Prospective Overruling Offends the Rule of Law
New Zealand Law Journal, pp. 261-262, 267, 2021
3 Pages Posted: 29 Nov 2021 Last revised: 10 Jan 2022
Date Written: September 1, 2021
The impressive fifth edition of Joseph on Constitutional and Administrative Law (Thomson Reuters, 2021) reaffirms Professor Philip Joseph’s belief that “prospective-only relief remains an untapped option in judicial review”. This supposed option entails “limiting the retrospective effect of judicial decisions” that ordinarily applies to case law (Chamberlains v Lai). Joseph contends that this unorthodox doctrine “work[s] practical justice” on the basis of views he set out in “Constitutional Law: Prospective Overruling” (2006) NZ L Rev 138. In that article, Joseph advances three claims: that the retrospective effect of judicial decisions is “perplexing[ly]” premised on the “grand fiction” of the declaratory theory of adjudication; that the “orthodox legal method” of judges overruling rules with retrospective effect “offends the concept of the rule of law”; and that the solution to this perplexing problem lies with the doctrine of prospective overruling, which courts should liberally employ: prospective overruling should not be “an exceptional recourse for special and deserving cases only” since “[a]s a general prescription, legal change should be prospective”. Similar sentiments are expressed in J Wall “Prospective Overruling—It’s about Time” (2009) 12 Otago L Rev 131 at 131–132, 140 and S Laws “How to Address the Breakdown of Trust Between Government and Courts” (Policy Exchange, 2021) 44.
These are dangerous claims. The declaratory theory is instructive not as “an historical explanation” but as a statement of the judicial responsibility to say what the law is. Judges who employ orthodox legal method are no more obstacles to the rule of law than they are “enemies of the people” – the claim erroneously impugns the legitimate role of an independent judiciary. It is the so-called doctrine of prospective overruling that offends the rule of law. The doctrine “crosses the Rubicon that divides the judicial and the legislative powers. It turns judges into undisguised legislators” (Lord Devlin “Judges and Lawmakers” (1976) 39 MLR 1 at 11).
Prospective overruling is an unorthodox doctrine – an exception to the norm of judicial retrospectivity – which is why it is not generally employed by courts. Australia has rejected it. The United States Supreme Court has abandoned it. United Kingdom courts do not favour it. In New Zealand, two judgments this year considered the doctrine, but no court (yet) has adopted it. In Department of Corrections v Gardiner, Miller J thought that “the position in New Zealand is that prospective-only overruling remains an open question”. While Joseph’s scholarly corpus is invaluable to the comprehension and the development of New Zealand’s constitutional law, his answer to this particular question must be rejected. The doctrine of prospective overruling contravenes the common law judicial method by preventing the court’s considered understanding of the law that governed the parties before it from actually applying to the parties’ dispute. It empowers judges to declare what they think the law should be going forward, rather than constraining judges to declare what the law is. Prospective overruling affords judges quasi-legislative power, which they do not and should not exercise.
Note: This material was first published by LexisNexis NZ Ltd in the New Zealand Law Journal as “Prospective Overruling Offends the Rule of Law”  NZLJ 261-262, 267 and is reproduced under the author’s copyright and license.
Keywords: Prospective Invalidation, Prospective Quashing, Non-Retrospective, Retroactive, Judicial Method, Independent Review of Administrative Law, IRAL, Mistake of Law, Declaratory Theory, Judicial Dialogue, Judicial Activism, Judicial Review, Dicey, Raz, Finnis, Policy Exchange
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