ADMINISTRATIVE LAW FOR “LIVING PEOPLE”

Abstract

Public power has exercised Sir David Williams throughout his distinguished career. He has emphasised his writing that administrative law, by which such power is controlled, is subject perpetual motion, constantly changing emphasis, content, and approach.1 In this, he echoes Bagehot's view of the English constitution.2 And indeed the control of public power through judicial review lies at the heart of the area of law we call constitutional. Felix Frankfurter thought that in administrative law we are dealing pre-eminently with law the making; with fluid tendencies and tentative traditions.3 Recent constitutional shifts have illustrated the point. They have shaken the fig leaves. Of the frenzy of academic repositioning that has followed, Sir David has simply said it was inevitable that as a by-product of the new constitutional developments, the literature on judicial restraint and judicial activism will grow haze of genuine anxiety.4 As to how judges might meet such anxieties controversial cases, his earlier advice presumably still applies. It depends each case, he says, on sense and good timing.5 Good luck, Judge! Mine is jurisdiction where similar constitutional shifts have occurred. In New Zealand, we too have no single written constitutional instrument. Indeed, it is widespread misconception that we have no constitutional law or that if we do it begins and ends with the doctrine of parliamentary sovereignty. Our Constitution Act does not purport to be constitutive. Enacted 1986 to repeal the Imperial Statute of 1852 which had originally conferred representative government, it simply recognises that the Parliament consists of the Sovereign right of New Zealand and the House of Representatives. The Parliament continues to have full power to make laws.6 There is separate