LAWS213: W10 14/05 Wed

Protects key aspects of elections and democracy.
- Free and fair elections.
- Regular elections.
- voting age (minimum 18).
- Term of parliament (3 years).
- Electoral boundaries.
- Method of voting.
Requires a special majority (75%) in parliament or a referendum for any amendments or repeals of the above.
Referred to as reserved provisions.
Designed to protect the integrity of elections.

Courts are mandated to enforce the law.
Manner and form requirements are legal conditions enforceable by the court until a new law receives Royal Assent.
New Zealand courts have not definitively ruled on the enforceability of section 268.
Judicial willingness to enforce manner and form restrictions depends on their democratic legitimacy.
If parliament wishes to entrench a law, the entrenchment provision must be passed by the same proposed majority -- Standing Order 266.
Orthodox theory suggests a later parliament could repeal section 268 by a simple majority (51%).
Cases suggest manner and form requirements are enforceable, limiting parliamentary sovereignty.

Foundational case in this area.
Arose in New South Wales, Australia.
Colonial Laws Validity Act of 1865: Colonial legislation contrary to imperial statute was void.
Constitution Act 1902 of New South Wales: Legislative Council could not be abolished, nor its constitution altered, except by a bill approved by electors in a referendum (Section 7a).
Difference between single and double entrenchment.
- Single entrenchment: e.g., Section 268 of NZ Electoral Act protects reserved provisions but not itself; Future Parliament can amend section 268 by simple majority.
- Double entrenchment: e.g., Section 7a in Trethowan's case; protects itself.
Privy Council determined that the bill to repeal Section 7a could not lawfully be presented for royal assent without elector approval.

New Zealand High Court case.
Touched upon the same issues.
Justice McKeegan: Court could intervene in cases of non-compliance with mandatory manner and form requirements.
Point of intervention: between the third reading and the Royal Assent.
Manner and form goes to process, not content.
Court could determine if the process complied with the law but could not challenge content itself, which reflects parliamentary sovereignty.
The Law of Parliament includes standing orders and rules of procedure, which is enforced in the Parliament by the speaker rulings.

New Zealand Supreme Court case.
Considered section 268.
Challenged a 2010 amendment to the Electoral Act of 1993, which disqualified imprisoned persons from voting.
Supreme Court dismissed the appeal, finding that section 268(1) confined to protecting the minimum voting age of 18, not the broader right to vote.
Solicitor General conceded that if Section 268(1)(e) had been engaged by the 2010 amendment, the court could declare the amendment invalid.
Court noted debate about enforceability of entrenchment provisions.

UK House of Lords case.
Provided further discussion on the nature of parliament and legislative power.
Lord Stain discussed the concept of parliament as having both static and dynamic aspects.
Parliament, acting as ordinarily constituted, may functionally redistribute the legislative power in different ways.
Lord Hope: Parliamentary sovereignty is a construct of the common law and that it is not unthinkable that courts may need to play a role in revising this principle.
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Limitations on the content of laws that parliament can make, regardless of the process followed.
Historically, colonial legislatures had substantive restrictions (e.g., laws for peace, order, and good government of the colony).
Some suggest there might be unwritten substantive restrictions on the New Zealand parliament's power, derived from the fundamental principles of a free and democratic society.
Sir Robin Cook: If legislation were to undermine key principles (democratically elected legislature, independent courts, the Crown), courts would be obliged to say so; judges might feel compelled to resign.
Tension between parliamentary sovereignty and the rule of law.