13 November 2009

TID-BIT: Parliamentary Due Process

I'm presently attending ANU's Public Law Week-end entitled "Change":

http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/2009_PLW_Program_Registration.pdf

It's always interesting to catch up on developments abroad and to see how other jurisdictions deal with common constitutional and administrative law problems.

In the keynote Geoffrey Sawer Lecture delivered by Professor Hugh Corder from the University of Cape Town (http://law.anu.edu.au/CIPL/Conferences&SawerLecture/2009/Sawer_Lecture09.pdf), there was an interesting discussion of a South African case from their Constitutional Court touching on parliamentary due process:

Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11 (http://www.saflii.org/za/cases/ZACC/2006/11.html)

In short. There's a provision in the constitution that one of the houses of Parliament, the National Council of Provinces, must be ensure that there is adequate public deliberation on Bills that it is considering.  In relation to some abortion reform legislation, the public hearings were patchy and inadequate.  As a result the Constitutional Court declared the legislation unconstitutional and invalidated it (on a deferred basis).  It's a touch more complex than that, but you get the basic gist! 

An interesting contrast, I think, to New Zealand's frenzy of unbridled urgency and its deleterious effect on public participation and engagement in the law-making.  The litigation does have its foundation in South Africa's very comprehensive constitution though.  Personally, I'm not convinced about the courts having power like this to intervene in the parliamentary process - I'd prefer that Parliament itself took more responsibility to ensure process deliberative democracy.  But food for thought at least.

1 comment:

Hanna Wilberg said...

Just came across what I regard as another subversion of proper Parliamentary process, and thought this might be a good place to mention it: provision for an Act of Parliament to be brought into force by Order in Council, rather than on a date specified in the Act - see eg s 2 Immigration Act 2009. Surely when Parliament enacts legislation, this should normally come into force at a not too distant date determined by Parliament, rather than leaving it to executive discretion to bring it into force.

The Order in Council version has long been common practice in the UK, but I had thought we were doing better in NZ - I don't know whether it has been used in other Acts recently (anyone?). The problems it can cause are illustrated by the case of R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 AC 539 (HL). Parliament had enacted a compensation scheme, but left it to Order in Council to bring it into force. Government had subsequently gone cold on the idea, and simply never brought it into force. The Minister had then instituted a different non-statutory one instead. Surely that's not how we make law in a democracy?

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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