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Public Law Q&A: Parliamentary Supremacy

Publiclaw

Key Issues

You should be familiar with the following issues before trying to answer the questions below:

  • What does Dicey mean by his theory of the “sovereignty” of Parliament?
  • When and why would courts find entrenchment or double entrenchment to be effective (or not)?
  • How does the doctrine of implied repeal work and when would the courts refuse to apply that doctrine in constitutional cases?
  • Are there substantive common law limits to Parliament’s law-making powers?
  • Is an entrenched Bill of Rights or constitution necessary or desirable in New Zealand?

Pitfalls

  • Make sure you know the difference between the concept of the “sovereignty” of Parliament (also referred to as the “supremacy” of Parliament) and the concept, in international law, of a nation state being sovereign (in the sense that it is entitled not to have other nation states interfere with its domestic affairs). The sovereignty or supremacy of Parliament is a common law doctrine that applies as a matter of domestic law. A sovereign nation may have a legislature that is not sovereign in the sense of having supreme law-making power.
  • Make sure you can distinguish between single entrenchment and double entrenchment.
  • Many of the areas discussed do not have clear answers. That is because they involve extreme hypothetical situations (for example, whether Parliament could legalise torture) on which the courts have (thankfully) not had to rule.

 

Question 1

Do you think that New Zealand should have a written constitution, including a Bill of Rights, as a supreme law to which Acts of Parliament should conform or otherwise be held void by the courts? Discuss.

Outline of Solution

You will need to address the following matters in your answer:

  • Why a supreme law constitution would control the ability of Parliament to make or unmake any law it chooses.
  • What you think about the question you have been asked.

 

Question 2

The Extremist Party has won the 2026 election with 52 per cent of the vote and, under our mixed-member proportional (MMP) system, 52 per cent of the seats in Parliament.

In furtherance of policies clearly set out in advance in their manifesto, the Extremists have passed through Parliament (with the Royal assent from an exasperated Governor-General) the Extremist Reform Act 2026 (the ERA).

The ERA contains a number of provisions that New Zealanders who did not vote for the Extremist Party find objectionable. After s 1, which sets out the short title and commencement, the rest of the ERA provides as follows:

  • Section 2 provides that it is an offence for any person to make any statement in public that is derogatory of the Extremist Party and its leadership. Each offence committed against this section is punishable by a fine of $1000.
  • Section 3 provides that none of the sections of the Act (including s 3 itself) may be repealed or amended except by a majority of at least 75 per cent of members of the House of Representatives.

The ERA was enacted under urgency straight after the election. In their haste, it was forgotten to include in the ERA any provision repealing a previous Act of Parliament, the Constitutional Freedoms Act 2020 (the CFA). Section 2 of the CFA provides that every person has the right to freedom of expression. Section 3 of the CFA provides:
Section 2 of this Act may not be repealed or amended unless a majority of 75 per cent of all the members of the House of Representatives votes in favour of the repeal or amendment of that section.

While the Extremist Party narrowly won the 2026 election, members of the Liberal Party won the remaining 48 per cent of seats in Parliament. Its leader, Mr Free, wants your advice on three points:

  1. Mr Free notes that the right to freedom of expression was guaranteed in the CFA, by an entrenched provision. The effect of the ERA is to override that guarantee, but the ERA was not enacted in accordance with the procedure laid down in s 3 of the CFA. Is the ERA invalid by reason of not being enacted pursuant to the 75 per cent majority required by s 3 of the CFA?
  2. Mr Free expects that the Liberals will soon become the government, either because of a snap election or because some of the more moderate members of the Extremist Party will defect to the Liberals. On the assumption that the ERA has been validly enacted, can a subsequent Parliament — by a simple majority — repeal the ERA in its entirety without the 75 per cent majority in the House required by the double entrenchment contained in s 3 of the ERA?
  3. During a recent television interview, Mr Free described the Extremist Prime Minister, Mr Enoch Ego, as a “boorish oaf”. He has now been charged with an offence under s 2 of the ERA. Can Mr Free defend the charge on the basis that s 2 of the ERA is legally invalid for any reason other than the possible invalidity discussed in point (1), above?

Outline of Solution

You will need to address the following matters in your answer:

  • Whether the failure of the 2026 Parliament to pass the ERA in accordance with the entrenchment provision in s 3 of the CFA makes the ERA invalid.
  • Whether the courts are likely to hold that the double entrenchment in the ERA is legally effective.
  • Whether there are fundamental common law rights that the courts might hold cannot be overridden by Parliament.
  • Whether the doctrine of implied repeal applies in respect of “constitutional” statutes.

 

For the full sample answers and more see Wood, Questions and Answers Public Law (3rd ed, LexisNexis, Wellington, 2014)