Bishop gave his speech in Auckland today to the Law Association.<\/p>\n
He said parliamentary sovereignty meant that significant policy choices should be made by Parliament.<\/p>\n
\u201cThis position used to be uncontroversial and long-standing, but I think the time has come for a robust assertion of the traditional, orthodox view that Parliament is our country\u2019s supreme law-making body.<\/p>\n
\u201cThe courthouse remains an attractive forum for those who have yet to persuade the public \u2013 and therefore Parliament \u2013 of the merits of their cause.\u201d<\/p>\n
He said the judiciary had to \u201ccontinue to protect its processes against attempts to use the courts to relitigate Parliament\u2019s choices\u201d.<\/p>\n
He said that of the three arms of government \u2013 Parliament, the executive and the judiciary \u2013 only Parliament represented the people it governed. <\/p>\n
\u201cIts choices have the best claim to represent the views of the people.<\/p>\n
\u201cEven where issues are hotly contested, and a broad consensus is not forthcoming, Parliament\u2019s democratic mandate means that everyone has had the opportunity to have a say, whether or not their view ultimately holds sway. <\/p>\n
\u201cIf voters don\u2019t like the choices made by Parliament, they can vote to change Parliament\u2019s composition.\u201d<\/p>\n
Parliamentary supremacy was part of New Zealand\u2019s common law heritage. The principle was developed not through abstract discussions between political philosophers, but to justify a series of attempts to wrest authority from the Stuart kings in 17th-century England.<\/p>\n
Bishop said that in the hallway outside his Beehive office was a framed copy of the entire judgment in Fitzgerald v Muldoon.<\/p>\n
It was a gift from a couple of good friends and lawyers. But it also stood for propositions that were core to his own philosophy as a politician and a lawyer \u2013 \u201cthat government is not above the law and must follow the law. And that Parliament is supreme and sovereign\u201d.<\/p>\n
He said the rule of law and parliamentary sovereignty seemed to be unfashionable at the moment. <\/p>\n
\u201cWe dismiss our heritage at our peril.\u201d<\/p>\n
The arguments in 17th-century England about who should govern were relied on in Fitzgerald v Muldoon.<\/p>\n
In 1976, Prime Minister Sir Robert Muldoon sought to put a stop to compulsory contributions to superannuation in advance of Parliament\u2019s repeal of the New Zealand Superannuation Act. <\/p>\n
Chief Justice Sir Richard Wild drew directly on the terms of the constitutional settlement of 1688 to explain why the Prime Minister\u2019s action was unlawful and then said: \u201cIt is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years\u201d.<\/p>\n
Bishop said the court lacked a democratic mandate, which was why important policy choices were made by Parliament, not the courts.<\/p>\n
\u201cA judiciary that is both independent and apolitical promotes public confidence in the courts as an institution,\u201d he said.<\/p>\n
\u201cThe judiciary\u2019s independence qualifies it to determine disputes between individuals and between individuals and the Crown. In contrast, the legislature\u2019s strongly political character will generally disqualify it from engaging in private disputes.\u201d<\/p>\n
Climate change was a good example of the kind of public policy that should be made by the legislature, Bishop said.<\/p>\n
The Government\u2019s decision to set a statutory bar to apply to Smith v Fonterra reflected the view that the legislature was the institution best placed to make significant public policy choices, \u201cincluding those with polycentric issues and complex trade-offs\u201d. <\/p>\n
The Supreme Court in Wellington. Photo \/ Mark Mitchell<\/p>\n
The Supreme Court found on a strike-out application that it should wait to hear the evidence before making a decision. <\/p>\n
\u201cBut I agree with the Court of Appeal, which held: \u2018In effect Mr Smith is seeking a court-designed and court-supervised regulatory regime. The design of such a system requires a level of institutional expertise, democratic participation and democratic accountability that cannot be achieved through a court process. <\/p>\n
\u201cCourts do not have the expertise to address the social, economic and distributional implications of different regulatory design choices. The court process does not provide all affected stakeholders with an opportunity to be heard, and have their views taken into account. Climate change provides a striking example of a polycentric issue that is not amenable to judicial resolution.\u201d<\/p>\n
Bishop said the Government agreed with the Court of Appeal and was faced with a dilemma: let the legal process play out, which could have taken years to await a final decision almost certainly from the Supreme Court, or to act swiftly and make the position clear \u2013 \u201cthat climate change should be dealt with through the Climate Change Response Act and ancillary legislative instruments, not through a court-designed regime\u201d.<\/p>\n
It chose the second, but Bishop said Parliament had been a poor legislator in recent years.<\/p>\n
\u201cWe have also been too passive about acting swiftly on developments that take the law in an unhappy direction, or where it is tolerably clear that the result of a particular case was not what Parliament intended.\u201d<\/p>\n
He said he would be recommending two important things to colleagues.<\/p>\n
\u201cOne, that we should legislate more clearly and more deliberately.<\/p>\n
\u201cTwo, that when the law takes the wrong direction, we should say so clearly and deliberately through legislation.<\/p>\n
\u201cThat, after all\u2026 is what parliamentary sovereignty means.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"Bishop gave his speech in Auckland today to the Law Association. He said parliamentary sovereignty meant that significant…\n","protected":false},"author":2,"featured_media":560648,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[54170,70185,682,20217,7800,3276,13640,185,275892,275894,1362,3025,117,111,43,139,69,24637,17317,275893,205,7811,9345,30246,4276,80,2963],"class_list":["post-560647","post","type-post","status-publish","format-standard","has-post-thumbnail","category-new-zealand","tag-april","tag-attorneygeneral","tag-being","tag-bishop","tag-body","tag-chris","tag-important","tag-is","tag-lawmaker","tag-lawmaking","tag-made","tag-most","tag-new","tag-new-zealand","tag-news","tag-newzealand","tag-nz","tag-parliament","tag-parliaments","tag-reasserted","tag-role","tag-since","tag-speech","tag-supreme","tag-why","tag-zealand","tag-zealands"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/560647","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/comments?post=560647"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/560647\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media\/560648"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media?parent=560647"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/categories?post=560647"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/tags?post=560647"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}