Judicial decisions handed down under intense media scrutiny rarely result in good law. The recent Supreme Court Decision in R v Hamed [2011] NZSC 101 is an example. A summary of this decision has already been posted on this blog. This post assesses the accuracy of comments made by Elias CJ in Hamed regarding the scope of the government’s ability to act. The Chief Justice’s views are found antithetical to recent judicial acceptance in the United Kingdom of the government having a residual freedom to undertake any action that is not prohibited, even if it is not specifically authorised to do so.
This ‘third source’ of authority for government action, first examined by Professor Bruce Harris (“The ‘Third Source’ of Authority for Government Action” (1992) 108 LQR 626), and taken up by later commentators, recognises that the government can act like a natural person. This is not a claim that the government can undertake every action that a natural person can. The government and natural persons are subject to different restrictions recognising their differing constitutional positions. For example, the tort of misfeasance in a public office applies to government officials but not to natural persons.
However, both government and natural persons are equivalent. They operate on the same principle of action: they have the freedom to do whatever is not prohibited. Being a residuary freedom to act, third source action cannot create legal change or interfere in legal rights. It is subordinate to all positive legal rules contained in statute, the common law and the royal prerogative.
Third source action occurs on a day to day basis, underpinning the government’s ability to contract, create independent bodies, disseminate information and make ex gratia payments. In some cases, it may be used for questionable purposes. Malone v Metropolitan Police Commissioner [1979] Ch 344 (Ch) is such an example, where phone tapping was held to be lawful because nothing in law prohibited it. This represents a problem not with third source action, but with the lack of laws regulating such action at the time.
The third source has been judicially sanctioned by the English Court of Appeal in R v Secretary of State for Health ex parte C [2000] EWCA Civ 49, which concerned the legality of an index maintained by the Department of Health that named people unsuitable to work with children. Though without statutory basis, Hale LJ held the index was lawful because it transgressed no legal rule.
The Court of Appeal confirmed the correctness of this view in Shrewsbury & Atcham Borough Council v Secretary of State for Communities and Local Government [2008] 3 All ER 548, holding that preparatory work in advance of incoming legislation was prima facie lawful if it did not contravene existing legislation. The House of Lords has given implicit support to the third source in R v Secretary of State for Work and Pensions ex parte Hooper [2005] UKHL 29, [2005] 1 WLR 1681.
In New Zealand, both McGrath J and Tipping J approved the concept in Ngan v R [2007] NZSC 105, holding that illicit substances found in a routine police search of a vehicle following a collision were not discovered unlawfully as no legal rule was infringed.
Misanalysis of government action in Hamed
The third source is not without controversy. Critics fear its potential to lead to abuse and infringe individual liberty. This seems to have underpinned Elias CJ’s comments in Hamed. The case did not involve any third source action, as search and surveillance without positive legal authorisation constitutes a trespass and a breach of the right to be free from unreasonable search and seizure, protected by s 21 of the New Zealand Bill of Rights Act 1990.
This has been judicially confirmed ever since Entick v Carrington and is simply an example of residuary freedom being subordinate to established legal rules. The majority decided the case on the simple basis that the warrants authorising search and seizure were not lawful and thus the evidence gathered was improperly obtained, with one exception on the facts (the evidence was mostly then found nevertheless admissible under s 30 of the Evidence Act 2006).
Elias CJ’s approach was to adopt an expansive reading of s 21 of the NZBORA (see [9]–[11] of the judgment), reading into it a general right to be free from interference. The Chief Justice’s analysis could have ended here, simply holding that the search and surveillance transgressed this right due to lacking valid warrants. However, the Chief Justice went on to consider government powers generally, stating that “[p]ublic officials do not have freedom to act in any way they choose unless prohibited by law, as individuals do” (at [24]).
This statement denies that the government has third source authority. What is concerning is that in justifying this statement, her Honour misrepresented the state of the law in both New Zealand and the United Kingdom by holding this to be the common law position in both jurisdictions. Such a claim ignores the developments in ex parte C, Shrewsbury and Ngan, which clearly endorse the government having residual freedom to act.
The authorities the Chief Justice relied on to support this claim are dubious, including an obiter passage by Laws J in R v Somerset City Council, ex parte Fewings [1995] 1 All ER 513 at 524. In that case Laws J stated that while for private persons the rule is that anything is permissible that is not prohibited, the rule for public bodies is that all action must be justified by positive law as public bodies hold no rights of their own, only duties.
But Fewings was a case involving a local authority, not central government. Being a statutory body, legislative sovereignty dictates that local authorities have only those powers conferred by statute. While Laws J’s statements are true in the local authority context, they are not true of public bodies generally. Contrary to what Elias CJ claimed at [26], on appeal the English Court of Appeal only endorsed Laws J’s comments to the extent they applied to local authorities. Fewings has also received academic criticism from Harris and Elliott and was expressly confined to the local authority context only by Hale LJ in ex parte C. Given this, McGrath J Ngan at [95] considered Fewings to be of little precedential value.
The Chief Justice also relied on dated secondary statements of the law. The statement relied on at [25] from De Smith’s Judicial Review, to the effect that public officials cannot act freely as private individuals do, is based on Fewings and so suffers the same defects. Furthermore, the statements from the third and fourth editions of Halsbury’s Laws of England to the same effect (relied on at [27]) have been superseded by the fourth edition reissue which expressly states that the government has the same liberties as an individual, reflecting this judicial recognition since the earlier editions. Herbert v Allsopp [1941] NZLR 370 (SC), relied on at [27] for its statement that positive authority is required for government action, is based on the second edition of Halsbury’s and has thus been superseded.
Finally, none of the other cited authorities support the proposition that the government can never act unless it has positive legal authorisation. Both Transport Ministry v Payn [1977] 2 NZLR 50 (CA) and R v Jefferies [1994] 1 NZLR 290 (CA) are cases involving searches of property. Positive authorisation was required because otherwise, action would breach legal rights. Thus they only stand for proposition that positive authorisation is required for government action where that action would breach some rule of law, which is consistent with the government having residual freedom.
Elias CJ does note the contrary authority in Malone, which was endorsed in R v Fraser [1997] 2 NZLR 442 (CA) and R v Gardiner (1997) 15 CRNZ 131 (CA). But the Chief Justice (at [32]) declined to follow this line of reasoning on the basis that Malone has been criticised and was overturned by the European Court of Human Rights in Malone v United Kingdom [1984] ECHR 10.
This ignores both the views Harris and Elliott in support of Malone, and that the European Court’s decision was based on the action impermissibly infringing the plaintiff’s rights, not on the inability of the government to act where not prohibited. Third source action cannot be used to interfere with recognised rights. Thus, her Honour’s arguments based on the New Zealand Bill of Rights Act 1990 fall flat. The rights in that instrument will defeat third source action which transgresses them. They do not reveal a general requirement that the government require positive legal authorisation for action that does not interfere in legally protected rights.
A knee jerk reaction
Ultimately, Elias CJ’s view is flawed for reasoning from the specific proposition that positive authorisation is required for entry and surveillance of private property, to the general proposition that positive authorisation is required for all government action. In a high profile case, her Honour perhaps felt driven to calm the public by projecting an illusion that the government is kept on a tight judicial leash in order to safeguard individual liberty. But individual liberty is not threatened by the government having residual freedom to act. Rather, individual liberty is threatened by the government being able to act without restraint.
The reason Malone goes against our intuitions is not due to the government’s residuary ability to act, but because of the lack of legal controls on that residuary ability at the time. The government requires the ability to undertake action where not prohibited to effectively and efficiently respond to its day to day needs, without having to go through the lengthy and costly process of gaining positive authorisation for every single action.
The role of the judiciary is to develop positive legal rules in order to regulate third source action, rather than deny this ability to act completely in a knee-jerk reaction. In this light, Elias CJ’s comments represent a step backward. Fortunately, Tipping J at [217] and McGrath J at [271] both reaffirmed their views in Ngan that the government does have this ability to act. It is hoped that these views will prevail in future cases.