\ .J-!J,. point conce:cns case

:not

s '± applies rather to nc posiliv€ intention 76 ht i\Toort sa1u. 1 for a rnezcning to be ur.der s 6 i1 must a interpretation There the la.,"'1.guage vvas not strained as far as appellant sought InR. v it was held that is proved" in IvHsuse 1975 could not mean, as argued, some evidential foundation

In R v Cfnrke 2 I\JZLll 212)' 214 C:ookr~ J said that the unciieriying reasoriing of tl-te first case in {.\Jo 3)

74 If i:haii: in i]n.e Cottrt cf i\.ppea.l about be a murJ:1 one: such a co.~1struction iS, 2.vai1able sir.ce d1e tem1- rather than 1n:ale-3 and fern.ales Ls used in tl1e fl~'.2edorn fi.:n1n C:.iscrir:.lll'cation in Part It

l~nd in favow· of tl12 But the cas2 is more than that. 75 Reille v Policz l\JZ.LR 587; [Jreliozis l·,lZi.R 198; Birch of (1992) 9 CRf,.,Jz 83; 76 hac;e been

questiot1 ":1Votdd be 1,vhether s 66

P1.ct 1990 a.nd the I--h.n1:1:i.:n !-\ct 1993 97'. sufficient to ra.ise 2, reasonable meardngs rnust be ''reasonably r~ust "reasori.abl y" in t·2rnls of dictionary ::he argUJ.Ttent Lri the H n:1ust also be /,, reasonably"' availabl.f: in the sense cme could ascribe meaning to iE l:he circumstances reasoning seerns

a f.eaL-ur-ej' 78 and an of B~igbts insofar 2.s interoretal:ion is concerned, ther,2 are so these points?9 Lord d'etre of is t::i ",:'.·CJnfinn our comrnitn:1e11t and freedoms in rno<::lem democracies".00 be no surpnse if ss 5 .snd 6 go nc: fru-ther conu11on to

Th,e Baigerd cas,e

This case in relation co interpretation, issues simHas to case became for its 4-1 of a nevi cause of action for violation the Bill v,ron1-an' s house been

under a vvarrant vvhich, for case1 it v,,as assurn.ed latter searc11, Tl,!e vwi:nan was not ,charged ·-- indeed the house altogeth2r - and she darnages in tres1Jas3 for breach m her favour132

------77 Rv

78 Brass Tacks and Bills of ~ :?eter PJlan lt/Iemo1ial ./!1i.ddress to the TJniversity of October, 1994, p I2. 79 1 1\JZLR 335 is son1.etiJ.11es giv1,~n as ar'l In that case s 6 ,vas offered as a reaso:;;. for a dec:Ision r,eached or. the general p1inciples ~Nhich s of the Bill of reflected. 80 See "The l'-Jew Zealand Bill of Act 1990" Conference Paper to 1'0ZLS Conference 1993, 36, 37.

81 The view of Ca ult Jin Case, p '712. 82 in favour of hr::T es tale. R2grettabl y sh2 died a.Her :30 allovt1irtg h,cIS be:11 subjeded to much On~ cri.ticis:m 1s that the court a remedies v,rns omitted from the BiH of Vlhite Faper conta.ined one. to

is not really ne',N. Rather., it is the

not a tort That 1956 1,vhich 6(5) in 1 . . 1.n;unurnse execution

judicial n,··n.r•c,c was aH that be potential for a

Crown argurnent be r2ad '··up''., as :it v,1ere 1 so as to ii:J1rr1unise not tort but other similar - though it is not rnade dear in the judgrnents that took is that s 6 compels the consh11i.ng inunurdi.ies in suclt a as in the Bill Rights. And reacting the h7J:Ur,urd!ies "up" v1ouid not do hac.1e been a suggestion Crown fhat the oour:: could cause accoa itself in terrn.s of s 5 -· anaiogous to those m s 6

()llt

the /Jup" so as to imr_nmuse its literal co'vered~ can be faulted. But that net the other i.': whether it vvas to I2.vv action in the place. Could it

8 LR 188.

677. not !that lavv does already for dairn.s of H1is in the tort of

It must be appreciated effact of even dissented from creation of the Bill of action - 'vvas J:0 the plaintiffs' 111 tort. Gault } read 111:1c:':"'.rmniry for tort tor't claL,11.s for v,1ere

'i/\12.S in reliance on s o BiH Rights. must that I am attracted to the approach of Gault J integrates the Eiil PJghts into not quibble vlith (:ool:e ar1d [email protected] judges did, I can s12e that apprm,,ch has ivith an which ''llouJd.

COJ.T1.e the court: hmv redres::; breaches of rights v>ihlch not a1nount to a tort? develop, on a riglTt basis, the tort o i: breach :3tatutory dudy or other causes ate appropriate to context, anl relev,mt 11Tu.T1uni1:ies app:y. Case Hself the im.:m.unihes were, as I to be read dmNn even hirn so as to In the the difference betv1een It comes ,xtore bJ difference: ascnbe ico our Bill Rjghts which constilul:ional rights 11.ave to possess m other countries, Some say foere is an elen1.ent "the Er.nperor's new clothes" about our Bill not the attention and status accorded it as vvrHten elsevvhere, is ulti.J.T1at,ely by "yVhi.ch our Bill of Rights Vilas launched to consign ii. perrnctnently to use a Lord phrase) rnere climate int0, ·which the Rights vv as

guaranteed a as it has :1.ad, That lS not to say that

85 against reasonable searches b2 to come close to te that no irnmunity is needed for a reasonable searches since it could not found an action in t.he firs!: place, The distinction rrBde and reasonableness ,c,f searches in R v serves to ,211.S"iffe a

relevance fer the i:(nr.nunity., hov11ever. The urJ.a1,~lful but reasonable searc}1 vvould othen,\rise ris2 lo 86 See "The Birth ar,d Rebirth of the Bil1 of Freedmns: i:he J\lcuJ Zenla;1d Bill of iict 199,0 and fhe fiutna11 now n1u:st vveigh. n1.ore but is··· or to :87

P~irt 2

IViAJOR TI-lf:IV[ES IN LORD BILL OF RI:Gll:-ffS

mu

In Bill

status in a democracv. ·'

1 con1.pro1TUses ., irt -ii\ThiCh is required betvveen social realities. This is ascribed that

J agreed J's j1..1dgment Lrt to treat rights as concepts 0a.nterior to

,'(anterior" in sense of arrdceric,r to Ga.uH J, who tended to see

lE of to this

87 See Re J: B ancI .B v E)iri::ei"or-t::;eneral of Soc-ial 2 I'

88 P,;.darr1sr of the Conshtv.tion: the T\Jevv Zc~aland EiH of J\.ct 1990 and 33 of Rights case to reach the Court of Appeal, he underscored its constitutional significance. Citing Lord Wilberforce's speech in the Privy Council decision in Minister of Home Affairs v Fisher, he spoke of the need to give the Bill of Rights a generous interpretation. He did not then quote the celebrated Wilberforce/Cardozo aphorism about the need to avoid "the austerity of tabulated legalism", but that was to come in Noort a year later. Since the Fisher case was about how to interpret the Bermuda constitution, and had been regularly cited in early Canadian Charter cases, its invocation in the first Bill of Rights case served to underline that our Act served similar functions.

The constitutional approach therefore emphasises the content of the Bill of Rights, and downplays its statutory status. Lord Cooke said in Baigent, for example, (and Casey, Hardie Boys and McKay JJ agreed):

Remedies implicitly authorised by an enacted declaration of rights cannot differ in nature from remedies authorised by a generally worded remedies clause.

I agree with the proposition that these three discourses can be discerned from Court of Appeal decisions. It is suggested by that commentator that the constitutional approach to the Bill of Rights is ultimately unhelpful and contrary to our parliamentary traditions. It is said to present rights as simple, self-evident, and universal whereas they ought to be seen as political in character, representing a "balance of diverse social interests". Further, it is pointed out that the Bill of Rights does not include all matters of constitutional importance in New Zealand - the Treaty of Waitangi and equality rights are mentioned as omissions - and that the Bill of Rights is essentially procedural rather than substantive in its scope. The Bill of Rights does not therefore "represent a comprehensive code of the interests and values that New Zealanders hold dear".

There are insufficient Bill of Rights cases to be dogmatic about categorising judicial approaches, and evaluating their merits and relationship to each other. And it can be important to look at what the judges do as well as what they say. That said, these criticisms of the "constitutional discourse" may perhaps be seen in another light. First, I do not think there need be inconsistency between treating rights as universal and self­ evident, yet recognising also that there must still be a reconciliation between the right and competing community interests in any given context. The International Covenant itself recognises the possibility of reasonable limits on most rights in order to accommodate competing values. It is that same possibility to which s 5 of our Bill of s 1 the are 133 Plainly,. there to fOOffl. local as is attester] in that 1n and vice versa.

4 There is nothing 'wnuld~ .( r·,.L~rl.: 1JJC • .LJ.!1:,"" cv

to

}i1--i:1.i ta tiOI1S a: re

Ehen1selves t.o reu:sona.rJJ:e'' ii1nii:o.l-ions. Fo.rr.naJ l1.-iJxnaJ1 bsh1Jrnents expressly. I'•Jc-one easy,

l.:o a differ from thai in . l\1Iua1 the l',Jorth l1.rnerican law is th.12 assessn'1ent lirnits bet;,veen individual rights as mY,,viJJing to any seek to advance thernselves" consider.a tion limits upon But one rnu.st riot lose sig;}.1t o1 tbLe D actu2,Hy de.:::ided Ort right to 1,;vere lirnil:s of the Transport s 5 vvas not a foat rights cannot or n1 a to the dilernrna s:s. 5 6

the no that cons tl tu lional l\Te1,v Zeala.11.d. a start it omits the fundan1entals. If it

89 Accord Kei::h I una.nllrto11s Co1..1rt in TeJ.evision l\Ie--,v 2:.2a.land Lid R [1996] I\lZL:R. 393,, 395. 90 i\ct 1990'; I\JZLS C:onference have ·i:o be tempered 35 were a Constitution and not a Bill of Rights, it could be expected to include those. It therefore omits the Treaty of Waitangi. This, I believe, is entirely appropriate. The Canadian Charter of Rights and Freedoms similarly omits treaty and aboriginal rights of Canadian native persons, although they are covered elsewhere in the Canadian Constitution.91 The point is that a Bill or Charter of Rights should set out the rights which persons have in common, and not the historically negotiated political rights of one section of the polity. I suspect that if the 1985 White Paper were being drafted now against the background of the last decade's Treaty jurisprudence and political events, this would be seen to be the case and the approach to the Treaty would be different.

It should also be noted that the Bill of Rights does include equality rights - at least in the sense of a right to be free of discrimination. Section 19 incorporates into the Bill of Rights the comprehensive list of prohibited grounds of discrimination set out in the Human Rights Act 1993: grounds which, as Lord Cooke noted, number around 50 when fully exegeted.92 Because of the comprehensiveness of the grounds, I think it does much of the work which a general equality clause could have been expected to do.93 Finally, I think it not wholly accurate to regard the rights in the Bill of Rights as a "disparate set of criminal procedure and civil rights, focusing on procedural rather than substantive values."94 They are for the most part rights which stand in the classic tradition of liberalism. Freedoms of expression, religion, association and assembly surely represent substantive values as well as being instrumental to democratic government. If it is being suggested that the real values which New Zealanders hold dear are the rights to a job, to housing, welfare and security and so on, then a very different type of argument is being opened up. Suffice it to say here that the Bill of Rights deliberately omitted social and economic rights, for reasons which are as cogent now as they were then. The premise of the Bill of Rights is that matters of substance such as these are left for resolution through the political process.

To conclude this part, a major theme of Lord Cooke's Bill of Rights jurisprudence is that the important constitutional nature of the rights in the Bill of Rights are recognised. But I

91 Aboriginal and treaty rights are ins 35 of the Constitution Act 1982. The Canadian Charter of Rights and Freedoms constitutes ss 1 to 33 of the Constitution Act. 92 "Discrimination for the connoisseur" is how he put it in "Sketch from the Blue Train" [1994] NZLJ 10, 15. 93 I make this prediction on the basis that a general right to equality would likely have been narrowly construed so as to operate for the benefit of groups sharing the characteristics set out in the Human Rights Act 1993. 94 Adams, p 401. d.o nc11: see anv.; that this vjev; to th2 advarv:::,ement 2.t 'vVhich to rnake argun1ent v·101Jd be the lat(er tw,:c being cases fo 1,1ght over the meaniag the "arrested ::tnd d·2t2

IUghts

This decade has seen of an Llternacion2J hu:rrian rights t international is 1vvith the rights of persons against states!' ovJes its origins to formation the and the Declaration Hurnai1 Rights in 1948. But its influence on in its planning and i.ni:erpretation) is m.uch moi'e recent. Cooke has El. centre of as as a i.n inte1T1c-:l::ional events

l\J 1:::>Ce tJ.1.ar; plank in the rtasoning of C:ocke P in Snzi!h and Ff,,:rezuh-Ji ..v:.ra~ tI1a.t evidence obtai:ned frcnn Ca::1acl::~ as to the ~1;,;orking cl the ·Charter's to counsel in lliE requir121rlent:s f:he Transpc~rt l1.1..ct ne~c1 not n1-ilit2te to a p 96 The mosc ,vell-lG1uw;.1 decision in the il,tema.ti::mal human field is T,wita v lv!inister of 2 l\LZLR 257 in vihich Lord Cooke Committ,~e of the United /-.fations is ma sense a of this reh~\\:J.nt consideraticrLs for Ministers Puli

on the of the Child. 23 7

latter., Lord Cook.e a nu1nber Judicial along in affirming hw:nas1. generaJly lead to human rights. Lord from Train" Zealand. Lavv Joun1.al vv· as ~Nritten attendance at one such Colloquiw.1"t in another ,,vas at Balliol and extracts are quoted in his 1993 Zealand Law Conference

The international of to of course,. on the T,,ne prearn;"bl e affirm. Nev,.1 "s cornnrtii:ro.ent to the International VI/hat clo::s First it suggests recourse to the in terpretaiion And are Instances in.c1::..1din.g a c:ase in. the Covenant right cc·1·ocos,;f·1'.ra1~ 1, 98 1:::::,u·t 11°'1 V b.l..Ll , i_, ll". ._, I comDariison.'I. ha:3 not tak2n onie far in discerning

A second source of potential is the jmrisprl1dence generated Covenant, or more particularly the Second Protocol to ]\Jevv Zealand a party to Optional Protocol in 1989, thereby permitting individuals the Human Rights Conmcuttee of Ihe United J\fations A i:r1.ajority of countries in the h1ta."easingly the ()ptional Proi:ocol as generates a body dealing ·with these CorrUJnittee uses tenn CofftmJttee isst1es as to t]he

between our recourse to Views and General Com.Inents to help cases. As it tunn.s J:he factual situations in cases generally occur in I··.Tew Zealand rn.ad:2 so1i:-1e use

!:he Human Fights f ach:nittedly 2, decision

97 See,. egJ R u Bain 3 NZLR 393 9P u v !:;oodr.uin 2 I·-JZLR 153 a;-~ I86 p:er Rjcha.rdson J, ..J 1

38

the whole Court but delivered by Lord Cooke, he observed that it was debatable whether the Human Rights Commission decisions were binding (that is, binding on the court in terms of precedent) but considered that they were of "considerable persuasive authority". fu that case a decision of the Human Rights Committee was cited and discussed, but its implications not in fact adopted.99 fu Baigent it is Hardie Boys J who deals with the international cases, including Optional Protocol cases, but Lord Cooke refers to and expressly adopts that section of his colleague's judgment. fu the Baigent case a number of authorities from other jurisdictions were discussed; it is not possible to ascribe the result in Baigent to the influence of Optional Protocol cases though they certainly formed part of the general pattern discerned by the majority.

Lord Cooke has been more explicit about how he sees the overall goals of the enterprise. In R v Barlow, while cautioning against unnecessary complexity in construing our Bill of Rights, he added: "[t]he world is moving towards an international law of human rights."1 oo To similar effect is his 1996 address "The Dream of an International] [ Common Law" where he observed that the recently implied rights in the Australian constitution, alongside the explicit rights in international instruments and constitutions, were "easily capable of growing into part of a corpus of international common law" .101

It is important, however, to examine these general comments closely and in the light of decided cases. Some would see human rights standards as being properly set by the international instruments and their adjudicating bodies, so that "internationalisation" of human right law really means falling into line with views expressed in Geneva, Strasbourg and New York. This is not, it seems to me, what Lord Cooke has been saying in the cases and addresses mentioned. For Lord Cooke, international human rights law is not something "out there" needing only to be discerned and applied. Rather, Lord Cooke's dream of an international human rights law is one where all participating countries learn from each other. It is not about uniformity. There are, he says (my emphasis):

[m]ore ways than one in which national common law systems, starting from the same roots, may justifiably go. Different chains of reasoning and weightings of values may be

99 The case was van Alphen v The Netherlands (Comm No 305/1988, GAOR, 45th session, Supp No 40, (A/45'40) 1085, conveniently reported in [1990-1992] NZBORR 326n. 100 (1996) 2 HRNZ 635, 650. 101 The Dream of an International Common Law, p 138, 139. 39

open.... Conunon denominators may usefully be sought, as long as the process is not compelled from outside and the national ethos is allowed its own weight.

For Lord Cooke the internationalisation of human rights law is thus about the use of the experience of the courts of other countries to assist in resolving local problems. New Zealand has its own contribution to make to the development of an international common law. Internationalism includes regard for the experience of other countries and the decisions of their higher courts. It is not only, or even mostly, about the Human Rights Committee and the International Covenant.~R v Goodwin, for example, under i,.~_,,. .. ~wt

1 the heading "International jurisprudence", Lord Cooke discusses one case from {lf

Lord Cooke has certainly not been alone in the Court of Appeal in making use of international material. The wide ranging citation of international authorities is testimony both to the Court's eagerness to find help in their Bill of Rights cases and to the prodigious research of counsel in the leading cases, including those assisting behind the scenes. This cross fertilisation can only be valuable, although with it comes a challenge to lawyers not only to draw on experience elsewhere, but also to properly understand the context and background of foreign cases.

The struggle for simplicity

A consistent theme of Lord Cooke's approach is that the Bill of Rights ought to be able to applied in a straightforward way without the evolving of subtle and refined formulae. In R v Te Kira he said: 102

I am convinced that in interpreting and applying the Bill of Rights Act the Courts must strive to avoid the danger of becoming verbose and evolving fine distinctions. A Bill of

102 [1993) 3 NZLR 257,261; see also 1993 NZLS address. 40

Rights must be interpreted generously and simply, no matter whether or not it is entrenched.

He returned to the theme in R v Barlow, in the passage already mentioned about the movement to an international law of human rights.103

The simplicity theme emerged early on, in R v Butcher in 1991.104 The case concerned the meaning of "arrested" ins 23(1). No formal arrest had been carried out at the relevant time and the issue was whether the suspect was nevertheless under arrest. In that case Lord Cooke went so far as to say "once the facts are collected these cases virtually decide themselves"105_ I wonder if those words came back to haunt him in R v Goodwin. For it subsequently appeared that the other permanent members of the Court of Appeal did not wholly share his view in Butcher that a person was arrested when held simply for questioning, nor the further suggestion that it might be an arrest when a person merely believes she is being so held on the basis of police conduct towards her. A full court of five was convened to hear argument in R v Goodwin when the Crown asked for revisiting of the dicta in Butcher.106 Anyone who labours through the five judgments and 57 NZLR pages in Goodwin will agree, I think, that that particular case did not decide itself. In fairness, no one judge can be blamed; each was entitled to his view and each judgment has much to be said for it. It can at least be said that some sort of intermediate position did emerge which has enabled cases since then to, more or less, be decided easily. Lord Cooke's own efforts as President- taking it upon himself in his judgment to divine and explain a lowest common denominator upon which three of the five judges agreed - greatly assisted in that regard.107

103 (1996) 2 HRNZ 635,650. 104 [1992] 2 NZLR 257 (CA). 105 Page 264. 106 A three judge case in which Cooke P had been joined by Holland J from the High Court, temporarily on the Criminal Appeal Division. 107 Lord Cooke's Goodwin judgment set out a, justification for his earlier view in Butcher - in fact an even broader view. What troubled the other judges, to varying degrees, was the fact that s 23(1) referred to both "arrest" and "detention under an enactment" as triggering the right to counsel, thereby suggesting that detention which was not under an enactment - and hence by definition unlawful detention - was not intended to be included. All judges recognised that some types of unlawful detention must trigger the rights ins 23(1), because the right ins 23(l){c) to test the validity of one's arrest or detention by habeas corpus is meaningful only if it can be triggered by cases of unlawful detention. Lord Cooke reached the view that it extended to all kinds - in which case the concepts of unlawful arrest and unlawful detention necessarily merged (if there is no lawful justification for restraining a person, it does not matter whether the officer pretends it is an arrest or 41

There is further evidence of "the struggle" in R v Jefferies 108 - a search and seizure case which yielded no less than seven judgments. A motor vehicle had been stopped and searched by police upon reasonable suspicion that it carried persons escaping from an armed robbery with the proceeds. It turned out the people in the vehicle were not connected with the robbery, but they were unlucky enough to have been transporting a quantity of drugs. Suspicion of armed robbery in itself provided no lawful basis for the search: the warrantless search powers are confined to drug and firearms searches. The search was not in fact for drugs (though it found drugs), so that power was not relevant. And the statutory conditions for a firearms search had not been complied with on the facts of the case.109 So the search appeared to be unlawful. The question then became whether that made it also an "unreasonable" search within s 21 of the Bill of Rights, so leading to the exclusion of the evidence in terms of the prima fade rule. The overall result (five judges agreeing) was that the search was held to be unlawful but reasonable: the Canadian approach whereby unlawful searches were by definition unreasonable was not taken. Lord Cooke's approach, however, was different. "To endorse the suggestion, in the context of a Bill of Rights, that police officers may reasonably act outside the law is to sow dangerous seeds ..... It is much better to evolve a reasonable law .... "11 o Lord Cooke went on to evolve, in what he termed a straightforward way, a new proposition of police powers resting on their implicit authority arising out of the constabular oath to prevent offences against the peace. That proposition was that police officers reasonably believing a motor vehicle's occupants to be escaping from an armed robbery in which they have been involved, may stop and search the vehicle for weapons or stolen property. On that basis the search in Jefferies was lawful.

That approach was criticised,111 not on the grounds that it was not simple but that it was the judicial creation of search powers which sowed the dangerous seeds. But the approach was, of course, entirely consistent with a view of the Bill of Rights as setting

a detention). Hardie Boys and Casey JJ reached the view that it extended to include purported assertions by police of power to detain persons for questioning on suspicion of a . Richardson and Gault JJ took it that a person is arrested only if they are detained on the basis that they are reasonably suspected of having committed a crime. 108 [1994] 1 NZLR 290. 109 So said all judges save Richardson J, who considered that the search was lawful in that failure to comply with procedural provisions of the Arms Act did not render it unlawful. For Richardson J the reasonableness of the search even if unlawful was an alternative ground of decision. 110 Page 296. 111 Harrison, "Police Powers of Search: Sowing Dangerous Seeds" [1993] NZLJ 362. 42

the standards for acceptable behaviour of the state. Here the behaviour had been acceptable in view of all the judges, yet existing law required that it be held unlawful even if reasonable. Lord Cooke saw the Bill of Rights as being unnecessarily complicated by the distinction between lawfulness and reasonableness even though it enabled the majority to hold this particular search reasonable. Simplicity demanded instead that a reasonable law be evolved, so that it could be ruled lawful as well In taking that path Lord Cooke was acting on his previously stated advice in Goodwin: "The Bill of Rights Act is intended to be woven into the fabric of New Zealand law. To think of it as something apart from the general body of law would be to fail to appreciate its significance .... " 112

The future of the New Zealand Bill of Rights Act 1990

It is likely that some sort of constitutional change will occur in New Zealand in the future - hGw far ahead I am not sure. Perhaps it will be a move to republicanism, or some sort of reconstruction of the state to deal with multiculturalism or as a refinement of l\1MP. Whatever the catalyst may be, it seems likely that a Bill of Rights will then make its way into an entrenched higher law constitution for New Zealand. And at that time the unifying effect of a set of rights for everybody might even be a positive selling point, as it was in Canada when the Charter was tacked on to constitutional change needed for other reasons. In that sense, the New Zealand Bill of Rights Act 1990 will probably prove to be the Trojan Horse, spoken of by the Hon Paul East in Parliamentary debates, that brings about an entrenched Bill of Rights.

Conversely, I do not think that the Bill of Rights has generated or is likely to generate popular support leading to any positive enthusiasm for its elevation to higher law on its own. It will have to ride on the coat-tails of a larger proposal. The Bill of Rights is still likely to be a puzzle to most citizens, from whose perspective its principal mission appears to be getting people off criminal charges of which they are probably guilty.

In the meantime we can expect many more interesting Bill of Rights cases in the Court of Appeal. Lord Cooke is no longer there to contribute to them, but he and the others on his Court from 1990 to 1996 set the tone which will greatly assist their resolution.

112 [1993] 2 NZLR 153, 156. 43

One final thought. The Bill of Rights is only one part of the new "rights discourse" in New Zealand. It has so far been confined mainly to the criminal procedure area. The more controversial rights cases were always likely to be the equality cases, but the courts have been immunised from these given that most legislative classifications are likely to be unambiguously expressed such that a Bill of Rights challenge is impossible. Indeed, the more explicit and overt the intended distinction is in a statute, the less likely it may be challenged. The same-sex marriage case currently making its way to the Court of Appeal is an exception to that rule, made possible by the fact that the relevant statute does not expressly say that men may only marry women, and vice versa. So far as legislation is concerned, therefore, the court is only invoked in the rights discourse in a piece-meal way: when ambiguities permit.

As it turns out, there is another significant player in the "rights discourse" in New Zealand. It is the Human Rights Commission, and its six Commissioners and staff are involved in. anything but a piece-meal way. It is presently engaged in the Consistency

2000 exercise 113 which requires the evaluation of the entire corpus of New Zealand law and practice for consistency with the Human Rights Act 1993. A report to the Minister of Justice is to be made by December 1998. And, after 1 January 2000, there is a very good argument that that Act will prevail over inconsistent legislation.114 For on that day the provision in the Act which corresponds to s 4 of the Bill of Rights is deemed to be repealed. Plainly there are some deep waters to be navigated here, including the relationship between the equality rights protected by the Human Rights Act and the civil and political rights in the Bill of Rights. But that is a topic for another day.

113 A statutory function imposed bys S(l)(i) to G) of the Human Rights Act 1993. 114 This is discussed in Ch 3 of Huscroft & Rishworth, Rights and Freedoms: the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brooker's, 1995).