Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand

Abstract

When New Zealand’s Parliament legislates to the effect that law on some particular matter may only be enacted using a mandated procedure, can the New Zealand judiciary enforce this provision against a future Parliament that fails to comply with it? This question regarding the status and effect of such “manner and form” requirements has been a perennial topic of public law discussions, primarily in relation to the Electoral Act 1993, s 268 “entrenchment provision”. 2018 offered an apparent opportunity to confer a measure of certainty in this area of law. In Ngaronoa v Attorney-General, the NZ Supreme Court had to decide first whether a 2010 enactment removing the right to enrol to vote from all serving prisoners involved an amendment to one of s 268’s reserved provisions; and if so, whether the failure to pass that amendment by the required parliamentary supermajority rendered it invalid. However, the Court ultimately chose not to answer that latter question, leaving it open for the present. In the wake of Ngaronoa’s somewhat inconclusive outcome, this article examines why the issue of judicial enforcement of manner and form provisions still remains controversial in New Zealand. It does so by first setting the issue in a wider constitutional framework, explaining how the enforcement of provisions such as s 268 involves questions regarding the nature of parliamentary sovereignty and the role of the courts in defining this. The way in which these questions have been addressed over time in New Zealand and elsewhere — the pendulum swing of constitutional understandings, to use the Supreme Court’s term — is then outlined. Our purpose in doing so is to show that different views have waxed and waned over time, with the widely-shared contemporary interpretation of Parliament’s power to bind itself in law actually founded on a somewhat shaky basis. We then draw on this analysis to examine why the Supreme Court in Ngaronoa would have felt unable to resolve the particular question of enforceability, while also raising an as-yet unexamined question about how such enforcement would mesh with the statutorily guaranteed parliamentary privilege of non-interference in the internal affairs of the House.