Pen and paper

One of Professor Finnis’ major themes is that the courts are concerned with the past, while Parliament looks to the future and the Executive attends to the present. I agree with Professor Finnis that the primary role of the courts, including final courts of appeal, is to decide the cases that come before them in accordance with the law. This must provide the starting point for any discussion of the limits of the judicial role. But there are other aspects of this role.

All courts, and in particular final courts of appeal, have an important role as one of the guardians of the constitution,[1] even in systems like in New Zealand where there is no formal supreme written constitution and no power to strike down legislation.[2] In this regard, I use the term constitution in its broadest sense as relating to everything that concerns the relationship between the state and those coming within its jurisdiction. The responsibility of deciding whether the Executive has acted in accordance with the law gives a remedy in the particular case to those affected by past encroachments but also ensures future compliance with the law and protects against abuse of power: past, present and future.

The open justice principle and the requirement for courts to give reasons are both designed to assure the public that cases are decided in accordance with the law. This highlights the courts’ role in upholding the rule of law both now and in the future by ensuring public respect for the rule of law.

The doctrine of precedent means that lower courts are bound by the decisions of courts higher in the hierarchy. This necessarily means that decisions of higher courts will affect future cases throughout the legal system. Indeed, all court decisions form part of the law that is applied by lawyers in advising their clients, by government officials in performing their roles and, either directly or through intermediaries like the press and lawyers, by the general public in deciding how to conduct themselves in accordance with the law. Even court decisions that merely apply the existing law serve to illustrate how the law operates and therefore provide guidance to those in similar circumstances in the future.

In my no doubt incomplete survey of the other aspects of the role performed by the judicial branch of government, I would also mention specialist courts, such as therapeutic drug courts.[3] These fulfil a restorative role and some would argue this should be more widespread throughout the court system.[4] This concept of justice is necessarily looking to the future well-being of the particular parties but also to the future well-being of society.

Adjudicating on the particular dispute that comes before them does, as Professor Finnis says, involve an assessment of past actions but all the other aspects of this role I have outlined above affect the future. The past, present, future classification of the roles of the three branches of government postulated by Professor Finnis is therefore in my view too simplistic.[5]

Professor Finnis’ second point is that the courts should see themselves as responsible for finding and not for making law. Again I think the position is more complicated than he suggests. His discussion relates to changing the law. But sometimes the very reason a case has come before a court is because there is no settled law that applies to the facts as found by the court or as agreed between the parties. Sometimes in such cases it is a matter of assessing which of two lines of authority best apply to the facts. Sometimes, however, it is necessary to develop the law in order to decide the case.

I agree with Professor Finnis that any development should be grounded in doing justice between the parties, having regard to the state of the law when the dispute arose. But, given the nature of precedent and the other forward-looking roles of the judiciary, any development must also have regard to the future. This is why parties so often use hypothetical future scenarios to steer the courts towards or away from a particular possible development of the law.[6]

In my view any development of the law should be undertaken in accordance with the common law method of incremental development based on past precedent,[7] taking into account the importance of the coherence and stability of the legal system. Any development should fit within the legal system as a whole, including any statutory overlay.[8] And it should also take into account what I would term institutional judicial competencies (discussed further below) and the fact that the context of the consideration is a particular case argued from the point of view of the particular parties.[9] All of the above point to any development being no more than is necessary to decide the particular case, but such development must also work in the future as well as in the past and the present.

When it comes to changing the law, the above restrictions will still apply but there are added factors. I agree with Professor Finnis that any change to the law should only be made if the previous view of the law was inapt at the time the dispute arose. But I think there is an important added consideration, which Professor Finnis touches on but which in my view deserves explicit attention. This is the fact that court decisions are retrospective.[10]

People will have ordered their affairs on the basis of existing law. So any change in established law, whether the court involved is bound by past decisions or not, will affect what has already occurred. This means (at the least) great and added caution must be exercised when changing the law. But it should not always mean keeping in place a view of the law that is no longer fit for purpose and that was not fit for purpose at the time of the transaction or conduct in question. The difficulty will be in deciding when caution should be overcome and a change in law made.[11] It seems to me that this will necessarily require some forward-looking consideration of the difficulties that will be caused by the continuation of the law as it was understood in the past. In the criminal field there is an added issue as any change in the law risks criminalising conduct that a person, based on past court decisions, had reason to think lawful.[12]

One area where the desire for stability in the law can never be controlling, however, is in constitutional matters.[13] In their capacity as guardians of constitutional principles, the courts (and particularly final courts) must be prepared to disturb established practice if it does not accord with fundamental values of the law. An example of this in the New Zealand context is a case where the Supreme Court held that, contrary to existing practice, there should be consecutive interpretation in criminal trials.[14] Fair trial rights cannot be compromised and the Court’s duty was to uphold them, even if it required a change to trial practice.

It follows from what I have said already that I agree with Professor Finnis’ fourth point, that there are what might be called institutional and structural differences between the courts and Parliament. In my view these differences, and in particular the fact that the courts are considering the law in relation to a particular case, means that the courts are the better institutions to deal with incremental changes to the common law, as has been their traditional role.[15] I agree that institutional judicial competencies mean that courts are not, however, the appropriate institutions for dealing with wide ranging reform. I also agree, at least in jurisdictions where there is no supreme law, that there are constitutional dimensions in delineating the proper role of the courts as opposed to Parliament.[16] On the other hand, any unwarranted encroachment can be rectified as Parliament is always free to legislate to overturn a decision it considers inappropriate.[17]

In jurisdictions where there is a supreme written constitution, it is the role of the courts to ensure the constitution is complied with, including by the legislature.[18] The institutional and structural constraints noted above would still apply. And in such jurisdictions, if statutes do not contravene the constitution, it is the duty of courts to interpret and apply such statutes and not to rewrite them.[19] Where courts overstep (or the interpretation does not in fact accord with Parliament’s understanding), decisions by the courts in areas other than laws conflicting with the constitution can be overturned by legislation. Further, even written constitutions can be changed, albeit with difficulty.

To recognise that there are institutional limitations for the judicial branch is not to say that the advantages that the legislative branch of government have are not sometimes squandered. Examples abound of legislation that is poorly drafted (particularly older legislation).[20] There are also examples of legislation underpinned by bad policy decisions[21] or by policies that are out of line with other statutes or with the remainder of the legal system.[22] Legislation that appeared robust in theory may be shown not to work in practice or it may apply in an arbitrary manner in circumstances that were not anticipated at the time it was passed. One of the ways flaws in legislation can be highlighted is through the cases that come before the courts. Cases may also highlight areas that need legislative attention more generally. The courts can thus fulfil an important role in the legislative process.[23]

In suggesting restraint in lawmaking for courts, Professor Finnis does not directly espouse the view that judges are not accountable for their judgments whereas politicians are but it is implied in his fourth and ninth points. Of course politicians are accountable at the ballot box but it is for their performance or non-performance overall rather than for particular decisions. Judges are accountable for their decisions on appeal to courts higher in the hierarchy. The open justice principle makes their decisions open for review by the parties, the legal profession, academics, their colleagues and the wider public. And there is the personal responsibility felt by all judges in the importance of their task.

To illustrate his thesis that the courts in the United Kingdom have gone outside their proper role, Professor Finnis discusses a number of what can be broadly characterised as human rights cases. I do not comment on the specific cases. Nor do I want to enter into a discussion of prerogative power or indeed of the so-called third source of power.[24] I will, however, make some comments on the human rights framework in New Zealand and the New Zealand Bill of Rights Act 1990 (Bill of Rights). The Bill of Rights is not entrenched and contains no power to override legislation. In fact, there is not even a specific power in our Bill of Rights for courts to make declarations of inconsistency.[25]

The long title of the Bill of Rights sets out the Act’s purpose as to affirm, protect, and promote human rights and fundamental freedoms in New Zealand and to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights (ICCPR).[26] It therefore does not purport to grant new rights.[27] Typically bills of rights are couched in general language and ours is no exception. It was recognised however, in the drafting process of our Bill of Rights that “rights cannot be absolute” and must instead be balanced against other rights and freedoms, as well as the “general welfare of the community”.[28] Our Bill of Rights therefore acknowledges that there can be restrictions on rights but provides that these must be able to be “demonstrably justified in a free and democratic society”.[29]

In accordance with their primary role of deciding the cases that come before them according to law, the New Zealand courts are obliged to interpret our Bill of Rights if it is relevant to a case. The courts are also obliged to consider how other legislation is to be interpreted in light of the Bill of Rights itself, which mandates that legislation is, if possible, to be given an interpretation consistent with the Bill of Rights.[30] Before any possible rights consistent interpretation is assessed, the courts must decide whether the relevant guaranteed rights are in fact affected and therefore must first assess whether any restrictions are such as may be justified in a free and democratic society.[31] Even if the restrictions are not justifiable, if a rights consistent interpretation is not possible, inconsistent legislation must be applied by the courts.[32]

The analysis by the courts under ss 4, 5 and 6 of our Bill of Rights does not challenge Parliamentary sovereignty. It accords with it, by following the process Parliament has chosen to lay down. It is significant too that our Bill of Rights explicitly binds all three branches of government.[33]

There is room for a range of views on how the general language of our Bill of Rights should be applied to specific situations, as well as on what is required in a free and democratic society. Commentators may legitimately consider that the courts have construed obligations too widely or too narrowly. A court may indeed have got it wrong in a particular case. This, however, seems to me a function of how the legislation was drafted in the first place and is a difference of opinion rather than a constitutional crisis.

I do not consider it risks weakening either institution that Parliament may decide to maintain legislation courts have said is inconsistent with our Bill of Rights or that Parliament may decide to override a court decision for the future, as long as mutual respect is maintained and the courts’ contribution is taken into account in any decision.[34] Debate and dissent is embedded in both democracy and in common law courts because they usually serve to improve decisions taken and thus enhance rather than diminish respect for the institutions of government.[35]

It is significant that, even if the Bill of Rights in New Zealand did not exist, courts would still be required to decide whether internationally recognised human rights have been breached, which necessarily includes consideration of the extent of such rights. There is a principle of interpretation of legislation that, unless this is made explicit, Parliament did not intend to legislate contrary to international obligations, including human rights obligations.[36] Closely related to this is the principle that a wide discretion conferred on the Executive should be exercised consistently with such obligations.[37] Rights are also protected in New Zealand through the principle of legality.[38] In addition, international human rights obligations have been used by the courts to develop the common law.[39] Presumptions relating to the interpretation of legislation are not new, although their focus may have changed from the protection of property rights to a broader focus. I refer, for example, to the long-standing presumptions that revenue and penal statutes are construed narrowly.[40]

Finally on this topic, it would be remiss in a survey of human rights in the New Zealand context not to acknowledge the role of the Treaty of Waitangi,[41] of indigenous collective rights[42] and of tikanga (Maori customary law), the latter forming part of the values of the common law in New Zealand.[43]

Professor Finnis in his 10th point discusses the interpretation of old legislation in modern conditions and the tendency of courts in the United Kingdom and Europe to become what he calls “roving law commissions”. I will comment first on that proposition generally and then discuss the main example he gives.

In New Zealand the ambulatory approach to the interpretation of legislation is required by s.6 of the Interpretation Act 1999, which provides that enactments apply to circumstances as they arise. This applies to all statutes, including our Bill of Rights. I have difficulty in understanding how or why this exhortation of Parliament on how to interpret statutes should encompass changed physical circumstances but not changes in societal values, such as changed attitudes to the place of women and minorities or, at a more mundane level, modern attitudes to drink driving.

Of course there will be limits. Any interpretation must accord with the words of the statute read in light of its purpose.[44] But to interpret the words as they might have been understood at the time the legislation was passed, as opposed to consideration of what the words would mean to a modern audience (who after all are those bound by the statute), would seem to me unjustified in a society operating under the rule of law.[45] Even a thin concept of the rule of law requires law to be clear and accessible.[46] There will also be areas with major policy implications where Parliament will be the most appropriate institution to decide on the appropriate response to modern conditions.[47]

My main point in answer to that made by Professor Finnis, however, is that, in light of s. 6 of the Interpretation Act, New Zealand courts are not constituting themselves roving law commissions when using an ambulatory approach to interpretation. They are respecting Parliamentary sovereignty by applying a principle of interpretation laid down by Parliament.

Professor Finnis uses the case of Hirsi Jamaa[48] as his main example of courts becoming “roving law commissions” and of what he sees as the dangers of a “living instrument” interpretation.[49] He is of course entitled to criticise the decision but in an academic context I would have expected his criticism to be put forward without exaggerated rhetoric. Professor Finnis maintains that the case is an important cause of what he calls the migration crisis. He surely cannot be suggesting, for example, that the decision is responsible for people fleeing war in Syria.[50] I assume his point is that, had the Grand Chamber interpreted the Convention responsibilities differently, refugees from Syria and other states may have been discouraged from trying to reach Europe and thus that any refugee crisis may have been the problem of some other state.[51]

I do not want to discuss Professor Finnis’ criticism of the decision in detail but just make a few comments.[52] Professor Finnis says that the drafting history of the Refugee Convention[53] shows that the state parties intended to exclude mass arrivals from its ambit. The fact remains, however, that, despite requests,[54] such an exclusion was not explicitly included in the convention as drafted.[55] It has been suggested that the term refoulement was chosen to ensure that the traditional civil law understanding of the term (which did not govern in situations of mass influx) would be recognised.[56] As a result it is said that derogation from the principle would be justified in the case of mass arrivals “only where it is the sole realistic option for a state that might otherwise be overwhelmed and unable to protect its most basic national interests”.[57] If this is right, issues would remain as to the definition of mass influx, when the threshold of threat to the interests of the state is met and whether such a threat can realistically be managed by means other than by refoulement.

Professor Finnis also points out that art. 33(2) of the Refugee Convention does not include the refoulement of a refugee to torture where the requirements of that article are met in relation to that particular refugee.[58] The article in issue in Hirsi Jamaa did not, however, concern refugees but torture. There is no similar exclusion from the non-refoulement obligation in the Torture Convention to that contained in art. 33(2) of the Refugee Convention.[59]

It seems to me that, despite Professor Finnis saying he believes there are moral absolutes, despite the absolute nature of the prohibition on torture[60] and despite the non-refoulement obligations under the Torture Convention, he is effectively condoning torture as long as States did not themselves indulge in the practice but were instead acting to protect their own citizens from a possible risk, rather than with the positive intention that others would indulge in torture.[61]

Professor Finnis’ views of international obligations relating to torture and refugees are not shared by the New Zealand Parliament. Under the Immigration Act 2009, a person must be recognised as a protected person if there are substantial grounds for believing that he or she would be in danger of torture if deported.[62] Such a person may only be deported to a place where there is no such risk.[63] Further, there is no exception for mass arrivals to the above provisions. Nor is there a mass arrivals exception to the provision providing that a refugee or someone claiming recognition as a refugee cannot be deported unless art. 32(1) or art. 33 of the Refugee Convention allows the deportation of the person.[64] There are provisions in the Act that do deal with mass arrival groups.[65] There is an ability to apply for a warrant of commitment for such groups of not more than six months in certain circumstances, including if such a warrant is necessary to manage any threat or risk to security or to the public arising from one or more members of the mass arrival group.[66]

To conclude, I make three more general points on Professor Finnis’ lecture. First, I do not think it is possible to discuss the limits of judicial power without also discussing the role of and the limits, constraints and controls on all three branches of government. So Professor Finnis’ lecture and the commentaries on that lecture can only be seen as the first step.

Secondly, it seems to me that it is an inevitable consequence of a healthy state that there will be tensions at times at the edges between the branches of government. The challenge is ensuring the tension strengthens the state, rather than rising to the point of damaging any of its institutions. This requires a three way respect for, and understanding of, roles between the branches of government and it also requires a public (and media) educated in civics.

Finally, the answers to questions about the role of, and the limitations on the role of, each of the branches of government will depend on the constitutional arrangements of each jurisdiction and, more importantly, the constitutional culture and values of that state. There is no single solution and any comparisons must be made on a holistic basis. Something that can seem surprising or incongruous viewed in isolation can make perfect sense when viewed in its constitutional and cultural context.

Hon. Justice Glazebrook, DNZM (Susan Glazebrook) is a Justice of the Supreme Court of New Zealand. She received a DPhil from the University of Oxford in French legal history. In legal practice, she was a partner in the firm Simpson Grierson. Justice Glazebrook was appointed to the High Court in 2000, the Court of Appeal in 2002, and to the Supreme Court in 2012.

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[1] I am not suggesting that the courts are the only guardians of the constitution or even that they are the most important.

[2] Some in New Zealand have suggested a potential limit on Parliamentary sovereignty: see, for example, Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398 per Cooke J; and Shaw v CIR [1999] 3 NZLR 154 at 158 (CA). This always strikes me as an arid debate. A Parliament which is prepared to go so far outside constitutional norms as might justify the exercise of any such power (if it exists) would by definition be a Parliament that would ignore any judicial attempt to curb it and the judiciary would have no means of forcing compliance.

[3] In the New Zealand context see Lisa Gregg and Alison Chetwin, “Formative Evaluation for the Alcohol and other Drug Treatment Court Pilot” (Ministry of Justice, March 2014) available at www.justice.govt.nz.

[4] For more on restorative justice, see Tony Foley, Developing Restorative Justice Jurisprudence: Rethinking Responses to Criminal Wrongdoing (Surrey: Ashgate, 2014); and Gabrielle Maxwell and James J Liu (eds), Restorative Justice and Practices in New Zealand: Towards a Restorative Society (Wellington: Institute of Policy Studies, 2007).

[5] The position with regard to the Executive and the Legislature is also more nuanced. Professor Finnis’ characterisation of the role of the Executive as being concerned with the present ignores the role of the Executive in the legislative process and its general policy making functions. As to Parliament, it must consider the past when making decisions about the future. It also can and does legislate with retrospective effect (albeit in limited circumstances).

[6] In fact it is my experience that counsel usually overuse such arguments.

[7] As Lord Bingham said “the law scores its runs in singles: no boundaries, let alone sixes”: Tom Bingham, “The Way We Live Now: Human Rights in the New Millennium” (1999) 1 Web JCLI.

[8] This is especially so in New Zealand where statute law “overwhelms the common law”: Ross Carter, Burrows and Carter Statute Law in New Zealand (5th ed, Wellington: LexisNexis, 2015) at 551. One example of this can be found in four statutes (the Illegal Contracts Act 1970, the Contractual Mistakes Act 1977, the Contractual Remedies Act 1979 and the Contracts (Privity) Act 1982) which largely replaced the general common law applicable to contracts.

[9] For more on this, see Cass Sunstein, One Case at a Time: judicial minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 1999).

[10] Leaving aside the controversial issue of prospective overruling. Lord Devlin in The Judge (Oxford: Oxford University Press, 1979) at 12 said that the ability to overrule prospectively is “the Rubicon that divides the judicial and legislative powers”. For commentary in support of prospective overruling, see for example Jesse Wall, “Prospective overruling — it’s about time” (2009) 12 Otago Law Review 131.

[11] In R v Chilton [2006] 2 NZLR 341 (CA), the Court of Appeal set out the circumstances in which it might revisit earlier decisions: at [83]—[91]. The Court said that its approach to departing from its earlier decisions would be cautious because of the need for certainty and stability in the law: at [83]. See also comments made in Couch v Attorney-General (No 2) [2010] NZSC 27; [2010] 3 NZLR 149 at [104] per Tipping J.

[12] As an example, there has been criticism of both the House of Lords and the European Court of Human Rights with regard to the abolition of spousal immunity for rape in the cases of R v R [1992] 1 AC 599 (HL); and SW v United Kingdom (1995) 21 EHRR 363 (ECHR). See PR Ghandhi and JA James, “Marital Rape and retrospectivity — the human rights dimensions at Strasbourg (1997) 9 Child and Family Law Quarterly 17 and Marianne Giles, “Judicial law-making in the criminal courts: the case of marital rape” [1992] Criminal Law Review 407.

[13] And again I use this term in the widest sense.

[14] Abdula v R [2011] NZSC 130; [2012] 1 NZLR 534. Another example might be Booth v R [2016] NZSC 127; [2017] 1 NZLR 223.

[15] Parliament rightly usually has other priorities than such incremental reform.

[16] In New Zealand at least, this is made explicit by way of s. 3 of the Senior Courts Act 2016, which provides that nothing in the Act “affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”

[17] This should not be done to take away the fruits of the court victory for the particular party, as is made clear by the Legislation Design and Advisory Committee LAC Guidelines (Wellington: October 2014) at 44. In my view any legislative overturning should also normally follow proper processes, including (but not limited to) full public participation through the Select Committee process in order to ensure that all the advantages of Parliamentary law-making over that of the courts is obtained.

[18] Whether self-proclaimed (see for example Marbury v Madison 5 U.S. 137 (1803)) or as explicitly provided for by the constitution (such as by article 167 of the Constitution of the Republic of South Africa 1996).

[19] Just as it is in jurisdictions with no supreme written constitution.

[20] For more on this, see Law Commission, A New Interpretation Act: To Avoid ‘Prolixity and Tautology’ (NZLC R17, 1990); Law Commission The Format of Legislation (NZLC R27, 1993); and Law Commission, Legislation Manual Structure and Style (NZLC R35, 1996).

[21] This can be for a variety of reasons. Politicians may have been badly advised by the Executive. They may have been captured by particular interest groups. They may have had their eye on the short term future to the next election rather than thinking about future generations (in New Zealand there is a relatively short electoral cycle of three years: Constitution Act 1986, s.17).

[22] Sometimes there can be contradictory policies and provisions within the one statute. See, for example New Zealand Fire Service Commission v Insurance Brokers of New Zealand Association [2015] NZSC 59; [2015] 1 NZLR 672; and Jennings Roadfreight Ltd (in liq) v Commissioner of Inland Revenue [2014] NZSC 160; [2015] 1 NZLR 573.

[23] Although there are problems with the metaphor, this fits with the concept of dialogue between the branches of government, albeit in a wider sense than the constitutional one where this phrase is usually used: see for example Peter Hogg, Allison Thornton and Wade Knight, “Charter Dialogue Revised — or ‘Much Ado about Metaphors’” (2007) 45 Osgoode Hall Law Journal 1-65.

[24] The Supreme Court, in a recent case, made no comment on this “third-source”: Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27; [2016] 1 NZLR at [112] (per McGrath, Glazebrook and Arnold JJ).

[25] A declaration of inconsistency was made for the first time by the High Court in Taylor v Attorney-General [2015] NZHC 1706; [2015] 3 NZLR 791 relating to prisoner voting restrictions. An appeal has been heard by the Court of Appeal last year and a judgment is pending. For more, see Claudia Geiringer, “On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act” (2009) 40 Victoria University of Wellington Law Review 613. The Human Rights Review Tribunal does, however, have the power under s. 92J of the Human Rights Act 1993 to make a declaration that an enactment is inconsistent with the right to be free from discrimination guaranteed by s. 19 of the Bill of Rights.

[26] International Covenant on Civil and Political Rights 19 December 1996, 999 UNTS 171, which New Zealand ratified on 28 March 1978. The Bill of Rights includes many but not all of the rights contained in the ICCPR.

[27] I note also that the European Convention on Human Rights was entered into by way of an Executive decision on the assumption that it reflected existing rights in the United Kingdom. For more, see A W B Simpson, Human Rights and the End of Empire (Oxford: Oxford University Press, 2004).

[28] Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984—1985] I AJHR A6 at 6.

[29] Bill of Rights, s. 5. Professor Finnis expresses concern about the use of a proportionality test in making a similar assessment. I make no comment on this as the question may in the future come before the Supreme Court. I do note that the High Court of Australia has used a proportionality analysis in constitutional and administrative law decisions: see for example Monis v The Queen [2013] HCA 4; and McCloy v New South Wales [2015] HCA 34. See also the comments of Sir Anthony Mason, “Proportionality and its use in Australian Constitutional Law” (Sir Anthony Mason Honorary Lecture, University of Melbourne, 6 August 2015).

[30] As required by s. 4 of the Bill of Rights. Some suggest that the equivalent Human Rights Act 1998 (UK), s. 3 is stronger, as it provides that an interpretation of an enactment must be read “So far as it is possible to do so” to give effect to the guaranteed rights. Some say that the United Kingdom courts have taken a more robust approach than in New Zealand. For example, Lord Neuberger has expressed the view that the United Kingdom Supreme Court has interpreted statutes under s. 3 “in a way which some may say amounts not so much to construction as to demolition and reconstruction”: David Neuberger, “The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience” (speech given at the Supreme Court of Victoria, 8 August 2014).

[31] The relationship between ss. 4, 5 and 6 of our Bill of Rights was outlined in R v Hansen [2007] 3 NZLR 1 (SC). See also Claudia Geiringer “The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen” (2008) 6 New Zealand Journal of Public & International Law 59.

[32] Section 6 of the Bill of Rights provides that “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”.

[33] Section 3(a) of the Bill of Rights provides that the Bill of Rights applies to acts done “by the legislative, executive, or judicial branches of the Government of New Zealand”.

[34] This can be seen as an example of what Daniel Kahneman terms “adversarial collaboration” in his book Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2011) at 729. See also Barbara Mellers, Ralph Hertwig and Daniel Kahneman, “Do Frequency Representations Eliminate Conjunction Effects? An Exercise in Adversarial Collaboration” (2001) 12 Psychological Science 269.

[35] See for example the comments of Iacobucci J in Vriend v Alberta [1998] 1 SCR 493 at [139].

[36] The high point of this presumption is Sellars v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).

[37] See Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). I have never had a particular issue with this principle. It is after all the Executive that entered into such obligations. It does not seem unreasonable to expect it to abide by them — see Susan Glazebrook, “Filling the Gaps” in Rick Bigwood (ed), The Statute: Making and Meaning (Lexis Nexis, Wellington, 2004) 153 at 159—161. See also A W B Simpson, above n. 28.

[38] R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffman: “In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”. This was endorsed by the Supreme Court of New Zealand in Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774 at [28].

[39] As an example, the decision of the New Zealand Court of Appeal in Hosking v Runting [2005] 1 NZLR 1 (CA) recognised the tort of privacy in New Zealand (per Gault P, Blanchard and Tipping JJ, Anderson J and Keith J dissenting). In that case Gault P and Blanchard J said that there is increasing recognition that the common law should develop consistently with international treaties to which New Zealand is a party (at [3]—[6]) and that this is an international trend (at [6]).

[40] These presumptions are now defunct in New Zealand: see Carter, above n. 9, at 233—236.

[41] Reference to the principles of the Treaty of Waitangi are included in a growing number of statutes. For example, the State Owned Enterprise Act 1986 provides that the Crown is not permitted to act inconsistently with the principles of the Treaty of Waitangi: s. 9. This has been described as a “constitutional guarantee” (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 at 659 per Cooke P). See also New Zealand Maori Council v Attorney-General [2013] NZSC; [2013] 3 NZLR 321 at [59].

[42] New Zealand has adopted the United Nations Declaration on the Rights of Indigenous People GA Res 61/295, A/Res/61/295 (2007). The Declaration affirms that indigenous peoples have the right to effective remedies for “all infringements of their individual and collective rights”: art. 40.

[43] Takamore v Clarke [2012] NZSC 116; [2013] 2 NZLR 733 at [94] (Elias CJ). See also Takamore v Clarke [2011] NZCA 587 at [15] and [254]. Aspects of Māori customary law are also explicitly referenced in a growing number of statutes, such as s. 7 of the Resource Management Act 1991, which requires consideration of kaitiakitanga (the concept of guardianship).

[44] Interpretation Act 1999, s. 5(1). The purpose of a statute would primarily be discerned from the words used (including any purpose provisions), read in the light of publicly available background material such as Law Commission reports and Parliamentary debates. For more on the purposive approach, see Carter, above n. 9, at ch 8.

[45] I discuss the role of statutes as public words in Susan Glazebrook, “Do they say what they mean and mean what they say? Some issues in statutory interpretation in the 21st century” (2015) 14 Otago Law Review 61 at 62. See also Lord Hoffmann’s comment (albeit in another context) in Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2004] 1 AC 715 at [73] where he said “a public document like a statute is addressed to the public at large.”

[46] See for example Joseph Raz, “The Rule of Law and its Virtue” in The Authority of Law: Essays on Law and Morality (Reprint ed, Oxford: Oxford University Press, 2002) 210 at 213—216.

[47] For example in New Zealand unions of same sex couples was provided for by Parliament: first by the introduction of civil unions which included same sex couples (by way of the Civil Union Act 2004, which came into force 26 April 2005) and then by amending the definition of marriage under the Marriage Act 1955 to mean the “union of 2 people, regardless of their sex, sexual orientation, or gender identity” (by way of the Marriage (Definition of Marriage) Amendment Act 2013, which came into force 19 August 2013. The Court of Appeal had earlier decided that it was not possible to construe the wording of the Marriage Act 1955 as encompassing the marriage of same sex couples: Quilter v Attorney-General [1998] 1 NZLR 523 (CA).

[48] Hirsi Jamaa v Italy 23 February 2012 (27765/09). Art 1 of the European Convention of Human Rights provides that parties to the Convention “shall secure to everyone within their jurisdiction” the rights and freedoms guaranteed in the Convention. The Grand Chamber was satisfied that the actions of the Italian Customs and Coastguard were a case of extraterritorial exercise of jurisdiction by Italy capable of engaging its responsibilities under the Convention: at 25—26.

[49] In fact the “living instrument” interpretation of the Convention was not mentioned in relation to art. 3, the main aspect of the decision criticised by Professor Finnis, but only in relation to a complaint under art. 4 of Protocol number 4, which prohibits the “[c]ollective expulsion of aliens”: at 46 of the judgment.

[50] His reference to Ebola and other plagues also seems to me unnecessary scaremongering and not part of the facts the Grand Chamber was considering in the particular case. The same applies to his reference to “uncountable numbers of terrorists”.

[51] I note, however, the recognition in the New York Declaration on Refugees and Migrants (New York Declaration for Refugees and Migrants GA Res 71/1 A/Res/71/1 (2016)) that there is a need for a coordinated global response to the current situation: at [7].

[52] I comment only on the elements of the decision that Professor Finnis discusses. I accept that other aspects of the judgment may be controversial, such as the extraterritorial jurisdiction finding mentioned at n. 49 above.

[53] In this term I refer collectively to the Convention relating to the Status of Refugees 189 UNTS 137 (opened for signature 28 July 1951 and entered into force 22 April 1954)) and also the Refugee Protocol (Protocol relating to the Status of Refugees 606 UNTS 267 (opened for signature January 31 1967 and entered into force October 4 1967)).

[54] During the drafting process and Conference of Plenipotentiaries, representatives from countries including Switzerland and the Netherlands expressed concern that the duty of non-refoulement would extend to situations of mass influx and intimated that it should not do so. At the Conference, the Netherlands representative had it placed on record by the President that the Conference was in agreement that “the possibility of mass migration was not covered by article 33”: Dr Paul Weis, The Refugee Convention, 1951: The Travaux préparatoires analysed with a Commentary (1990) at 240.

[55] It must be remembered that the Convention was being drafted against the background of mass displacements after the Second World War.

[56] James C Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005) at 358. But note the comments at n. 60 below of the 1979 Working Group on the Torture Convention.

[57] At 360.

[58] The article does not, however, appear to me to contemplate refoulement to torture of a refugee who does not him or herself meet the test in art 33(2) but who may arrive alongside those who may possibly constitute a risk to the security of a state.

[59] Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984 and entered into force 26 June 1987) [Convention against Torture] provides that “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This Convention is not mentioned by Professor Finnis. The report of the Working Group of 1979 notes that the introduction of the concept of non-refoulement “gave rise to considerable discussion.” One of the concerns was that this might require a State to accept a mass influx of persons when it was not in a position to do so. It was proposed that the term be deleted or a specific provision be made in the Convention for States to reserve their acceptance of the Article: Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment E/CN.4/L.1470 (1979) at 8—9. However by the time of the 1980 Working Group the article was accepted with “refouler” included: Report of the Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment E/CN.4/1367 (1980) at 4.

[60] It seems to be accepted that the prohibition against torture is jus cogens. See, for example Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (20 July 2012) [2012] ICJ Rep 422 at 455.

[61] Professor Finnis’ thesis on this and A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (more commonly referred to as the Belmarsh case) appears to rest to an extent on an assumption that non-citizens have no rights. For a contrary view, see Rayner Thwaites, The liberty of non-citizens: indefinite detention in Commonwealth countries (Oxford: Hart Publishing, 2014).

[62] Section 130 of the Immigration Act 2009. The Act applies the Torture Convention definition of torture as any act by a public official or a person acting in an official capacity (or by someone with consent or acquiescence of such persons) which intentionally inflicts severe mental or physical pain or suffering for the purpose of obtaining information, punishment, intimidation or discrimination. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. It was also accepted by the Crown that a person could not be deported to a risk of torture under the former legislation, which did not include a protected persons regime: see Zaoui v Attorney-General (No 2) [2005] NZSC 38; [2006] 1 NZLR 289.

[63] Section 164(4)(a). Nor can a person be deported, under s.164(4)(b), if there are substantial grounds for believing the person would be in danger of arbitrary deprivation of life or cruel treatment (as defined in s.131(6) to mean “cruel, inhuman, or degrading treatment or punishment”). The New Zealand Bill of Rights also guarantees the right not to be deprived of life (s 8) and the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment: s.9.

[64] Section 164(3).

[65] Defined in s. 9A of the Act as a group of more than 30 people without visas or visa waivers, who arrive in New Zealand on board the same craft, the same group of craft at the same time, or on board the same group of craft and within such a time period or in such circumstances that each person arrived, or intended to arrive, in New Zealand as part of the group.

[66] Section 317(A)(a)(ii). The warrant cannot include a person under 18 years of age unless that person has a parent, guardian, or relative who is a member of the mass arrival group: s. 317A(6). The introduction of mass arrival group warrants was met with some controversy. For a summary of the opposition see Christopher Foulkes, “The Shafts of Strife and War: A Critical Analysis of the Immigration (Mass Arrivals) Amendment Bill” (2012) 43 Victoria University of Wellington Law Reivew 547.