New Zealand and the Glorious Revolution
New Zealand Law Journal, No. 12, 1976
5 Pages Posted: 7 Jan 2013 Last revised: 24 Feb 2015
Date Written: 1976
The decision in Fitzgerald v Muldoon is an occasion for dancing in the streets. It affirms in ringing terms the classical orthodoxy of our constitutional arrangements, and stands as a signal example of the contribution that tradition in the culture of the law can make to ordered liberty. It also removes some of the effects of the Attorney-General’s unfortunate exercise of his power in April 2976 to stay private prosecutions arising out of the same conduct of the Prime Minister dealt with in the case.
The case dealt with the statement, issued by the Prime Minister in December 1975, that the New Zealand superannuation scheme would cease with immediate effect and that empowering legislation with retrospective effect would be introduced early in 1976. The plaintiff sued the Prime Minister, the New Zealand Superannuation Board, the Attorney-General and the Controller and Auditor-General. Against the Prime Minister the plaintiff sought a declaration that the announcement that the statement constituted an exercise of a pretended power of suspending of laws or of the execution thereof and was accordingly illegal by virtue of s 1 of the Bill of Rights 1688.
The Chief Justice vindicated principle by declaring that the announcement was illegal as being in breach of s 1 of the Bill of Rights 1688. He held that by making the statements he did the Prime Minister was purporting to suspend the law without the consent of Parliament.
The Judges in New Zealand rarely have occasion to pass upon the basic elements of our Constitution. For this reason our constitutional law tends to be rather sterile. It has a tendency to be dominated by theory and history. The cornerstones of our system are Magna Carta, The Petition of Right, The Bill of Rights and the “spirit” of our Constitution. Not for us the passionate controversies involved in protecting liberty by constitutional litigation in the American fashion. We tend even to be suspicious of the federal boundary rides conducted by the High Court of Australia in its constitutional jurisdiction. We have put our trust in Parliament. On that we have staked our all. And it is at that very point that the Chief Justice has given us aid and comfort. His subject was the rule of law. His message was that no one was above the law, that it applies to the mighty as to the humble. The point was also procedural. No one doubts the legitimacy of a legitimately elected Government changing the law. But the means by which change must be achieved continues to be of utmost importance to our democracy. The proper forms must be observed.
Keywords: separation of powers, Magna Carta, Fitzgerald v Muldoon, New Zealand constitution, constitutional litigation
JEL Classification: K19, K49
Suggested Citation: Suggested Citation