HANNA WILBERG
AUSTRALIAN INSTITUTE OF ADMINISTRATIVE LAW
2006 NATIONAL ADMINISTRATIVE LAW FORUM
Administrative
Law: Protection of Individual
and Community Interests
Surfers Paradise Marriott Resort
22-23 June 2006
This paper is still work in progress.
Please do not cite without prior permission.
This paper is about the approaches adopted by domestic courts to give some effect to international obligations despite the dualist orthodoxy that international law does not have the force of law within the domestic system unless it has been incorporated by statute. More particularly, it is about one of these approaches, that is the presumption of consistency with international law which courts apply in interpreting statutes. More specifically still, it is about the use of that presumption in administrative law to read down the scope of executive powers conferred by statute.
That is to say that the paper is not about two other approaches for giving some effect to international law, the merits of which have recently occupied the attention of the High Court of Australia. First, it is not about the constitutional law question whether the constitution should be interpreted where possible so as to be consistent with international obligations, a question which provoked a strongly worded disagreement between McHugh J and Kirby J in Al-Kateb v Godwin.[1] Secondly, while it is about administrative law, it is not primarily about the main approach used in this context in recent times to give effect to international law, that is the legitimate expectations approach introduced in Minister of Immigration and Ethnic Affairs v Teoh[2] and recently doubted in Re Minister for Immigration and Multicultural Affairs ex parte Lam.[3] However, while the merits and likely future fate of this second approach will not be my focus, I will start by comparing and contrasting this approach to the presumption of consistency approach which is my topic, to bring out the difference between these two approaches to giving effect to international law in the administrative law context.
A recent article by Claudia Geiringer has done much to clarify for New Zealand the relationship between the administrative law use of the presumption of consistency with international law, and Teoh’s New Zealand cousin, the mandatory relevant considerations approach that was introduced in Tavita v Minister of Immigration.[4] In short, although the approach in Tavita has been justified in part as an application of the presumption,[5] its effect is much more limited than that of the presumption of consistency where it is used to read down the scope of statutory powers. Such use of the presumption imposes substantive limits on the availability of the power, in the sense that the power simply cannot be used at all in a way that would contravene the relevant international law obligation. By contrast, it is trite to say that the mandatory relevant considerations approach merely requires the obligation to be taken into account, but then leaves the decision-maker free to reach a decision inconsistent with the obligation. [6]
The same contrast applies as between the administrative law use of the presumption of consistency to read down the scope of statutory powers and Teoh’s legitimate expectations approach. Indeed, the Teoh approach is in some ways still weaker than Tavita’s mandatory relevant considerations approach, since it treats failure to take the international obligation into account not as an error of law but merely as a lack of procedural fairness if it is not preceded by notice to the affected person and an opportunity to comment.[7] Perhaps confusion on the difference between this approach and the presumption never took hold on your side of the Tasman; certainly the leading judgment in Teoh itself clearly notes the distinction.[8]
I am interested in the presumption of consistency, first, because it gives much stronger effect to unincorporated international obligations than either the mandatory considerations approach or the legitimate expectations approach, and secondly, because the courts appear to be abandoning both of the weaker approaches and instead moving towards adopting this stronger approach, at least in New Zealand. A number of decisions of our highest courts have adopted this approach, notably Sellers v Maritime Safety Authority[9] and Attorney-General v Zaoui.[10]
In Australia, the decision in Lam contains strong indications that Teoh may be abandoned when the opportunity arises.[11] Adoption of the presumption approach in its stead is not necessarily likely, given that some of the judgments in Lam include further comments that would serve to cast doubt on the availability of any of the three approaches discussed here.[12] However, the use of the presumption to read down the scope of statutory powers was proposed by Kirby J in his dissenting judgment in Al-Kateb. That judgment has attracted a fair amount of attention relating to the corresponding proposal for constitutional interpretation, but it seems that so far the proposal relating to the administrative law use of the presumption has passed largely without comment. I suggest that it merits some attention.
The recent uses and proposed uses of the presumption are much more assertive than older instances, to the point where they may be considered to represent a significant qualification on the orthodox doctrine of Parliamentary Sovereignty. Hence the question in my title: back to the future? While adoption of this approach might be presented as a return to a long established approach, my argument is that instead it needs to be recognized as a bold new move that would go well beyond Teoh in the effect given to international law. It is the legitimacy and desirability of this new assertive use of the presumption that I propose to examine in some detail in this paper. But first I need to explain what is so new about the recent uses of the presumption to read down the scope of statutory powers.
Interpretive presumptions can be used more or less assertively. Some (although not necessarily all) of the older cases limit the use of the presumption of consistency with international law to cases of ambiguity, and exclude their use for the purpose of reading down the scope of discretionary powers.[13] Evidently, any use of the presumption outside those limits was considered excessively assertive. Thus, some may consider the use of the presumption in administrative law to read down the scope of statutory power to be novel and controversial.[14] However, my focus in this paper is on the legitimacy of the presumption based on democratic ideals. From that point of view, the above limits are relevant only to the extent that they may be seen as corresponding to tests of democratic legitimacy, and I will return to them in that context.
The crucial criterion for my purpose is the extent to which the use of the presumption corresponds with, or respects, Parliament’s true intention. Since that is my central criterion, I will begin by explaining what I mean by it. I would suggest that a truly democratic approach to statutory interpretation should aim to ascertain the legislature’s true intention by asking the following question in relation to any proposed meaning or application: is this a meaning or application which a majority of the legislators who voted for the provision would have adopted if it had been put to them?[15] The test for answering this question should be objective in the sense and to the extent that the answer should depend on an objective assessment of the totality of the information available to legislators and all of the arguments in favour of the legislation to which they had listened before their vote (rather than looking for direct evidence of what was on the mind of individual legislators).[16] Such a test calls for use of the full range of interpretive materials, both intrinsic and extrinsic; permitted in Australia by s 15AB of the Acts Interpretation Act 1901 (Cth). All of this material should be looked at in order to determine, as best as possible, how a legislator who knew all of this would understand the Bill, and how a legislator who voted for the Bill knowing all this would have supposed the particular issue arising in the case would be resolved. Indeed, the very fact that both our legal systems have moved to admit a wide range of extrinsic evidence which used to be excluded seems best explained on the basis of an implicit recognition that statutory interpretation should aim as far as possible to ascertain the answer that legislators would have given to the question arising.
If the aim of statutory interpretation is, as I have argued, to ascertain Parliament’s true intention, then the most modest use of the presumption is as a factual presumption, used in relation to matters which are so well known and so well established as limits that operate on all legislation unless excluded that there is reason to believe that legislators were indeed aware of the matter in question. A good example of this modest use is the long-established presumption that legislation is not intended to operate extra-territorially.[17] Similarly, the presumption that legislation which is expressly intended to give effect to certain international law obligations will be consistent with those obligations also represents this most modest use. McHugh J in Al-Kateb criticised the general presumption of consistency with international law as a mere fiction, given the sheer bulk of modern international law obligations. The implication would seem to be that he would prefer to take the presumption no further than this modest use, if it were not for established authority to the contrary.[18]
However, the use of the presumption may still be modest even if it is used as a true presumption, in the sense of introducing into the interpretive exercise a factor additional to evidence of what legislators must actually have known at the time. It is still modest so long as there is reason to believe that a majority of the legislators who voted for the measure would have agreed to the meaning that is to be preferred in reliance on the presumption, or at least so long as there is nothing to suggest the contrary conclusion. The use of the presumption in such cases is modest in the sense that it can be considered a mere aid to resolving uncertainty about the true intent of the legislature.
A recent example of such modest use of the presumption may be found in the Canadian counterpart to Teoh and Tavita, that is Baker v Canada.[19] In that case, the Supreme Court of Canada achieved a similar result to those cases on the basis of reading a statutory reference to “compassionate and humanitarian grounds” for exceptions to normal immigration rules as including a requirement to consider the interests of any affected children as a primary consideration.
The use of presumption is no longer modest, and instead becomes assertive, where it abandons that criterion of consistency with the true intention of legislators, so far as that can be ascertained. That is, where a meaning supported by the presumption is adopted in the face of positive evidence supporting a contrary or inconsistent intention. In such a case, the presumption no longer functions as an aid to ascertaining true intention. Instead, it is used to obstruct that true intention. A clear example of such assertive use of an interpretive presumption is the approach adopted by the English courts in applying s 3 of the Human Rights Act 1998 (UK), which requires other legislation to be read consistently, so far as it is possible, with the European Convention on Human Rights which is incorporated by the Act. In several cases, the courts have decided that this requires adoption of a Convention-consistent meaning even if it is quite clear that that was not what Parliament intended, provided only that no excessive violence is done to the language.[20]
In other words, the line between the modest and assertive use of the presumption is drawn by reference to whatever evidence is available of Parliament’s true intention. The use is modest so long as the meaning supported by the presumption is at least as plausible as any other available meanings, judged by reference to the available evidence of true intention. The use of the presumption is assertive wherever the meaning supported by it is less plausible than other available meanings, judged by reference to the available evidence of true intention.
This is where we may return to consider the limits to the use of presumptions identified in some of the older cases. I would suggest that these limits were intended to ensure adherence to the legislature’s intention, but that the notion of that concept reflected in those limits is in need of updating and democratizing. To say that the presumption may be used only to resolve ambiguity is really just another way of putting my definition of modest use of the presumption above: a provision is ambiguous if there is more than one equally plausible meaning. However, the crucial question is how such ambiguity is to be determined. To the extent that the older cases adhering to this criterion insisted on strict linguistic ambiguity, the criterion does not fully serve adherence to the legislature’s true intention. Ambiguity is an appropriate criterion from the perspective of democratic principle if the plausibility of various possible meanings is judged not just by reference to the words of the provision, but by determining the likely expectation of a legislator who voted for the provision faced with all of the information and arguments available at the time.
A similar analysis may be made of the supposed rule that the presumption may not be used to read down the scope of discretionary powers conferred by legislation.[21] While a court cannot intervene in a decision-maker’s exercise of judgment within the legal scope of the discretion conferred by the statute, the question of the legal scope of the discretion assuredly is for the court to determine by a process of statutory interpretation – indeed that is a large part of administrative law.[22] There is no a priori reason why an interpretive presumption may not be used to assist in that definition of the legal scope of the discretion. Conversely, cases involving no discretion are no less about administrative law and about reading down the scope of a power. For example, Al-Kateb involved interpretation of a statutory duty to detain; the question as to the scope of that duty was still an administrative law question. Use of interpretive presumptions in such cases may be just as assertive, as indeed it was in the Al-Kateb minority judgments, as we shall see.
Again, as with the ambiguity criterion, the question is how the limits on the legal scope of the discretion are to be determined. To the extent that the older cases adhering to this limit rejected any criteria other than those expressly or impliedly dictated by the words of the empowering legislation, this limit may not accurately reflect the legislature’s true intention. However, a rule against reading down the scope of discretion in reliance on interpretive presumptions serves the legislature’s true intention if the scope of discretion is determined by the test set out above, that is by determining the likely expectation of a legislator who voted for the provision faced with all of the information and arguments available at the time.
In Sellers v Maritime Safety Authority,[23] the Director of Maritime Safety had power under s 21(1)(b) of the Maritime Transport Act to grant or deny any pleasure craft the required permission to depart a New Zealand port for an overseas voyage, depending on whether the Director was satisfied as to the adequacy of the craft’s safety equipment. To facilitate the exercise of that power, the Director had adopted certain minimum requirements, including carrying a radio and an emergency locator beacon.
Mr Sellers, whose yacht was registered in Malta, challenged those requirements when he was convicted of a breach of s 21 after departing New Zealand both without seeking the required permission at all and without carrying the required minimum safety equipment.[24] The Court of Appeal upheld the challenge on the basis that applying the latter requirements to a foreign-registered vessel infringed the international law freedom of the high seas,[25] and that the statutory power was to be read subject to that law by virtue of the presumption of consistency. The Director’s apparently broad and unqualified power to refuse permission to depart on the grounds of inadequacy of the safety equipment could be exercised in relation to foreign-registered vessels only to the very limited extent that international law permitted port states to exercise such powers, and the Director’s minimum requirements went well beyond what was permitted in that regard.[26] Accordingly, the application of the requirements to a foreign-registered vessel was outside the Director’s statutory power, and the conviction for breach of those requirements could not stand.[27]
In justifying this approach, the court considered it well established that legislation governing maritime matters must be read consistently with international maritime law wherever possible.[28] Moreover, the governing legislation, while not incorporating the relevant international law as such, included a variety of provisions indicating an intention that it should be interpreted so as to give effect to international maritime law.[29] Thus the application of the presumption was supported by positive indications of Parliament’s intention to implement international law in this context.
However, it remains highly doubtful whether the reading adopted in reliance on the presumption was as plausible in terms of the true legislative intention as others.[30] First, there is the fact that the interpretation conflicts with the plain words of the provision.[31] Although the conflict between the provision and the express purpose of enabling implementation of international law may cast some doubt on the plain meaning, the normal rule of thumb is that a specific provision overrides a general one.
Moreover, the express provisions for giving effect to international law may even be prayed in aid of the contrary argument. The purpose provision in the long title merely states that the Act is intended to “enable” the implementation of international maritime agreements. And perusal of the substantive provisions of the Act suggests that the way that purpose was put into action was by making various specific powers and functions subject to particular relevant international obligations.[32] But no such requirement appears either in the provision conferring the powers and functions of the Maritime Safety Authority generally, nor in s 21. Keith J even remarks on this, noting that “this case would have been much easier” but for that omission.[33] What he does not mention is the possible argument that the omission may have been deliberate; it certainly does not go without saying that in an Act which makes such specific provision for giving effect to international law, further provision should be implied where it is missing.
Finally, the purpose of the provision in question must have been to reduce the need for wasteful marine search and rescue operations caused by ill-equipped vessels within the large part of the Pacific Ocean for which our small nation has search and rescue responsibility.[34] If that is correct, the court’s decision excluding foreign-registered vessels from the reach of the power defeated that purpose to a significant degree, since foreign-registered vessels must make up a large proportion of vessels in the relevant waters.
In a more recent decision, the new Supreme Court may be taken to have confirmed and applied the Sellers approach, although the authority of the decision on this particular point may be subject to some qualifications. Attorney-General v Zaoui [35] is the latest in a series of rulings concerning the detention and proposed deportation of an Algerian refugee.[36] Mr Zaoui is the first ever person to be subject to a “security risk certificate” issued by the Security Intelligence Service under Part 4A of the Immigration Act 1987, a set of provisions designed to facilitate deportation of newly arrived persons who are considered to pose a security threat. The main question before the court this time around concerned the Inspector-General of Security and Intelligence. This statutory officer is currently in the process of reviewing the validity of the security risk certificate on application by Mr Zaoui, as provided in the statute. The question was whether as part of that review, he had to take Mr Zaoui’s human rights into account, beyond his rights under the Refugee Convention[37] which is expressly incorporated by the relevant provisions.[38] The court’s answer to that question was in the negative, given the limited scope and purpose of the review.
However, the Court went on to consider the position that would pertain if the security risk certificate was confirmed on review. Section 114K provides for further processing of the case within a strict time frame once a security certificate has been upheld on review. The Minister has only three days in which to decide whether to rely on the certificate.[39] If she does decide to rely on the certificate, the chief executive of the Department of Labour is then required to “ensure” that a deportation order is issued and the person is deported “immediately” and “without further authority”.[40]
The Court considered the relevance of Mr Zaoui’s human rights at this post-review stage of the statutory process in some detail, concluding that the power to deport was not merely subject to an obligation to take those rights into account,[41] but was limited by those rights to the extent that it was not available at all where deportation would amount to a breach of those rights.[42] The rights relied on were the right to life and the right against torture as protected by sections 8 and 9 of the New Zealand Bill of Rights Act 1990, Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR)[43] and Article 3 of the Torture Convention.[44] According to the Torture Convention and the interpretation of the ICCPR rights set out in a General Comment of the United Nations Human Rights Committee,[45] a state breaches those rights not only by itself engaging in torture or arbitrary deprivation of life, but also by deporting persons to countries were there are substantial grounds for believing the person would be in danger of such treatment.
The Court held that the ultimate decision on deportation was not made by the Minister under s 114K at all. Rather, the Minister’s decision to rely on the certificate merely triggered the power of deportation conferred on the Governor-General in Council by a different provision, s 72. In the exercise of that power, “no pressing prescriptive time requirement” applied, full enquiries could be made and due process had to be observed.[46] Most importantly, the s 72 power to deport could and should be read consistently with the above rights. The Bill of Rights Act provisions had to be read consistently with international law in this regard, given that the Act was passed expressly to give effect to the ICCPR. The power to deport under s 72 in turn, if possible, had to be read consistently both with the Bill of Rights Act (as required by s 6 of that Act) and with the international law (expressly citing and applying the judicial presumption in Sellers). As there was nothing in s 72 which prevented such a consistent reading, the power to deport was not available where it would breach the international law prohibition on deportation to any country where the person faced possible torture or death.[47]
The Bill of Rights Act played a significant role in this case, effectively as a stepping stone between the power in question and the relevant international law. The use of the presumption of consistency to amplify the rights in the Bill of Rights Act by reference to the international law which that Act is designed to implement[48] is neither novel nor startling.[49] Once that is accepted, the limit which the Court read into s 72 could be justified purely on the basis of the express requirement in s 6 of the Bill of Rights Act to read other legislation consistently with the Bill of Rights where this can be done. However, while the ICCPR is expressly affirmed by the Bill of Rights, the same is not true of the Torture Convention, nor, arguably, of the General Comment which interprets the relevant Articles of the ICCPR consistently with the Torture Convention. In any event, the Court’s reasoning was not strictly limited along the lines just suggested. It expressly considered s 72 should be read consistently not only with the Bill of Rights but also directly with the relevant international law. It also cited Sellers in support of that proposition, which would have been quite unnecessary if the basis of the ruling was to be no more than the suggested orthodox Bill of Rights reasoning. The Supreme Court’s decision on this aspect of the case thus does represent an application of the presumption of consistency with unincorporated international law. It should also be noted that the Crown had conceded that the Minister’s power had to be exercised consistently with relevant human rights obligations;[50] but this can hardly have dictated the conclusion the court reached.
So did Zaoui represent an assertive use of the presumption? Once again, as in Sellers, some support can be found for considering the meaning adopted to be consistent with Parliament’s true intention. Most importantly, the Bill of Rights Act is clearly relevant and important context. But as has been noted, that Act itself does not necessarily require the position adopted.
The reading down of the apparently strict terms of s 114K was probably inescapable because the section could not really operate on its terms. The chief executive has no power to issue a deportation order. Hence, contrary to the apparent intention of s 114K, reference to another section that does provide such a power, such as s 72, was probably necessary, involving a further decision after those in s 114K. However, assuming it was necessary to read such a qualification into s 114K, that does nothing to justify the further qualification read into s 72. One would think that even if the terms of s 72 itself seem general and permissive enough to permit some reading down, such reading down would be particularly inappropriate in a context where the section’s operation is triggered by s 114K with its clear sense of urgency, and by the Minister’s decision under that section to rely on the security certificate. While the assumption in s 114K that the chief executive has any power to ”ensure” that a deportation order is issued is erroneous, surely that provision strongly points to an intention that whoever does have the power to the order should do so – in other words, the s 72 power in this context should arguably be read as leaving very little scope for discretion as to whether to deport.[51] Yet the court takes the opposite view: not only is there a full obligation to consider all the arguments for and against deportation, but the power to decide in favour of deportation is positively excluded where it would be inconsistent with Article Three of the Torture Convention.
In this regard, it is relevant to note that Mr Zaoui, despite his confirmed refugee status, is not assisted by the Refugee Convention, the one international instrument that is expressly incorporated into the Immigration Act. The grounds for his proposed deportation are that he poses a “danger to the security” of New Zealand. The Refugee Convention, being an earlier instrument less fulsome in its protections than the other instruments referred to above, permits the deportation of refugees on this ground.[52] It might be argued that Parliament in expressly incorporating this convention, at a time when it must have been aware of the existence and relevance of the other two treaties relied on by the court, must be taken to have decided not to implement those other treaties in this context. In turn, the failure to do so may be taken as one piece of evidence that Parliament intended national security to override an individual’s rights and safety in the event of an irreconcilable clash between the two, contrary to the interpretation adopted by the court. In conclusion, while the evidence is not all one way, at the very least there must be doubts whether the interpretation adopted is as plausible in terms of the legislature’s true intention as other available interpretations. As Geiringer has noted, “[t]he ease with which the court concluded that the statutory scheme did not preclude this approach is striking.”[53]
Al-Kateb v Godwin[54] concerned the provision in s 196 of the Migration Act 1958 (Cth) for mandatory detention of unlawful non-citizens pending their removal (or other events of no present relevance); the other crucial provision was the requirement in s 198 to achieve removal “as soon as reasonably practicable”. The question was whether this provision continued to apply to a stateless person such as Mr Al-Kateb once it had become apparent that there was no reasonable prospect of removal in the foreseeable future due to lack of cooperation from any potential receiving countries, at which point such detention took on a long-term and indefinite character. By a majority of four to three, the High Court held that the provision continued to apply regardless, until such point in time when removal became “reasonably practicable”.[55]
The presumption of consistency with international law, the relevant international law here being the ICCPR prohibition on arbitrary detention, was one of two presumptions relied on in favour of the appellant. The majority judges showed little enthusiasm for this presumption but did not reject its validity or existence as such. McHugh J expressly accepted that it was part of the law and could not be judicially abandoned, while criticizing it as a fiction, given that the legislature could not possibly be aware of all of the vast bulk of modern international law. The other majority judges all reserved their position on the question. All four agreed that there was simply no room for any such presumption to operate, since the provisions were perfectly clear and unambiguous. Not only does s 196(1) clearly require detention until removal; this is further confirmed by s 196(3) which prohibits release, “even by a court” before removal; any attempt to qualify this by finding that the statutory purpose was limited to removal was also rejected. Thus the majority decision in this case provides no support at all for assertive use of the presumption: assuming it exists, it cannot be used to qualify clear statutory language.
The support for an assertive use of the presumption of consistency with international law is to be found in the dissenting judgment of Kirby J, the only one of the dissenting judges to discuss this presumption at all. He agreed with the other minority judges that the requirement of detention could be read down by reference to its purpose of removal and by relying on another presumption, the presumption that Parliament does not intend to legislate for indefinite detention. On such a reading, the requirement of detention expired once it became apparent that removal would not become “reasonably practicable” in the foreseeable future. However, he also considered that such reading down was further supported by the presumption of consistency with international law.
The question is whether Kirby’s proposed use of the presumption would qualify as assertive according to my distinction. To the extent that Kirby J relied on the presumption to confirm an interpretation based on the legislative purpose, his use of it would seem to be quite the opposite of assertive. However, he made it clear that in his view, the concept of legislative purpose has little or nothing to do with the legislature’s true intention as I have defined that concept: purpose is an “objective construct” that is determined by applying the relevant interpretive presumptions.[56]
In all three minority judgments, the conclusion that removal is the sole purpose of detention is based on a reading of the immediately relevant provisions against the background of those presumptions. There is no inquiry into any other evidence of the legislature’s true intention. Sometimes, taking a common sense view of the only purpose that a provision could possibly have been intended to serve is a valid approach for determining the legislature’s intention, particularly if no other evidence is available.[57] However, in this case, it was just as plausible to contend that the intention was to ensure that unlawful citizens did not enter the community.[58] Perhaps the question is finely balanced. Yet the very uncompromising wording of the provisions, together with the absence of any extrinsic evidence contrary to the natural meaning of those words, may well tip that balance rather decisively against the minority position.
The two New Zealand decisions and the dissenting judgment of Kirby J in Al-Kateb represent relatively assertive uses of the presumption. In none of these cases is the presumption used to support an interpretation that lacks any other support and is contrary to all other available evidence of intention. Yet in each case there is a strong argument that the interpretation adopted in reliance on the presumption is not the most likely or plausible interpretation in terms of the legislature’s true intention.
The question to be explored in the remainder of this paper is whether the new assertive use of the presumption of consistency with international law case is justified in terms of democratic legitimacy, and if so, when. I should declare at the outset that I personally have serious doubts about its justification, at least in most of the contexts where it has so far been applied or proposed.[59]
The assertive use of the presumption represents a significant qualification to Parliamentary sovereignty. It is true that sovereignty is ultimately preserved because the presumption remains rebuttable by legislative language that is not amenable to a consistent reading; Parliament retains the last word. [60] For example in Al-Kateb, although it may seem difficult to conceive of clearer language than s 196, the intention to oust any possible application of the ICCPR could have been put beyond doubt by an express reference to that convention and express statement of the intention to derogate; that would surely have precluded use of the presumption even in the view of the minority judges.[61] But it is equally undeniable that the use of the presumption to obstruct Parliament’s will, rather than to aid determination of it, is a significant qualification on sovereignty.
The best way to approach the question whether such a qualification to Parliamentary Sovereignty can be justified is to go back to first principle and ask why we should adhere to the doctrine of Parliamentary Sovereignty at all. The answer must be that it flows from the ideal of democracy. According to that ideal, ultimate sovereign power lies with the people. Therefore ultimate political power should lie with the branch of government that represents the people and is accountable to them, that is Parliament. That, of course, is why in part II., I argued for assessing uses of the presumption by reference to how much weight they accord to Parliament’s true intention.
The democratic argument for Parliamentary sovereignty is that the courts are neither representative nor accountable and thus cannot claim power to override Parliament’s acts. The argument for dualism, that is against domestic enforcement of unincorporated international law obligations, is that the courts should not allow the executive to change the law of the land by the agreements it enters into with foreign powers.[62] While the executive, like Parliament and unlike the courts, is representative and accountable by virtue of the conventions of responsible government, it is less directly representative and accountable than Parliament. Ultimate political power should lie with the branch of government which not only represents the people but does so most directly, and which not only is accountable to them but is so most directly, that is Parliament, not the executive. The assertive use of the presumption of consistency with international law stops short of actual judicial enforcement of the obligations assumed by the executive, but as noted, it serves to obstruct legislation that contravenes those obligations.
However, there is room within this argument for some qualifications. The very starting point, that ultimate power lies with the people, may require some qualification. It is quite arguable that this ultimate power has limits. Probably the strongest argument is in favour of limits that preserve the foundations of democracy itself, such as lack of power to abolish the institution of a Parliament with full law-making powers and subject to periodic elections. Limits considered inherent in the ideal of democracy may also be defended, such as lack of power to abrogate freedom of speech and other fundamental rights essential to democratic participation. To the extent that the power of the people is thus limited, Parliament’s sovereign power to legislate must also be limited. Up to this point I agree entirely with our most prominent advocate of limits to Parliamentary Sovereignty in New Zealand, who is now Lord Cooke of Thorndon.[63] Such arguments help justify any judicial enforcement of such fundamental principles or rights, including limited enforcement by way of assertive use of the relevant interpretive presumption (which is now commonly referred to as the “principle of legality”[64]). This sort of argument might conceivably be extended to support limits derived from at least some parts of international law.[65] If so, it would help justify the assertive use of the presumption of consistency with international law obligations to that extent.
But there is a second hurdle. Just because there are limits to what Parliament can legitimately do, that does not automatically mean that the courts must have any power to enforce those limits, whether full enforcement power or power to make assertive use of an interpretive presumption. In the absence of convincing justification for giving the courts that power, it is just as possible to argue that the limits on what Parliament can legitimately do are limits which it is incumbent on Parliament to observe for itself.
That is perhaps an even stronger argument in a system like yours where the constitution, embodying the will of the people who voted to be governed pursuant to it, enshrines the separation of powers. That constitution gives the High Court the power and responsibility to enforce limits on legislative power that are provided by the Constitution. These constitutional limits have been held to include implied limits as well as explicit ones, such as the implied right to freedom of political speech.[66] However, if a supposed limit on legislative power cannot be found implied in the constitution, then the courts would be exceeding their own constitutional powers if they still purported to enforce such a limit. Kirby J himself made an argument along these lines in a recent public lecture.[67] A limit to legislative power that is not provided expressly or implicitly in the constitution may still be a valid limit, but arguably it would have to be one that it is incumbent on Parliament to observe for itself.
This notion of limits on the powers of an institution that are not enforceable by any other institution seems incoherent to many. Yet one only has to ask whether there are limits on what the High Court of Australia or our New Zealand Supreme Court can legally or legitimately do. I would suggest the answer is that there are such limits, despite the fact that there is no agency in either of our systems that has power to enforce those limits against our highest courts.[68] The limits are of necessity somewhat ill-defined (where exactly is the line between interpretation and legislation?), but there are plenty of uses of the courts’ powers which would obviously fall outside those limits; say, a court taking it upon itself to order Parliament to be dissolved and to prohibit the calling of a fresh election, to take a suitably extreme example. The courts would not dream of doing such things, and if they did, they would risk all manner of obstacles, which might include finding their decision simply ignored. My suggestion is that it is perfectly plausible to argue that there are limits on the power of Parliament that operate in the same fashion, without enforcement by the courts or any other institution.
If this is correct, then the question about the democratic legitimacy of the assertive use of the presumption has to be asked in two stages. The first question is whether our respective countries’ obligations under international law represent limits to the ultimate sovereignty of the people and therefore limits to the sovereign law-making powers of our Parliaments. The answer to this question may well vary according to the type of international law obligation in issue. The second question is whether the courts may legitimately contribute to holding Parliament to any such limits, to the extent of obstructing Parliamentary attempts to disregard those limits.
I will consider these two questions in turn, although it will be seen that is not always easy or even possible to assign relevant factors to one or the other question.
Broadly speaking, international obligations fall into two groups, conventional international law (treaties and similar agreements) and customary international law. It may be appropriate to start by considering each of these in turn to see whether it can be considered to constitute limits on Parliament’s powers.
As regards conventional international law, it might be argued that all international treaty obligations represent limits on the ultimate sovereignty of the people and hence on Parliament’s powers. First, the executive which undertakes these obligations is elected by the people, albeit indirectly, to exercise certain functions including the conduct of foreign affairs.[69] It is also relevant to note that Parliament now has some input into the approval of treaties.[70] Secondly, these obligations are undertaken on the basis that the benefits to the country outweigh the burdens involved. As the people collectively enjoy these benefits, they cannot at the same time reject the burden.
As against this position, the argument already indicated above is that while the executive is indirectly elected among other things to conduct foreign affairs, that function has always been understood as limited to changing the country’s position vis-à-vis other states, with changes to municipal law being reserved for Parliament, which represents the people most directly. On that basis, unincorporated treaty obligations may not qualify as limits on Parliament’s powers, at least not as a matter of course, although perhaps this argument could instead be taken as an argument about enforceability by the courts rather than about the existence of limits as such. In any event, I will return to the question whether some types of treaty obligations may still qualify as limits.
The status of customary international law in domestic law differs from that of conventional international law. The basic rule is that customary international law is automatically incorporated as part of the domestic common law.[71] However, it clearly does not follow that it limits the power of Parliament: after all, the common law does not as a rule limit the power of Parliament. While there is old authority for a presumption of consistency with the common law, that must surely be considered outdated and inconsistent with democratic ideals.[72] Parliament must have full power to override previously existing common law.
However, I have already noted that there may be justification for treating fundamental rights as limits to Parliament’s power. Such rights may form part of the common law, and to that limited extent, the common law may indeed be said to limit Parliament’s power. If that is correct, then customary international law incorporated into common law could qualify for the same treatment, but only where it can be said to reflect or to be in the nature of fundamental rights. This may well be the case for the most fundamental and most universally accepted rules of customary international law, known as ius cogens or peremptory norms. But there is much less, if any, justification for applying the same treatment to all rules of customary international law.
It is not clear whether this approach would support the decision in Sellers. While the international obligations relied on in that case were found in treaties, those treaties codified the customary freedom of the high seas. This was described as “one of the longest and best-established principles of international law”,[73] but not in terms as ius cogens. Nor, presumably, would it be considered a fundamental right.
Returning to unincorporated treaties, if both the common law and customary international law qualify as limits to Parliament’s power to the extent that they protect or reflect fundamental rights or values, then perhaps a similar argument is appropriate in relation to those unincorporated treaty obligations that enshrine or reflect fundamental rights or values.[74] Some support for using the presumption of consistency with international law obligations in favour of this limited class of unincorporated treaty obligations and no further can indeed be found in the case law. Gaudron J in Teoh considered that the Convention relied on there was relevant only because it reflected fundamental values of our society.[75] Conversely, it has been held that even unratified international treaty obligations may be relevant if they reflect fundamental values.[76] If this suggestion is accepted, then the decisions in both Al-Kateb and Zaoui may pass the first hurdle of showing that the obligations relied on there could be considered to limit Parliament’s power.
Two further points are appropriate in this connection. First, if unincorporated treaty obligations are to be recognized as limiting Parliament’s power provided they fall into the category of fundamental rights or values, then that category should not be seen as limited to traditional common law fundamental rights or values. Instead, it must include fundamental rights and freedoms that are traced primarily to international law itself, so far as they have gained fairly universal acceptance.[77]
Secondly, it is arguable that only the relevant treaty obligation itself should be considered to limit Parliament’s powers. Interpretations of such treaty obligations by relevant international bodies[78] are an important source of international law but arguably cannot be considered entitled to the same respect as the treaty obligation itself.[79] By way of analogy, it may be noted that the Human Rights Act 1998 (UK), while incorporating the European Convention of Human Rights, requires decisions of the European Court of Human Rights on the interpretation of that Convention to be taken into account, but no more.[80] If this limit is accepted, then that may raise doubts about the reliance in Zaoui on the expanded interpretation of the ICCPR right against torture contained in a General Comment.
Finally, the Sellers case may suggest consideration of a different category of obligations altogether. The court’s emphasis on the maritime context in justifying use of the presumption[81] may perhaps suggest that it is particularly appropriate to consider international law obligations binding in that context and other similar contexts with an inherently international flavour. However, while international obligations will clearly be particularly relevant in such contexts, it does not necessarily follow that they must necessarily be considered binding on Parliament. This point may merit furter attention.
The rules of international law that seem most easily justified as limits on Parliament’s power are those that enshrine or reflect fundamental rights or values, as discussed in the previous section. The basic objection to any form of judicial enforcement of such fundamental rights or values is that their application by judges raises concerns about justiciability in the broadest sense. While fundamental rights and values may perhaps be agreed by all in principle, their application in particular contexts raises highly controversial issues of social policy.[82] Unless it is thought that there are right answers to these questions and that courts have ready access to such right answers,[83] the resolution of such controversies is much better left to the democratic political process, which is designed precisely for that task. Courts lack both the institutional competence (access to information and relevant expertise) and the democratic legitimacy for making these choices.[84] To reiterate my basic point about judicial enforcement, the issue here is not whether Parliament should refrain from doing certain things, but whether it should be up to the courts to stop Parliament. It is relevant to note in this context that after the unsuccessful legal challenge in Al-Kateb, the government moved to create some exceptions to mandatory detention for stateless persons, and to review the mandatory detention laws more generally.[85]
However, even if this argument is accepted, there may still be more limited arguments in favour of a judicial contribution to enforcement in certain cases. I will touch on three of these. First, I have already made reference to the assertive use made by the English courts of s 3 of the Human Rights Act 1998 (UK).[86] Section 3 expressly requires courts to interpret other legislation consistently with the Convention rights incorporated by the Act. Although this is supported in part by the fact that the relevant treaty obligations are incorporated and thus have effect in domestic law, it also illustrates that the assertive approach is most easily justified if there is an express statutory mandate for the presumption.[87] While the orthodox doctrine of Parliamentary sovereignty denies any effect to such provisions on the basis that each new Parliament has full power to make law irrespective of pre-existing law,[88] at least the sanction of the earlier Parliament must improve the democratic legitimacy of the limited form of judicial enforcement represented by assertive use of the presumption.
However, such express statutory mandates are few and far between, and none was available in either Al-Kateb or Sellers. In Zaoui, there was such a provision, namely s 6 of the New Zealand Bill of Rights Act. However, the direction in that section related directly only to the relevant right in the Act, while the Court’s decision relied crucially on two international instruments that are not directly incorporated or even “affirmed” by the Act. The extent to which the use of the presumption was supported by s 6 is thus open to argument.
The second argument is of particular interest because it provides support for judicial enforcement specifically in the form of the assertive use of presumptions. The argument runs like this. The effect of such assertive use of presumptions is to force drafters to be very explicit and upfront about any intention to abrogate relevant rights or obligations. This in turn serves to facilitate political accountability for any such abrogation: legislators will be left in no doubt as to the abrogation of rights to which they are being asked to consent, and the public similarly will be alerted and have the opportunity to make their views known.[89] If the measure is still passed, then it is as a product of a full and legitimate democratic process. This argument also envisages the courts playing a limited role in a “constitutional dialogue”[90] about the nature and scope of the relevant obligations. The courts are the “junior partner”[91] in the dialogue since the last word is with Parliament, but nevertheless their opinion on the nature and scope of the obligation may be considered a valuable contribution. This is the argument commonly made in support of the “principle of legality”[92] and in support of interpretive instructions in statutory bills of rights. Personally, I think this is the strongest and most valid argument in favour of this limited form of judicial enforcement of limits on Parliament’s powers.
However, I would argue that this argument does not necessarily work in relation to all international law obligations, for two reasons. First, the argument presupposes that the obligation in question is of sufficient public or political concern to attract significant attention when expressly overridden. That is once again most likely where fundamental rights or values are concerned, providing a further reason for limited judicial enforcement of that kind of obligation. Where no significant attention is likely to be attracted, there is little point in the courts purporting to facilitate democratic accountability. Even fundamental rights or values may sometimes fail to attract enough attention where the context is too far removed from the concerns of the majority. The rights of refugees, which were the concern in Al-Kateb, may perhaps fall into that category. Yet in such cases, forcing legislative derogations to be made explicit may instead attract the attention of relevant international human rights bodies, which may also serve some purpose, albeit not directly that of democratic accountability.
Secondly, in cases where even explicit legislative derogation is unlikely to attract much attention, futility of the judicial attempt to facilitate accountability is not the only objection. Judicial persistence in assertive use of the presumption of consistency in such cases may result in the “constitutional dialogue” deteriorating into a see-saw process where each instance of judicial obstruction is met with a renewed legislative attempt at putting the matter still further beyond doubt. The adverse consequences of such an ongoing fight between the courts and Parliament include a possible loss of public confidence in either or both branches, and convoluted legislation full of battle scars in the form of ever more specific amendments. To the casual observer, it might appear that your Migration Act 1958 (Cth) shows some traces of this.
There is also a related more general problem that would arise if there was no limit to the international obligations that might be given effect by assertive use of the presumption. Not only would it be a daunting task for drafters to identify all and any international obligations that might be considered relevant to a bill and draft appropriate explicit derogations from any that might detract from the intended operation of the Act,[93] but this might result in littering the statute book with explicit derogations inserted out of an abundance of caution.
The third and final argument in favour of limited use of the presumption is of a rather different kind. It has been argued[94] that objections to the assertive use of the presumption as illegitimate judicial interference may be allayed by introducing some judicial deference. Rather than reading down the scope of a power based on the court’s own interpretation of a relevant fundamental right protected by international obligations, the court should require decision-makers who appear to be exercising their powers in breach of relevant international obligations to justify their actions. Such justification might claim either that properly understood, the obligation is not infringed at all, or that in the circumstances the infringement is defensible (most likely by using a proportionality test). The court should exercise deference by holding the action to be unlawful only if the justification offered for it fails to cross the required threshold of cogency. This proposal may well merit further consideration. None of the three main cases discussed here used the presumption on this basis; in each, the court simply read down the scope of the power by reference to its own interpretation of the relevant international obligation.
In summary, the various arguments canvassed in the previous two sections may be put together to conclude that the assertive use of the presumption of consistency with international law is most likely to be legitimate in cases which combine the following three features. First, the international obligation in question incorporates or reflects some fundamental right or value. If so, there is justification for considering the obligation to represent a limit on Parliament’s power, thus providing the pre-condition to any judicial enforcement. Moreover, it is in the case of such obligations that forcing drafters to provide explicitly for any abrogation is likely to attract significant public and political concern to warrant the judicial attempt at facilitating democratic accountability. Secondly, in cases where the first criterion is met, legitimacy of assertive use of the presumption is further improved where statute expressly mandates such a presumption. Thirdly, the use of the presumption would be more legitimate if it was applied with some deference to the decision-maker’s interpretation of the relevant obligation.
The fewer of these criteria are met, the more difficult it must be to justify assertive use of the presumption. Not one of the three main cases discussed in this paper meets the third criterion, only Zaoui may possibly meet the second, and Sellers may not even meet the first, thus helping to explain why all of them are controversial. More generally, my conclusion is that it would be very difficult indeed to justify a blanket approach of using the presumption assertively in support of all international law obligations, and that more work is still needed to identify proper criteria for its use.
[1] (2004) 78 ALJR 1099.
[2] (1995) 128 ALR 353.
[3] [2003] HCA 6; 214 CLR 1.
[4] [1994] 2 NZLR 257 (CA).
[5] Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at [p?]; New Zealand Airline Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 189.
[6] C Geiringer 'Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law' (2004) 21 NZULR 66 .
[7] A point referred to as a “curiosity” in Lam, above, at [101] per McHugh and Gummow JJ.
[8] Teoh, above, at 363.
[9] [1999] 2 NZLR 44 (CA).
[10] [2005] NZSC 38; the Supreme Court’s second decision in this protracted litigation. See also Airline Pilots, where the plaintiff’s attempt to invoke the presumption failed but the court still acknowledged the general availability of the presumption.
[11] Lam, above, esp. at [95] per McHugh and Gummow JJ and at [145] per Callinan J.
[12] Ibid at [147] per Callinan J; see also at [102] per McHugh and Gummow JJ.
[13] Brind v Secretary of State for the Home Department [1991] 1 All ER 720 (HL) at 723 per Lord Bridge, 734 per Lord Ackner.
[14] Claims that these limits represent the traditional or orthodox position have been attacked, e.g. in D Dyzenhaus, M Hunt and M Taggart 'The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation' (2001) 1 OUCLJ 5 at 26. Nothing in this paper turns on any such claim.
[15] Cf J Evans 'Questioning the Dogmas of Realism' [2001] NZ Law Rev 145, 158 - 159. [Also look up his ‘Sketch of a Theory of Statutory Interpretation’ [2005] NZLRev 449-465]
[16] Contrast the very different ‘objective’ test proposed by Kirby J in Al-Kateb, above, where he rejected any focus on what legislators actually intended, and asserted that Parliamentary purpose is an “objective construct” to which legal presumptions are just as relevant as other factors. [get para ref & confirm detail]
[17] Jim Evans, above, labels this a “general qualifying doctrine”.
[18] At [63] – [65].
[19] (1999) 174 DLR (4th) 193 (SCC).
[20] E.g. Ghaidan v Godin-Mendoza [2004] 2 AC 557 (HL).
[21] Brind, above.
[22] Dyzenhaus et al, above, at 26.
[23] [1999] 2 NZLR 44 (CA).
[24] A challenge based on undue fettering of the Director’s discretion by adoption of the minimum requirements was left to one side as being unnecessary to decide (at 62). Given that Mr Seller did not apply for clearance at all, thus providing no opportunity for proper attention to be given to his individual circumstances, that challenge probably was fairly weak.
[25] As codified in Art 92 of the United Nations Convention on the Law of the Sea of 1982 and elaborated by various other international agreements.
[26] Sellers, above, at 62.
[27] The Court glossed over the fact that the conviction, strictly speaking, was for failure to seek permission, not just for failure to comply with the minimum requirements: see J Evans ‘Questioning the Dogmas of Realism’, above.
[28] Sellers, above, at 57, 61, 62.
[29] Ibid, at 57 – 59.
[30] Evans, above; T Dunworth 'Public International Law' [2000] NZ Law Rev 217; JF Burrows, Statute Law in New Zealand (3rd ed, 2003) at 337 – 338.
[31] Evans, above.
[32] See Sellers, above at 57 – 58.
[33] Ibid at 57.
[34] Sellers, above, at 48 – 49. The area is approximately six million square miles.
[35] [2005] NZSC 38. This is the Supreme Court’s second decision in this saga, after earlier ordering Mr Zaoui’s release on bail.
[36] Mr Zaoui has been granted refugee status by the Refugee Status Appeals authority [ref?].
[37] Convention Relating to the Status of Refugees (28 July 1951) 2545 UNTS 189, as amended by Protocol Relating to the Status of Refugees (31 January 1967) 8791 UNTS 606.
[38] Immigration Act 1987, part 6A and references to this in part 4A.
[39] Immigration Act 1987, s 114K(1).
[40] Ibid, s 114K(4).
[41] That would have been the Tavita approach.
[42] Zaoui, para 64.
[43] (19 December 1966) 999 UNTS 171.
[44] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (26 June1987) 1465 UNTS 85.
[45] UN Human Rights Committee General Comment No. 20 (1992). [check]
[46] Ibid, para 65.
[47] Zaoui, paras 63 - 64.
[48] See the long title para (b).
[49] See generally Rishworth et al, The New Zealand Bill of Rights, 61 – 65.
[50] C Geiringer 'Zauoi revisited' [2005] New Zealand Law Journal 285 at 288.
[51] Ibid at 288.
[52] Article 33.2.
[53] Geiringer, “Zaoui” at 288.
[54] (2004) 78 ALJR 1099. [add para refs in this section]
[55] Per McHugh, Hayne, Heydon and Callinan JJ; Gleeson CJ, Gummow and Kirby J dissenting.
[56] At [167] – [168]. He certainly has a point in rejecting McHugh’s preferred limitation of the presumption to cases where Parliament was actually aware of the relevant obligation at the time: as noted earlier, such a use of the presumption would be a mere factual presumption, the most modest version. In contrast, Kirby J’s statement clearly indicates preference for the most assertive use.
[57] Burrows, Statute Law in NZ at 149.
[58] See Allan, ‘Do the Right Thing Judging’; also one of majority judgments?
[59] See the parts III.B. and C. for discussion of when, if ever, there may be a stronger argument in favour of this use.
[60] Geiringer; Dyzenhaus, Hunt and Taggart; Hunt (1997).
[61] That is the extent of ‘express’ language courts have required in some cases to override other presumptions, such as the ‘principle of legality’: see R v Lord Chancellor ex p Witham [1998] QB 575 ;Coco v The Queen (1994) 179 CLR 427 (HCA) at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.
[62] E Willheim 'Globalisation, State Sovereignty and Domestic Law: The Australian High Court Rejects International Law as a Proper Influence on Constitutional Interpretation' (2005) Asia-Pacific Journal on Human Rights and the Law 1 at 16.
[63] Sir Robin Cooke 'Fundamentals' [1988] New Zealand Law Journal 158.
[64] See e.g. Al-Kateb per Gleeson CJ at [19] – [21]; Hon JJ Spigelman AC 'Principle of legality and the clear statement principle' (2005) 79 Australian Law Journal 769.
[65] D Dyzenhaus, M Hunt and M Taggart 'The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation' (2001) 1 OUCLJ 5 at 27 – 34.
[66] Lange.
[67] M Kirby 'Deep Lying Rights - A Constitutional Conversation Continues' (2005) 3 New Zealand Journal of Public and International Law 195 .
[68] T Endicott 'The Impossibility of the Rule of Law' (1999) 19 OJLS 1 .
[69] Sir Kenneth Keith, 'Sources of Law, Especially in Statutory Interpretation, with Suggestions about Distinctiveness' in R Bigwood (ed), Legal Method in New Zealand: Essays and Commentaries (2001) 77.
[70] Ibid.
[71] I Brownlie, Principles of Public International Law (2003) at 41 – 45.
[72] Spigelman, above, at 777 - 778.
[73] Sellers, above, at 46.
[74] Dyzenhaus et al, above, at 33.
[75] Teoh, above, at 376
[76] Pearce and Geddes, Statutory Interpretation in Australia (5th ed) at [5.15].
[77] Dyzenhaus et al, above, at 33. A good example is the prohibition on racial discrimination on which Kirby J relied in the constitutional case of Kartinyeri.
[78] For example, General Comments issued by the United Nations Human Rights Commission.
[79] T Dunworth 'Public International Law' [2004] NZ Law Rev 411 at 418 emphasizes that different international legal sources have different weight (sources other than treaties often are not binding but merely interpretive aids), and warns that the law can be distorted where international law is used in statutory interpretation without awareness of this. Taking account of this might address some of the concerns expressed by J Allan ''Do the Right Thing' Judging? The High Court of Australia in Al-Kateb' (2005) 24 University of Queensland Law Journal 1.
[80] s 2(1) Human Rights Act 1998 (UK).
[81] Sellers, above, at 57.
[82] See e.g. J Allan ''Do the Right Thing' Judging? The High Court of Australia in Al-Kateb' (2005) 24 University of Queensland Law Journal 1.
[83] The Dworkinian position: see e.g. Law’s Empire and Taking Rights Seriously.
[84] Allan, above. Also more generally, JAG Griffith 'The Common Law and the Political Constitution' (2001) 117 Law Quarterly Review 42.
[85] Editor’s note to Allan, above, at 34.
[86] Ghaidan, above.
[87] Apart from Zaoui, there is so far only one set of cases where attempts were made to use the corresponding s 6 of the New Zealand Bill of Rights Act 1990 similarly assertively, and that was in a context where the presumption was further supported by another statutory provision protecting the relevant right “notwithstanding” any other enactment: R v Poumako [2000] 2 NZLR 695 (CA) majority obiter; R v Pora [2001] 2 NZLR 37 (CA) minority.
[88] Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590 .
[89] R v Secretary of State for the Home Department, ex parte Simms [2000]
2 AC 328 (HL) per Lord Hoffmann at 131.
[90] PA Joseph 'Constitutional Review Now' [1998] NZ Law Rev 85.
[91] Poumako, above, per Thomas J.
[92] See Simms, above, per Lord Hoffmann.
[93] M Gobbi 'Making Sense of Ambiguity: Some Reflections on the Use of Treaties to Interpret Legislation in New Zealand' (2002) 23 Statute LR 47 at 57.
[94] Dyzenhaus et al, above, 27 – 29.