Constitutional and administrative law with updating supplement

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is singled out as a wrong turn by the Court of Appeal.

Its approval of a decision maker’s engaging in activities not authorised by its statute subverts Dicey’s first meaning of the rule of law: government according to law.

It is proposed to repeal it in the Judicature Modernisation Bill, despite senior judges warning of the “risk that deletion of these elements will be seen to be a legislative choice of significance”.

Much has changed in this edition because public law, like rust, never sleeps.

Such limits may be provided through the gathering momentum of human rights, with its tendency to leave some cases on the wrong side of history.

Witness the majority judgments in the marriage equality case , where the High Court recently confirmed that it theoretically has the jurisdiction to issue a formal declaration of inconsistency of legislation with the New Zealand Bill of Rights Act.

The Chief Justice has recently observed that, beyond the occasional rhetorical flourish, there has been little unpacking of the concept of the rule of law in New Zealand case law to date.

And, while it seems the Supreme Court is engaging in ever more adventurous purposive interpretation, we haven’t had anything approaching a moment. But, for all his championing of the rule of law, Joseph is not misty-eyed, describing s 3(2) of the Supreme Court Act 2003 (“Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”) as “ineffectual and superfluous”.

Professor Joseph has been testing the boundaries of parliamentary sovereignty for some time, following in Lord Cooke’s footsteps.

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