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«THE EFFECTS OF UNINCORPORATED INTERNATIONAL INSTRUMENTS ON JUDICIAL REASONING IN NEW ZEALAND Alice Louise Maie Osman A dissertation submitted in ...»

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THE EFFECTS OF UNINCORPORATED

INTERNATIONAL INSTRUMENTS ON JUDICIAL

REASONING IN NEW ZEALAND

Alice Louise Maie Osman

A dissertation submitted in partial fulfilment of the requirements

of the degree of Bachelor of Laws (Honours)

Faculty of Law University of Otago

ACKNOWLEDGEMENTS

I would like to thank:

Professor John Dawson for his tireless supervision of this dissertation. His ability to see clearly through a web of ideas is something I will continue to aspire to.

Professor Kevin Dawkins for fielding my questions and for teaching a comprehensive international law course that stimulated my interest in the subject.

Professor Mark Henaghan for encouraging me throughout my law degree.

My parents for their unwavering support.

Sean for his support and kindness.

My friends and the occupants of 9N12 whose humour and good yarns made the hours spent in Richardson more enjoyable.

i

THE EFFECTS OF UNINCORPORATED INTERNATIONAL INSTRUMENTS ON JUDICIAL

REASONING IN NEW ZEALAND

TABLE OF CONTENTS

Introduction…………………………………………………………………………………1

PART I: THE SPECTRUM OF EFFECTS

Chapter One: The Value of Dualism……………………………………………………. 3 Chapter Two: What Lies Between Binding and Non-Binding Authority?.…………... 6 Chapter Three: Exploring the Spectrum: What range of effects do unincorporated international instruments have on judicial reasoning in New Zealand cases? ……… 10

3.1 Common law development……………………………………………………. 10

3.2 Statutory Interpretation………………………………………………………... 14

3.3 Interpretation of statutory powers………………………………………........... 17

3.4 Taking stock…………………………………………………………………… 19

3.5 Moving on to Part Two…………………………………………………………21

PART II: FACTORS AND PRINCIPLES

Chapter Four: Reading Silence in the Law…….………………………………………. 22

4.1 Silence in domestic law………………………………………………………...22

4.2 Silence in the NZBORA specifically………………………………………….. 24

4.3 Summary…………………………………………………………………..........26 Chapter Five: The Importance of the Unincorporated Rule………………………….. 27

5.1 Importance may increase the instrument’s effect………………………………27

5.2 Instruments may evince importance……………………………………………28

5.3 Importance as a point of permeability……………………………………….....30

5.4 Summary………………………………………………………………………. 30 Chapter Six: The Concept of “Fit”……………………………………………………… 32

6.1 Substantive fit…………………………………………………………………..32

6.2 Methodological fit………………………………………………………………35

6.3 Summary………………………………………………………………………..40 Chapter Seven: The Principle of Integrity in Government…………………………… 41 ii

PART III: CONCLUSIONS

Chapter Eight: Striking a Balance between Dualist Values and the Beneficial Effects of Unincorporated International Instruments…………………………………………….. 46

8.1 The effects of unincorporated international instruments on judicial reasoning in New Zealand……………………………………………………………………. 46

8.2 Resulting problems……………………………………………………………. 47

8.3 Possible solutions…………………………………………………………........ 48 Bibliography ………………………………………………………………………………53

–  –  –

The theory of dualism holds that international law and domestic law are separate systems. As a result, “the stipulations of a treaty duly ratified by the Executive do not, by virtue of the treaty alone, have the force of law”.1 In order to have legal force within the domestic legal order, the provisions of treaties (and other international instruments, such as declarations) must be incorporated into legislation by Parliament.

However, there is a growing academic consensus that this orthodox paradigm is losing its explanatory value. The frequency with which New Zealand courts use unincorporated international instruments tells against such a rigid divide between the municipal and international legal systems. The root of dualism’s expository weakness is that it revolves around the concept of “bindingness” which sees law as applying in an “all or nothing” fashion. Dualism therefore struggles to explain why and how unincorporated instruments, which do not have the binding “force of law”, are having an increasingly significant effect on the resolution of domestic legal problems.





This paper aims to clarify the role played by unincorporated international instruments in New Zealand law. The object of Part One is to gain a better understanding of the effects that these instruments actually have on the reasoning of domestic courts. To do this, we must move beyond the black and white pallet of dualism and attune our eyes to the shades of grey on the spectrum between binding and non-binding authority. To this end, Chapter Two will focus our attention on the possibility that unincorporated international instruments may function as a type of authority that, while not binding, is not entirely permissive either.

Building on this, Chapter Three will attempt to set out a range of ways in which these instruments appear to be influencing the reasoning of New Zealand courts. While the courts’ use of unincorporated treaties in constraining administrative discretion tends to attract the most attention, this paper will also examine their use in the development of the common law and the interpretation of general statutes in order to gain a broader understanding of their impact on domestic law. The method of analysis will be bottom-up, involving a close examination of the judges’ reasoning. Obviously such analysis will be qualitative rather than quantitative. The number of cases in the dataset is necessarily limited and does not represent the cases where the court has simply declined to comment on submissions that invoked unincorporated international instruments. Nevertheless, such analysis gives insight into the different ways in which courts are willing to give effect to these instruments.

New Zealand Air Line Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 280K J Keith "Sovereignty at the Beginning of the 21st Century: Fundamental or Outmoded?" (2004) Part Two will then ask why instruments have different effects in different cases. The goal is to identify factors and principles that influence the courts’ decisions to allow instruments a specific kind of effect. As well as searching for instances of factors discussed in existing literature, the aim is to “look for new spaces and new linkages”.2 In any given case, these principles and factors will be woven through the court’s judgment, sometimes breaking to the surface, other times remaining hidden and implicit in the reasoning.

Although in reality these factors will be intertwined, there is value in attempting to isolate and explicate them individually. This value lies in the increased certainty that would result if such factors and principles were explicitly recognised by the courts as being relevant to the domestic effect given to unincorporated instruments. Part Three will argue that, in New Zealand’s constitutional climate, this transparent approach represents a viable and preferable alternative to the perpetuation of the dualist theory.

It would strike a balance between the benefits derived from international law and the need to protect parliamentary supremacy and certainty in the law.

K J Keith "Sovereignty at the Beginning of the 21st Century: Fundamental or Outmoded?" (2004) 63(3) CLJ 581 at 604.

–  –  –

Before analysing why its descriptive value has diminished, it is useful to consider dualism’s main benefits. First, dualism promotes certainty in the law by assuring litigants that courts will not rely on unincorporated international instruments to resolve legal problems. By decreasing the range of possible arguments available, dualism makes legal outcomes more predictable.3 Secondly, dualism protects the principle of parliamentary supremacy. The ratification of treaties is the prerogative of the Executive.4 Therefore, by denying legal force to unincorporated treaties, dualism prevents the Executive from making new law within the state, thereby securing the democratic legitimacy of the law-making process.

It could be argued that Parliament’s more prominent role in treaty ratification under the procedure adopted in 2000 has made it more appropriate for courts to give effect to international obligations. 5 Before ratification of multi-lateral treaties, the government must present the treaty to Parliament with a National Interest Analysis (NIA), which sets out matters such as the advantages and disadvantages of entering into the treaty and whether implementing legislation will be required.6 The treaty and NIA are referred to the Foreign Affairs, Defence and Trade Committee of the House or a more appropriate committee, which may make recommendations to the Government.7 In reality this procedure does very little to legitimise the courts’ use of unincorporated treaties from a parliamentary sovereignty or democratic perspective. The amount of public input is limited. For example, committees tend only to allow three to four weeks for public submissions.8 In any case, the major human rights treaties on which On the benefits of formal, rule based adjudication generally see John Smillie "Who wants juristocracy?" (2006) 11 Otago LR 183 at 190.

New Zealand Ministry of Foreign Affairs and Trade (2010) “The Treaty making process in New Zealand” http://www.mfat.govt.nz/Treaties-and-International-Law/index.php.

Mai Chen "A Constitutional Revolution? The Role of the New Zealand Parliament in Treaty-Making" (2001) 19 NZULR 448 at 452.

Standing Orders of the House of Representatives 2011, SO 395.

SO 396-397. If the select committee reports back with recommendations to the Government, a Government response must be tabled within 90 days of the report: Cabinet Office Cabinet Manual 2008 at [7.121]. The Government cannot ratify a treaty that has been presented to the House until the relevant committee has reported, or 15 sitting days have elapsed from the date of the presentation, whichever is sooner: at [7.119].

Mai Chen Public Law Toolbox (LexisNexis, Wellington, 2012) at 620, fn 71.

courts rely most heavily were ratified before these procedures came into place.

Parliament had no chance to scrutinise the International Covenant on Civil and Political Rights (ICCPR),9 its Optional Protocols, 10 or the International Covenant on Economic, Social and Cultural Rights (ICESCR)11 because the Executive determined that domestic law already complied with the international obligations.12 Thus, courts are aware that reliance on unincorporated international instruments may elicit allegations of “judicial usurpation of the legislative function.”13 Perhaps for this reason, judges tend to endorse the doctrine of incorporation whether or not they plan to give effect to an unincorporated instrument. The judgments in the Australian case of Teoh demonstrate this ostensible consensus.14 The majority held that ratification of an unincorporated treaty could generate a legitimate expectation that decision-makers will not act inconsistently with the obligations. In his dissent, McHugh J argued that “how, when or where [Convention] undertakings will be given force in Australia is a matter for the federal Parliament”.15 Similarly, Mason CJ and Dean J in their majority judgment warned that courts should act with “due circumspection” when using unincorporated treaties.16 “Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.”17 The main source of disagreement appeared to be whether allowing an unincorporated Convention to form the basis of a legitimate expectation in fact breached the incorporation doctrine (and thus undermined parliamentary supremacy). 18 The majority considered that “legitimate expectations are not equated to rules or principles International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

Optional Protocol to the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976); Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty 1642 UNTS 414 (opened for signature 15 December 1989, entered into force 11 July 1991).

International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).

Law Commission The Treaty Making Process Reform and the Role of Parliament (NZLC R45,

1997) at [29]-[30]. Parliament also did not have the opportunity to examine the Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990) because reservations were used to meet legislative deficiencies.

R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL) at 748 per Lord Harwich.

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

At 316.

At 318.

At 288.



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