Contents
CAN WE GLOBALISE THE LAW? .................................................................................................. 2
The domestic scene: the law in New Zealand ........................................................................ 2
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CAN WE GLOBALISE THE LAW?
Address to the Auckland Law School
4 August 2010
Yesterday, after half a century within the New Zealand legal system, I retired from the Court
of Appeal. Tonight we leave for a new regimen in Europe that includes, as well as academic
activity, working with civil law colleagues on an international front. I wish to share with you
some thoughts about where in your time the law may be heading.
Before doing so I record the debt of gratitude I owe to this Law School. It gives me much
pleasure to return again, as I did last month, and see both old friends and the current
generation of students. This vibrant community, whose dynamism has lifted it to its current
world status, has contributed mightily to the rule of law here and abroad. My theme is the
interplay between domestic values and international needs. I start with the former.
The domestic scene: the law in New Zealand
Ever since the Peace of Westphalia,1 which in 1648 (six years after Tasman’s visit to New
Zealand) ended the Thirty Years War, international society has been organised in terms of
the nation state. Each of the 192 members of the United Nations values its distinct status
and identity. The correlative obligations of the citizen’s loyalty to the state, breach of which
is treason, and the state’s duty to protect the citizen, had been stated by Sir Edward Coke CJ
in Calvin’s Case sixty-four years before Westphalia.2 As William Joyce, “Lord Hawhaw”,
discovered to his cost, the former remains fundamental. He was executed following the
Lords’ decision in 1946 that leaving England on a British passport, to broadcast Nazi
triumphalism from Berlin, infringed his obligation of loyalty. Strangely, the latter – the
state’s duty of protection – has received little attention since Salmond wrote about it a
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2
Strictly the Treaties of Münster and Osnabrück 1648.
Calvin's Case (1608) 7 Coke Rep 1a, 77 ER 377.
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century ago. Professor Anderson’s essay “Public Law” in one of his recent magisterial
volumes of the Oxford History of English Law recounts the sorry failure, to follow Lord
Mansfield’s lead towards a principled theory of Crown obligations.3 Certainly, as Professor
Taggart identified, the democratic state has always accepted responsibility for such basics as
defence and, since Peel, civil policing. To those have been added, in more advanced
societies, the apparatus of the welfare state including education, health and unemployment
systems. But when in Ding I tried to discern what are the rights of the citizen – there the
New Zealand born infant children of Chinese overstayers – I found no modern account of
any substance.4 The recent Guanatanamo Bay cases, such as R (Al Rawi) Secretary of State
for Foreign and Commonwealth Affairs 5and R (Mohamed) v Secretary of State for Foreign
and Commonwealth Affairs6 evidence a significant but somewhat more tactful version of the
right of protection asserted by St Paul “civis Romanus sum”7 which Palmerston cited in
response to the Don Pacifico incident, sending the fleet to block Piraeus in response to
maltreatment of a British subject. To its shame the common law has never developed a
clear principle that the right to fundamental decencies, inferred by Sedley LJ and the House
of Lords from the European Convention on Human Rights,8 is possessed both by every
citizen and by others whom we accept on our soil. Among the tragedies of Mike Taggart’s
premature departure is the termination of his work on Constantine v Imperial Hotels 9 which,
had the judgment of Birkett J been picked up and run with by other judges, would surely
have removed the need for legislation about race and other discrimination. So just what are
the “rights of British subjects”, promised to Maori as among the rights to be preserved by
the Crown in title of New Zealand, is something my generation has failed to answer. I hope
yours can do better.
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4
5
6
7
8
9
Stuart Anderson “Public law” in Oxford History of the Laws of England Volume XI 1820-1814 English Legal
System (Oxford University Press, Oxford, 2010) and his FW Guest Memorial Lecture “‘Grave injustice’,
‘despotic privilege’: the insecure foundations of crown liability for torts in New Zealand” (2009) 12 Otago
L Rev 1).
Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC).
R (Al Rawi) Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279; [2008] Q.B.
289
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin)
[2009] 1 WLR 2579.
Acts 16; 37.
R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66; [2006] 1 AC 396.
Constantine v Imperial Hotels [1944] KB 693.
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I have argued in previous addresses in this series that there is great need for all engaged in
the law process – students, the Academy, counsel, judges, politicians, public servants, the
media and indeed all who can contribute – to identify what are the fundamental values of
our society and to create and adapt our legal system to protect and promote them. Some
values we will share, at least in general terms, with other communities: food, water, shelter.
But we have as well our own very distinctive issues. Some, like the Maori fisheries litigation,
not only involve indigenous values but, because they do not stop neatly at the edge of our
Exclusive Economic Zone, get us into public international law.
Staying for the moment with food, international demands for our dairy products raise
questions of the management of our environment, notably our water resources. Our
judgments in the Central Plains appeals10 point to the need for much more sensitive law
than the current crude mixture of broadly worded statutes and judicial attempts to make
them operate in a just and practical way. New Zealand’s location, landscape, current and
potential population spread are all idiosyncratic and require custom-built environmental
laws.
On the other hand, the rule of chemistry that water rots wood and the rule of physics that
gravity brings rotten structures to the ground are anything but idiosyncratic. Why we did
not learn from the leaky building experience in Canada is beyond belief.
In short, we require first to identify our own values – whether distinctive or not. To the
extent that those are or are not distinctive, the same should be the case with our laws.
This is not the place for a survey of what values fit which category. But some examples may
be offered. There was recently published an account of the New Zealand members of
Bomber Command Kiwis Do Fly.11 It notes, as well as the enormous attrition rate, the high
morale resulting from New Zealand commanders who, by treating their crew as family
members, bridged the former British officers/other ranks divide. The principle of equality is
surely a New Zealand fundamental.
It was breach of that principle that made the
compensation provisions of the Foreshore and Seabed Act 2004 as unjust as those of the
apartheid statute, struck down eight months earlier by the Constitutional Court of South
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11
Central Plains Water Trust v Synlait Ltd [2009] NZCA 609, [2010] 2 NZLR 363.
Peter Wheeler Kiwis Do Fly (NZ Bomber Command Association, Auckland, 2010).
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Africa, which permitted seizure of diamond-bearing land without right to compensation.12
Whether there is such risk of repetition as to warrant our adopting the Italian constitutional
principle of equality will be for your generation to consider.13 The irony that we do not
enjoy the safeguard now enjoyed by their former opponents would not have been lost on
the bomber crews.
Learning from others is easier now than ever in history. It is true that modern systems of
communication, among them the print, radio and television media, accentuate the sense of
nationhood which can tend to its less agreeable forms of nationalism and, beyond that,
xenophobia. I return to that topic.
Yet those same systems of communication, which include the internet, the wide-bodied jet
and the cellphone, are increasingly eroding the tyrannies not only distance but, importantly,
of the unknown. At a recent Congress in Sydney we debated basic principles of judicial
review with colleagues from Russia, Egypt and the Peoples Republic of China, as well as the
more familiar jurisdictions of the common law and European civil law. It was like the recent
Tri-Nations seminar in which I was privileged to take part, or talking with Mike Taggart:
ideas of every kind flooded in bringing home the enormous community of interest we share
across borders not only of state but of culture, race, creed and history. It assists us to
identify what, for New Zealand, is the optimum system.
So last December, when we were required to consider whether in New Zealand litigation
funding of class actions should be permitted, we examined the experience in the United
States, England, Canada and Australia. We decided that 14 the time had come to abolish the
common law prohibition of champerty – that is, permitting a funder to take a share of
litigation proceeds, although only under very strict conditions. We saw the New Zealand
public interest in access to justice of such importance as to justify a judge-made updating of
outmoded rules made by mediaeval judges in wholly different conditions.
It follows that in our domestic law there is need for:
(1) protection and enhancement of what is distinctive to New Zealand;
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14
Alexkor Ltd v Richtersfeld Community [2003] ZACC 18.
Judgment no 262 of 2009, 19 October 2009, cited in Attorney-General v Mair [2009] NZCA 625 at [164].
Saunders v Houghton [2009] NZCA 610.
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(2) identification and adoption of ideas from elsewhere that are suited to our conditions.
The case for assimilation of our law with others may seem of little importance until a foreign
dimension intrudes. But that, however, is occurring with such ever-increasing frequency in
this globalised world that there is often no bright line between the domestic and the
international. Each can and should inform the other.
At the Law Commission we took the view that, since so much of our law is made overseas,
we should have our people in the design room. So we sent my friend and colleague
Commissioner Paul Heath QC to UNCITRAL where he spearheaded Electronic Commerce and
Cross-border Insolvency. We agitated for New Zealand to join The Hague Convention; since
then Judge Jan Doogue and Principal Judge Boshier have been major players there.
In short, in bringing New Zealand domestic law up to a proper standard, we must examine
the state of the art in other jurisdictions. New Zealand is richly endowed with legal ability.
We need to take full advantage of comparative law and experience.
Of course the
differences among what different states regard as their important values will necessarily
limit the extent to which they can adopt similar, let alone identical, domestic laws.
But, as Tony Judt demonstrates in his Ill Fares the Land,15 we need to rethink our attitudes
and abandon the smallnesses of my generation: not least the blind alley of so-called “neoliberal economics”.16 New Zealanders and their domestic law need a bigger perspective
than the selfish; to learn again that love of possessions is the root of all evil. The leaders of
the profession when I was your age had such a grand perspective: Charles Hutchinson QC,
the equity silk who was honoured for his leadership in prison camp; Leonard Leary QC, the
golden-tongued advocate whose Military Cross marked his courage in war which carried
over to his profession; Frank Haigh, the father of John Haigh QC, who applied the cab rank
rule to the 1951 wharf strikers and set an example to the entire profession; Stan Cleal,
gassed on the Western Front, whose human understanding made him a deadly prosecutor,
and so many more. That was Tim Brewer’s theme when he was sworn in last month as a
High Court judge as commander of New Zealand’s Territorial Force he had chosen to put
15
16
Tony Judt Ill Fares the Land (Penguin, London, 2010).
See Madeleine Bunting ”The Guardian” 19 October 2009 at 31 review of Amartya Sen The Idea of Justice
(Harvard University Press, Boston, 2009) and Michael Sandel Justice (Oxford University Press, New York,
2007).
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himself at risk in Afghanistan and had direct experience of the difference between the rule
of law and its absence. We need to look abroad, not only for ideas of how we can do better
here, but to see how we can contribute to the rule of law internationally, as indeed so many
New Zealanders have done and are doing.
International dimension
What of the international dimension? Here the picture alters.
Nearly 50 years ago, when I sat where you sit (actually in the old Pembridge building) I could
not see how “international law”, meaning the law affecting states, could interest anyone
who did not work for the Ministry of Foreign Affairs. I have come to learn how wrong I was.
Among the things I now want to do is explore how dispute resolution across boundaries of
race and culture can be enhanced by exploring the dilemma: the basic human right is to
dignity; yet failure to appreciate the right to dignity of others of different racial and cultural
identity can entail discomfort, insecurity, and even xenophobia. As the recent Jewish School
case in the UK Supreme Court shows, these are tough questions to which the ablest minds
may give different answers.17
As scholars of this University standing, in Newton’s expression, on the shoulders of my
generation you are in a position to learn from our errors.
Nowadays we are all internationalists, New Zealanders more than most. In 2004 I wrote a
paper published in the Inner Temple’s Yearbook called “Who now is my neighbour?”18 It
identified the great problem rooted in the differences which are the raison d’être of each
nation state: to be independent of and thus different from all others. And the major
expression of the difference is in its laws. Where other citizens are globalised in the
television they watch, the cars they drive, the food they eat and much more, judges are the
custodians of national distinctiveness.
That presents both a problem and some of the answer. If judges and other lawyers can
globalise, there can be a mighty rapprochement among states and their peoples.
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18
R (E) v Governing Body of JFS [2009] UKSC 15.
David Baragwanath “Who is now my neighbour? Cross-Border Cooperation of Judges in the Globalised
Society" [2004-2005] Inner Temple Yearbook at 22.
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The paper therefore advocated extension to other areas of the cross-border judicial cooperation pioneered by Hoffmann J in insolvency and Thorpe LJ in child abduction. Since
then not only has the work in those areas burgeoned but it has been extended by
Parliaments, Executives and judges alike. Throughout my time as a student and for most of
my career Government of India v Taylor19 generally prohibited assistance by one state of
another’s penal laws and fiscal laws, save in such exceptional cases as extradition treaties.
But in the last few years I have sat in a series of cases involving mutual assistance in criminal
matters,20 enforcement of tax treaties,21 and generally seeing New Zealand as a model
international citizen.22 We are subscribing to the development of an international set of
principles of private international law, even though such rules are part of domestic law. 23 In
the context of investment treaties the distinguished New Zealand international lawyer Ben
Kingsbury, now of NYU, has recently written about imposing standards of judicial review in
public international law.24
Only last month Justice Heath returned to UNCITRAL in Vienna to produce a guide to judges
on the operation of the rules on cross-border insolvency. And in the courts we have sat, in a
sense as international judges, construing and applying the international conventions that
ought to receive the same interpretation throughout the world: the Hague Visby Rules on
carriage by sea, the Hague Convention on Child Abduction, the Refugee Convention.
This year and next I will have had the privilege of visiting at least twelve universities in five
states and of sitting in different international jurisdictions with colleagues from some seven
different nationalities. Recent conferences have involved leading international business
lawyers, prosecutors from most of the South Pacific states, judges from those states, and a
Congress of senior administrative judges from over 50 states which apply the civil law, the
common law, Sharia law, or a mixture. It was a pleasure to see the interest with which the
19
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24
Government of India v Taylor [1956] AC 491.
Bujak v The District Court at Christchurch [2009] NZCA 257; A Ltd v Director of the Serious Fraud Office HC
Auckland CIV-2005-404-6833, 28 March 2007.
Avowal Administrative Attorneys Ltd v District Court (North Shore) [2010] NZCA 183
R v Standard 304 Ltd [2008] NZCA 563.
Khyentse v Hope [2007] 1 NZLR 645 (CA).
Benedict Kingsbury’s and Stephan Schill “Investor-State Arbitration as Governance” in AJ Van den Berg
(ed) the International Council for Permanent Arbitration’s 50 Years of the New York Convention (Kluwer
Law International, New York, 2009), which reference I owe to the former High Court judge and leading
arbitrator David Williams QC.. See also Campbell McLachlan Lis Pendens in International Litigation
(Martinus Nijhoff, Leiden, 2009) and the latest Modern Law Review.
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six senior administrative judges from China, which has had judicial review procedures for
only six years, mixing and working with the senior members of the French Conseil d’Etat and
of the common law jurisdictions. Michael Taggart’s “rainbow” thesis of different intensities
of review was of particular interest and will be picked up as a state of the art topic for the
next Congress, in Colombia. A special highlight was the recent privilege of chairing the TriNations administrative law conference with leading scholars from this University,
Melbourne and Witwatersrand. A forthcoming roundtable in The Hague is to discuss the
establishment of a new international tribunal to deal with investment treaty disputes,
between nation states and the banks from which they borrow. As Judge Moses' experience
as a Rwanda Tribunal prosecutor and Justice Cartwright’s as a judge of the Cambodian
Tribunal shows, there are opportunities for New Zealanders beyond Sir Kenneth’s in the ICJ.
This is a university of world class and you are citizens of the international legal community.
You can achieve great things by further globalising the law. Make the most of it.
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