The New Public Law: Its Province and Function
22 Victoria University of Wellington Law Review 1, 1992
23 Pages Posted: 13 Dec 2012 Last revised: 24 Feb 2015
Date Written: 1992
This article is the first of a series of lectures given to public law students at the University of Otago. This lecture ranges widely over themes and developments in public law, emphasising the practical importance for lawyers of studying and appreciating the political and parliamentary process. The author is highly critical of the narrow and traditional view of public law propounded by Dicey and the undue emphasis on the courts at the expense of Parliament, Cabinet, caucus and governmental decision-making. He draws attention to the global nature of public law, the need to be familiar with the constitutional framework of other countries, and New Zealand’s international treaty obligations.
The law enterprise in New Zealand universities needs to develop a more ambitious approach, more interdisciplinary, more expansive and more policy oriented. In all the writing from both the stables of political science and law, there is little consensus. There is an emerging incoherence in the political process which is beginning to bring us to a new era of public law in New Zealand. There is a need for strong public institutions based on clear and ascertainable principles, but the structure of New Zealand’s constitutional arrangements is conducive to a drift toward constitutional deconstructionism. What is public law? In the traditional understanding it is about the distribution and exercise of power in the state, or public power. Public law in contemporary New Zealand parlance is both constitutional law and administrative law. It is the mainspring from which all the other law flows. It sets out the ground rules on which the whole of the society and the whole of the legal system works. Public law is, from a practical point of view, extremely important. It is about the legislative process and involves international obligations which play an increasingly important part in shaping our domestic legislation.
Public law in New Zealand has to deal with the sprawling mass of reality about how public decisions are made in New Zealand. Who makes them? What rules must be followed? How can decision-makers be influenced in the content of those decisions? At its broadest, public law in New Zealand is about policy outcomes. The subject needs a new angle of approach – one which is relevant to the law practitioner in the real world. The new focus for lawyers and public law should be on policy outcomes. It comprises the making of carefully crafted arguments which can alter policies while they are in the gestation period, adding to the effectiveness of parliamentary scrutiny of those policies, altering the application of the policies to specific cases within the executive branch of government, providing input to the legislative process to increase the quality of legislation and ensuring client’s interests are fully taken into account within the process.
We have a simple, but at the same time, subtle and complex system of government. It is not merely in respect of New Zealand that our conception of public law fails. It fails also if that conception is restricted to New Zealand. Public law is not immune from globalisation. We cannot restrict ourselves anymore to the content of the law in New Zealand because that is not the way that law practice is evolving.
Keywords: public law, administrative law, New Zealand, constitution, constitutional arrangements
JEL Classification: K19
Suggested Citation: Suggested Citation