Granting judges a right to invalidate legislation will strengthen the rule of law while leaving lawmaking power in Parliament’s hands, argue Geoffrey Palmer and Andrew Butler.
In A Constitution for Aotearoa New Zealand, we propose that the Constitution should be a higher law enforceable by the courts.
This is probably the most significant change we propose, at least in legal terms. Some will say that such a change will give our courts too much power, but there are several reasons why this is not the case.
The most important reason is that our proposed constitution preserves the power of Parliament and the people to have the final say.
New Zealand has a long tradition of parliamentary sovereignty, under which it is said that Parliament can pass any law it likes. We have preserved that situation, so long as a significant proportion of MPs agree.
Our proposals, if adopted, would enable the courts to declare Acts of Parliament invalid to the extent that they are inconsistent with the Constitution. Such a declaration would only have effect if it was confirmed by the country’s top judges in the Supreme Court.
Parliament would then be able to decide by a 75 per cent majority to change the Constitution, or to continue to enforce an Act of Parliament that the courts have declared invalid.
Such an approach will allow the House to override a constitutional decision of the Supreme Court of New Zealand.
We hope that would not occur often. Making big constitutional changes with a bare majority in the House of Representatives should not be permitted. But when there is a significant parliamentary majority against a court decision, the safeguard needs to be there. Parliament, as an elected body, should have the final word.
There are other reasons why additional judicial powers should not be feared.
First, judicial powers are limited. Judges can only make judgments according to law, and they can only deal with issues that New Zealanders take to court. They do not initiate or choose which disputes come before them. Judges are not invested with anything comparable to the resources and powers of the other branches of government. They can be described as the weakest and least dangerous branch of government. Their role can nonetheless function as a useful safeguard of the liberties of the people.
Second, the power to invalidate legislation is neither new nor rare. The power is not unusual in New Zealand’s history. For many decades courts were entitled to invalidate legislation that was inconsistent with the New Zealand Constitution Act 1852.
In modern times, the vast majority of Commonwealth countries provide judges with the power to invalidate legislation. The constitutions of Canada, Australia, India, and South Africa provide for this power. So do the constitutions of Ireland, Germany, and almost all of our Pacific neighbours including Samoa.
Contemporary New Zealand judges have significant experience in exercising the power of judicial invalidation. Many of the courts in the Pacific Islands are staffed by New Zealand judges. In almost all of those jurisdictions, the courts have the power of judicial invalidation. If our judges are sufficiently competent to invalidate statutes in our Pacific Island neighbours, why should we think that they would be incompetent to do the same in New Zealand?
Even in the United Kingdom, the courts have the power to invalidate the legislation of the Scottish, Welsh and Northern Irish parliaments. Nor do the courts have to apply Westminster legislation if it is inconsistent with European Union law, though that will likely change when the United Kingdom leaves the European Union.
Furthermore, British courts have the power to consider the consistency of Westminster legislation with the European Convention on Human Rights and to declare it to be incompatible with the Convention. When that happens the British Government is permitted to (and almost always does) repeal or amend the legislation to remove the incompatibility.
United Nations human rights bodies consistently criticise New Zealand’s constitutional arrangements because our courts do not have power to invalidate Acts of Parliament that are inconsistent with human rights. That criticism was repeated as recently as April this year by the UN Human Rights Committee.
Conferring a power of judicial invalidation on our judges would bring New Zealand into line with many other democratic societies, and with international human rights norms.
It would also encourage the Government and Parliament to act within the bounds of their powers. There is no reason why, in a constitutional system that is built on democratic control, Parliament should be exempt from the requirement to act in accordance with the highest law of the land, the Constitution.