Rule of law and sources of executive power

Rule of law aspect 1 (executive)

Executive is bound by the law like everyone else

Rule of law aspect 2 (executive)

Executive needs legal authority to act

Other aspect of rule of law

Public availability of laws

Entick v Carrington – facts

Earl of Halifax issued warrant to search Entick's house for seditious libel

Entick v Carrington – held

No statute or common law gave the power → trespass

Entick v Carrington – quote

"If it is law, it will be found in our books. If not found there, it is not law"

Entick v Carrington – takeaway

Executive may only act with authority conferred by statute or common law

Webster v Police [2019] NZHC 1335 – facts

Officer entered Webster's property without warrant; Webster pushed him; charged with assaulting police

Webster v Police – held

Officer was trespassing, not in lawful execution of duty – charge dropped

Fitzgerald v Muldoon – facts

PM announced super contributions could stop before law changed

Fitzgerald v Muldoon – breach

BOR 1688 art 1 – suspending laws without Parliament is illegal

Fitzgerald v Muldoon – remedy

Declared unlawful; relief adjourned 6 months while law was changed

Fitzgerald v Muldoon – takeaway

Even the PM can't suspend the law without Parliament

Why the rule of law matters

Executive has lots of power ("give an inch, take a mile"); Parliament represents the public

What is integral to upholding the rule of law?

Judicial independence

Three sources of executive power

Statute; royal prerogative; third source (residual freedom)

Most common source of executive power

Statute

Limit on statutory power

Must act within the "four corners" of the grant

Borrowdale v DG of Health [2021] NZCA 520 – argument

Health Act s 70(1)(f),(m) didn't allow nationwide lockdown orders

Borrowdale – held on orders

Provisions broad enough – within four corners

Borrowdale – essential business list

MBIE's list was OK because the D-G signed off

Borrowdale – ultra vires part

Ministers letting non-listed businesses open

Royal prerogative is…

Residual powers the executive has by virtue of being the executive

How the GG got prerogative powers

Letters Patent

Can new prerogative powers be created?

No – not by courts or executive

Six examples of prerogative powers

Executive Council; appointing Ministers; summon/prorogue/dissolve; treaties; pardons; armed forces

Prerogative vs statute

Legislation overrides and can extinguish prerogative powers

Who decides if a prerogative is displaced?

The courts

Are prerogative powers reviewable?

Yes – CCSU

Dualism

International law not binding domestically until incorporated by statute

Is NZ monist or dualist?

One of the most strongly dualist states

Why dualism favours parliamentary supremacy

Treaty doesn't change domestic law until Parliament enacts it

Monism

International agreements automatically become domestic law

Two ways unincorporated treaties still matter in NZ

Influence interpretation; can oust NZ courts' jurisdiction to international tribunals

Treaty convention – multilateral

Shown to House before entry (immediately after if urgent)

Treaty convention – bilateral

Shown to House before entry if significant for NZ

Source of treaty convention

Standing Orders – non-justiciable

National Interest Analysis

MFAT assessment of whether NZ should sign – goes to select committee

Is treaty-making restrictable?

Yes – by statute, and justiciable

Third source of power

Executive can do what positive law doesn't prohibit

Justification 1 for third source

Impractical to authorise every daily action (e.g. buying stationery)

Justification 2 for third source

Crown is a legal person with presumed freedom to act

Third source limit 1

Can't conflict with statute or avoid statutory requirements (Quake Outcasts)

Third source limit 2

Can't conflict with citizens' legal rights and liberties (NZBORA)

Hamed v R [2011] NZSC 101 – facts

Police set up cameras on Tūhoe land open for recreation

Hamed v R – held

Implied licence didn't extend to non-recreational police use; needed iwi consent

Hamed v R – takeaway

State's coercive power means its residual powers differ from private persons'

Quake Outcasts [2015] NZSC 27 – facts

Govt made red-zone offers outside CER Act 2011

Quake Outcasts – Minister's argument

"Merely providing information"

Quake Outcasts – held

Red-zoning was a decision; Act "covered the field"

Quake Outcasts – indicators Act covered field

All-inclusive title, broad purposes, detailed powers & safeguards, legislative history

Quake Outcasts – takeaway

Third source can't be used where a statute Parliament intended to be used governs the area

Treaty settlement negotiations rely on…

Residual/third-source power (Red Book) – then legislation confirms settlement

Constraints question – stage 1

Hard law: does actor have legal power (rule of law)? Common law limits?

Constraints question – stage 2

Soft law: Parliament (SOs, LDAC, s 7, CL limits); Executive (conventions, political & institutional accountability)

Who enforces executive soft-law breaches?

PM at their discretion

Effect of breaching soft law

No legal effect, but raises wider constitutional questions and sets precedents