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Constitutional and Administrative Law in New Zealand, 4th edition

15 August 2014

Reviewed by Jason McHerron

Twenty one years ago, Philip Joseph wrote the first specialist public law text covering constitutional and administrative law from a distinctively New Zealand perspective. In his foreword to the second edition in 2001, Lord Cooke described Professor Joseph as New Zealand’s leading public law academic, praising his book’s outstanding characteristics – balance, breadth of coverage, and helpfulness of reference. Now in its fourth edition, the book retains and enhances these attributes, clearly articulating the current state of the law, challenging dogma and suggesting improvements.

The relative stability of New Zealand’s government may explain why reviews, such as last year’s Constitutional Advisory Panel, tend to shy away from recommending dramatic change. Describing New Zealand’s constitutional journey as a “pragmatic evolution”, Joseph refers to the Constitutional Arrangements Committee’s reflection in 2005 on the national instinct to “fix things when they need fixing … without necessarily relating them to some grand philosophical scheme.” An example is women’s suffrage which, Joseph reminds us, was not enacted through a planned and principled legislative programme, but after a political strategy went awry: Seddon’s botched attempt to let the bill fail in the Upper House so he wouldn’t be blamed for its downfall.

Complacency with our constitutional institutions and arrangements may also explain why New Zealand is “the acme of legislative supremacy”. Professor Joseph has been testing the boundaries of parliamentary sovereignty for some time, following in Lord Cooke’s footsteps. Indeed, whether there are constitutional limits on the power to legislate is described as “the most pressing decision facing Westminster scholarship”. Such limits may be provided through the gathering momentum of human rights, with its tendency to leave some cases on the wrong side of history. Witness the majority judgments in the marriage equality case Quilter v Attorney-General, which Joseph subjects to a withering critique.

The stature and scope of this book ensures its regular citation in court decisions, such as the prisoner voting case Taylor v Attorney-General, where the High Court recently confirmed that it theoretically has the jurisdiction to issue a formal declaration of inconsistency of legislation with the New Zealand Bill of Rights Act. (The practical likelihood of exercise of such jurisdiction remains low, however.)

Events like the Canterbury Earthquakes bring home the importance of the rule of law as the “sentinel of constitutional government” and as “shorthand for the ideals that identify the modern democracy”. This edition re-evaluates the rule of law as a foundational norm and principle of legality. Attorney-General v Ireland is singled out as a wrong turn by the Court of Appeal. Its approval of a decision maker’s engaging in activities not authorised by its statute subverts Dicey’s first meaning of the rule of law: government according to law.

The Chief Justice has recently observed that, beyond the occasional rhetorical flourish, there has been little unpacking of the concept of the rule of law in New Zealand case law to date. And, while it seems the Supreme Court is engaging in ever more adventurous purposive interpretation, we haven’t had anything approaching a Marbury v Madison moment. At least not yet.

But, for all his championing of the rule of law, Joseph is not misty-eyed, describing s 3(2) of the Supreme Court Act 2003 (“Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”) as “ineffectual and superfluous”. It is proposed to repeal it in the Judicature Modernisation Bill, despite senior judges warning of the “risk that deletion of these elements will be seen to be a legislative choice of significance”.

Much has changed in this edition because public law, like rust, never sleeps. There is a new chapter on the sources of the constitution, and Joseph advances his positive empowerment theory of government – that all public action must be positively authorised by law. This theory inverts the so-called “third source” of authority for government action, otherwise known as “residual freedom”.

Administrative law, famously described by Sir Michael Myers as “not known to the courts” [being] “a concoction of academicians”, benefits from Professor Joseph’s clear and analytical treatment. Judicial review must remain relatively simple, untechnical and prompt. Remembering the inarticulate premise of judicial review (has something gone wrong?) will help keep it so. Concerned about terminological overload and creeping formalism, Joseph would cast aside substantive unfairness and supplement unreasonableness with proportionality. New Zealand courts have yet to embrace proportionality and recent comments by the Chief Justice illustrate ongoing diffidence.

This text pushes boundaries – for example, the High Court’s tentative approval of the reasoning in M’s case (mandatory orders available against the Crown as executive) in Paul v Attorney-General. Joseph rightly says that “[i]t beggars belief why the modern executive … should be immune from standard legal processes”. In his view, the historical immunity should be confined to the Crown as Sovereign.

Joseph laments that our attitudes to the constitution border on indifference. Recent evidence might suggest otherwise: the Constitutional Advisory Panel received over 5,000 written submissions. But the Panel’s report did conclude that more work needs to be done to ensure our constitution is better understood. The foundations for that have already been solidly laid in this book. In producing it, no one has contributed more than Philip Joseph to improving our understanding of these areas of New Zealand’s law.

Jason McHerron is a Wellington barrister specialising in public law, commercial, regulatory and competition litigation. He is an author of McGechan on Procedure and a co-author of Subordinate Legislation in New Zealand, and a member of the New Zealand Law Society’s Public and Administrative Law Committee.

Last updated on the 17th March 2016