The Legislature - Principal of Legality

Question 1

Can the courts interfere in the legislative agenda?

Answer 1

No, it is not the courts place to comment on the workings and substance of parliament. Parliament can legislate how it likes so long as it is done so legally.

See WestCo Lagan Ltd v AG

Question 2

Is parliament bound by the BORA?

Answer 2

Parliament is not bound by any piece of legislation, there is no supreme law in NZ.

Parliament may legislate laws contrary to the provisions in the BORA, outlined in S3.

If a contravention is occurring, the AG is bound to inform the house and the public as listed in S7, so that they may consider the legislation more carefully.

See WestCo Lagan Ltd v AG

Question 3

If parliament isn’t bound by the BORA, what purpose does it serve?

Answer 3

The BORA is designed to make the consequences of contravention political and not legal.

Hence S7 of the BORA, requiring a declaration by the AG to the house and the public. Making any debate will be political and any consequences, electoral.

See WestCo Lagan Ltd v AG.

Question 4

What is the Comity Principle? (Non-Interference)

Answer 4

The comity principle is outlined in British Railway Board v Pickin.

The appellants argued that parliament had been misled as a result of a procedural flaw, that parliament would not have passed the bill in question had that flaw not occurred.

The courts rejected this argument citing the comity principle. It is not the place of the courts to interfere with the machinery of parliament nor to comment on its substance.

If parliament makes a mistake, only they can remedy it.

Question 5

Is parliament bound by parliament?

Answer 5

Parliament is sovereign against past parliaments and cannot bind future parliaments.

See Vauxhall Estates.

Question 6

What is the Doctrine of Implied Repeal?

Answer 6

A legal mechanism to resolve contradictions between two acts.

These principles are laid out in Vauxhall Estates and Ellen Street Estates.

Question 7

What are the parameters of Doctrine of Implied Repeal?

Answer 7

Wherein circumstances that two acts contradict each other; the later act prevails as parliament cannot be bound by past parliaments, only the affected provisions are repealed.

This is the last port of call. It is preferable that the courts find an alternative reading of the affected provisions as to remove the contradiction.

Question 8

Define the Principle of Legality

Answer 8

Defined as the legal mechanism by which the courts may interpret statutes in such a way as to protect certain common law rights.

Question 9

In what case is the Principle of Legality established?

Answer 9

R v Secretary of State for the Home Department, Ex parte Simms

Question 10

How did the Principle of Legality come about in Simm’s?

Answer 10

In Simms, the Home Secretary tried to institute a blanket ban on prisoner interviews with the media. Interviews were only permitted if the material gained was not published.

The courts found that such a policy was unlawful. The regulations allowed for such power however the empowering act the Home Secretary used to justify his actions did not expressly state or imply that that right could be curtailed in such a way. (47.1)

Hence the Principle of Legality, wherein circumstances a fundamental right is concerned, to limit it, parliament must expressly do so or via necessary implication.

Question 11

Why does the Principle of Legality exist?

Answer 11

The Principle of Legality seeks to safeguard fundamental rights that are intrinsic to the common law.

These rights are held to be so fundamental, that if parliament wishes for them to be limited, they must do so expressly, that is publicly, or via necessary implication, in where it is so obvious that to deny it would be to deny the act and parliament itself.

This is so as to invite political scrutiny for parliaments acts regarding fundamental rights.

Question 12

What constitutes a fundamental right?

Answer 12

A fundamental right that falls under the scope of the Principle of Legality is sourced from case law and ancient sources.

Hence fundamental common law rights.

Question 13

What does the case Taylor v New Zealand Poultry Board stand for?

Answer 13

It demonstrates the Principle of Legality in action. In that case, the fundamental right to not self incriminate was overruled by necessary implication.

Question 14

What is delegated legislation?

Answer 14

Delegated legislation are powers conferred by parliament to another person or body to legislate in that area of the law.

This is usually done as to allow the experts to make rules appropriate for that industry.

Question 15

Are there limits on delegated legislation?

Answer 15

Delegated legislation cannot legislate outside the bounds of what the empowering act of parliament prescribes.

Question 16

How does Taylor v NZPB demonstrate necessary implication?

Answer 16

The point of law in Taylor was whether the regulations and its empowering acts enabled officers of the poultry board to ask questions and seek an answer (infringe on right not to self-incriminate)

The court found that the regulations and the act was worded to allow for this. The purpose of the act was to allow officers to make inquiries to ensure compliance with the governing law on egg production.

To refuse to answer in suspicious context, would be to defeat the whole purpose of the regulation and the act as the power to ask questions and receive an answer was given for that purpose.

Therefore the regulations and the act (necessarily) implied that the right to not self-incriminate was overruled.

Question 17

Difference between Taylor and Simms as they relate to the Principle of Legality?

Answer 17

Simms outlined the ways in which parliament may override fundamental common law rights, that is either through express statement or necessary implication. Neither of which occurred in Simms.

Taylor does not mention the principle but follows the methodology. It demonstrates how necessary implication may occur.

On that fact sheet, the legislation implied that such rights need to be limited otherwise it would defeat the purpose altogether and provided the powers to do so in the regulations.

Question 18

Why did Taylor adopt a wide interpretation as supposed to a narrow one?

Answer 18

Twofold answers, one is proportional, the other is statutory.

The proportional answer is that the purpose of the act requires the right in question to be limited, on this occasion it was defensible (PROPORTIONALITY TEST)

The statutory answer is that reading the power subject to the right would defeat the power that the acts grants and go against its stated purpose and parliament.

Question 19

In Simms, what was the affected right?

Answer 19

Freedom of Speech (Limited) and Right to Access Justice

Sourced from case law and EU law.

Question 20

What are the base facts of Choudry v Attorney General

Answer 20

Officers of the NZSIS entered the premises occupied by Mr Choudry without his consent.

NZSIS claims that the warrant and the empowering act empower them to do so. Mr Choudry disagrees and sues.

Question 21

What is the right at stake in Choudry?

Answer 21

Right to be protected from unreasonable search and seizure, encapsulated in the S 21 of the BORA

Question 22

What was the judgement in Choudry?

Answer 22

The Court of Appeal ruled that S4A(1) of the NZSIS Act did not expressly grant the power to enter private property without consent.

In addition, that such a power could not be implied.

Question 23

Why did the court adopt a narrow interpretation in ruling out necessary implication?

Answer 23

The court concluded that the right at stake was of such paramount importance, that even necessary implication could not limit it.

For rights of such a fundamental nature, express wording must be given by parliament.

Question 24

What was the courts reasoning in forgoing necessary implication in Choudry?

Answer 24

The court found that in all relevant jurisdictions, power to enter without consent was all express.

This is in conjunction with the fact that nothing in the act and therefore the warrant, implied such a power.

The courts concluded necessary implication is inappropriate for such a fundamental right and nor could such an argument be made.

Question 25

Distinction between Taylor and Choudry regarding their interpretation?

Answer 25

In Taylor, the statute and regulations granted powers to limit the right in question. Hence the power granted was proportional to the purpose.

In Choudry, the statutes wording was precise and did not grant powers that the officers used. Hence the power used was not available.

Both cases demonstrate a rough framework of the Principle of Legality.

Question 26

What is the proportionality test?

Answer 26

The proportionality test is a NZ legal device that is used to supplement the principle of legality, an english legal device.

In addition to setting out the avenue by which a common law right is limited, the extent of that limitation is analogous to the extent of the power granted. The extent of the power (therefore the limit of rights) is determined on a proportional basis, how much power is granted is proportional to the purpose of the act.

Question 27

What does the case of R v UNISON demonstrate?

Answer 27

Act allowed the secretary to impose fees on ET court proceedings. Trade unions sue arguing it prevented some from accessing the courts.

Court affirmed the power to make fees but for what purpose was not explicitly stated. However, the intention was to streamline the justice system. It did not mention any limiting of rights.

Given parliament did not expressly limit or imply the limit, in conjunction with the evidence that the right was being limited, the use of fees was unlawful.