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CONSTITUTIONAL STATUTES AND
IMPLIED REPEAL: THE THOBURN
DECISION AND THE CONSEQUENCES
FOR NEW ZEALAND
Rebecca Prebble*
The United Kingdom case of Thoburn v Sunderland City Council suggests that there might be statutes that may not be impliedly repealed because of their "constitutional" status. This article examines the Thoburn decision and considers its implications for both the United Kingdom and New Zealand. This article questions whether Thoburn can be applied directly to New Zealand’s constitutional situation, and in particular whether New Zealand even has statutes that might be called "constitutional". The role of the New Zealand Bill of Rights Act 1990 is considered, as is the case of R v Pora , which can be seen as New Zealand’s forerunner to Thoburn_._
The article also examines the broader significance of the Thoburn decision and its implications for parliamentary sovereignty. Thoburn can be seen as a mid point between the traditional supremacy of Parliament and a more rights based jurisprudence because it protects rights without fettering Parliament’s ability to legislate.
I INTRODUCTION
A Traditional Implied Repeal
When Parliaments repeal legislation they generally make their intentions both express and clear.^1 Sometimes, however, Parliaments enact laws that are inconsistent with existing statutes. A L Smith J set out the courts' traditional response in Kutner v Philips.^2 He said that "[i]f … the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier
- Submitted as part of the LLB(Hons) programme at Victoria University of Wellington. Winner of the Robert Orr McGechan Memorial Prize.
1 For example, the Corrections Act 2004, s 208(1) which expressly repeals a number of enactments.
2 Kutner v Philips [1891] 2 QB 267 (QB).
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one that the two cannot stand together, the earlier is abrogated by the later".^3 That is, the later statute impliedly repeals the earlier one to the extent of the inconsistency. For a court to hold that Parliament has repealed one of its own statutes without expressly saying so is a drastic step. For this reason, courts faced with apparently conflicting statutes should strive to reconcile them, only holding that there has been an implied repeal as a last resort.^4 There are a number of ways in which courts may avoid an implied repeal or at least may reduce an implied repeal's effect. For example, where the earlier statute is specific in application and the later one is general, the courts may conclude that Parliament has not intended that the later Act should apply to the circumstances to which the earlier one relates.^5 Conversely, where a later specific rule is inconsistent with an earlier general one, implied repeal operates only " pro tanto ", that is, only to the extent that the Acts are inconsistent, with the general rule preserved as much as possible.^6 B Analytical Framework The traditional doctrine of implied repeal has recently been challenged in a number of jurisdictions. Where once implied repeal affected all statutes equally, there are now suggestions that there are certain types of statutes that are immune from implied repeal and can be repealed only by express enactment. For example, the Canadian Supreme Court has held that human rights legislation has a "special nature" that protects it from implied repeal.^7 More recently, the United Kingdom case of Thoburn v Sunderland City Council has recognised a class of "constitutional" statutes that cannot be impliedly repealed.^8 This article examines the extent to which Thoburn challenges parliamentary sovereignty and explores the consequences of the identification of a class of constitutional statutes. It considers the effect that a Thoburn type rule would have on New Zealand law, particularly in relation to the New Zealand Bill of Rights Act 1990 and discusses the case of R v Pora ,^9 which addressed the interaction between fundamental rights and implied repeal. Is a rule protecting constitutional statutes
3 Kutner v Philips , above n 2, 272 A L Smith J. 4 Kutner v Philips , above n 2, 272 A L Smith J; see also Paine v Slater (1883) 11 QBD 120, 122 (EWCA) Brett LJ. 5 See for example, Cox v Hakes (1890) 15 AC 506, 517 (HL) Lord Halsbury; Bishop of Gloucester v Cunningham [1943] KB 101, 105 (CA) Lord Greene MR, Scott and MacKinnon LJJ. 6 See Goodwin v Philips (1908) 7 CLR 1, 7 (HCA) Griffith CJ; R v Pora , [2001] 2 NZLR 37, para 44 (CA) Elias CJ and Tipping J. 7 Craton v Winnipeg School Division (No 1) [1985] 2 SCR 150, para 8 McIntyre J for the Court. 8 Thoburn v Sunderland City Council [2003] QB 151 (Div Ct). 9 R v Pora, above n 6.
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applied even to the Australian Constitution Act 1867.^15 However, the growing emphasis on human rights in both legal systems has rendered this strict Diceyan view increasingly open to question. It is argued that both New Zealand and the United Kingdom have statutes and provisions that may be described as "constitutional", with the result that these statutes and provisions may not be impliedly repealed.
II IMPLIED REPEAL IN THOBURN
A Facts
Thoburn was heard in the United Kingdom Divisional Court.^16 The case concerned the somewhat mundane issue of permissible units of measurement in the United Kingdom. It involved the appeals of three grocers who were prosecuted for using imperial measurements instead of metric ones, and the appeal of a fourth grocer from his local council's decision not to renew his trading licence for the same reason. Both the prosecutions and the withholding of the licence were under the authority of the Units of Measurement Regulations 1994, which purported to prohibit the use of imperial measurements in trade. The appellants contended that the 1994 regulations were ultra vires because the empowering legislation had been impliedly repealed before the 1994 regulations were passed. To understand this argument it is necessary to survey a tangled web of primary and subordinate legislation. The first relevant law was the European Communities Act 1972. That Act gave the United Kingdom executive the power to amend primary legislation by Order in Council so as to make the legislation consistent with any European Community Directives that might be issued.^17 The United Kingdom then passed the Weights and Measures Act 1985. This Act permitted the use of both imperial and metric measurements in trade.^18 The appellants argued that by explicitly permitting the use of imperial measurements in trade, the Weights and Measures Act impliedly repealed the broad power that section 2(2) of the European Communities Act conferred on the executive to the extent that the executive no longer had the power to prohibit the use of imperial measurements in trade.
The Units of Measurement Regulations 1994 purported to amend the Weights and Measures Act by prohibiting the use of imperial measurements in trade after 2000. The regulations permitted the use of imperial measurements in the intervening period, provided that the imperial measurements were supplementary to metric ones. The Units of Measurement Regulations 2001 subsequently amended the original date; so that imperial measurements were permitted as supplementary
15 McCawley v R [1920] AC 691, 704 (PC) Lord Birkenhead. 16 Thoburn v Sunderland City Council , above n 8. 17 European Communities Act 1972 (UK), s 2(2) and (4). 18 Weights and Measures Act 1985 (UK), s 1.
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indicators until 2010. The grocers were convicted during the interim period because they displayed only imperial measurements.
The regulations were made pursuant to the power delegated by the European Communities Act. They followed a European Community Directive that directed Member States to phase out the use of imperial measurements in trade.^19 The appellants argued that the 1994 regulations were ultra vires because they were made pursuant to a power that had been impliedly repealed.
Laws LJ found against the four grocers.^20 For there to be an implied repeal there must be an inconsistency between two statutes, and Laws LJ found that there was no such inconsistency. The executive's power to amend legislation inconsistent with European Community Directives extended to legislation passed after the power was delegated, and therefore the provisions of the Weights and Measures Act were not inconsistent with a power to change that same Act.^21 Laws LJ supported his decision by a second ground: even if there were an inconsistency between the two Acts, the Weights and Measures Act could not impliedly repeal the European Communities Act because of the special nature of the latter. The European Communities Act was a constitutional statute and as such could be repealed only by express legislative pronouncement. For there to be an implied repeal, it is only necessary that there should be an irreconcilable inconsistency between two statutes. This situation does not amount to an express legislative pronouncement.^22 Thus we arrive at the proposition that constitutional statutes cannot be impliedly repealed. That proposition is the focus of this article.
B The United Kingdom Constitutional Framework
The Thoburn decision neatly ties together two parallel United Kingdom constitutional developments: the supremacy of European Union law, and the emergence of "common law constitutionalism". By joining the European Union, member states limit their sovereign rights, "albeit within limited fields".^23 As Laws LJ acknowledges, the practical result of this limitation of sovereignty is that the substantive European Union rights that the European Communities Act
19 Council Directive (EEC) 89/617 on the approximation of the laws of the Member States relating to the units of measurement [1989] OJ L 357.
20 The other Judge in Thoburn , Crane J, agreed with Laws LJ, see Thoburn v Sunderland City Council , above n 8, para 85 Crane J.
21 Thoburn v Sunderland City Council , above n 8, para 50 Laws LJ. For a further discussion of the constitutional issues surrounding the delegation to the executive of the power to amend primary legislation, see Geoffrey Marshall "Metric Measures and Martyrdom by Henry VIII Clause" (2002) 118 LQR 493, and Alison Barber and N Young "The Rise of Prospective Henry VIII Clauses and their Implications for Sovereignty" [2003] PL 112.
22 Thoburn v Sunderland City Council , above n 8, para 63 Laws LJ.
23 Case 26/62 NV Algemene Transport – en Expeditie Onderneming van Gend en Loos v Nederlandse administratie der belastingen [1963] ECR 1, 12.
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in the common law.^31 These principles of legality cannot be derived from any literal reading of the statutes involved.^32 Legislative will is therefore no longer seen as an unqualified value, but rather as "informed by our most deep seated constitutional values", which originate in the common law.^33
The idea that the United Kingdom constitution is founded on common law rights is apparent in the Thoburn decision. Laws LJ holds that because the common law recognises constitutional rights, it is appropriate that constitutional statutes should also be recognised and afforded special protection.^34 Laws LJ holds that his new formulation of implied repeal strikes the appropriate balance between fundamental rights and legislative supremacy, because it preserves parliamentary sovereignty while allowing the United Kingdom "most of the benefits of a written constitution, in which fundamental rights are accorded special respect".^35
C Identification of Constitutional Statutes
According to Laws LJ, a constitutional statute is one that "(a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights".^36 This test is necessarily vague, and appears susceptible to as wide or as narrow an interpretation as individual judges choose to give it.^37 Nevertheless, Laws LJ does suggest ways in which other statutes might be identified as falling into the category of "constitutional".
Laws LJ holds that statutes that give effect to "rights which should properly be classified as constitutional or fundamental", so designated by the common law, should themselves have some sort of constitutional status.^38 Some of the examples of such statutes that Laws LJ gives are the Magna Carta 1297, the Union with Scotland Act 1706, the Human Rights Act 1998, and the Government of Wales Act 1998.^39
31 See for example, R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115 (HL); R v Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 (HL).
32 T R S Allan "Constitutional Dialogue and the Justification of Judicial Review" (2003) 23 OJLS 653, 574.
33 Allan, above n 32, 569.
34 Thoburn v Sunderland City Council , above n 8, para 63 Laws LJ.
35 Thoburn v Sunderland City Council , above n 8, para 64 Laws LJ.
36 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ.
37 Marshall, above n 21, 496.
38 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ.
39 Thoburn v Sunderland City Council , above n 8, para 64 Laws LJ.
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D Why is the European Communities Act Constitutional? Laws LJ's test for constitutional status proposes two ways in which a statute might be constitutional. His Lordship holds that most instances of category (b) will also fall under limb (a).^40 It appears that the converse is not true: not all instances of category (a) will also be instances of category (b). The European Communities Act itself can be seen as a constitutional statute that falls under limb (a) because it "conditions the legal relationship between citizen and state in some general, overarching manner".^41 The European Communities Act quite clearly fits under limb (a): the creation of a new and superior legal system is a fairly dramatic development, and, as Laws LJ says, "[i]t may be there has never been a statute having such profound effects on so many dimensions of our daily lives".^42 Nevertheless, the European Communities Act does not fall under limb (b) because it does not appear to be concerned with fundamental rights. Fundamental rights, then, are a sufficient condition for constitutional status, but not a necessary one. This aspect of Thoburn means that some of the provisions that Laws LJ would protect against implied repeal are not the sorts of provisions that we normally think of as fundamental. The provision Thoburn was concerned with, the metric system rule, is an example. No one would suggest that there is a fundamental right to use the metric system, yet the metric system rule has somehow achieved constitutional status. This result appears less anomalous when we look at the metric system rule in the wider constitutional context. The metric system rule is not just an ordinary rule; it is a rule that has the full force of European Union law behind it. The rule that the metric system is to be used as the primary system in trade has more significance than its plain words suggest: in making the rule the United Kingdom was fulfilling its international obligations. Those international obligations are so important that they brought about a change in the United Kingdom's constitutional structure. E What About Constitutional Provisions? The Thoburn decision does not address the possibility of an inconsistency involving a single provision that may be classed as constitutional, as opposed to a whole constitutional statute. Constitutionally important provisions might well be contained in ordinary statutes: does Thoburn extend protection from implied repeal to such provisions? While Thoburn considers only the circumstances in which an entire Act may be designated as constitutional, a logical extension of the decision is that individual provisions may be protected from
40 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ. 41 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ. 42 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ.
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not want the courts to abrogate those rights in the absence of express direction. On this view, a court holding that constitutional statutes could be impliedly repealed after all would be placing a greater limit on parliamentary sovereignty than the Thoburn decision. The contrary argument is that implied repeal is only available as a tool of statutory interpretation in the last resort.^47 Situations where implied repeal potentially arises are those where the language of both statutes is clear, but the two statutes cannot be read together. That is, the intention behind the later statute will usually be obvious. Moreover, the high importance of "constitutional" statutes makes it unlikely that Parliament would ever be unaware of the existence of such statutes and the rights that they guarantee. Parliament is therefore unlikely to override them inadvertently by later inconsistent legislation. Rather, any purported implied repeal is likely to be exactly what Parliament intended.
III WHAT DOES THOBURN MEAN FOR NEW ZEALAND?
A Parliamentary Sovereignty in New Zealand
New Zealand courts have tended to reject any suggestion that Parliament might be bound in any way. As recently as 1999, the Court of Appeal held that the Magna Carta placed no restrictions on what Parliament could legitimately enact,^48 although the Court did not fully canvass the issue of whether there could ever be a category of laws that enjoy a status higher than other laws.^49 Despite the Court of Appeal's respectful nod in the direction of Parliament, the trend in New Zealand is to describe the branches of government as "engaged in a joint enterprise discharging different task specific functions",^50 rather than to focus on the "who is sovereign?" question. This trend seems to have been sparked largely by judges writing extra judicially rather than by actual decisions. As long ago as 1988, the President of the Court of Appeal (as he then was) suggested that constitutional debates needed to be refocused towards the question of exactly which values could potentially limit legislative power, and away from the more abstract question of whether that power could be limited at all.^51
The learned President's reasoning was stipulative rather than strictly logical. After all, the question of whether legislative power can be limited is an issue prior to the question of which values might do the limiting. "Refocusing" debate towards the second question does not provide an answer to the first, but was a strategy that allowed the President to proceed as if the first question
47 Kutner v Philips , above n 2, 272 A L Smith J. 48 Shaw v Commissioner of Inland Revenue [1999] 3 NZLR 154 (CA). 49 Shaw v Commissioner of Inland Revenue , above n 48, para 17 Judgment of the Court. 50 Philip Joseph "Constitutional Statutes and Implied Repeal" [2003] NZ Law Rev 416, 418. 51 Rt Hon Sir Robin Cooke "Fundamentals" [1988] NZLJ 158, 164.
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had been settled definitively in the affirmative. In spite of its absence of foundation, this sort of reasoning is not uncommon. Also writing extra judicially, Elias CJ recently echoed Lord Cooke's approach. The Chief Justice argued that New Zealand has moved away from the mindset that there must be one supreme source of power in its constitution. To Elias CJ, it seemed that the identification of such a power was rather pointless.^52
Extra judicial campaigns notwithstanding, the idea that Parliament is sovereign remains orthodox. Despite claims that parliamentary sovereignty is an "obsolete and inadequate"^53 constitutional doctrine, on the rare occasions where litigation calls parliamentary sovereignty into question, the judiciary resolutely defends it.^54 The Thoburn decision, if followed in New Zealand, would represent more than a merely theoretical change to New Zealand's constitution.^55
B Status of Implied Repeal
There is no doubt that the doctrine that Parliament can repeal legislation by implication by passing an inconsistent law is a part of New Zealand law,^56 but it is arguable that the doctrine is now seen as a truly undesirable method of resolving statutory inconsistencies. Implied repeal has always been a last resort tool of statutory interpretation, available only when other methods fail to resolve an inconsistency between two provisions.^57 Now, implied repeal is still a last resort, but the list of statutory interpretation tools available before resort to implied repeal has grown. Most notably, the New Zealand Bill of Rights Act 1990 has become a tool of statutory interpretation and can be used to resolve inconsistencies between statutes without the need for implied repeal.
It is relatively uncommon for litigants to invoke the doctrine of implied repeal, and particularly uncommon for them to be successful. Parliament presumably tries to not enact legislation that is inconsistent with prior law. Cases where arguments based on implied repeal have failed tend to hold that the two relevant Acts can in fact be read together.^58 Despite the paucity of cases dealing with
52 Rt Hon Dame Sian Elias "Sovereignty in the 21st^ Century: Another Spin on the Merryg o round" (2003) 14 PLR 148, 149 ["Sovereignty in the 21st^ Century"].
53 Sian Elias "The Treaty of Waitangi and the Separation of Powers in New Zealand" in B D Gray and R B McClintok (eds) Courts and Policy: Checking the Balance (Brookers, Wellington, 1995) 206, 224.
54 See for example, R v Pora, above n 6, para 113 Keith, Gault and McGrath JJ.
55 For general exploration of the current tension in New Zealand between Parliamentary sovereignty and judicial activism, see Matthew S R Palmer "Some Realism about Relevance: Who Interprets New Zealand's Constitution?" Paper presented to the New Zealand Centre for Public Law's Second Annual Conference on the Primary Functions of Government (Wellington, 2004) 11 13.
56 For example, Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 (CA) applied the doctrine.
57 Kutner v Philips, above n 2, 275 A L Smith J.
58 See for example, Smith Kline & French Laboratories Ltd v AttorneyGe neral [1991] 2 NZLR 560 (CA); R v Howe [1982] 1 NZLR 618 (CA).
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While Keith, Gault and McGrath JJ held that the amending provision operated retrospectively, they also held that the provision's retrospective application was limited to the point at which judges were first empowered to impose minimum non parole periods.^64 Pora committed his offence before judges were given this power so the mandatory non parole period of thirteen years did not apply to Pora and his appeal was allowed.
Elias CJ and Tipping J, and Thomas J in a separate concurring judgment, also allowed Pora's appeal but arrived at their conclusion by a markedly different path. Elias CJ and Tipping J held that because the conflicting provisions were contained in a single statute, the traditional doctrine of implied repeal was an inappropriate interpretation tool. Their Honours held that when provisions within one statute are inconsistent, the correct approach is to look at all the circumstances and to determine which provision should give way.^65 Elias CJ and Tipping J held that the dominant provision of the Criminal Justice Act was the provision that forbade retrospective penalties. The amending provision had to yield, and was therefore deprived of retrospective effect.^66 The seventh judge, Richardson P, agreed with Keith, Gault and McGrath JJ to the extent that the amending provision could not apply to Pora. Richardson P did not decide whether the amending provision had any affect at all.^67
E Are the Approaches of Elias CJ, Tipping and Thomas JJ Legitimate?
The judgment of Elias CJ and Tipping J raises the question of why implied repeal should not be capable of operating within a single statute, particularly where the earlier provision is general and the later one is specific. An amending provision is presumably just as good an indicator of parliamentary intent as a new Act. In fact, Parliament is less likely to inadvertently overlook a conflicting provision in the very Act it is amending than it is to overlook a conflicting provision in the body of legislation generally. Elias CJ and Tipping J do not attempt to justify the distinction that they draw, and it is tempting to conclude that the real reason why these judges rejected implied repeal is that the provision that would have been repealed was one that guaranteed a constitutional right. Elias CJ and Tipping J may have felt that the proposition that constitutional statutes cannot be impliedly repealed was better hedged around than baldly stated.^68
64 R v Pora , above n 6, para 110 Keith, Gault and McGrath JJ.
65 R v Pora , above n 6, para 4 Elias CJ and Tipping J.
66 R v Pora , above n 6, para 49 Elias CJ and Tipping J.
67 R v Pora , above n 6, paras 59 60 Richardson P.
68 The third minority judge, Thomas J, in fact came very close to saying that constitutional statutes cannot be impliedly repealed. See R v Pora , above n 6, para 169 Thomas J and Part VI D Statutory Interpretation.
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Elias CJ, Tipping and Thomas JJ have been criticised for refusing to apply a provision that the legislature obviously intended to enact.^69 It is undeniable that the judgments, especially that of Elias CJ and Tipping J, employ extremely artificial justifications for their refusal to apply the normal tools of statutory interpretation. In particular, Elias CJ and Tipping J's insistence that the situation was simply that of an inconsistency within a single statute ignores the reality that the amendment was passed fourteen years after the principal Act.^70 Elias CJ and Tipping J have been further criticised for asserting that their judgment did not challenge parliamentary sovereignty without fully exploring that issue.^71 F Thoburn and Pora The Thoburn decision causes us to see Pora in a new light. Were the judgments of Elias CJ, Tipping and Thomas JJ simply precursors to Thoburn? If they were, the judgments achieve a sort of retrospective validation, although the logic of Elias CJ and Tipping J is still open to criticism. This question receives different answers depending on how one views Thoburn 's treatment of the relationship between implied repeal and parliamentary sovereignty. On the view that Thoburn limits parliamentary sovereignty by taking away Parliament's power to repeal fundamental rights by implication, the judgments of Elias CJ, Tipping and Thomas JJ were perfectly in line with Thoburn. In enacting the Criminal Justice Amendment Act, Parliament tried impliedly to repeal a fundamental right. The Court was therefore entitled to decline to apply the amendment. A difficulty with this analysis is that the Thoburn test for the repeal of constitutional statutes says that they may be repealed either expressly or "by words so specific that the inference of an actual determination to effect the result contended for was irresistible".^72 It is arguable that the amending provision in Pora was worded strongly enough to meet this test. Nevertheless, if we accept this view of Thoburn as a vindication of Pora , the judgments of Elias CJ, Tipping and Thomas JJ begin to seem more legitimate.
IV NEW ZEALAND BILL OF RIGHTS ACT 1990
A Statutory Interpretation The enactment of the New Zealand Bill of Rights Act 1990 brought about a shift in the way New Zealand statutes are interpreted. The Bill of Rights Act provides that "wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of
69 Anita Killeen, Richard Ekins and John Ip "Undermining the Grundnorm?" [2001] NZLJ 299, 301. 70 Killeen, Ekins and Ip, above n 69, 301. 71 Butler, above n 11, 593. 72 Thoburn v Sunderland City Council , above n 8, para 63 Laws LJ.
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C Does the New Zealand Bill of Rights Act Effectively Replace Implied Repeal? There is a second way in which it may be argued that the Bill of Rights Act has an effect similar to a Thoburn type revision of implied repeal. When statutes are inconsistent, one way of resolving the inconsistency is to treat the earlier statute as impliedly repealed. Another way is to uphold the statute that limits rights to the least extent, irrespective of the order of enactment of the relevant Acts. R v Allison is an example of this second mode of statutory interpretation.^79 The issue in Allison was whether results from drug tests done on prison inmates for disciplinary purposes could be used as evidence at a bail hearing. Two statutes suggested different answers. The later statute allowed the court in a bail hearing to receive any relevant information, "whether or not it would otherwise be admissible in a court of law".^80 The earlier statute provided that the results from drug tests were not to be used in other proceedings under that statute or any other.^81 The Crown argued that the later statute impliedly repealed the earlier one pro tanto , with the result that the later statute created a specific exception to the general rule that results from prison inmate drug tests could not be used in other proceedings.^82 The Court declined to apply the doctrine of implied repeal.^83 In fact, the judgment barely even mentions it. Instead, the Court resolved the inconsistency by using the Bill of Rights Act. Courts are required to prefer statutory interpretations that do not limit the rights contained in the Bill of Rights Act.^84 The Court found that it was required to apply the terms of the statute that involved the least interference with the rights of prisoners, notwithstanding that that statute had been enacted earlier.^85 If the Bill of Rights Act always allows courts that are considering inconsistent rules to prefer the statute that erodes rights the least, whatever the respective dates of enactment of the inconsistent statutes, the proposed revision of implied repeal in Thorburn would have little effect. Many cases where the revised doctrine of implied repeal might apply would simply reach the issue. Be that as it may, the Bill of Rights Act is incapable of replacing the doctrine of implied repeal in all situations where it might apply. Statutory inconsistency may vary in intensity. Situations such as Allison are at the lower end of the scale: while Parliament possibly intended the later statute to override the earlier
79 R v Allison [2002] 1 NZLR 697 (CA). 80 Bail Act 2000, s 20(1). 81 Penal Institutions Act 1954, s 36BD. 82 K Raftery (Crown Solicitor) "Synopsis of Submissions on Behalf of the Crown" Court of Appeal File CA 387/01 ( R v Allison [2002] 1 NZLR 697 (CA)), para 26. 83 R v Allison , above n 79, para 24 Baragwanath J for the Court. 84 New Zealand Bill of Rights Act 1990, s 6. 85 R v Allison , above n 79, paras 21 22 Baragwanath J for the Court.
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one, it is also possible that the two statutes were intended to cover entirely different situations. Applying the Bill of Rights Act is an acceptable way of choosing between the two statutes.
Where statutes are sharply inconsistent, however, using the Bill of Rights Act in this way is not acceptable. In situations such as Pora , there can be no doubt that Parliament intends the later statute to apply instead of the earlier one. In Pora , Elias CJ and Tipping J in fact argued that the Bill of Rights Act demanded that they should apply the earlier statute.^86 However, Keith, Gault and McGrath JJ rejected this approach, finding that an interpretation that gave the amending provision a purely prospective effect would not be permissible.^87
The adoption of a Thoburn type rule would therefore have an effect on New Zealand law, because it would render implied repeal ineffective in cases like Pora. Furthermore, the class of rights that Thoburn would designate as constitutional is broader than the class of rights that the Bill of Rights Act protects.^88 Nevertheless, that the courts are prepared partially to replace implied repeal with a test that favours an interpretation that gives the fullest expression to individual rights suggests that New Zealand's attachment to parliamentary sovereignty is waning. A new rule of statutory interpretation that protects constitutional statutes from implied repeal is possibly the next logical step.
V NEW ZEALAND'S CONSTITUTIONAL STATUTES
A The Thoburn Test
If New Zealand adopts the rule that constitutional statutes cannot be impliedly repealed, it will be necessary to identify which statutes count as constitutional in the New Zealand context. The test proposed in Thoburn will be useful, but the constitutional differences between New Zealand and the United Kingdom must be borne in mind.
The Thoburn decision holds that constitutional statutes must be distinguished from ordinary ones "on a principled basis".^89 Unfortunately, the test that Thoburn proposes does not give much guidance as to what the relevant principles might be or as to how those principles might be applied in the New Zealand context. A test that holds that a constitutional statute "conditions the legal relationship between citizen and state in some general, overarching manner, or … enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights" leaves the matter almost entirely to judicial decision.^90
86 R v Pora , above n 6, paras 32 35 Elias CJ and Tipping J.
87 R v Pora , above n 6, para 111 Keith, Gault and McGrath JJ.
88 See Part V C The Two Limbs of Laws LJ's Test; Part V D Constitutional Provisions.
89 Thoburn v Sunderland City Council , above n 8, para 62 Laws LJ.
90 Marshall, above n 21, 496.
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Whether these enactments qualify as constitutional under Laws LJ's test is one question, but whether New Zealand law is prepared to recognise them as such, particularly if the word "constitutional" now has certain consequences, is another. It is certainly arguable that the United Kingdom is more prepared than New Zealand to bestow entire Acts with constitutional status. New Zealand has seen no constitutional developments significant enough to dislodge the Diceyan idea that the constitution is contained throughout its whole body of law, and so called "constitutional" Acts are really just the same as other Acts.^96 The United Kingdom, on the other hand, has recognised just how important a single statute can be via the Thoburn decision.
D Constitutional Provisions
The most likely approach of the New Zealand courts is therefore to identify rights that are regarded as constitutional and to hold that provisions embodying those rights cannot be impliedly repealed. Pora can be seen as an application of this approach. The relevant issue was the status of the prohibition of retrospective penalties, rather than the status of the Criminal Justice Act. The factors that led Elias CJ and Tipping J to conclude that the prohibition was so fundamental that it could not be impliedly repealed included that the prohibition was incorporated in a number of pieces of New Zealand legislation, including the Bill of Rights, and that in giving effect to the provision New Zealand was fulfilling its obligations under the International Covenant on Civil and Political Rights.^97
A similar approach is apparent in Thomas J's judgment. Thomas J demonstrates the fundamental nature of the prohibition on retrospective penalties by referring not only to legislation confirming the prohibition, but also to judgments that have consistently condemned retrospective penalties and retrospectivity generally.^98
Even the judgment of Keith, Gault and McGrath JJ, that ultimately decided that fundamental provisions were vulnerable to implied repeal, can be of assistance in determining how constitutional rights are to be identified. The judges were in no doubt that the prohibition on retrospectivity was a "basic rule of criminal justice",^99 and both national and international law had declared the prohibition to be a fundamental right.^100
Exactly which rights are so important that they could protect a provision from implied repeal is still unclear. Laws LJ has been criticised for not clarifying the status of rights like the rights to
96 Albert Venn Dicey Introduction to the Study of the Law of the Constitution (10 ed, MacMillan Education, Basingstoke, 1959) 88.
97 R v Pora , above n 6, paras 20 21 Elias CJ and Tipping J.
98 R v Pora , above n 6, paras 154 156 Thomas J.
99 R v Pora , above n 6, para 61 Keith, Gault and McGrath JJ.
100 R v Pora , above n 6, para 63 Keith, Gault and McGrath JJ.
310 (2005) 36 VUWLR
education or to medical services.^101 Whether these rights, or other quasi rights like electoral rights, are now capable of insulating provisions against implied repeal is an open question. For example, Parliament currently could impliedly repeal section 268 of the Electoral Act, which provides that six other sections of the Electoral Act can be repealed or amended only by a 75 per cent majority, simply by purporting to change one of those six sections by a simple majority.^102 This action would be politically almost impossible,^103 but a rule prohibiting the section's implied repeal would also make the action legally impossible. It is therefore entirely possible that a Thoburn type rule could have a broad potential application in New Zealand. Whether the New Zealand courts would accept such a breadth of application is a separate issue.
VI IS A REVISION OF IMPLIED REPEAL DESIRABLE?
A Dicey and Parliamentary Sovereignty Constitutional law does not begin and end with Dicey, but the constitutional philosophies of both the United Kingdom and New Zealand are rooted in the principles that Dicey set out.^104 The most important Diceyan principle in the present context is the principle of parliamentary sovereignty, which Dicey describes as "the very keystone of the constitution".^105 The doctrine holds that legislation, as the will of Parliament, is the highest possible law. Dicey also holds that the power of Parliament to make law may not be limited by the acts of its predecessors;^106 so implied repeal is a necessary corollary of parliamentary sovereignty. Thoburn still allows Parliament to repeal constitutional statutes expressly; so it is arguable that any limit on parliamentary sovereignty is negligible. Laws LJ would presumably support this argument, so keen is he to maintain that his reformulation "preserves the sovereignty of the legislature".^107 It is technically true that if the courts decline to interpret a statute in a way that impliedly repeals a fundamental right, Parliament can always expressly repeal it. If there are two ways in which Parliament may do something, are the courts really limiting Parliament's power if they tell Parliament that only one of those ways remains an option? The answer to this question depends on one's perspective. On one view, Parliament can still do exactly what it could always do, that is, repeal any statute; so parliamentary sovereignty is unaffected. Nevertheless, the better view
101 Marshall, above n 21, 495. 102 Constitutional and Administrative Law in New Zealand , above n 10, 115. 103 Constitutional and Administrative Law in New Zealand , above n 10, 134. 104 See Elliot, above n 26, 546. 105 Dicey, above n 96, 70. 106 Dicey, above n 96, 64. 107 Thoburn v Sunderland City Council , above n 8, para 64 Laws LJ.
