Kos, Justice Stephen --- "Constitutional collision: Fitzgerald v Muldoon v Wild" [2014] OtaLawRw 3; (2014) 13 Otago LR 243

Last Updated: 20 May 2016

Constitutional Collision:

^{Fitzgerald v Muldoon v Wild}

The Hon Justice Stephen Kós^*

It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years.¹

Setting the scene

This is an essay about a collision. A collision primarily between political expediency and constitutional principle. A collision, too, between temperaments. A robust and determined Prime Minister, fresh from a landslide election victory, wagering that none would challenge his suspension of an unpopular statutory obligation a few months ahead of Parliament reconvening to repeal it. A Chief Justice, conceding nothing in robustness to the Prime Minister, but conceding nothing also in a conventional, Diceyan view of parliamentary sovereignty. A junior public servant, just 28 years of age, prepared to risk his career and his pocket in pursuit of the same principle, completed the principal forces at work in that collision. Muldoon, Wild and Fitzgerald.

Now the celebrated case of Fitzgerald v Muldoon in a nutshell: in 1974 a Labour government introduced a contributory superannuation scheme. Statute made contribution by employer and employee compulsory. With the benefit of hindsight, most aspects of the scheme seem enlightened. At

* Judge of the High Court of New Zealand. I acknowledge gratefully the assistance of the following: Mr Paul Fitzgerald, the Hon Richard Savage, the Hon Paul Neazor, the Hon Bill Jeffries, Judge Geoffrey Ellis, Mrs Ailsa Barton, the Hon Justice Wild, the Hon Hugh Templeton, the Rt Hon Sir Ivor Richardson, the Hon Sir John Jeffries, the Hon Justice McGrath, the Hon Justice White, Mr Hugh Rennie QC, Mr Peter Young, Dr Geoff Harley, the Hon Christopher Finlayson QC, A-G, Professor Gary Hawke, Ms Rebecca Kitteridge, Mr Michael Heron QC, S-G, Ms Una Jagose, Mr Andrew Townend, Ms Nicola White, Judges’ clerks Matthew Dodd and Sarah Jacobs, Judges’ librarian Helen Gardiner, and a select group of unnamed litigants whose late acts of compromise or capitulation caused me to have sufficient time to complete this essay. It was first delivered as a paper at the Australian New Zealand Law and History Conference, University of Otago, November 2013.

¹ Wild CJ in Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC) at 622. This passage has been described as a “sustained but disciplined statement of rhetorical power ... which will enrich the minds of generations of constitutional law students”. See Geoffrey Palmer “New Zealand and the Glorious Revolution” [1976] NZLJ 265 at 267. (Note the former Supreme Court was renamed the High Court in 1980. To avoid confusion I will continue to refer to both as the High Court, abbreviated “HC”.)

the time it was badly sold to the electorate, and unpopular. The leader of the National opposition, Muldoon, promised to abolish the scheme immediately on becoming government. National won a landslide victory in November 1975. But the Prime Minister, Muldoon, had no desire to reconvene Parliament until June. Two weeks later he issued a press statement. It said that the compulsory requirement to contribute “will cease as from today”.² The junior public servant, Fitzgerald, issued proceedings challenging the Prime Ministerial statement. Two months later the Chief Justice, Wild declared the statement an unlawful purported suspension of statutory obligation, in breach of art 1 of the Bill of Rights 1688.

The decision was heralded as a “triumph of the rule of law”, a “signal example of the contribution that tradition in the culture of the law can make to ordered liberty” and a rare example of judicial attention to the basic elements of New Zealand’s constitution, enriching its somewhat “sterile” constitutional law.³ Every law student, lawyer – and a good many others – know what it stands for.

My renewed interest in Fitzgerald v Muldoon arose from a case that came before me in 2012. A cabinet minister had been accused of suspending an Act of Parliament by imposing unreasonable conditions on game recovery licences. The claim did not succeed.⁴ But what intrigued me was the evidence of the cabinet minister. The plaintiffs’ counsel had written to the minister, referring to Fitzgerald v Muldoon. The minister was not a lawyer, but he did not need Fitzgerald v Muldoon explained to him. He said he knew it meant he could not base any of his licence decisions “on proposed legislation or future intentions”. The reach of the case across the years to a non-legally trained cabinet minister intrigued me. This essay began, then, as a brief personal study of how the case arose in the first place.

Although Fitzgerald v Muldoon is a prominent part of our constitutional canon, it is not an easy case to teach today’s law students. They vote under a proportional representation electoral system. Landslide election results are rare. Results often turn on tortuous coalition negotiations, taking days and weeks. The new electoral system, beginning with the

1996 general election, transformed the relationship between executive and legislative branches of government. Very much in favour of the latter. Radical politics of the kind that gave rise to Fitzgerald v Muldoon seem a thing of the past. Not necessarily a bad thing, as we shall see. In today’s world the Falstaffian figure of Robert David Muldoon, possessed all at once of an absolute parliamentary majority of 23 and itching to exercise

² RD Muldoon “Press Satement by the Hon RD Muldoon, Minister of

^{Finance” (press release, 15 December 1975).}

^{3 Palmer, n 1, at 266; Philip Joseph “Suspending Statutes without}

^{Parliament’s Consent” (1991) 14 NZULR 282.}

^{4 Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982; [2013] NZAR 1474}

^{(HC). A similar argument was made, this time successfully, in Alan}

^{Johnston Sawmilling Ltd v Governor-General [2002] NZAR 129 (HC).}

^{exorbitant executive power, is a hard one to conjure.}

The purpose of this essay, then, is not only to illuminate the arguments in, and legal and political consequences of, Fitzgerald v Muldoon. It is also to illuminate the context in which it was heard, and the economic consequences of the debate over compulsory superannuation that gave rise to the case. Finally, the essay seeks to illuminate the distinctive personalities of those at the centre of this remarkable, but increasingly elusive, case.

A very short introduction to a very short reign, and a very short Act:

^{the Bill of Rights 1688}

The very short reign of James II began promisingly in 1685. With a promise to “preserve the Government both in Church and State as it is now by law established”.⁵ That commitment, by a King who was also a practising Catholic, gave comfort to a firmly Protestant state. His abandonment of that commitment brought continuous constitutional conflict between Crown and Parliament. Eventually, downfall, desertion, and the Bill of Rights.⁶

Within a year of accession, James had seen off Argyll’s and Monmouth’s risings. Now he set about besieging the laws Parliament had enacted to prohibit the presence of Catholic priests, the open exercise of Catholic worship and the appointment of Catholic laity to commissions in the army and other offices of state. Parliament would not repeal the Test Act. Parliament was prorogued. The Bench might now do what Parliament would not. Judges who would not bend to James’ will were dismissed. In Godden v Hales in 1686 a cowed Court of Kings Bench held by eleven to one that the King might excuse the governor of Dover from taking the sacraments and oaths required by the Test Act.⁷ A Declaration of Indulgence followed. It suspended penal laws against not only Catholics but Protestant non-conformists. To their great credit most of the latter rejected that lawless initiative. English Protestantism remained united uneasily in opposition to James’ policy of dispensation by decree. Only James’ parblind genius could have drawn together Tory, Whig, Church and non-conformist.

⁵ Speech of King James II to the Privy Council, February 7, 1685.

^{6 The short account that follows is drawn from Lord Thomas Macaulay The}

^{History of England from the Accession of James II (Longman, London, 1849)}

^{vol 2, ch 8; Sir William Holdsworth A History of English Law (Methuen,}

^{London, 1924) vol 6, ch 6; George Clark The Later Stuarts 1660-1714 (Oxford}

^{University Press, Oxford, 1955) ch 6; and Steven Pincus 1688: The First}

^{Modern Revolution (Yale University Press, New Haven, 2009) ch 7.}

^{7 Godden v Hales (1686) 11 St Tr 1166 (KB). The dissentient was Mr Justice}

^{Street. The Street family motto became Fidelis inter Perfidos. Sir Thomas}

^{Street had no issue; the Australian judicial Streets descend from his brother}

^{Laurence: The Sydney Morning Herald 12 April 1974, at 7. Macaulay,}

^{however, was no fan of Street, considering the dissent as collusive as the}

^{suit itself. The appearance of some dissent was preferable to none, and}

^{Street retained his judicial appointment. Macaulay, n 6, at 85.}

Tyranny followed, but did not triumph. Parliament was dissolved; resistance in the great universities was subjugated by the dismissal and replacement of fellows. Yet the Church stood firm. A second Declaration of Indulgence issued forth, in May 1688, stating the King’s resolve to establish universal liberty of conscience for all time. A week later came an order in council, requiring clergy to read the declaration from the pulpit during divine service, two Sundays in row. The Church erupted in opposition. Only four (or perhaps seven) clergymen in London obeyed; a similar level of opposition was exhibited throughout the country. Sancroft, Archbishop of Canterbury, and six of his suffragans sent a temperate petition to the King. After much initial episcopal fawning, it finally got down to business: Parliament had declared repeatedly that the sovereign was not constitutionally competent to dispense with statutes affecting matters ecclesiastical. The declaration was unlawful. The petitioners could and would not publish it, from the pulpit or otherwise. “This”, said the King, “is a standard of rebellion”.⁸ On the advice of Jeffreys, by now Lord Chancellor, the bishops were charged with criminal libel.

The Trial of the Seven Bishops resounds still as one of the great judicial condemnations of the executive branch of government.⁹ Yet most of that good work was done by the jury. The Crown did all it could to pack it. The jury selection process is illuminating. The Clerk of the Crown, after an interview with the King, chose 48 men from those registered in the freeholders’ book. Among those chosen were a number of servants of the King, and a number of Catholics. But the bishops had the right to challenge twelve. So the most conflicted were removed. The Crown also challenged twelve, leaving a panel of 24. The first twelve drawn would try the case. Somehow a man named Michael Arnold was selected. He had no wish to be. He was brewer to the palace. It is said he complained (in terms rather anticipating Jane Austen’s Mr Bennet) that he was sure now to be half-ruined: “If I say Not Guilty, I shall brew no more for the King; and if I say Guilty, I shall brew no more for anybody else”.¹⁰ Four Judges sat. Each summed up to the jury. Three avoided the legality of the Declaration of Indulgence. But one, Powell J (who earlier had cast his lot with the majority in Godden v Hales), now boldly declared it illegal. The Judges divided evenly on whether there was a libel at all. After an anxious night of deliberation, with little water and no food, Mr Arnold chose eventually to brew for the people.¹¹ He was the last juror to cast

⁸ Macaulay, n 6, at 352.

^{9 Trial of the Seven Bishops (1688) 12 St Tr 183. Until bailed, the bishops}

^{found themselves in the indifferent care of Hales, mentioned above, who}

^{by now had moved from Dover to lieutenancy of the Tower. Beyond the}

^{Tower walls, and on the river, a great multitude gathered in support of}

^{the prelates.}

^{10 Macaulay, n 6, at 377. Macaulay’s account of the trial, at 374–389, is prose}

^{of a magnificent order.}

^{11 Macaulay has it that as Arnold stood firm for conviction, Thomas Austin}

^{(“a country gentleman of great estate, who had paid close attention to the}

^{his lot for the defence.}

It is said the cheering that met the bishops’ acquittal caused the oak beams of Westminster Hall to crack. Bells rang out across the City, then across the nation; cannon were fired off all along the Thames. Men, it is said, stood in the streets weeping for joy. Well, perhaps. The King, when told, uttered an oath in French. Blind no more, he must have known the end of the adventure approached. The Seven Bishops’ verdict came at the start of July 1688. In November, James’ son in law William landed at Brixham, blown there it is said by a “Protestant wind” that kept the English navy in port. James elected not to give battle, despite the numerical superiority of his army. Instead, and ignominiously, he fled abroad on a Kentish fishing smack. That year he heard Christmas mass said at Ambleteuse, near Boulogne.

No Parliament could now be called; there was no King to call one. So there was a Convention instead. A Declaration of Rights was drafted, debated and retrenched to “nothing ... but the known laws”.¹²

Two considerations compelled a more modest compass. The first was to satisfy William, now in effect King-elect – for he declined any suggestion that he be regent only. The second was so that the Convention might make progress without more delay. The Declaration, made on

^{13 February 1689, forms by and large the first part of the Bill of Rights.13}

^{And first amongst the abuses of the “late King James II”, achieved “by}

^{the assistance of diverse evil counselors, judges, and ministers employed}

^{by him”, was the:14}

...assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament.

In February 1689 William and Mary accepted the throne, and with it the Convention’s Declaration. The Bill of Rights followed,¹⁵ the first article of which came to be considered in Fitzgerald v Muldoon:¹⁶

That the pretended Power of Suspending of Laws or the Execution of

^{Laws by Regall Authority without Consent of Parlyament is illegall.}

The Glorious Revolution did not assert the supremacy of Parliament over the King. At least expressly. Such a course would have been repugnant to William. The Declaration and Bill were cast in the

evidence and speeches”) said to him, “Look at me. I am the largest and strongest of the twelve; and before I find such a petition as this a libel, here I will stay till I am no bigger than a tobacco pipe”. Macaulay, n 6, at 385.

¹² Pincus, n 6, at 293. The protestation was puffery. No known law had previously required parliamentary consent for a standing army in time of peace, for instance.

^{13 By current New Style dating; 1688 by Old Style. Hence the Bill of Rights}

^{1688 (or 1689). The changeover occurred in 1752.}

^{14 Declaration of Rights 1689.}

^{15 Royal assent was received only on 16 December 1689.}

^{16 Bill of Rights (1688).}

shadow of the calamitous exit of James, the presence of William, and the commanding public appetite for a transition from the one to the other. Contrary to the Whig view of history, it produced no “constitutional monarchy”. Supply was for Parliament. The militia was for the gentry. But “initiative in government was still with the Crown in the traditional and balanced collaboration of King, Lords and Commons”.¹⁷

Article 1 has seldom troubled the common law. No part of the Bill of Rights seems to have been cited in any New Zealand decision in the official reports prior to Fitzgerald v Muldoon. In 1975 New Zealand the Bill of Rights 1688 was not a closely regarded constitutional foundation stone. Neither of the leading constitutional texts referred to it.¹⁸ But as Wild CJ said in words immediately following those quoted at the outset of this essay:¹⁹

The fact that no modern instances of [the Bill of Rights’] application was cited in argument may be due to the fact that it is rarely that a litigant takes up such a cause as the present, or it may be because governments usually follow established constitutional procedures.

But since Fitzgerald v Muldoon, imperial law has enjoyed a modest renaissance. There are now over 35 reported New Zealand decisions citing the Bill of Rights 1688.

Few cases have concerned articles 1 and 2.²⁰ Far greater attention has been given by the courts overseas (and more recently in New Zealand) to articles 4 (levying money without Parliamentary grant)²¹ and 9 (proceedings in Parliament not to be impeached in any court).²² But in the United Kingdom article 1 had received some judicial attention prior to Fitzgerald’s case.

R v London County Council ex p The Entertainments Protection Assoc Ltd²³

^{is a Sunday observance case. Statute made the opening of theatres on}

¹⁷ John Bowle The English Experience (Weidenfeld & Nicholson, London,

^{1971) at 345.}

^{18 Kenneth Scott The New Zealand Constitution (Oxford University Press,}

^{Oxford, 1962); John Robson (ed) New Zealand, The Development of its}

^{Laws and Constitution (2nd ed, Stevens, London, 1967). Contrast,}

^{however, SA de Smith Constitutional & Administrative Law (2 ed, Penguin,}

^{Harmondsworth, 1973) at 71–72.}

^{19 [1976] 2 NZLR 615 at 622.}

^{20 See particularly, since Fitzgerald v Muldoon, Alan Johnston Sawmilling Ltd}

^{v Governor-General [2002] NZAR 129 (HC – a decision of Wild J, the son}

^{of Wild CJ); and Attorney-General v Unitec Institute of Technology [2007] 1}

^{NZLR 750 (CA).}

^{21 See eg Western Transport Pty Ltd v Kropp [1965] AC 914 (PC); and Brocklebank}

^{Ltd v R [1925] 1 KB 52 (CA).}

^{22 See eg Attorney-General v Leigh [2012] NZLR 713 (SC); Jennings v Buchanan}

^{[2004] UKPC 4; [2005] 2 NZLR 577 (SC); British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 (HL);}

^{Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 (HCA); and Sankey v Whitlam (1978) 142}

^{CLR 1 (HCA).}

^{23 R v London County Council ex p The Entertainments Protection Assoc Ltd}

^{[1931] 2 KB 215 (CA).}

Sundays unlawful. Licences issued to theatres repeated that prohibition. But the defendant council granted the Streatham Astoria picture house (and many others) a permit to open on Sundays, provided a £35 donation was paid to charity.²⁴ This came down to a promise not to prosecute if proper application, and charitable payment, was made. The Lord Chamberlain would not intervene. He said it was not within his powers to sanction departure from the law “without the consent ... of His Majesty’s Government”.²⁵ As to that, Scrutton LJ noted:²⁶

I do not quite know what the Lord Chamberlain meant by that, because His Majesty’s Government have no authority to dispense with laws ... One is rather tempted to inquire whether the Theatres Committee of the London County Council have ever heard of the Bill of Rights. James II lost his throne, and one of the causes of it was that he took upon himself to dispense with the operation of Acts of Parliament, without the consent of Parliament ... I take it that the London County Council is in no better position than James II and that laws cannot be dispensed with by the authority of the London County Council, when they cannot by royal authority.

So the Streatham Astoria was required to stay shut on Sundays.

At the start of the 1970s London firemen challenged brigade instructions giving fire appliance drivers discretion to run a red traffic light in emergencies. The instructions set out certain precautions that needed to be taken. They did not say the drivers had to run the red. They did not say they would not be disciplined if they did so. But that was the tacit assumption underlying the instruction. And it was in fact the practice. The Road Traffic Act 1960 did not distinguish in favour of fire appliances, save that regulations excused their speeding. In Buckoke v Greater London Council²⁷ the Court of Appeal refused to condemn the instruction. Lord Denning attempted to qualify articles 1 and 2:²⁸

This raises an important question. It is a fundamental principle of our constitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has the “power of dispensing with laws or the execution of laws.” But this is subject to some qualification. When a law has become a dead letter, the police need not prosecute. Nor need the magistrates punish. They can give an absolute discharge. So also when there is a technical breach of the law in which it would be unjust to inflict any punishment whatever. The commissioner of police may properly in such a case make a policy decision directing his men not to proceed.

But Sachs and Buckley LJJ did not go so far. As the latter said, the

²⁴ Council bylaws required public notification, even specifying the font in which the notice was to be printed (“Two-Line English Roman”), and the height above the pavement at which it was to be displayed (five feet): at

^219.

^{25 R v London Council, n 23 at 228.}

^{26 At 228–229.}

^{27 Buckoke v Greater London Council [1971] 1 Ch 655 (CA).}

^{28 At 668.}

instruction did not require the drivers to break the law. Nor did it say they could run a red light with impunity. It was a legitimate administrative decision for the brigade to choose not to discipline a driver whose offence was mitigated by necessity. None of that would have the least significance if the police prosecuted the driver. I will return later to the topic of non-enforcement of statute.²⁹

Muldoon and Wild

Muldoon

“No one is neutral about Muldoon”, wrote the eminent political scientist, Margaret Clark.³⁰ Described by his predecessor, Jack Marshall, on the day he was deposed as leader of the National Party, as “critical, aggressive, abrasive and destructive”, Muldoon responded, “I’ve got other qualities as well.”³¹ In his three terms as Prime Minister from 1975 to 1984, the electorate saw two Muldoons. In 1975 there was the clear- eyed, determined and direct Muldoon to whom the electorate cleaved in a time of economic crisis. Such was his popularity that the small matter of the purported executive suspension of an Act of Parliament provoked no great controversy. In 1984, however, there was a dull-eyed, “dictatorial” and marginalised Muldoon. His ere-vaunted management of economic crisis had descended into a sinking raft of central planning decrees. When he called a snap election in the face of insurrection in the junior ranks of his caucus, the electorate fled.

Muldoon was born in Auckland in September 1921.³² His family were Irish, English and Welsh working folk. His father, a failed businessman (a grain merchant who calamitously under-insured against fire) turned electricity meter reader. His mother, a seamstress. When Muldoon was 7, his father was admitted to a psychiatric hospital. He never returned, was seldom spoken of, and seldom seen by Muldoon.³³ An only child, then, in a house dominated by mother, grandmother, frugality, Methodism³⁴ and the Labour Party. An environment producing an eventual Prime Minister whose driving instincts were egalitarianism, admiration for the under-dog, and profound moral and economic conservatism. The latter was to lead to the Prime Minister ’s ultimate loss of power, and prestige.

Muldoon was an indifferent school student. He left at 15, becoming an office boy at the Auckland Electric Power Board. He was messy, mischievous and regularly in receipt of warnings from his employers. In 1940 he enlisted in the army. His soldiery matched his studentship:

²⁹ At page 302 below.

^{30 Quoted in Barry Gustafson His Way: A Biography of Robert Muldoon}

^{(Auckland University Press, Auckland, 2000) at 14.}

^{31 At 146.}

^{32 These paragraphs draw on Gustafson, n 30, at chs 1–11.}

^{33 He died when Muldoon was 24.}

^{34 Subsequently replaced by the Baptist Church and, after his marriage,}

^Anglicanism.

indifferent, and unenthusiastic. Unlike Wild and Jack Marshall (friend of Wild, and Prime Minister 1972), he did not seek a commission. Non- commissioned rank (the jibe “the little corporal” was often thrown his way as a politician) suited him: that way he avoided menial tasks and fatigues. He preferred intelligence duties to frontline fighting. He studied accountancy part-time. He was promoted sergeant, demoted to private (“at his own request”) and later re-promoted corporal. He fought in the South Pacific, and in 1945 in Italy. Muldoon served in Marshall’s unit in Italy. Major Marshall invigilated Corporal Muldoon’s accountancy examinations in a tent in a field above Trieste, following the German capitulation in May 1945.³⁵

War, study and work matured Muldoon. He spent 1946 working as an accountant in London, topping the English cost accounting examination. Returning to Auckland in 1947 he joined a leading accounting practice. Within three years he was a partner, the firm becoming Kendon Mills Muldoon & Browne.³⁶ In personality he remained mischievous and unpretentious. But a hard edge was developing. His ability as an accountant, and his mastery of accounts, numbers and facts (for which, as a politician, he was legendary), produced a sometimes overweaning confidence. He could be abrasive, dogmatic and impatient. Socially, however, he remained ill at ease. He related well to people he knew already, children and lilies (which he began propagating in the 1950s).³⁷

He developed a pugnacious personality to compensate. He liked to call himself, in politics, a “counter-puncher”. No politician moved more seamlessly between opposition and government. Almost nothing about him changed.

Muldoon joined the National Party in 1947. Labour had been in power since 1935. It was tiring, its majority eking away. The four Maori seats saved Labour in 1946. National’s leader, Sid Holland, was a good campaigner. Its caucus was vibrant: 1946 added eight new MPs, including the now-revered Hanan, Shand and Marshall.³⁸ The Auckland branches of the party were energetic, politically and socially. The people Muldoon worked with, and for, belonged. He joined, and rose. After false starts in two safe Labour seats in 1954 and 1957, he was selected for, and won, the safe National seat of Tamaki in 1960. He held it for 31 years. He proved a strong parliamentary debater. He was well prepared, and a formidable master of detail. Although focusing on finance, he could hold his own on most issues. Within three years he was Under-Secretary of

³⁵ John Marshall Memoirs: Volume 1: 1912 to 1960 (Collins, Auckland, 1983)

^{at 78.}

^{36 It became part of KPMG. Muldoon only retired as a partner in 1984,}

^{towards the end of his premiership.}

^{37 Hugh Templeton All Honourable Men: Inside the Muldoon Cabinet 1975-1984}

^{(AUP, Auckland, 1995) at 24; David Lange My Life (Viking, Auckland,}

^{2005) at 123; Gustafson, n 30, at 186.}

^{38 Gustafson The First Fifty Years: A History of the New Zealand National Party}

^{(Reed Methuen, Auckland, 1986) at 50–53.}

Finance. In February 1967 the National Minister of Finance, Harry Lake died. The Prime Minister, Holyoake, offered it to his deputy, Marshall. He declined. At 45 Muldoon was given the job.

Muldoon’s baptism as Minister of Finance in 1967 came at the same time as a slump in wool prices. It precipitated “the worst balance of payments position in 30 years”, as he put it at the time.³⁹ A “mini-budget” quickly followed. It was indicative of Muldoon’s developing preference for close executive management of the economy. Devaluation of the currency by 19 per cent came later in the year. His management was commanding, direct and rapid. He did not like problems to mount up. As Gerald Hensley (later his head of the Prime Minister ’s Department) noted:⁴⁰

He was cautious about risk, but disliked doing nothing. Contemplating a set of equally unattractive options, he said to me, “Let’s get it moving and then we can see better how to steer it.”

An “action this day” man.

As a later Cabinet colleague, Hugh Templeton, has noted, he was the first finance minister to reach a national audience on television. He explained the issues, directly and clearly, to the public. His bold actions seemed to have worked, and “Muldoon built enduring popular confidence in his abilities.”⁴¹ In 1969 Muldoon’s economic management and vibrant campaign trail style were significant factors in National winning (albeit narrowly) an unexpected fourth term as government. Holyoake had been expected to resign if National lost. It had not, and he would not. The frustrated heir-apparent, Jack Marshall, eventually managed to engineer a leadership spill in February 1972, just nine months before the general election. Holyoake resigned, and Marshall beat Muldoon by 28 votes to 16. In all this a strong supporter for Muldoon’s eventual succession to leadership was created: Holyoake.

The 1972 election campaign was calamitous for National. Admittedly, a fifth term was improbable. It was a television-driven campaign, and Marshall’s “television appearance was stiff, slow and proper, a lawyer briefing his client and working for fees”.⁴² Worse, the campaign opening television feed failed altogether. Labour ’s Norman Kirk, neatly repackaged by spin doctors, triumphed on television. Muldoon was sidelined, ill for most of the campaign. The Labour campaign slogan was “It’s Time for a Change”. Indeed it was.

Labour won in a landslide, with a 23-seat majority. Kirk was Prime Minister, as dominant in the House as he was on television. But he had Prime Ministerial duties too, and in his frequent absences Muldoon ran riot. He “had the capacity to break the will of the Labour members. He

³⁹ Gustafson, n 30, at 92.

^{40 Gerald Hensley Final Approaches (Auckland University Press, Auckland,}

^{2006) at 231.}

^{41 Templeton, n 37, at 19.}

^{42 At 24.}

was fearless and fearsome in debate.”⁴³ Town hall speeches and radio talkback shows all added to the cult of Muldoon. He made no bones about his intention to succeed Marshall, and the sooner the better. By July 1974 the National caucus, watching the daily blood-letting in the House (Kirk’s mastery of Marshall; Muldoon’s of everyone but Kirk), reached the same conclusion. Marshall resigned, and Muldoon was elected Leader of the Opposition unopposed. Outside the House, the transition was ill-received by National Party rank and file, other than in Auckland. Marshall was deeply revered. His departure seemed to mark the end of courtesy in political leadership. For years cartoonists were wont to feature images of Muldoon, with a spectral Marshall somewhere in the background, a knife or cleaver projecting from his shoulder blades.

To add to the recriminations, Kirk, catalyst for Muldoon’s succession, died just seven weeks later.⁴⁴

Wild

Wild was a remarkable man.⁴⁵ He shared some qualities with Muldoon. Leadership came naturally to him. Thirty-five years after his death, his judicial colleagues recollect him as a great leader of the Crown Law Office (as Solicitor-General 1957–1965) and the Bench (as Chief Justice

1966–1978). He was tough-minded, forceful and dominant. To those who did not know him well, such as young counsel, sometimes frightening to confront. But at that point the comparisons with Muldoon end. Wild was consistently generous to his colleagues. He engendered loyalty undimmed to this day in those who remain. Where pragmatism ruled Muldoon’s mind, principle ruled Wild’s.

Wild was nine years older than Muldoon. Born in September 1912, his family circumstances were settled, happy and comfortable – although there was never much spare money. Money was never something that much interested Wild.⁴⁶ His father was the founding headmaster of Feilding Agricultural High School.⁴⁷ He was educated there (he was dux in 1929) and at Victoria University College. One of Wild’s classmates, and a lifelong friend, was Jack Marshall.⁴⁸ They graduated LLM together

⁴³ At 30. See also Lange, n 37, at 122 and 124.

^{44 He was replaced by Bill Rowling, Prime Minister 1974–1975. An able,}

^{decent man, but in the Marshall rather than Muldoon mould.}

^{45 Observations in this section are based in part on personal communications}

^{with the Rt Hon Sir Ivor Richardson, the Hon Justice Wild, the Hon Sir}

^{John Jeffries, the Hon Richard Savage, the Hon Paul Neazor and Mr Peter}

^Young.

^{46 Hon Justice Wild, personal communication, 6 November 2013.}

^{47 And for 12 years Pro-Chancellor of the University of New Zealand. See}

^{Dictionary of New Zealand Biography (Department of Internal Affairs,}

^{Wellington, 1998) vol 4 at 563-565.}

^{48 Prime Minister 1972; Deputy Prime Minister 1960–1972; Attorney-}

^{General 1954–1957 and 1969–1971. A deeply courteous and widely-liked}

^{man, known as “Gentleman Jack”, in contradistinction to his successor,}

^{Muldoon. When Sir John Marshall retired from politics, 500 people from}

in 1935. Twenty years later Marshall, by now Attorney-General, would appoint Wild Solicitor-General. Wild was a strong black letter lawyer, and co-wrote a text on mercantile law shortly after the war.⁴⁹ He was president of the students association, a Rhodes Scholarship nominee and a prominent sportsman (playing representative rugby for Wellington in

1936). He also had a strong but far from overpowering Christian faith. In sum, a highly intelligent, popular all-rounder.

Professionally, he worked as an employee for two Wellington firms. One, Bell Gully, he returned to as a partner after the war. In 1939 he bought a small one man practice and started out on his own account. Within months war came. In January 1940 he shut his new offices and enlisted in the 2nd NZEF, serving in the Middle East and Italy from December 1940 to November 1944. By the time he was demobbed he had been promoted major. So too had Marshall.⁵⁰

Wild’s war diaries shine a personal light on the person who later became New Zealand’s ninth Chief Justice. Allowing for the fact that they are the expressions of a man of just 30, they indicate a set of values that he carried throughout his life. The diaries were written in a duplicate book, the top page of which was posted back home to his wife Janet. At times they are conversational. One quality demonstrable from these pages is modesty, a mild self-doubt as to his capacity to meet challenge, but a willingness to embrace it notwithstanding. Another was a muscular dislike for cant and pomp. But initial dislike of the formality and stand-offishness of regular officers in the British Army gave way to admiration for their courage under fire: “they have yards and yards of guts, these fellows”.⁵¹ In September 1942 Wild attended a lecture by Montgomery, newly appointed and transforming commander of the Eighth Army. He emphasised fundamental fighting principles, and the critical importance of “hard thinking”. Wild wrote in his diary that it was “the most inspiring and appealing example of leadership I have seen in any sphere ... It completely restored my faith in British success”.⁵² There is also a sneaking regard for the unconventional and downright unlawful. The following exchange is recorded, admiringly, in the diaries:⁵³

British interrogator: You must tell me your unit.

the Karori electorate farewelled him at a dinner in Wellington, on 31

^{March 1976. By then Chief Justice, Wild was one of the five speakers at}

^{that dinner, along with Muldoon and the President of the National Party:}

^{The Evening Post (New Zealand, 1 April 1976) at 3. Two months later the}

^{trial of Fitzgerald v Muldoon began.}

^{49 Denzil Ward & Richard Wild Mercantile Law in New Zealand (Whitcombe}

^{& Tombs, Wellington, 1947). It ran to eight editions, the last appearing}

^{in 1983.}

^{50 Marshall, n 35, ch 5.}

^{51 Richard Wild, War Diaries 1940-1944, privately pubished by Wild family,}

^{Wellington, 2012, at 127.}

^{52 Wild, n 51, at 148.}

^{53 Wild, n 51, at 128.}

German prisoner: I refuse to answer - given oath to Fuhrer, etc.

British interrogator: Well, not myself being a German, I am unable to torture you – but we are fortunately placed in having as our allies here the Poles and Czechs who are not unfamiliar with Gestapo methods. I will therefore arrange for a Polish officer to see you tomorrow and ...

German prisoner: One moment, what is it you wish to know?

But it is an exceptional episode in the diaries. By no means was Wild a pragmatist at heart.

Inefficiency was a particular bugbear of Wild’s. It was one of the reasons for his impatience with British Army officers, other than when fighting. Wild’s rapid promotion at staff level indicated the administrative qualities deployed later as a partner in Bell Gully, Solicitor- General and Chief Justice. Another character trait displayed is humanity. For the civilian victims of war, and for the men he commanded. The commanders he admired were considerate to their men. Wild followed their example. The night before a battle in which his unit did not expect to do well, Wild led his men singing comic songs by Gilbert & Sullivan. His observations on war are acute. In July 1941, after listening to a lecture by General Freyberg, Wild notes, “I should not be surprised if Crete will remain the subject of explanations and recriminations after this War as Jutland did after the last.”⁵⁴ It still does. The British Army officers, conservative but courageous, will “have to be prepared to see a different world when we have won.” Wild was no pukka enthusiast for warfare:⁵⁵

I was overwhelmingly struck with the futility and stupidity of war. Sidi Barrani, a place for which thousands of troops battled fiercely less than 9 months ago – now empty and completely desolate except for the graves of the dead soldiers, marked with wooden crosses made from bits of benzene boxes, with the names written by an amateur signwriter... the sense of waste and desolation could not be more complete.

On return to New Zealand in 1945, Wild became a partner in Bell Gully in Wellington. No sooner had he joined the partnership than he set about reinvigorating the practice. The new man immediately told his partners that “the firm has slipped a bit”.⁵⁶ His practice was a wide- ranging litigation one. In the early 1950s, for instance, he prosecuted three Niueans charged with murder of the resident commissioner of that island.⁵⁷ He also took responsibility for management of the firm, and was regarded as a tough taskmaster of junior staff.⁵⁸

⁵⁴ Wild, n 51, at 101.

^{55 Wild, n 51, at 109.}

^{56 Julia Millen The Story of Bell Gully Buddle Weir (Bell Gully Buddle Weir,}

^{Wellington, 1990) at 173.}

^{57 Latoatama v Williams [1954] NZLR 594 (CA); see also Anon, “The Office}

^{of Solicitor-General” [1957] NZLJ 171.}

^{58 Millen, n 56, at 175.}

In 1957 Marshall, by then Attorney-General, lured him to take over responsibility for the government’s legal services, as Solicitor-General. The Crown Law Office was verging on the moribund. It was small, and its membership elderly.⁵⁹ It did little substantial litigation.⁶⁰ In 1957 the previous Solicitor-General, Herbert Evans QC – “a quiet, unassuming, diffident man” according to Marshall⁶¹ – retired aged 72. Evans was a former Bell Gully partner; his appointment as Solicitor-General in 1945 came as a considerable surprise to him.⁶² Wild replaced him in the partnership in 1945, and again as Solicitor-General in 1957. Marshall wanted “a leading barrister from the practising profession who would provide the kind of leadership and stature appropriate to this high office.”⁶³ He persuaded his friend Wild to take the position. The financial sacrifice was very considerable. It meant Wild thereafter was never well off. But as Marshall put it, “he had a sense of public service and, no doubt, an eye for promotion to higher office”.⁶⁴ (The then-Chief Justice, Sir Harold Barrowclough, was 63 and might serve no more than another nine years.) Wild’s appointment was celebrated by The New Zealand Law Journal:⁶⁵

Mr Wild is a hard worker and possesses powers of concentration and a keen analytical mind. These attributes, together with an understanding of his fellow-men and a sense of humour, have brought him well-deserved success.

As Solicitor-General Wild was (as in his other appointments) a conspicuous success. His reorganisation of the Crown Law Office was spectacular.⁶⁶ Sir John McGrath suggests there is general agreement that the Solicitor-General’s greatest influence on government was during the tenures of Salmond and Wild.⁶⁷ Wild set about attracting young men of ability and prospects, partners already in established firms, to join him:

⁵⁹ One of its members, James Prendeville, who had died only a few years before, could recall the 1876 construction of the Government Buildings, in which the Crown Law Office was located in the 1950s. Peter Young, personal communication, 30 October 2013.

^{60 Hon Richard Savage, personal communication, 27 October 2013; Peter}

^{Young, personal communication, 30 October 2013.}

^{61 Marshall, n 35, at 215.}

^{62 Millen, n 56, at 173. That said, Evans was widely respected: Anon, n 55.}

^{63 Marshall, n 35, at 215.}

^{64 Marshall, n 35.}

^{65 Anon, n 57.}

^{66 Tony Black “Obituary: The Right Honourable Sir Richard Wild, GBE,}

^{KCMG, ED” [1978] NZLJ 169; Robin Cooke (ed) Portrait of a Profession}

^{(AH & AW Reed, Wellington, 1969) at 407.}

^{67 John McGrath “Principles for Sharing Law Officer Power – The Office of}

^{the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 202. Salmond}

^{was Solicitor-General 1910– 1920; McGrath, 1989-2000.}

Gordon Orr,⁶⁸ Richard Savage,⁶⁹ and Ivor Richardson⁷⁰ came. Wild gave them considerable autonomy, and set about increasing the scope of the Office’s role. As a later Attorney-General said, “as a matter of deliberate policy he put his staff where he thought it essential they should be – in Court, as advocates.”⁷¹ He was the man for the job as the growth of administrative law in the 1960s led to the Crown being embroiled in more and more litigation. There was, says Richardson, “a real buzz about the place” under his leadership.⁷² His noted brevity and clarity of expression as a Judge reflected his longstanding advice to Crown counsel:⁷³

To give the best service we must not treat matters sent to us as merely academic exercises, but as real problems calling for the best advice we can give from practical experience and judgment as well as legal knowledge.

In 1966 Barrowclough CJ retired. There were two candidates to succeed him: Wild and his former Bell Gully partner, the patrician Denis Blundell. Both aspired to the role. But Wild’s superiority as a lawyer,⁷⁴ sacrifice to become Solicitor-General, and unqualified success in that role, made

⁶⁸ Orr was a partner in the Wellington firm Young, Bennett, Virtue & White.

^{At Crown Law he specialised in administrative and constitutional law.}

^{He was later a highly regarded Secretary of Justice, and Professor (and}

^{Dean) of Law at Victoria University.}

^{69 Savage was a partner in Robieson Olphert & Savage in Wellington. He}

^{met Wild in a custody case in the Court of Appeal where, to the Bench’s}

^{delight, Savage was for the appellant and Wild was for the respondent.}

^{At Crown Law he specialised in criminal and personal injury work. He}

^{became Solicitor-General in 1970 (J C White succeeding Wild in 1966) and}

^{was a Judge of the High Court 1980 to 1986.}

^{70 Richardson was a partner in Macalister Brothers, Invercargill, the Crown}

^{solicitors in that city. He joined Crown Law in 1963. He specialised in}

^{tax litigation. He preceded Orr as Professor and Dean of Law at Victoria}

^{University. He was appointed to the High Court, and thence the Court}

^{of Appeal, in 1977. He became President of that Court in 1995, retiring}

^{in 2002.}

^{71 Peter Wilkinson “Tribute” [1978] NZLJ 226 at 228.}

^{72 Rt Hon Sir Ivor Richardson, personal communication, 16 October 2013.}

^{73 “Tribute to the late Sir Richard Wild, GBE, KCMG, ED” [1978] NZLJ 226}

^{at 228.}

^{74 No necessary guarantee of appointment, or Wild would have been}

^{replacing a Chief Justice named Wilfrid Sim: Dictionary of New Zealand}

^{Biography, vol 5, (Auckland University Press, Auckland, 2000) at 473.}

^{See also [1974] NZLJ 566–567. Sir Alfred North, however, has said that}

^{the judiciary collectively took the view that Sir Wilfrid Sim “would not}

^{be suitable” and, via Fair ACJ, told the Prime Minister so: Alfred North}

^{Some Reminiscences (privately published, Auckland, 1980) at 92–93. But}

^{in the same passage of his rather peevish memoirs North makes clear}

^{that Barrowclough’s appointment owed more to his war record (he was}

^{a retired major-general) than to any legal acumen he had. His litigation}

^{practice was modest and his appointment was “a surprise to many in the}

^{profession”: New Zealand Department of Internal Affairs The Dictionary of}

^{New Zealand Biography, Volume 5, 1941-1960 (Auckland University Press,}

^{Auckland) at 38.}

him the clear favourite.⁷⁵ When appointed, at age 53, he was the second youngest appointee to that role.⁷⁶ Something Wild said at his swearing- in bears repetition in the context of a study of his most famous case:⁷⁷

I come to this responsible office with a profound belief in the fundamental importance of the Courts of Justice in sustaining the whole edifice of society. Their role is not only, as I think too many imagine, to punish the offender. It is also to uphold and protect the citizen and his freedom, even against the State itself.

To the Chief Justiceship Wild brought his customary vigour: “forceful, hardworking, influential and effective”.⁷⁸ Colleagues describe him as a formidable leader of the Bench, who dominated it by personality, energy and example. He was a notably hard worker, even when illness (a brain tumour) began to overwhelm him in 1977. As his successor said in 1978, “he led from the front where the workload was heaviest – there he was to be found.”⁷⁹ But he was also a man of “warm humanity and boundless compassion”. His relations with his High Court colleagues, Haslam J apart, were exemplary.⁸⁰ And, as his diaries display, and his colleagues recall, he was a man with a generous and ready sense of humour.

Wild was always a willing reformer of place and performance. But he was conservative on matters of fundamental principle, such as the rule of law.

The former meant that he is remembered for promptness and efficiency in the administration of justice,⁸¹ for the establishment of the Administrative Division of the Supreme Court and for the reform of judicial review in the Judicature Amendment Act 1972, which he had a significant hand in drafting. He sought further reform of the Courts, including the formation of an intermediate Crown Court to deal with criminal business (which Barrowclough CJ had mooted, and Wild initially had resisted). He urged a more detailed reform, and publicly deprecated delay in the establishment of the long-mooted, but long deferred Royal Commission on the Courts.⁸² He also insisted on sitting regularly in

⁷⁵ Marshall was not Attorney-General at the time of Wild’s appointment to Chief Justice, but was Deputy Prime Minister. The appointment is made by the Governor-General, on advice from the Prime Minister. There can be no doubt (and no complaint) that Marshall influenced the appointment. Blundell instead became High Commissioner to London 1968–72 and Governor-General 1972–77, roles to which he was well suited.

^{76 Now the third. Sir James Prendergast was 48, and the Rt Hon Dame Sian}

^{Elias 50. I shall continue to refer to Wild CJ as “Wild”.}

^{77 Peter Wilkinson, n 71.}

^{78 AK Grant “A Less-Than-Supreme Court?” [1973] NZLJ 377 (an article}

^{suggesting he may in fact have been too efficient).}

^{79 Peter Wilkinson, n 71.}

^{80 A fact attested to by the warmth with which those who survive still speak}

^{of him.}

^{81 Tony Black, n 66.}

^{82 The Dominion (30 March 1976) at 3. Eventually established in 1977, under}

^{the chairmanship of Beattie J.}

the permanent Court of Appeal. Barrowclough CJ had not done so, after resistance from the members of that Court “on the ground that his experience and capabilities were better suited to his administration of the [High] Court.”⁸³ Wild, the better lawyer and far stronger personality, was not thus deterred. The result was a testy relationship with Turner P and McCarthy P (but not North P, who preceded them).⁸⁴ Wild’s successor Davison CJ followed the Barrowclough model; his successor, Eichelbaum CJ, the Wild model (although sitting almost wholly in criminal appeals).

^{Wild’s reforming zeal extended beyond procedure. In 1963, when}

^{Solicitor-General, he had chaired the Committee on Absolute Liability.85}

^{The committee was to advise whether some form of absolute liability}

^{should be introduced for motor vehicle accident injuries. Wild dissented}

^{from his committee’s conclusion that similar provision to workers’}

^{compensation should not be made for victims of road accidents. The}

^{opening words of Wild’s dissent capture his outlook:86}

It is in their final conclusions ... that nothing should be done at this stage to implement even a limited form of absolute liability that I differ from the majority of the Committee. In my view injustices occur under our present system and the fundamental reason is that the notion of “no liability without fault” which is at its root is not a sound foundation for dealing with the problem of road accidents.

Four years later the Woodhouse Committee endorsed Wild’s approach, but for accidents of all kinds.

Wild’s views were conventional, but informed by a strong liberal streak.⁸⁷ His admirers today continue to include those of liberal persuasion.⁸⁸ His family law judgments have been noted for their

83. Peter Spiller New Zealand Court of Appeal, 1958–1996: A History (Brookers, Wellington, 2002) at 24.

^{84 At 24–25.}

^{85 New Zealand Committee on Absolute Liability Report of Committee on}

^{Absolute Liability (Government Printer, Wellington, 1963).}

^{86 At 44.}

^{87 In 1970 Wild stepped on a wasp’s nest when, at a Wellington Rugby}

^{Football Union dinner, he spoke in support of the scheduled All Blacks}

^{tour of South Africa. For the aftermath see George Barton “Dinner}

^{Speech” (2002) 33 VUWLR 1085 at 1087; and Rachel Barrowman Victoria}

^{University of Wellington, 1899–1999: A History (Victoria University Press,}

^{Wellington, 1999) at 334. On behalf of Wellington bookseller Roy Parsons,}

^{Barton sought, unsuccessfully to stop the tour via the prerogative writ}

^{ne exeat regno. See Parsons v Burk [1971] NZLR 244 (HC). A motion to}

^{ban Wild from the Victoria University Students Union Building was lost.}

^{By way of contrast, Wild spoke for students past at the opening of the}

^{building on 10 June 1961. His speech is said to have quietly reminded}

^{those present that it was a memorial not only to those who had died}

^{fighting, but also to those whose convictions meant that they could not}

^fight.

^{88 See eg Sir Geoffrey Palmer Reform (Victoria University Press, Wellington,}

^{2013) at 125 stating “a power in the land ... a superb lawyer”.}

enlightened and sympathetic view of the rights and entitlements of women on dissolution of a relationship.⁸⁹ His approach to statutory interpretation has been described as “restrained”, and obedient to the expressed will of Parliament.⁹⁰ He was strong on natural justice,⁹¹ and he was strong on individual rights of expression. In Mitchell v New Zealand Broadcasting Corporation⁹² he affirmed strongly the right of a general election candidate to seek declaratory relief in a case the defendant’s counsel declared to be a “stunt for political purposes”.⁹³ And his decision in Wainwright v Police,⁹⁴ dealing with an anti-Vietnam war wreath-laying protest at the Anzac Day service at the Wellington Cenotaph, while largely against the protesters, was generously expressed and notably liberal in outlook for its time.

Wild’s conservatism on matters of fundamental principle, such as the rule of law, meant he had no difficulty in taking up Fitzgerald v Muldoon, ensuring its early disposition and delivering an immediate and emphatic restatement of conventional parliamentary sovereignty. The answer was obvious to him.

The Dictionary of New Zealand Biography sums up his qualities, accurately, thus:⁹⁵

He brought many qualities to his high office: complete dedication to whatever cause he undertook; an outstanding capacity for sustained and concentrated work; a flair for organisation; firm and incisive argument and judgement; a clear and logical mind; practical wisdom; and a broad knowledge and experience of contemporary issues. His passionate belief in the fundamental importance of the administration of justice in an ordered, democratic society shone through all his work as a judge and head of a judiciary committed to administering justice efficiently, effectively and promptly.

⁸⁹ See eg E v E [1971] NZLR 859 (CA) and Haldane v Haldane [1976] 2 NZLR

^{717 (PC) (in which the Privy Council restored the first instance decision}

^{of Wild giving the wife substantial credit for her household contributions}

^{enabling the husband to build up the value of the farm property).}

^{90 Taylor v Attorney-General [1975] 2 NZLR 675 at 679 (HC); Proprietors of}

^{Atihau-Wanganui v Malpas [1977] 1 NZLR 609 at 612 (affirmed on appeal:}

^{[1979] 2 NZLR 545). See Spiller, n 83, at 26.}

^{91 Nicholson v New Zealand Kennel Club Inc [1968] NZLR 529 (HC); South}

^{Otago Hospital Board v Nurses & Midwives Board [1972] NZLR 828 (HC).}

^{92 Mitchell v New Zealand Broadcasting Corporation [1970] NZLR 314 (HC).}

^{Barton appeared for the plaintiff, Cooke QC for the defendant.}

^{93 At 314.}

^{94 Wainwright v Police [1968] NZLR 101 (HC). Wild upheld convictions for}

^{disorderly behaviour that might not now survive the Supreme Court}

^{decision in Morse v Police [2011] NZSC 45; [2012] 2 NZLR 1 – although the confrontation}

^{(at the cenotaph itself) was considerably more direct in Wainwright than}

^{it was in Morse (in the Victoria University Law School grounds, across}

^{the road).}

^{95 New Zealand Department of Internal Affairs The Dictionary of New Zealand}

^{Biography, Volume 5, 1941–1960 (Auckland University Press, Auckland)}

^{at 562.}

^{Isn’t National Super!}

In 1975 Muldoon ran a barnstorming election campaign. Unprecedented crowds turned out to see and hear him.⁹⁶ National’s primary campaign slogan was “New Zealand the Way You Want It”.⁹⁷ He campaigned on two core planks.

The first was “restoring New Zealand’s shattered economy”. Shattered

^{it seemed to be. Britain’s entry into the European Common Market, the}

^{1973 oil shock (in which oil prices shot up from about US$3 to US$20 a}

^{barrel), rising wage and commodity inflation, and stagnating or declining}

^{growth and terms of trade (together, “stagflation”), meant the New}

^{Zealand economy was in serious trouble in 1975. Inflation, for instance,}

^{was running at 15%. OECD forecasts were that it would hit 17% in 1976,}

^{the highest amongst its membership.98}

The second plank was abolition of Labour ’s compulsory, contributory superannuation scheme.⁹⁹ Here a sub-slogan was used, “Isn’t National Super!” No question mark seemed necessary.

New Zealand had had a means-tested old age pension since 1898. The idea of a compulsory national insurance scheme had been mooted, but not adopted, in 1882, 1927 and again in 1936. A modest non-contributory universal superannuation scheme was introduced in 1938, for those not entitled to the old age pension. Pension means-testing was relaxed in 1960: only income was relevant now. In 1971–72 state pension and superannuation costs were 3% of GDP.¹⁰⁰

The only truly affordable way of increasing pension levels, as Labour saw it, was to introduce a contributory superannuation scheme. Norman Kirk had mooted this in 1967, while Leader of the Opposition.¹⁰¹ The cudgels were taken up in earnest by Roger Douglas, later Minister of

⁹⁶ Stephen Levine The New Zealand General Election of 1975 (New Zealand

^{University Press, Wellington, 1976) at 5.}

^{97 Quite what it meant was unclear, but it conveyed a sense of individual}

^{determinism. It was a distinct improvement on 1972’s “Man for Man}

^{the Stronger Team”. In 1975 Labour ’s slogan was “Trust Labour. It’s}

^{Working”. In 1979 the Conservative Party swept to power in Britain}

^{using a slogan, “Labour Isn’t Working” emblazoned over a photograph}

^{of a lengthy dole queue.}

^{98 It also forecast a 1 per cent fall in industrial production, an (improved)}

^{trade deficit of $350 million, and a $1.2 billion deficit in the current}

^{account balance: The Evening Post (18 December 1975) at 1. In 1975, the}

^{cost of imports rose by $1 billion; correspondingly the value of exports}

^{fell by $0.24 billion: The Dominion (27 December 1975) at 3 (quoting the}

^{Government Statistician).}

^{99 Described as one of National’s “campaign plums”: The Dominion}

^{(1 December 1975) at 1.}

^{100 David Preston Retirement Income in New Zealand: The Historical Context}

^{(Retirement Commission, Wellington, 2008) at 14.}

^{101 David Collins “Formulating Superannuation Policy: The Labour Party}

^{Approach” in Palmer (ed) The Welfare State Today (Fourth Estate Books,}

^{Wellington, 1977) at 27.}

Finance in succession to Muldoon in 1984. In 1972 a Private Member ’s Bill in his name (but backed by the Labour caucus) was introduced. In the House the measure was opposed by National; the Bill lapsed. Three months later Labour, led by Norman Kirk, won the general election.

Labour ’s scheme was enacted as the New Zealand Superannuation Corporation Act 1974. It was a compulsory contribution scheme for all persons in paid employment (except for those already in a private scheme). Eventually contributions would be 8% of gross income; 4% from employee and the same from the employer. The insurance industry, for instance, had supported the Bill in 1973–74. One of those submitting in support was a broking firm, Noble Lowndes (NZ) Limited. Muldoon was a director of that company.¹⁰² But he was not a fan. Others who submitted in support included the state sector unions, Challenge Corporation Limited¹⁰³ and the Fixed Income & Widows Association.¹⁰⁴ But Labour had not carried the general electorate with it on the issue.

By the November 1975 general election campaign, Labour ’s New Zealand Superannuation scheme was little more than six months old – introduced on April Fool’s Day 1975, as a still-famous National campaign television advertisement pointed out. Remembered as the “dancing Cossacks” advertisement, it was political propaganda of a surreally brilliant kind. Half animation, half Muldoon addressing the camera, it played on three themes: the lack of universal benefit, the delay in full pay out, and the threat of socialist takeover through abuse of the resultant investment fund.

The first – lack of universal benefit – “If you’re one of New Zealand’s half-million housewives, you don’t get anything, ever”¹⁰⁵ – was simply the consequence of a contributory scheme. The second reflected the fact that it would take to 2028 before the Labour scheme was fully funded. The third theme went thus:

Shortly, Labour will be taking millions out of our pay packets each week. And spending it. In just seven years they will have enough money to buy every share in every public company in New Zealand. Soon they could buy all the farms. Indeed one day the government could end up owning, literally, everything. [A cartoon map of New Zealand turns red.] And you know what that’s called, don’t you?

Cue cartoon Cossacks dancing across the screen. (Never mind, of course, that the Cossacks for the most part had been heartily anti-Bolshevist.) What Muldoon offered instead, as “National Superannuation” in 1975,

¹⁰² Collins, above, at 53.

^{103 One of New Zealand’s largest companies, and led by Sir Ronald Trotter.}

^{He was later the founding chairman of the New Zealand Business}

^{Roundtable, an organisation not noted for any socialist leaning.}

^{104 Collins, n 101, at 53.}

^{105 “The same goes for the half million people over 55, and the 400,000 on}

^{social security”. See the dancing Cossacks advertisement “Dancing}

^{Cossacks, 1975” <http://www.teara.govt.nz/en/interactive/35759/}

^{dancing-cossacks-1975>.}

was simply an enhanced, universal old age pension. It would not put any capital in the hands of the government. It would not discriminate against women and non-workers. And it would pay out its full benefit in 1978, rather than 2028.

Was it affordable? According to Muldoon, in his non-animated coda to the cartoon Cossacks, it was. In a baffling piece of shorthand economic analysis, he stated that the cost was comparable to the Labour scheme because the money was “paid out as it comes in, and thus cannot be eroded by inflation”. That analysis was hopelessly naive, as we shall see.¹⁰⁶

But in 1975, Muldoon’s promise, made in that advertisement, was unequivocal:

On becoming the government, National will immediately abolish the Labour superannuation scheme. We’ll give back to you the money both you and your employer have paid in.

How was he to meet that promise in December 1975, if he won, when he did not intend to recall Parliament until late June 1976?

The Prime Minister speaks

The general election was held on a Saturday, 29 November 1975. As expected, the National Party won. After a single term in office, the third Labour government was trounced. National had 55 seats in the House of Representatives, and Labour 32. The exact reverse of 1972.¹⁰⁷

Even though he would not be sworn in as Prime Minister for another two weeks¹⁰⁸ Muldoon did not waste time putting into effect his superannuation policies. As one of his Cabinet colleagues, Hugh Templeton, recalled:¹⁰⁹

For him the return to power was exhilarating. I could see it in his verve and speed of action. ... I watched him talking to the Auditor- General, Fred Shailes. Muldoon wanted to signal a dramatic return to sensible conservative politics. He would halt the payment of Douglas’ New Zealand Superannuation levy. This would break constitutional convention and reverse the policies of his predecessors.

The campaign promise was to “immediately abolish” the existing scheme. But the public expectation may not have been for instant action. The Dominion newspaper two days after the election was predicting that “it could take some time to work out the mechanics” of abolition. It expected a brief sitting of Parliament early in the New Year to sort out the details.¹¹⁰

A series of proclamations were issued, ultimately summoning

¹⁰⁶ At page 297.

^{107 Two weeks later the Australian Labour government was also swept aside}

^{by a Liberal/National Parry coalition.}

^{108 The exact date was 12 December 1975.}

^{109 Templeton, n 37, at 43.}

^{110 The Dominion (1 December 1975) at 1.}

Parliament to reconvene on 22 June 1976. No early sitting was convened. This decade, in this century, it seems extraordinary that Parliament would not reconvene for six and a half months after a general election. In the meantime executive government, tempered only by judicial government, would rule regardless. But at that time it was orthodox practice. While Labour governments had favoured early Parliaments after the war, National governments had not. Parliaments led by it would reconvene in autumn, in June if possible.¹¹¹ This suited rural members.¹¹² In 1975, Muldoon wanted his new Ministers (most of whom were already seasoned, given the short duration of the third Labour government) to “settle in”. But it also suited Muldoon. The country was in serious economic difficulty. Such difficulties were better managed without parliamentary distraction.

The Auditor’s story

Two days after the election, on 1 December 1975, Muldoon’s secretary called the Auditor-General, Fred Shailes. He was asked to come and discuss “certain aspects of the New Zealand Superannuation Scheme” with Muldoon. Shailes was a recent appointment to the role. He already knew Muldoon. He had been First Secretary at the New Zealand Embassy in Washington. In 1965 he hosted Muldoon when, as Under- Secretary of Finance, he spent three months in the United States on a State Department Foreign Leader fellowship.¹¹³ By the time Muldoon became Minister of Finance, in 1967, Shailes had returned to Treasury. In

1973 he became Assistant Secretary of the Treasury. He was influential in shaping the final form of the Labour superannuation scheme.¹¹⁴

Shailes became Auditor-General in August 1975, three months before the general election.¹¹⁵

It had been common for Auditors-General to receive and accept assurances from Ministers of Finance of impending legislation being passed. It had happened for perhaps 40 years.¹¹⁶ Muldoon had done it as Finance Minister between 1967 and 1972. Shailes’ predecessors had accepted those assurances. A particular example had been the approval of public expenditure. State servants’ salaries were automatically adjusted following general wage orders, usually issued in September.

¹¹¹ This approach changed only after the 1990 general election. Otherwise gaps of over six months (1960, 1963 and 1975), over five months (1966 and 1978) and over four months (1954 and 1981) were customary. The Constitution Act 1986, s 19, introduced a maximum gap of six weeks from return of the writs until the recall of Parliament. Since 1990 the average across all administrations has been just five weeks.

^{112 Hon Hugh Templeton, personal communication, 15 October 2013.}

^{113 Gustafson, n 30, at 86.}

^{114 He later told Gustafson he thought it superior to the National scheme}

^{that replaced it: above, at 237.}

^{115 David Green & John Singleton The Watchdog: New Zealand’s Audit Office}

^{1840–2008 (Otago University Press, Dunedin, 2009) at 106.}

^{116 Evidence of A C Shailes, HC Wellington, 31 May 1976.}

Provision for the increased amount required to pay state servants could not be anticipated in the Budget. And there were other expenses Cabinet authorised which had not been appropriated by Parliament.¹¹⁷

But Auditors-General in practice would approve continued payments, pending Parliament passing the requisite Imprest Supply Bill. Cross- examined by the Solicitor-General, Mr Shailes’ evidence was this:

Q. Is it a regular, common or uncommon matter for your office to seek from the Government in office that kind of assurance, anticipating passage of legislation?

A. Quite common. We have looked back possibly 40 years. It has been done in the last 40 years, quite frequently and I may add has never been dishonoured.

Q. What will happen if it is dishonoured?

A. Very difficult to answer. It depends I guess on what it relates to. My course of action is fairly limited. Firstly I can report my displeasure to the House in my annual report. Or, secondly, if it relates to some unauthorised payment, I could refuse to countersign the daily cheque which is required to pay all Government payments. But I would consider that latter course as a matter of last resort.

Shailes obviously had an inkling as to what Muldoon would be talking about with him. He took with him to the meeting (but did not show Muldoon) a set of notes that had been prepared by his staff. The first item in those notes began:

The Audit Office would not question a directive from Government that contributions in accordance with the Act should cease, provided that it is furnished with a written undertaking given by the Prime Minister that legislation validating the action would be sought in the next session of Parliament.

The notes went on to record that the Audit Office would not be prejudiced in commenting on the matter in its annual report, despite not questioning that directive contemporaneously. Then, presciently, they continued:

While the Audit Office would as regard its functions and obligations feel justified in accepting the position on the basis of paragraphs 1 and

2 above,¹¹⁸ on the narrow question of individuals vis-a-vis the Act and its enforcement until amended or appealed it would seem to be open to any person (employee or employer) to seek the assistance of the Courts if he wished the Act to be enforced according to its tenor. No precedent for such a possibility comes to mind, but that is not to say it could not happen on this, not uncontroversial, issue.

Although Shailes did not show Muldoon his notes, their gist must

117. See Muldoon’s own account of this process in Muldoon (AH & AW Reed, Wellington, 1977) at 186.

^{118 The two passages just quoted and summarised.}

have been conveyed. Shailes had no further discussions with Muldoon prior to the Prime Minister ’s public announcement on 15 December

^{1975. Muldoon must have been satisfied that the Audit Office, at least,}

^{would not pose a problem.}

The Solicitor-General’s advice

Crown Law Office records show that the Solicitor-General, Richard Savage QC, was consulted by Muldoon early in the process. His advice is appended to a Cabinet paper dated 12 December 1975.¹¹⁹ It is in two parts. The first is “some notes” given by Savage to Muldoon. It seems that Muldoon had asked for an outline of both a process to be followed, and a public statement advising the process. Savage’s notes advocate close consultation with Treasury and the New Zealand Superannuation Corporation. The public statement outlined is masterfully opaque. There have been discussions. There will be a Bill early in the new parliamentary session. The Bill will be retrospective, in part. Meantime, the Corporation has decided it will “not take action to compel payment” by both employees and employers. Then the lawyer in Savage takes over: “The effect of this is that the Act remains in existence as it is”. Any persons who wish to go on contributing may do so. The notes conclude with some observations on what the Prime Minister might say if challenged on legality. They seek to draw a distinction between statutory obligations necessary for the preservation of an ordered society, and those arising under a social policy now abrogated decisively by general electoral mandate.

The second part of Savage’s advice (also included in the Cabinet paper) is an addendum to the notes. It sets out three points made to Muldoon orally in the meeting Savage had had with him. The first was “that in my view the most correct approach would be to let matters continue in terms of the old Act until Parliament passes the new legislation”.¹²⁰

Savage recognised that involved “practical and party policy difficulties”. The second was to canvass what might happen if employees tried to enforce the existing legislation by prosecuting employers.¹²¹ I will return to that point.¹²² The third concerned civil enforcement. Savage said it was “difficult to forecast precisely what the result would be” in such event.¹²³ But he considered it might be possible to get such a proceeding adjourned until Parliament sat. And a Court might be persuaded, in its discretion, not to grant an injunction.

¹¹⁹ Cabinet Paper “The Termination of the New Zealand Superannuation

^{Scheme” (12 December 1975) CAB 75/920.}

^{120 Solicitor General, addendum to Cabinet Paper, above.}

^{121 Section 93 of the New Zealand Superannuation Corporation Act 1974}

^{made it an offence punishable by a $500 fine not to make employee}

^{deductions and employer contributions.}

^{122 At page 279.}

^{123 Solicitor General, addendum to Cabinet Paper, n 119.}

^{The Officials Committee}

Cabinet records show that Muldoon had established an Officials Committee, drawn from Treasury, the Inland Revenue Department and the New Zealand Superannuation Corporation. It was chaired by a Mr S A McLeod, of Treasury. It reported to Muldoon on 9 December 1975.¹²⁴

Four aspects of the report are of interest. The first is that the committee does not appear to have had a lawyer member. But it had, and indeed referred to, the Solicitor-General’s advice.¹²⁵ The committee said it was important that any “action to change legal requirements without immediately amending legislation is seen as proper and constitutional”. The “simplest method” would be a statement that the New Zealand Superannuation Corporation would not enforce the penalty provisions of the current Act, pro tem. Secondly, it noted the government’s “pledge” to “refund to employees ... all balances in [the] scheme including the employers’ contributions. While immediate cessation of employee contributions “would not be wholly practicable”, “it would be to the employers’ advantage not to make contributions which are ultimately to be refunded to their employees”. So the committee recommended compulsory employer contributions should cease on the date the Prime Minister ’s intended public statement was issued. How that was to square with the first point, or the Solicitor-General’s advice, was unexplored.

The third point of interest is the draft press statement prepared by the committee. It is very clear that this was based on the Solicitor-General’s “notes”. The draft followed his order, and some of his drafting. But it eschewed his lawyerliness. No reference, then, to the Act “remaining in existence as it is”. And nothing on the legal propriety of what was being done. Importantly it added that “the compulsory requirement for employer contributions will cease on the day this statement is made” – at least for salaries or wages payable from 31 January 1976. Fourthly and finally, a further draft, dated 12 December 1975, emerged “following further discussions”. With whom exactly is unclear, but it is likely that it was with Muldoon. It bears his annotation – simply “agreed”. Critically it provided that the “compulsory requirement” for both employee and employer contributions “will cease” as from the date of the statement. It was these words – included also in the statement ultimately issued - Wild fastened on to in his judgment. Pragmatism – the need to take a position readily intelligible to the electorate – had displaced the legal niceties counselled by Savage.¹²⁶

¹²⁴ Its report is attached to Cabinet Paper “The Termination of the New

^{Zealand Superannuation Scheme” (12 December 1975) CAB 75/920.}

^{125 It is conceivable, however, that the committee had only the Solicitor-}

^{General’s “notes” as at 9 December, and not the far more qualified}

^addendum.

^{126 As Gerald Hensley notes in Friendly Fire (Auckland University Press,}

^{Auckland, 2013) at 155, Muldoon’s view was that issues for public}

^{discussion had to be black and white. Shades of grey were for}

^{implementation, not explanation.}

^{The Chairman’s story}

The Auditor-General having raised no obstacles, Muldoon plainly did not think the New Zealand Superannuation Corporation board was going to be a problem either. He did not bother to consult its chairman until 12

December 1975, three days before he issued his public press statement. The chairman, Sir Arnold Nordmeyer, had been Minister of Finance in the second Labour government, 1957 to 1960. He was aware that the officials committee had been working on how to terminate the New Zealand Superannuation Scheme. But he had no contact from Muldoon until, on 12 December 1975, he received a letter from him in his capacity as Prime Minister. As he had been sworn in only that day, it must have been one of the first he wrote in that capacity. The letter began:¹²⁷

As you know a committee of officials has been giving preliminary consideration to the implications of my Government policy on the New Zealand Superannuation Scheme. Following discussions on this by Cabinet next Monday I propose to issue a press statement outlining the action the Government intends to take.

The later draft of the press statement was enclosed. Muldoon sought from Nordmeyer “any comments that you might like to make”. He invited a meeting, if it would assist. As Wild was to comment later, the draft had some “minor differences” from the press statement issued after Cabinet on 15 December 1975.¹²⁸ The draft press statement purported to speak for the Corporation board in three respects. First, that it supported the Prime Minister ’s statement. Second, that the board had decided that “until legislation is passed, it would not take action to enforce the payment of contributions” by employers or employees. Third, that the board had decided that it would not institute any prosecution through offences under the present law for non-payment of contributions. In the final version, only the second of the three propositions was retained.

Nordmeyer said in evidence that the board did support the statement

^{“so far as it involved the Corporation”. The board met on Monday 15}

^{December 1975. It was aware that Cabinet was to meet later that day}

^{and was awaiting its response. Nordmeyer said that the board did not}

^{regard the letter as an instruction. Rather it saw it as a request. The board}

^{had nine members. Three were heads of government departments. The}

^{other six were appointed by the Governor General on the Minister of}

^{Finance’s advice. All were present that day. The meeting resolved:129}

That in view of the Prime Minister ’s assurance the [sic] legislation will be introduced validating the Board’s action and protecting officers of the Corporation, action would not be taken to enforce the payment of deductions and contributions in respect of salaries and wages for pay

¹²⁷ Letter from RD Muldoon (Prime Minister) to Arnold Nordmeyer

^{(Chairman of Board, NZ Superannuation Corporation) (12 December}

^1975).

^{128 [1976] 2 NZLR 615 at 619.}

^{129 At 619.}

periods ending after the date of the Prime Minister ’s announcement of the Board’s decision.

The board resolved that it “agree[d] with” the proposed press statement, subject to some “clarification” changes.¹³⁰ The board did not resolve not to prosecute (the third proposition in the draft). But that point was in effect encompassed in the resolution just quoted.

As Nordmeyer saw it, what was critical was the government’s mandate and majority. Cross-examined by counsel for the Corporation (he had been subpoenaed by the plaintiff) he said:

Q. Did you have any reason to doubt the Prime Minister ’s intention to introduce legislation when Parliament assembled to carry out that platform and abolish the scheme with retrospective operation?

A. I believe that the Government had an adequate majority to enable it to carry out this undertaking – as did other members of the Board.

Tested on that in re-examination, he said:

I personally would have had a very different attitude if the Government majority was so slender as to leave possible that it could not carry out its undertaking. In view of the majority the Government had I thought it proper that the Board to accede to the request it had received.

The press statement

Later the same day, Monday 15 December 1975, Muldoon issued his press statement.¹³¹ It began, naturally, by saying that early in the next Parliamentary session (which, remember, was not for another six months) legislation would be introduced to carry out the government’s election promise to abolish the New Zealand Superannuation Scheme. And, to refund all contributions to employees. The gravamen, so far as Wild was concerned, lay in two passages. They emerged in the 12 December officials committee draft. First, in the third paragraph:

The compulsory requirement for employee deductions to the New

^{Zealand Scheme will cease for pay periods ending after this date.}

Secondly, the fourth paragraph:

Similarly, the compulsory requirement for employer contributions will cease as from today in respect of salaries or wages paid from now on.

The statement also referred to the decision of the Superannuation Corporation (made earlier that day) that it would not take action to enforce the payment of deductions and contributions.

The Commissioner’s story

Even later in the loop was the State Services Commission. It had

¹³⁰ At 619.

^{131 RD Muldoon “Press Statement by the Hon RD Muldoon, Minister of}

^{Finance” (press release, 15 December 1975).}

270

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(2014) Vol 13 No 2

responsibility for issuing instructions regarding payments and allowances for public servants. Its head of industrial relations, Assistant Commissioner Ron Kelly, had not been involved in the officials working group. He became aware of the Prime Minister ’s statement only when it was published in the Dominion on Tuesday 16 December 1975. Unsurprisingly, he called a meeting of the State Services Co-ordinating Committee for later that day. The purpose of the meeting was to consider whether the state sector employment authorities should cease making deductions and contributions.

The committee’s minutes of the meeting were discovered. The consensus decision to stop deductions, “as early as was possible according to particular pay systems”, was soon reached. That was confirmed by Mr Kelly in evidence. To an extent, the Prime Minister was pushing at an open door. Abolition, cessation and refund were popular with the electorate. That point was averted to at the committee meeting. The Defence representative “pointed out and it was generally agreed that employees may be dissatisfied if there were any delay in ceasing deductions”.

Mr Kelly was cross-examined closely by Barton on whether the statement was an instruction to suspend deduction and contribution:

Q. When you read that is it not the position that you treated it as a pronouncement of the Prime Minister which had to be carried out?

A. No.

Q. You didn’t have to carry it out?

A. The decision was made by the States Services Co-ordinating

^{Committee later that day.}

Q. Did you not make that decision because the Prime Minister had indicated what was to happen in the press statement?

A. I can only repeat that the decision was made by the Co-ordinating

^{Committee later that day.}

Q. Do you say the Co-ordinating Committee made that decision quite independently and without feeling under obligation to make it?

A. It made the decision in light of the Prime Minister ’s statement.

...

Q. Is it not the position that the Committee met in order to implement this statement?

A. No, the Committee met to decide whether it should be implemented. Q. If the Prime Minister had not made the statement would you have

^{convened the meeting of the Committee?}

A. No.

Mr Kelly maintained in cross-examination that the committee did not consider the Prime Minister ’s statement an instruction to state sector employers. He maintained that the departmental heads retained independent discretion. But he could not say what would have happened if the committee had decided not to cease deductions and contributions.

The press statement is implemented

Mr Kelly’s sense of freedom of determination was not exactly conveyed in the State Services Commission circular to permanent department heads issued on 18 December 1975. Unfortunately for the Prime Minister, perhaps, it began:

The Prime Minister has directed in a statement made on 15 December last that the compulsory requirement for employee deductions for the New Zealand Superannuation Scheme will cease from pay periods ending after that date.

There were two references in the circular to there being a “direction”. They did not escape Wild’s attention. He highlighted those words on the Judge’s copy of the bundle of documents on the court file. Incautiously, but realistically, a Department of Education circular a few days later, on

^{23 December 1975, opened in these terms:}

Government has instructed that contributions to the New Zealand

^{Superannuation Scheme are to cease at the earliest possible date.}

The idea of there being an “instruction” was fastened upon by Mr Fitzgerald in the claim commenced three months later. Wild highlighted that passage too.

The reality, surely, in 1975 was that a new government with a substantial majority, led by a domineering figure like Muldoon, needed only to state its policy for its departmental heads to fall into line. It did not need to say that it would brook no opposition. There was none. At least initially. Parliament had not been reconvened. The Labour opposition had only the fourth estate in which to rail. As we will see, it did rail there, but to little effect. Inside the National caucus there was no opposition. Templeton refers in his memoir to Derek Quigley clashing with Muldoon in caucus over his failure to “uphold the rule of law”.¹³² But that must have been later, at around the time of the judgment. As Quigley was then a first term back bencher, that must have taken some courage.¹³³

To the State Services Commission, to the departmental heads, and to those below them in charge of payrolls, the press statement was indeed a “direction”, and an instruction. Even if Sir Arnold Nordmeyer did

¹³² Templeton, above n 37, at 48.

^{133 Quigley was given cabinet rank by Muldoon in 1978. He proved a}

^{troublesome priest. He resigned his seat in 1984. In 1993 he founded}

^{a new political party, ACT, along with the architect of the 1974 Labour}

^{superannuation scheme, Roger Douglas.}

^{not see it that way, over at the doomed New Zealand Superannuation}

^Corporation.

Public reaction

Muldoon’s press statement was reported, uncritically, in the media. The average taxpayer was expected to get back $70, half being the windfall of the employer ’s contribution.¹³⁴ The vanquished former Prime Minister, Bill Rowling, was reported as describing the statement as a “call to break the law”:¹³⁵

The fact that Parliament will eventually repeal the Act and at the same time retrospectively validate actions taken between now and then is beside the point.

But it does not seem that the criticism of a recently and convincingly defeated premier counted for much at that point. The Wellington Trades Council was more concerned about whether wage awards would also allow an uplift to compensate for the saving in scheme administrative costs.¹³⁶ The former Attorney-General, Martyn Finlay QC, warned that employers might be prosecuted for not complying with the still-extant legislation.¹³⁷ Muldoon hit back at Finlay at once: he was “simply attempting to frustrate the will of the people” who had shown in the election their “overwhelmingly opposition” to the Labour scheme. As to the legality of the government’s approach:¹³⁸

It is a perfectly proper way in which to proceed with the implementation of the Government’s superannuation policy and the Government will be concerned to see that its intentions – and the will of the people – are not frustrated by any individual or group seeking political advantage.

The Dominion speculated the government’s unilateral action could be the beginning of a protracted legal argument. Muldoon doubted that. He was reported as saying that the procedure “had been cleared by Crown Law and the Controller & Auditor General”, and agreed to by the Corporation.¹³⁹ There were no marches in the streets. Nor their more sedentary equivalent, letters to the editor.¹⁴⁰ And the fourth estate?

¹³⁴ The Evening Post (16 December 1975) at 40. Muldoon later disputed that it had ever been intended that the employer ’s contribution be repaid to employees: 403 NZPD 30 (25 June 1976). See page 293.

^{135 The Evening Post (16 December 1975) at 40; The Dominion (17 December}

^{1975) at 3.}

^{136 The Dominion (1 December 1975) at 1.}

^{137 The Dominion (19 December 1975) at 3; The Evening Post (19 December}

^{1975) at 3.}

^{138 The Evening Post (20 December 1975) at 3.}

^{139 The Dominion (17 December 1975) at 3.}

^{140 Well, not in The Dominion, The Evening Post or The Christchurch Star, at least.}

^{On 23 December 1975 there was a lone letter in The Evening Post which}

^{commented in passing that the refunded superannuation contributions}

^{entering circulation might have an inflationary effect: The Evening Post}

^{(23 December 1975) at 3.}

In response to former Deputy Speaker Jonathan Hunt’s objection to Parliament not being convened, and government being undertaken by “secret decree”, the Dominion editorial had a stout retort: “Rot”:¹⁴¹

Mr Hunt says the new Cabinet is denying new MPs the chance of “a legitimate and rightful role in the legislature”. Rot. It is getting stuck into a job that is a Cabinet, not a Parliament, matter, and is giving the new crop of ordinary Members, who are mainly Government, a chance to meet their constituents as elected representatives, so they will have a better grasp of home issues when they come to Parliament.

The first definite indication of a legal challenge came from 13 unions who were party to a collective agreement with the Ford Motor Company in Lower Hutt. On 23 December it was reported that they would seek a writ of mandamus against Ford, “seeking that it observe the law”.¹⁴²

Union advocate Pat Kelly was quoted as saying that if Muldoon wanted to bring down retrospective legislation, that was his right, “but he has no right to break the law in the interim”.¹⁴³ In fact no such writ was issued. Later the unions attempted to mount a private prosecution, just as Finlay had predicted (or suggested).¹⁴⁴

But the reaction was no uproar. Muldoon saw no need to alter course. Muldoon was right that the Labour scheme was unpopular. The element of compulsion had never been sold effectively to a once-pioneering nation where individual self-determination remained a popular ethic. The repayment of the employers’ contributions to workers, and the introduction of a supposedly affordable universal pension scheme, appealed very strongly.

On 23 December 1975 Muldoon issued a second press statement. It commenced:¹⁴⁵

Regardless of what any union groups might represent or how some employers might see the position, no employee should receive the benefit of employer contributions made to the New Zealand Superannuation Fund after December 15 said the Prime Minister and Minister of Finance, Mr Muldoon, today.

Those words might suggest that the Prime Minister too saw his earlier press statement as an instruction. The point was reinforced in the next paragraph of the second press statement, the third gravamen for the purposes of Wild’s later judgment:

Mr Muldoon said the Government had already made it clear that the superannuation scheme finished on December 15 and the compulsory requirement for employee deductions and employer contributions ceased for pay periods ending after that date.

¹⁴¹ The Dominion (19 December 1975) at 6.

^{142 The Dominion (23 December 1975) at 1.}

^{143 The Dominion (24 December 1975) at 3.}

^{144 See page 272. See also page 279.}

^{145 RD Muldoon “Superannuation Contributions After December 15” (press}

^{release, 23 December 1975).}

The second press statement ended with a reminder that retrospective legislation would be introduced in the next parliamentary session. And it added an admonition against would-be litigants:

I am advised that no Court action to compel employers to continue deductions would succeed but if a successful Court action were taken the legislation to be introduced would provide that further subscriptions by employers would be returned to them.

Most employers simply ceased further payments as soon as they could. One at least did not. The Waikato University Council was sufficiently concerned about the legal position that it said it would continue to deduct employee contributions and make its employer payments unless expressly told not to by an employee. “If any one party says it wants to continue, then Mr Muldoon can’t halt the scheme”, its spokesman said.¹⁴⁶

The effect of the two Prime Ministerial press statements was to diminish the flow of money to the New Zealand Superannuation Corporation from about $4 million a month “to a trickle”.¹⁴⁷

The legal challenge begins

Legal professional prejudice (as opposed to privilege) has long suggested that Fitzgerald v Muldoon was initiated (and paid for) by either the union movement or the New Zealand Labour Party. Not so.

The origins of the case are disclosed in a remarkable document filed

^{in the High Court by counsel for Mr Fitzgerald, George Barton, on 13}

^{September 1976, ahead of a hearing about costs. It begins:}

I wish to claim my right of audience as counsel to raise a matter which is, I believe, of importance to the standing and independence of the New Zealand Bar.

The memorandum was in response to a repeated suggestion by Muldoon in a newspaper interview in June 1976, two weeks after delivery of the judgment, and again in an answer to a parliamentary question, that Mr Fitzgerald had got “a very good deal from his counsel”. And that said counsel had “I rather suspect ... a good deal to do with the original decision to take the case”. It was to those suggestions of initiation and subsidisation that Barton was responding.¹⁴⁸

Barton

George Barton was a towering presence at the Wellington bar.¹⁴⁹ He was

¹⁴⁶ The Evening Post (19 December 1975) at 3.

^{147 Evidence of Sir Arnold Nordmeyer, 31 May 1976. From 1 April 1976, the}

^{contributions were to have doubled.}

^{148 Muldoon later very properly withdrew the accusation. See (4 November}

^{1976) 407 NZPD 3678–3679. In one of his autobiographies he again}

^{corrected that misimpression. Muldoon Muldoon (AH & AW Reed,}

^{Wellington, 1977) at 185–186.}

^{149 The words are those of the present Attorney-General, the Hon Christopher}

^{Finlayson QC’s, and they are right. Chris Finlayson “Memories of George}

^{the last survivor of a remarkable quartet of Victoria University lawyers}

^{– Robin Cooke, George Barton, Don Inglis and Bill Shires – who all}

^{graduated at the end of the 1940s, went on to earn doctorates, and later}

^{take silk. Two took judicial appointment, although of a very different}

^{order.150 Shires, tragically, failed to reach his vast potential because of}

^{drink. That was never a risk in the case of George Barton, son of the}

^{manse, devout Presbyterian and teetotaller. He was also the last of the}

^{four to take silk: he applied in the 1970s while still professor of law at}

^{Victoria, was turned down (on the basis that silks should practise full}

^{time), and declined to apply again. Silk was forced upon him in 1990, at}

^{a time when his absence from the rank had become an embarrassment}

^{to those now within it.}

Barton was a man of firm principle, with an almost Victorian sense of propriety. The Chief Justice’s tribute at a special sitting of the High Court after his death in 2011 illustrated both qualities with a recollection from the momentous 1985 High Court decision enjoining the All Blacks from touring South Africa.¹⁵¹ Barton had not been briefed in that case; the present Chief Justice had, for the applicants:¹⁵²

We were reconvened on the Monday to continue the litigation. There had of course been a great to-do about the injunction. Justice Casey had been the subject of a number of intemperate attacks on the radio and in the press. Before the case was called, a lone figure stood to claim attention of the Court: George Barton wigged and gowned, bowed profoundly to the Judge, to signify his respect. That image of an upright and fearless figure, doing what he knew to be right, is something I think of often, and whenever I enter this beautiful room.

Barton’s memorandum in Fitzgerald v Muldoon is another example. If it was Wild’s most famous case, it was Barton’s runner up – to Lesa v Attorney-General.¹⁵³ In that case, one of a dozen or more he argued in the Privy Council, Barton persuaded the Law Lords that Ms Lesa

Barton” (2012) 43 VUWLR 7 at 8.

^{150 Cooke became a Lord of Appeal (although not in Ordinary); Inglis late}

^{in life a Family Court Judge based at Levin, a provincial centre north of}

^Wellington.

^{151 Finnigan v New Zealand Rugby Football Union (No 2) [1985] 2 NZLR 181}

^(HC).

^{152 Elias “The Life in Law of George Paterson Barton QC” (2012) 43 VUWLR}

^{3 at 5. The Chief Justice’s address was delivered in the No 1 Courtroom}

^{of the old High Court in Stout Street, Wellington. As noted earlier, Barton}

^{had attempted without success to persuade the High Court to stop the}

^{1970 All Black tour of South Africa, seeking to engage the prerogative}

^{writ ne exeat regno in Parsons v Burk [1971] NZLR 244 (HC). See n 87.}

^{153 Lesa v Attorney-General [1982] 1 NZLR 165 (PC). See FM Brookfield “New}

^{Zealand Citizenship and Western Samoa: A Legacy of the Mandate” (1983)}

^{[1983] OtaLawRw 2; 5 Otago L Rev 367. The Muldoon administration partially reversed the}

^{decision by legislation. See the Citizenship (Western Samoa) Act 1982.}

^{It confirmed citizenship for Western Samoans in New Zealand on 14}

^{September 1982, the date of royal assent to the Act.}

and thousands of other Samoans were British nationals (and thus New Zealand citizens). On his return home the defeated Solicitor-General was asked by his wife what he’d brought her from London. “134,000 new friends” he said.¹⁵⁴ Western Samoa gave Barton the chiefly title of matai.

How the case came to be brought

Barton’s memorandum explains how Fitzgerald v Muldoon came to be brought. Barton was on holiday over Christmas 1975 at Ohope, in the Bay of Plenty. A message was left for Barton by “a qualified lawyer in the Government service”¹⁵⁵ who was interested in taking, personally, a case to test the legal validity of the direction referred to in the State Services circular.

The then-intending plaintiff is now a prominent Wellington practitioner.¹⁵⁶ He was dismayed that the Prime Minister could, with apparent impunity, direct the suspension of an Act of Parliament in the absence of legislative authority. He discussed the case with Barton towards the end of January 1976, but in the end did not pursue it. There were two reasons for that. The first, and most fundamental, was that he was not a contributor to the New Zealand Superannuation Scheme. Rather, his superannuation contributions went into the separate Government Superannuation Fund. Secondly, the section of the department he worked for already had an uneasy relationship with the National Party caucus. He did not think it fair to cause his colleagues further distress.

But at that point he was approached by Paul Fitzgerald. Fitzgerald was willing to take over the legal challenge.

Fitzgerald

Paul Fitzgerald was, at the time, just 28 years old. He had worked for the public service after leaving school, and had then travelled to Canada and Australia.¹⁵⁷ He returned to New Zealand in 1975. He joined the New Zealand Superannuation Scheme when he took up a position as superannuation clerk at the Department of Defence. Later, in November 1975, he became an “assistant section clerk, Superannuation Section, Teachers Division, Wellington Regional Office, Department of Education.” Because he was more than 25 years of age, he was not required under section 22A of the Superannuation Act 1956 to join the Government Superannuation Fund. So the compulsory New Zealand Superannuation Scheme applied to him.

¹⁵⁴ Paul Neazor, personal communication, 8 November 2013.

^{155 Described by Muldoon, in Muldoon (AH & AW Reed, Wellington, 1977)}

^{at 185, as “a lawyer in a certain government department”. Muldoon}

^{accepted that Barton had not initiated the action at 185–186. See also}

^{page 294, on the infamous Moyle debate.}

^{156 His identity is known to few, and he prefers that state of affairs to continue.}

^{157 The following section draws on personal communication from Paul}

^{Fitzgerald, 7 August 2013.}

He was also a part time political science student at Victoria University, and an active member of the Labour Party. In late December 1975 he was at a Wellington Central electorate committee meeting. The members present were licking their wounds after the drubbing the Party had received in the election. Discussion turned to Muldoon’s statement. There was consensus it was an outrage, and that Muldoon had “stepped outside his role as Prime Minister”.¹⁵⁸ The group thought it was a fundamental constitutional principle that an Act of Parliament could not just be suspended by a member of the executive. They thought something should be done about it. Someone had the idea that Fitzgerald speak to the lawyer referred to earlier. Then the summer holidays intervened.

At some point, either in late January or early February 1976, Fitzgerald spoke to the lawyer. They had lunch in Parliament grounds and discussed options for a legal challenge. The lawyer said that he had spoken to Barton. There was a legal basis for a judicial challenge. But the lawyer could not advance the case himself. He suggested that Fitzgerald go and see a Wellington solicitor, Bill Jeffries,¹⁵⁹ as a conduit to Barton. Fitzgerald did so.

The case begins

Jeffries arranged a meeting with Barton on 17 February 1976. Fitzgerald had not met Barton before. He was struck by his scholarly manner and perceptive questioning. It was not a long meeting. Fitzgerald is sure that the Bill of Rights 1688 was not discussed at it. Its potential significance only became apparent to him when he saw the draft statement of claim. Interviewed after the decision was delivered in mid-June 1976, Fitzgerald said his legal team “took a lot of convincing that I was serious”. But once they were, and had done some work, “they were quite confident about the outcome.”¹⁶⁰ What surprised Fitzgerald was that he was the only plaintiff.¹⁶¹

Fitzgerald was not sure how he would pay for his case. But it was an important matter of principle. It “had to be done.”¹⁶² And, “I was young and foolish then”. No group stood alongside him in the trench. He did not want to ask the Labour Party for help, as he did not want to make it a party political case. He did approach the state sector union, the Public Service Association, to see if it would help him fund the case. It would not. At that stage Fitzgerald’s annual salary was $5,424. The fee he was eventually charged by Barton and Jeffries, in total $3,000 (or in today’s money about $23,500), was more than half his annual salary.

Over the next two days Barton and Jeffries settled letters to be

¹⁵⁸ The Christchurch Star (12 June 1976) at 1.

^{159 Subsequently Minister of Transport, Civil Aviation and Meteorological}

^{Services, and for a shorter period Minister of Justice, in the Fourth Labour}

^{Government 1984–1990.}

^{160 The Christchurch Star (12 June 1976) at 3.}

^{161 The Christchurch Star (12 June 1976) at 1.}

^{162 Above.}

sent to Fitzgerald’s employer, the New Zealand Superannuation Corporation and the Commissioner of Inland Revenue. The letter to the Commissioner noted that deductions (of $1.04 per week) had not been made. Prudently, it enclosed a cheque for $4.16 (four weeks deductions) in default of the employer deduction and in accordance with section 42 of the New Zealand Superannuation Act 1974. Jeffries’ letter to Fitzgerald’s employer, the Department of Education, referred specifically to the departmental circular of 23 December 1975 – in which the government was said to have issued an “instruction” that contributions cease. Jeffries said he was instructed to issue proceedings. He enquired whether the department would refuse to make the deductions required by the Act. He asked what lawful authority was relied on by the department in ceasing to make deductions and contributions. And he sought a copy of the government “instruction” referred to in the circular. When the departmental solicitor eventually responded to Jeffries, his letter was not encouraging:

Anything I might say in the matter is not going to lead to a resolution of the issue. The Government’s position has been clearly stated by the Prime Minister in statements he made shortly after he took office in December and I cannot take the matter further.

The case is filed

Fitzgerald’s case was filed on 22 March 1976, without fanfare. It does not seem to have attracted the least public attention until the following month. The essence of the statement of claim is found in two paragraphs:¹⁶³

16. THAT on or about 15 December 1975 the First Defendant without

^{lawful authority, justification, or excuse,}

(a) announced publicly that all contributions to the Fund should cease; (b) instructed Government Departments that contributions to the Fund

^{were to cease at the earliest possible date; and}

(c) instructed the Second Defendants not to take any action pursuant to the provisions of the Act to enforce the payment of deductions and contributions in respect of salaries and wages for pay periods ending after the date of the First Defendant’s announcement.

17. THAT the announcement and instructions more particularly referred to in paragraph 16 hereof constituted the exercise of a pretended power of suspending of laws (namely the enactments contained in, inter alia, sections 40, 43, and 52 of the Act) or of the execution thereof and were accordingly illegal by virtue of the provisions of section 1 of the Bill of Rights 1688.

Fitzgerald’s loss was, in effect, the employer ’s contribution – $1.04 per

^{week. Allowing for the doubling of the contribution between April and}

¹⁶³ Fitzgerald v Muldoon [1976] 2 NZLR 615 at 618.

^{say June, the case concerned about $41.60 (or in today’s money, $325).}

The relief sought against the Prime Minister was a “declaration that the announcement and instruction of the [Prime Minister] made on or about 15 December 1975 constituted the exercise of a pretended power of suspending of laws over the execution thereof, and was illegal by virtue of s 1 of the Bill of Rights 1688”. A mandatory injunction was sought requiring the Prime Minister to withdraw the announcement and instruction. And to restrain him from instructing the Superannuation Corporation not to enforce payment. Declarations were sought against the Superannuation Corporation, that it lacked lawful excuse for its failure to enforce the payment of deductions and contributions. And that it was in breach of sections 43(2) and 52(1) of the New Zealand Superannuation Act 1974. Similar declarations were sought against the Attorney General, sued in respect of the Treasury and the Department of Education. Further, that the Crown was not entitled to desist from making employee deductions and paying employer ’s contributions. A declaration was also sought that the Auditor-General was entitled to call upon the Superannuation Corporation to show cause why it should not be surcharged for the deficiency to the fund.

Accelerating the contest, Jeffries also applied for an interlocutory injunction against the Prime Minister. It was in the same terms as the final injunction just described. That application was given a tentative hearing date of 31 March 1976. Shortly after, the Crown agreed to discover particular documents sought by the plaintiffs.

The unions prosecute – and are stopped

If alone economically, Fitzgerald did not stand entirely alone forensically. The unions had been talking about seeking mandamus. Instead the vice- president of the Coachworkers Union, a Mr Nicholson, commenced six private prosecutions against the Ford Motor Company. They related to its failure to make employee deductions and pay employer contributions.

Solicitor-General Savage had anticipated such a prosecution being mounted in his advice to Muldoon in December 1975. In that advice he considered a stay would be acceptable in the event of a single prosecution. But he did not think it an acceptable course “if many prosecutions were instituted”.¹⁶⁴

On 1 April 1976 the Attorney-General, Peter Wilkinson, stayed the Ford prosecutions. His accompanying press statement referred to the public mandate for the policy change and the intent to pass retrospective legislation. It noted the attitude of the Board of the Superannuation Corporation (which was of course purely responsive to the Prime Ministerial initiative). And then it said that the Prime Minister ’s statement had been acted upon by “virtually everyone in the community affected by it”. Literally “tens of thousands of people and hundreds of companies”. The Attorney-General concluded that neither

¹⁶⁴ The advice appended to CP (75) 920, n 119 discussed at page 266.

the administration of justice nor the public interest would be served by permitted the prosecutions to proceed.¹⁶⁵

The Crown’s legal advice

Savage was far from sanguine about the Fitzgerald action, however. In December, in abstract, he had considered the prospects of success “difficult to forecast”. His advice then focused on adjournment, and the exercise of remedial discretion in the Crown’s favour.¹⁶⁶ Now, in April

1976, he repeated that advice.¹⁶⁷ Implicitly the advice noted the failure of the press statement to reinforce the extant legislation, and simply provide for dispensation from enforcement (in anticipation of retrospective legislation). The position faced now was different to that in December. The legal challenges were “being supported by some people who have a zeal for principle that transcends political reality”.¹⁶⁸

Savage and his colleague Paul Neazor¹⁶⁹ identified what they considered a respectable argument in response to the Bill of Rights argument. The initial written advice is obscure as to the argument’s content. But in any case they had little faith in it being upheld by the court. As Savage put it later, bluntly, “Only Parliament could amend or suspend an Act, and I told the Prime Minister that at the time.”¹⁷⁰ Savage had advocated the recall of Parliament, before trial, to resolve the issue. The written advice calls it “very important to our chances of succeeding whatever arguments we put forward”.¹⁷¹ But Muldoon would have none of it. He did not wish to be “pushed around by the Opposition.”¹⁷² Indeed the Crown Law papers show Muldoon even contemplated disobeying a declaration or injunction issued by the court. Savage counselled him strongly that the government must obey the law: “If the Government does not ... how can it be expected that private persons will?” ¹⁷³

If the Crown defence lacked merit, delay might see off the risk of an adverse outcome. Parliament was due to reconvene in less than three months. The closer the hearing to the parliamentary session, and inevitable repeal of the present scheme, the less likely relief would be.

¹⁶⁵ PI Wilkinson “Press Statement: Office of the Attorney-General” (press

^{release, 1 April 1976).}

^{166 At page 266.}

^{167 Memorandum from the Solicitor-General to the Prime Minister}

^{(5 April 1976).}

^{168 Memorandum, above.}

^{169 Solicitor-General (succeeding Savage) 1980–1989; Judge of the High Court}

^1989–2004.

^{170 Personal communication, 27 October 2013.}

^{171 Memorandum, n 167.}

^{172 Richard Savage, personal communication, 27 October 2013. Savage}

^{reiterated his advice as to the recall of Parliament in a further}

^{memorandum of advice to the Prime Minister (8 April 1976). But he}

^{noted in it that that advice “was not acceptable to you” – ie Muldoon.}

^{173 Memorandum from the Solicitor-General to the Prime Minister dated}

^{8 April 1976.}

^{Indeed, the case might become moot altogether.}

Priority hearing

On 1 April 1976 Jeffries wrote to Savage, seeking co-operation in obtaining a priority fixture. He noted that the case related to a principle of significant public importance. For good measure as a reason for accelerating hearing, he cited the fact that the Prime Minister was due to travel overseas on 9 April 1976. This was Muldoon’s first overseas trip as Prime Minister. He was away for four weeks. His tour began, perhaps curiously, in Disneyland, and moved on to London, Belfast, Paris (where his enjoyment of a state function was spoiled by the misplacing of his dinner jacket trousers),¹⁷⁴ Korea and most importantly China. However it was never seriously suggested that he would give evidence at trial. Nor was it necessary for Fitzgerald to do so.

The next day Neazor replied. He eventually succeeded Savage as Solicitor-General. The fact that he and Savage worked together in the Crown’s defence suggests that the Crown was treating the case as very important. But that was not the position Neazor took in his response to Jeffries. Rather, the Crown thought matters should “take their ordinary course”. It was not a case of public importance at all. The Crown’s enquiries had “failed to disclose any other employee in the whole field of state services who has made any demand”. The same point was made in evidence by Assistant State Services Commissioner Kelly. He was asked what enquiries he had made about state servants apart from Fitzgerald who had complained. Barton objected to the question. The objection was overruled by Wild. The answer was that, to Kelly’s knowledge, “only one lady in the Post Office” had enquired about the matter.

On 3 April 1976 a tiny reference to the filing of Fitzgerald’s case appeared on the front page of The Dominion.¹⁷⁵ It then lost interest until the trial began. On 22 April 1976 the Crown’s statement of defence was filed. It denied paragraphs 16 and 17, quoted above.¹⁷⁶ Specifically it denied that the Prime Minister had issued an “instruction” or that the cessation of employee deductions and employee contributions were a “direct result” of the press statement.

The priority fixture application was twice adjourned. Eventually it was decided on 19 May 1976. But for Beattie J’s decision to grant a priority fixture – allocating a fixture just 12 days after his decision – the issues in Fitzgerald v Muldoon were likely to have become moot, overwhelmed in the reconvening Parliamentary tide. It is reasonably certain that in granting priority, Beattie would have conferred with Wild.

Jeffries himself did not appear, either on that occasion or at the trial two weeks later. His elder brother was the reason. That brother, John Jeffries,

¹⁷⁴ Gustafson, n 30, at 226. He borrowed those of the unnamed delegation member “most similar in height and weight”. Not an easy substitution, one imagines.

^{175 The Dominion (3 April 1976) at 1.}

^{176 At page 277.}

had been active in the Labour Party. Indeed he had been an unsuccessful candidate for selection for Labour for the Hutt seat in the 1968 by- election that followed the death of Sir Walter Nash.¹⁷⁷ John Jeffries was also a lawyer. In 1975 he was Chairman of both Air New Zealand and the Housing Commission. He was also a prominent member of the “Citizens for Rowling” campaign. That campaign sought to contrast the Labour Prime Minister ’s character with that of the National leader, Muldoon. When elected, Muldoon challenged Citizens for Rowling members holding government appointments to show consistency with their convictions, and resign. He was, apparently, impressed when John Jeffries immediately did so. In January 1976, Solicitor-General Savage rang John Jeffries and offered him judicial appointment in the then Supreme Court in Auckland. Jeffries was told it was “Auckland or nothing”. His family was young; he chose “nothing”. Shortly afterwards the offer came through of an appointment in Wellington. He took it up in March 1976. Many thought that evidence of an admirable toleration on Muldoon’s part. Others of a more cynical outlook saw it as Muldoon sidelining by judicial appointment a potentially powerful opponent. In fact the former is more likely than the latter. Muldoon respected tough- minded, articulate opponents. It was weakness he could not abide.¹⁷⁸

Be all that as it may, Bill Jeffries thought it better to keep a lower profile to spare his newly-appointed judicial brother embarrassment. Geoffrey Ellis¹⁷⁹ appeared instead as Barton’s junior.

The principal concern over the timing of the fixture was that unless an early fixture was granted, the issues raised would become moot because of parliamentary action. The Crown’s position, not unexpectedly, was that “the proper course” was to allow the issue to be dealt with “in the forum of Parliament”. And counsel for the Superannuation Corporation argued for temporal restraint, lest the case “promote a collision between the courts and Parliament”. Beattie J expressly rejected that submission. It is unclear whether he doubted the prospect of collision, or doubted it should be averted by delay. It was also said, for the defendants, that the plaintiff wanted to “beat Parliament to the draw” by taking an essentially “political action”. Beattie J was unimpressed with that too:¹⁸⁰

Prima facie on the papers the plaintiff asks for a remedy to support a statute still in force. No doubt the anticipatory legislation will be passed, but if the action is adjourned until retrospective legislation is passed it means the action will be stifled at birth. I consider that this plaintiff as a

¹⁷⁷ Prime Minister, 1957–1960, in the second Labour Government. The Labour Party, rather surprisingly, selected a Christian temperance enthusiast, Trevor Young instead. He held the seat for the next 22 years.

¹⁷⁸ Hon Hugh Templeton, personal communication, 15 October 2013 and the Hon Bill Jeffries, personal communication, 5 August 2013. See also Hensley, n 40, at 227.

^{179 Subsequently a District Court Judge.}

^{180 Fitzgerald v Muldoon HC Wellington A118/76, 19 May 1976 at 4 (and see}

^{note by Geoffrey Palmer “The Courts are Open” [1976] NZLJ 289.}

citizen is entitled to have his action heard.

...

Although it is urged that to bring the matter on will involve time and expenditure, in my opinion the Court door should be open to the citizens. The necessity of social and economic planning for a society constituted as ours is, must be balanced against the rights of an individual to have his case heard. Because, in my opinion, means may be as important to the cause of justice as ends, I granted the fixture.

So trial was set down to commence, before Wild, on 31 May 1976.¹⁸¹

^{None of these pre-trial events seem to have garnered the least media}

^attention.

Trial

The evidence

I have described the key evidence given already in the narrative of events leading up to the trial. Fitzgerald did not give evidence. His actions were not contentious. That did not stop counsel for the Superannuation Corporation board members calling him a “village Hampden who did not enter the witness box”.¹⁸² What could he have said of any use? But the plaintiff called three witnesses under subpoena: Sir Arnold Nordmeyer, Henry Lang (Secretary of Treasury and board member of the Superannuation Corporation) and the Auditor-General, Mr Shailes. The defendant called Assistant State Services Commissioner Kelly, the chief accountant at the Inland Revenue Department (a Mr Smart) and the general manager of the Superannuation Corporation (a Mr Muir).

I have referred already to the evidence of Nordmeyer as to the willingness of the Superannuation Corporation’s board to fall into line with the draft press statement prepared by the government. And to the fact, that as Nordmeyer saw it, it was the government’s majority that was a critical consideration. I have referred to Assistant State Services Commissioner Kelly’s evidence that departmental heads retained an independent right to decide whether or not to cease deductions and contributions. A perception that was difficult to reconcile with the circulars issued subsequently by the State Services Commission and by the Department of Education. Those referred to the receipt of a “direction” from the Prime Minister, or, “an instruction”.

Then there was Auditor-General Shailes’ notes for his meeting with Muldoon. These proceeded on the basis that a directive from government that contributions should cease would not be questioned, provided

¹⁸¹ Savage expected that would occur. Memorandum of Advice from the

^{Solicitor-General to the Prime Minister, 10 May 1976.}

^{182 The Evening Post (3 April 1976) at 6, Mr Fitzgerald here being likened to}

^{the John Hampden who resisted the payment of ship money levied by}

^{Charles I in 1636 to refit his navy in the face of a new alliance between}

^{France and Holland.}

that there was a written undertaking that validating legislation would be sought in the next session of Parliament. That was seen by him to be consistent with standard annual practice in relation to supply. But, it might be thought, this was a rather different issue. In one case, government was continuing to draw on economic reserves pending passage of an Imprest Supply Bill. In the other there was an Act of Parliament requiring payment of contributions by employers (and deduction of employee contributions also), non-compliance with which was an offence.

Re-examined, (in reality, cross-examined) by Barton, Shailes was asked:

Q. Without that assurance what would your attitude have been if the New Zealand Superannuation Board had passed the resolution that it in fact did pass – that it would take no action to recover contributions etc?

A. That is a very hypothetical question. I would doubt the Board would have passed that resolution without the assurance. But if they had I would obviously have questioned the Board and point out what they are doing was in fact illegal.

Q. How does the Prime Minister ’s assurance make it any less illegal? A. In all these assurances we are given I think I have got a responsibility

^{to the taxpayer and ratepayer to make sure that Government functions,}

^{and functions efficiently, and if, as in this instance, a Government – a}

^{new Government – is elected and immediately decides to remove}

^{the compulsion in the New Zealand Superannuation Scheme and I}

^{receive an assurance from the Prime Minister then in my view the}

^{appropriate course is to accept that assurance.}

Sir Humphrey Appleby would have been proud of that answer.

The arguments

If Barton handed up any written submission, it has not survived on the court file. But written submissions were not conventional in the High Court in 1976. But the press covered the case extensively. Barton began by describing the circumstances in the case as “an unprecedented challenge to the rule of law in our society”.¹⁸³ It involved an unparalleled case of “civil disobedience on a massive scale,” because a million or more people bound to pay superannuation contributions were not doing so.¹⁸⁴

Barton went on to emphasise the following. First, that the press statement, and subsequent circular instructions, were the assertion of a power to suspend statute laws. Secondly, the Prime Minister had intended his statements to have the effect they did have: suspension of certain parts of the New Zealand Superannuation Act 1974. Thirdly, the words “by regal authority” in the Bill of Rights meant by executive government, whether by Crown or by ministers. Fourthly, there was no distinction to

¹⁸³ The Dominion (1 June 1976) at 9.

^{184 The Dominion (4 June 1976) at 4.}

be drawn justifying a more relaxed approach to social policy legislation. Fifthly, there could be no doctrine of “anticipatory legislation”. That would be too dangerous for the courts to countenance.¹⁸⁵ Sixthly, both declaration and injunction should respond to such an infringement of fundamental constitutional law. Finally, the breach of statutory duty by the Superannuation Corporation in not enforcing employers’ obligations to deduct and pay was knowing, rather than the product of ignorance or uncertainty. “It was a case of a policy decision made with due deliberation to follow a course of conduct in violation of the duties cast on the board in administering the Act”.¹⁸⁶ Mandamus should issue to compel adherence to the law:¹⁸⁷

An erosion of parliamentary sovereignty would go unchecked if the board’s resolution were allowed to stand as it would be modifying the provisions of an Act of Parliament. It was being done not out of a great matter of principle but merely for the sake of executive expediency, Mr Barton said.

The Crown’s defence was a mixture of pragmatism and principle. As to the former, much emphasis was placed on the fact that the Auditor- General had sanctioned the arrangement. It was likened to the supply assurances given over the past 40 years. Likewise, that in 1973 the Labour government had announced that no one need now undergo compulsory military training under the Military Service Act 1961, while not repealing the legislation for another ten months.¹⁸⁸ Further, strikes were illegal, “but the community had not thrown its hands up in horror every time there was a strike and no prosecutions.”¹⁸⁹ These arguments seem really to have been directed at an audience other than the Judge. The appeal to principle required a somewhat fine-textured reading of the Bill of Rights 1688. It was that to come within the Bill’s prohibition, a supposed suspension of a statute would have to meet two requirements:

(a) an assertion by the Crown that it was lawfully suspending the operation of a statute; and

(b) a like assertion that it did so by virtue of royal prerogative.

The Crown’s defence, here, was that there was no suggestion in the Prime Minister ’s statement of 15 December (or 23 December 1975) that the operation of the Act was being suspended by the Crown and that such suspension was lawful.¹⁹⁰ Or that it was being done by royal prerogative. Rather, Muldoon had expressly invoked the necessity for retrospective

¹⁸⁵ The Evening Post (3 June 1976) at 6.

^{186 The Evening Post (1 June 1976) at 12.}

^{187 The Evening Post (1 June 1976) at 12.}

^{188 After the judgment in Fitzgerald v Muldoon was released the former Labour}

^{Attorney-General, Martyn Finlay QC, made the point that Labour ’s policy}

^{in 1973 was one of non-enforcement, not interference with potential}

^{proceedings: The Evening Post (12 June 1976) at 1. I revert to the subject}

^{of non-enforcement at the end of this essay: see page 302.}

^{189 Above.}

^{190 RD Muldoon, n 2.}

^{legislation. As Savage put it “this would hardly be necessary if the}

^{‘suspension’ was lawful”. The Prime Minister ’s statement was that the}

^{government would be introducing legislation, that the legislation would}

^{be retrospective, that the board had decided it would not enforce payment}

^{until the matter was dealt with by Parliament, that “in consequence}

^{payments need not be made in terms of the Act” (which is rather the}

^{issue), and that there would be retrospective authorisation.191 In the}

^{alternative, the defendants relied on the absence of an instruction by the}

^{Crown to the Corporation not to enforce. (Barton in fact conceded that}

^{there was no such instruction, but he still relied on the press statement}

^{as a purported suspension of legislation).192 Savage submitted:}

Merely because a Crown servant says to the world at large that it is not necessary to observe the requirements of a particular piece of legislation does not mean it is the exercise of “the pretended power etc”. What it does mean is that if someone follows the Crown servant’s advice then he may well, and doubtless would, find that his failure is not legally justified. To bring the Crown servant within the provisions of s 1 of the Bill of Rights involves a good deal more.

Eight of the 18 pages of Savage’s synopsis of submissions concerned remedial relief in the event that the court held that the Prime Minister ’s actions breached the Bill of Rights. That was a deliberate choice. Savage and Neazor thought their best chance was in getting the court to grant no more than declaratory relief. Winning the case altogether was unlikely.¹⁹³

Bill Jeffries recalls running into Savage at the bottom of The Terrace in Wellington, just before the trial. Savage said to him, “You may very well be correct, you know”.¹⁹⁴ Before Wild, Savage submitted that if the court considered the plaintiff had established any part of his claim then, the relief being all discretionary,¹⁹⁵ it would be appropriate to defer any decision on relief until after Parliament had sat.¹⁹⁶

The Superannuation Corporation directors were separately represented. Their counsel, Ian McKay, submitted that his clients had “acted properly

¹⁹¹ Wild has written beside those submissions, attributing this argument to the Solicitor-General, “It was clear the law was still the law – but the enforcing authority was not enforcing in the meantime”. For a commentary moderately sympathetic to the Crown argument see FM Brookfield “1688 and All That” [1976] NZLJ 547 at 548.

^{192 See [1976] 2 NZLR 615 at 620.}

^{193 Hon Richard Savage, personal communication, 27 October 2013, and the}

^{Hon Paul Neazor, personal communication, 6 November 2013.}

^{194 Bill Jeffries, personal communication, 5 August 2013.}

^{195 See eg Declaratory Judgments Act 1908, s 10. Nowadays, though, it}

^{is generally thought that a declaration should be granted unless the}

^{proceeding is wholly moot, or there has been seriously egregious}

^{disentitling conduct by the applicant. See eg Apineru v Board of Trustees}

^{of the Congregational Christian Church of American Samoa in New Zealand}

^{(Porirua) Trust HC Wellington CIV–2003–485–000713, 16 September 2004;}

^{Geary v Psychologists Board [2012] NZHC 384; [2012] 2 NZLR 414 (HC).}

^{196 The Dominion (3 June 1976) at 3.}

and reasonably ... in acceding to the request of the Prime Minister”.¹⁹⁷

^{But McKay emphasised that it was just that, and not an “instruction”.}

^{That request did not “attack or seek to override the sovereignty of}

^{Parliament. It was the exact reverse.”198 It acknowledged that Parliament}

^{would be called to repeal the legislation, with retrospective effect, and}

^{in circumstances where the government had a substantial majority and}

^{a clear mandate.199}

Trial ran into a fourth day. Opening submissions and evidence took two of those. The balance was closing submissions. Paul Fitzgerald attended throughout the trial. His lay perspective was that Wild seemed “very neutral”. He asked many penetrating questions. Fitzgerald did not feel Wild had any particular view one way or the other at the end of the trial. But Barton was reasonably confident Wild CJ would find against the government.²⁰⁰

The Chief Justice speaks

On 11 June 1976, just eight days after trial concluded, the Chief Justice handed down his judgment. It declared the Prime Minister ’s announcement of 15 December 1975 “was illegal as being in breach of s 1 of the Bill of Rights”.²⁰¹ Given its significance, the judgment is a model of economy. It occupies just nine pages in the New Zealand Law Reports. Fully seven of those pages are an account of the evidence. The last two pages begin with this observation:²⁰²

It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years. And yet it is not disputed that the Bill of Rights is part of our law. The fact that no modern instance of its application was cited in argument may be due to the fact that it is rarely that a litigant takes up such a cause as the present, or it may be because governments usually follow established constitutional procedures. But it is not a reason for declining to apply the Bill of Rights where it is invoked and a litigant makes out his case.

The Chief Justice found that there was no instruction by Muldoon to the members of the Superannuation Corporation Board. That much had been conceded. Barton had not conceded the absence of instruction to departmental heads. But without further ado Wild CJ found that there was none. Had it been important (for instance on appeal), that conclusion

197. The Evening Post (2 June 1976) at 15. McKay became a Judge of the Court of Appeal 1991–1997.

^{198 The Dominion (2 June 1976) at 7.}

^{199 Above. The Christchurch Star (2 June 1976) at 11.}

^{200 Paul Fitzgerald, personal communication, 7 August 2013.}

^{201 [1976] 2 NZLR 615 at 623.}

^{202 [1976] 2 NZLR 615 at 622.}

might have been challenged. The judgment focused on the 15 December press statement, rather to the exclusion of that of 23 December. That was consistent with the way in which Fitzgerald’s claim was pleaded. What had happened in the state sector was as a result of the first statement, rather than the second. The second confirmed the effect of the first. But the statement of claim did not seek to make anything in particular of the second statement, and nor did Wild CJ. He simply recorded that the first statement “was reiterated in unmistakable terms in the second paragraph of the statement made on 23 December”.²⁰³ The operative part of the judgment is succinct:²⁰⁴

The Act of Parliament in force required that those deductions and contributions must be made, yet here was the Prime Minister announcing that they need not be made. I am bound to hold that in so doing he was purporting to suspend the law without consent of Parliament. Parliament had made the law. Therefore the law could be amended or suspended only by Parliament or with the authority of Parliament.

Wild CJ brushed aside the suggestion, made somewhat tepidly by the Solicitor-General, that the Prime Minister ’s statement was not “by regal authority”.²⁰⁵ Wild CJ noted that Muldoon was Prime Minister, leader of the government elected to office and chief of the executive government. He had received his commission by royal authority, had taken the oaths of office and entered on his duties. Would it have been different if the press statement had been made before those events, for instance on election night? Possibly, but as Wild went on to note, what was really important was the authority afforded the statement by officials. He referred to the resolution of the board of the Superannuation Corporation, the decision of the State Services Co-ordinating Committee, and the circulars that then were issued. As Wild CJ put it:²⁰⁶

While I reject the allegation that the Prime Minister gave instructions to these officials I think it is perfectly clear that they acted because of his public announcement of 15 December. Had it not been made they would have continued as before.

Finally, the Solicitor-General’s defence based on the absence of an assertion in the press statement that the operation of the Act was being lawfully suspended, was not accepted. As Wild put it, it was implicit in the statement, coming from the Prime Minister that “what was being done was lawful and had legal effect”.²⁰⁷

The judgment has been much admired for the relief fashioned. Wild contented himself with granting a declaration only. The claims for injunction against the Prime Minister, and for other remedies against the other defendants, were all matters of judicial discretion. Wild noted

²⁰³ [1976] 2 NLZR 615 at 622.

^{204 At 622.}

^{205 At 622.}

^{206 At 622.}

^{207 Above, at 623.}

that there was no doubt as to the government’s intention to introduce legislation, that Parliament was summoned to assemble on 22 June, and “There can be little doubt that that legislation would be enacted”.²⁰⁸ He therefore concluded that it would be an “altogether unwarranted step”²⁰⁹ to set the machinery of the New Zealand Superannuation Act 1974 in motion again. The high probability was that it would have to be undone again within a few months. As Wild CJ put it, in conclusion:²¹⁰

In my opinion, the law and the authority of Parliament will be vindicated by the making of the declaration I have indicated, and the appropriate course is to adjourn all other matters in issue for six months from this date. Judgment accordingly.

The judgment received immediate praise. Writing in the New Zealand Law Journal on 6 July 1976 Professor Geoffrey Palmer (of Victoria University, and later himself Prime Minister) described the decision as “an occasion for dancing in the streets”, and a ringing affirmation of “the classic orthodoxy of our constitutional arrangements”. ²¹¹ Wild had:²¹²

... stared in the face a frontal attack upon the sovereignty of Parliament and the rule of law. Without compromise he branded the occasion for what it was.

^{Palmer likened Wild’s adroit remedial disposition to Marshall CJ’s}

^{“masterwork of indirection” in Marbury v Madison.213 He continued:214}

The judgment of the learned Chief Justice is conspicuous for the strength and simplicity of its reasoning. The judgment contains no remarkable analytical qualities. They were not called for. The point was too big.

Since 1976 Fitzgerald v Muldoon has been cited in judgments in Canada, Australia, Trinidad & Tobago, Vanuatu, Fiji and the Cook Islands. In one Canadian case it was pronounced “trite law”;²¹⁵ in a Cook Islands one “the great case”.²¹⁶Although cited in classic English texts such as de Smith’s Constitutional & Administrative Law²¹⁷ and Hood Phillips & Jackson Constitutional & Administrative Law,²¹⁸ it has not been cited in any reported United Kingdom judgment.²¹⁹ But in the High Court of

²⁰⁸ [1976] 2 NZLR 615 at 623.

^{209 At 623.}

^{210 At 623.}

^{211 Palmer, n 1. See also Joseph, n 3; Brookfield, n 195; and Philip Joseph,}

^{Constitutional and Administrative Law in New Zealand (3rd ed, Thomson,}

^{Wellington, 2007) at 166.}

^{212 Palmer, n 1.}

^{213 Marbury v Madison [1803] USSC 16; (1803) 5 US 137 (USSC).}

^{214 Palmer, n 1 at 267.}

^{215 Toplass v British Columbia [1983] BCWLD 1333 (BCSC) at [11].}

^{216 Pokoati v Tetava [1978] CKHC 2.}

^{217 SA de Smith Constitutional & Administrative Law (5th ed, Penguin,}

^{Harmondsworth, 1985) at 82.}

^{218 Hood Phillips & Paul Jackson Constitutional & Administrative Law (8 ed,}

^{Sweet & Maxwell, 2001) at 47.}

^{219 It was cited in argument in the United Kingdom Supreme Court in M v}

Australia it has enjoyed a late resurgence.²²⁰ In this country it has been applied on three occasions.²²¹

As Palmer said, the judgment said nothing new. What was important was how it was said; its emphasis on constitutional fundamentals, its economy and its expedition. As we have seen, arts 1 and 2 had had little common law attention before 1975. They had never been confronted in such dramatic circumstances: arresting the will of a newly elected Prime Minister with a landslide majority, claiming a mandate from the people for the immediate implementation of a core election promise.

No appeal was filed. At the time Muldoon was quoted saying that the Attorney had told him that an appeal “might” succeed.²²² The prospects were upgraded in later years to advice that an appeal “could very likely succeed”.²²³ No such advice came from Savage or Neazor.²²⁴ Savage’s advice at the time was that the judgment could be attacked, but the prospects of success were “very uncertain”.²²⁵ It appears his advice to the Attorney-General was that:²²⁶

... at least one of the Appeal Court Judges would almost certainly find against an appeal; another probably would do so; the third ... might well be for allowing the appeal if he was satisfied that the other matters of law had been correctly determined by the Chief Justice.

In truth, there was no need for an appeal. As Attorney-General Wilkinson put it to Cabinet, the declaration “has no particular consequences; it merely declares what is the legal position ... The practical effect is that nothing further will happen so far as the Court proceedings are concerned and Parliament can in due course enact the necessary legislation in terms of the Government’s assurances”.²²⁷

Parliament reconvened on 23 June 1976, less than two weeks after the judgment was released. On 25 June 1976 the Superannuation Schemes Bill was introduced. It provided for dissolution of the New Zealand

Scottish Ministers [2012] UKSC 58; [2012] 1 WLR 3386, but not cited in the judgment.

^{220 O’Donoghue v Ireland [2008] HCA 14; (2008) 234 CLR 599 (HCA) at [46] and [178]; Port of}

^{Portland Pty Ltd v Victoria [2010] HCA 44; (2010) 242 CLR 348 at [12]–[13].}

^{221 Professional Promotions & Services Ltd v Attorney-General [1990] 1 NZLR}

^{501 (HC); Alan Johnston Sawmilling Ltd v Governor-General [2002] NZAR}

^{129 (HC); Unitec Institute of Technology v Attorney-General [2006] 1 NZLR}

^{65 (HC) (reversed on appeal: [2006] NZCA 317; [2007] 1 NZLR 750 (CA)).}

^{222 The Dominion (12 June 1976) at 3; The Evening Post (12 June 1976) at 1.}

^{223 Muldoon Muldoon (AH & AW Reed, Wellington, 1977) at 186.}

^{224 Hon Richard Savage, personal communication, 27 October 2013; the Hon}

^{Paul Neazor, personal communication, 6 November 2013.}

^{225 Recorded in a Memorandum by Attorney-General Wilkinson to Cabinet,}

^{dated 17 June 1976, attached to (30 September 1976) CAB 76/680 – almost}

^{certainly drafted by Savage or Neazor.}

^{226 Above. The reference to “other matters” is to matters other than the}

^{meaning of the words used in the statement. At the time the members}

^{of the Court of Appeal were Richmond P, Woodhouse and Cooke JJ.}

^{227 Memorandum, n 225.}

^{Superannuation Scheme. The Bill passed its third reading on 22 July}

^{1976. It received royal assent the following day.}

The judgment was referred to from time to time - during the first reading. Labour members certainly referred to it. Sometimes as a “conviction” entered against Muldoon. The Speaker stopped that. National members preferred to talk about Takaro Properties Ltd v Rowling,²²⁸ in which the former Labour finance minister and Prime Minister (and now Leader of the Opposition) had been found to have unlawfully refused consent for an overseas investment in a high country hunting lodge. The Deputy Leader of the Opposition suggested Muldoon take the Stuart election: loss of throne, or of head. It was all very edifying.

But the outcome of the parliamentary process was inevitable, and the debates reflect that. On 4 October 1976 Cabinet resolved not to appeal Wild’s judgment.²²⁹

Conclusion 1: People

Fitzgerald

Fitzgerald and Barton were well satisfied with the judgment. They had obtained the declaration they wanted. It was, as Fitzgerald puts it, as good a result as could be expected.²³⁰

Fitzgerald was, for a time, a man of interest to the media. They called on him the afternoon of the judgment, at the Education Department, hoping to interview him. A more senior official shooed them away. It was a “sensitive issue”, and he preferred any interviews to occur “off the department’s premises, and after office hours”. So they and Fitzgerald repaired to a pub. There is a photograph of him on the front page of the Christchurch Star, beer glass at hand, under the headline “Proving PM wrong may make clerk poor”.²³¹ The article noted that final relief and costs had been deferred by Wild:

“It sort of leaves me in limbo, but I think it was worth all the time, trouble, worry and possible costs” Mr Fitzgerald, a 28-year old Karori bachelor, said last night over a beer at a Wellington bar.

Fitzgerald celebrated heavily, in his words. He danced the evening

²²⁸ Takaro Properties Ltd v Rowling [1975] 2 NZLR 62 (CA). Wild had delivered the first instance judgment in August 1974. The Court of Appeal upheld his decision invalidating the refusal of consent. The first reading debate is at (25 June 1976) 403 NZPD 29.

²²⁹ Cabinet Minutes (4 October 1976) CM 76/40. The supporting memorandum to Cabinet from the Attorney-General noted the lack of adverse reaction to the repealing legislation, that there was no point now reviving the issue, and that “the possible gains are not enough to warrant the time, effort, cost and publicity which would be involved”: attached to Cabinet Paper “New Zealand Superannuation Scheme: Fitzgerald v R D Muldoon & Others” (30 September 1976) CAB 76/1107.

^{230 Paul Fitzgerald, personal communication, 7 August 2013.}

^{231 The Christchurch Star (12 June 1976) at 1.}

away at the Wellington Nurses Ball at the Town Hall. He was interviewed by television. People singled him out for attention for a while. Having won his case, the reaction was generally supportive. But apart from that life did not really change. There was a reasonable amount of public fuss, and he agreed with the department to a two week secondment to the Wellington Education Board so that he could get on and do some work. As the present poster boy for dissent, he was being bothered by querulents. But the case did not seem to have any detrimental effect on his career. He was promoted within the Public Service, leaving it in 1989, but rejoining it in 2006. He is now a ministerial writer in the Ministry of Business Innovation and Employment. He did not remain a bachelor.

Pressing on Fitzgerald’s mind after the judgment was the subject of costs. He owed Barton and Jeffries more than half his annual salary. In September 1976 the question of costs came before Wild. By that stage, validating legislation had been passed in Parliament. On Fitzgerald’s behalf, Barton sought costs on a solicitor and client basis, so the plaintiff would be indemnified for the $3,000 he had spent. The defendants’ position was that scale costs only should be allowed.

The costs hearing began with Barton drawing his memorandum to the Court’s attention.²³² Before he had got far, Wild told him that he need not apologise for drawing the issue to the Court’s attention. An observer in the public gallery gained the clear impression that Wild was distinctly unimpressed with Muldoon’s imputation that Barton had instigated, and subsidised, the case.²³³ Wild began his costs judgment thus:²³⁴

The case was an unusual and perhaps a unique case. In terms of money the amount at stake was negligible. In terms of constitutional importance a question of the highest importance was involved. The plaintiff was an assistant section clerk in a government department. The first defendant was the Prime Minister.

In light of the complexity of the case “and above all the constitutional importance of the issue raised”²³⁵, Wild awarded Fitzgerald $2,500 (five sixths of his actual costs) together with disbursements.

That still left Fitzgerald $500 short. But in the meantime, a wonderful thing happened. His entreaties to the PSA for financial assistance had been unsuccessful. But the cause he had taken, as a modern day David to Muldoon’s Goliath, tickled the public fancy. Envelopes containing cheques and bank notes from well-wishers, some anonymous, started to arrive in his letterbox. The shortfall thus was met.²³⁶

²³² See page 274.

^{233 Dr Geoff Harley, personal communication, 15 November 2013.}

^{234 Fitzgerald v Muldoon HC Wellington A118/76, 13 September 1976.}

^{235 Fitzgerald v Muldoon HC Wellington A118/76, 13 September 1976.}

^{236 Paul Fitzgerald, personal communication, 7 August 2013.}

^Barton

The case has long been referred to as one of Barton’s greatest cases.²³⁷

^{In truth, though, it was not a very complex argument. And he had the}

^{advantage of making it before a sympathetic judge. The Bill of Rights}

^{1688 was simply the underpinning of the Diceyan view of parliamentary}

^{sovereignty relied on by Wild and cited by him in the judgment.}

^{What must be celebrated about Barton’s role is his willingness, not}

^{for the first or the last time, to take on a cause that was unpopular.238}

^{One of the reminders of this research has been that a course of action}

^{that now seems a triumphant endorsement of orthodox thinking was}

^{then, at best, supported by a limited number of people (most of whom}

^{were politically partisan). At worst, it was widely unpopular in an}

^{electorate looking forward to a windfall refund. For the most part it}

^{was just ignored until the judgment was issued and Wild recalibrated}

^{the national moral compass.}

To Muldoon’s credit, Barton’s courage earned his admiration, rather than ire. We have already seen that Barton’s September 1976 memorandum was the product of the Prime Minister ’s suggestion that Barton was behind the case. Again to Muldoon’s credit, he went out of his way after reading the memorandum to correct that impression. Indeed he read a good deal of it out in Parliament, as we shall see shortly.²³⁹ It is said that Barton was the only lawyer that Muldoon admired.²⁴⁰ I am aware that admiration was not reciprocated. Finally, and contrary to rumour, Muldoon did not prevent Barton’s appointment to the judiciary. It was not an appointment he sought, or wanted. He was offered appointment in 1990, but declined.

Muldoon

The judgment rankled Muldoon. He had run headlong into an obstacle that would not bend to the force of his extraordinary personality. He did not take the outcome philosophically. He issued a press statement saying Wild was wrong to conclude that Fitzgerald had suffered any loss, as the employer ’s contributions were not to be returned to employees.²⁴¹

That cannot be reconciled with Muldoon’s own statement in the “dancing Cossacks” advertisement quoted at paragraph 20 above. Nor with the terms of the press statement annexed to this article. And nor with the officials committee analysis quoted at paragraph 25 above. The need

²³⁷ Finlayson, n 149 at 10; Sir Ivor Richardson “A Tribute to George Barton” (2012) 43 VUWLR 17 at 18; Baragwanath “The Later Privy Council and a Distinctive New Zealand Jurisprudence: curb or spur?” (2012) 43 VUWLR

^{147, n 2.}

^{238 A point particularly noted when Barton was awarded an LLD (hon caus)}

^{by Victoria University in 1987: see Richardson, above, at 18.}

^{239 See (4 November 1976) 407 NZPD 3678–3679. In one of his autobiographies}

^{he again corrected that misimpression: Muldoon, n 148, at 185–186.}

^{240 Finlayson, n 149 at 10.}

^{241 The Evening Post (12 June 1976) at 1; (25 June 1976) 403 NZPD 42.}

to avoid refunding further employer contributions to employees was a driving consideration behind making clear that employer obligations ceased on the date of the press statement. In any event it simply missed Wild’s point. That was that the right to lawful payment of the employer ’s contribution was a benefit to Fitzgerald, and its denial a loss.²⁴²

Muldoon’s Cabinet colleague Hugh Templeton recalls in his 1995 memoirs:²⁴³

For once I saw Muldoon wrong-footed. He raged and counter-attacked. Indeed he got away with actual stoppage of payments. Only Derek Quigley clashed with Muldoon in caucus over his failure to “uphold the rule of law”. The public took no interest in the law. They were simply keen to stop paying into this funded scheme and accepted Muldoon’s claim that he had not acted arbitrarily but within the traditional role allowed by Auditors-General. Only those concerned with the limits and separation of powers tucked the episode away in their minds.

In fact, given Savage’s very clear advice to Muldoon, the result should have come as no surprise to him.

Muldoon returned to the topic in the infamous “Moyle debate”. On 4

^{November 1976 the former Labour Minister of Agriculture and Fisheries,}

^{Colin Moyle, accused Muldoon’s accounting practice of engaging in}

^{illegal practices. Enraged, Muldoon riposted that Moyle had been}

^{picked up by the police for “homosexual activity”. The Speaker of the}

^{House wrestled to regain authority. Muldoon declined to apologise for}

^{his statement. He then blithely completed the debate with a discussion}

^{of what had happened in Fitzgerald v Muldoon. Muldoon read at length}

^{passages from the memorandum that Barton had filed in the High Court}

^{in September. He accepted readily that he had wrongly accused Barton}

^{of instigating the proceedings. But he maintained, still wrongly, that}

^{Fitzgerald had been:244}

... “put up” to take the case on behalf of someone else. That person was the “so far unidentified and unnamed lawyer working for some so far unnamed and unidentified government department”. That was the man who instigated these proceedings, used Mr Fitzgerald as its front-man, and won a decision on legal grounds – nothing more than legal grounds

^{– for which there has been an award of costs.}

²⁴² [1976] 2 NZLR 615, 623.

^{243 Templeton, n 37, at 48.}

^{244 (4 November 1976) 407 NZPD 3678–3679. See pages 274–275. Muldoon}

^{later confessed to the Head of the Prime Minister ’s Department that his}

^{attack on Moyle was the action he most regretted in his life: Hensley, n 40}

^{at 233. Sir Alfred North was engaged as a one man Commission of Inquiry}

^{after the Moyle affair. His report largely sided with the police over Moyle.}

^{As Dr David Mummery and Sir Geoffrey Palmer have pointed out, it did}

^{not seem to occur to anyone at the time that the inquiry contravened}

^{Art 9 of the Bill of Rights 1688. Mummery “The Privilege of Freedom of}

^{Speech in Parliament” (1978) 94 LQR 276 at 279; Geoffrey Palmer in Clark}

^{(ed) Muldoon Revisited (Dunmore Press, Palmerston North, 2004) at 189.}

Muldoon continued, unrepentantly, “the public is entitled to know that this was a jack-up”.²⁴⁵

In his 1977 autobiography Muldoon, Muldoon takes pains to justify his actions, by reference to historical practice. In particular the Auditor- General’s past approvals of non-appropriated expenditure. He suggests the decision will remain a “controversial one for many years to come”, and that Wild had “overlooked” that the powers of Cabinet “had altered very considerably” since 1688.²⁴⁶ Almost a decade later Muldoon was still arguing his corner. In the first reading debate of what became the Constitution Act 1986, Muldoon made the same point.²⁴⁷ It is a weak point. What Parliament has set forth, only Parliament may remove. Neither monarch nor ministers may arrogate that role. And neither conventional arrangements for the retrospective approval of some public expenditure, nor an instance when a government told an intake of conscripts that they need not turn up after all, begin to validate the suspension of a statutory obligation of general public benefit.

As Templeton says, the case would have been a salutary lesson to any premier other than Muldoon. But “this Prime Minister had no wish to share his prerogative to run New Zealand the way he wanted.”²⁴⁸

The decision simply increased Muldoon’s antagonism to other officers of state, including judges.²⁴⁹ It does not seem to be true (as has been rumoured) that Muldoon reduced judicial perquisites in response.²⁵⁰

In 1984, as I have mentioned before, the electorate fled from the Muldoon they had once cleaved to as saviour in times of economic crisis. Prolonged exposure to his unavailing efforts at holding back international economic tsunami forces by modest and then more desperate flood protection works of wage, rent, interest and price freezes took the tint from the electoral spectacles. The bitterly divisive 1981 Springbok tour of New Zealand left a long trail of wreckage, and discontent. National had a parliamentary majority in 1984 of one. On some issues, such as a private member ’s bill that would have banned the visit of US Navy nuclear ships, it probably didn’t even have that. Five National MPs had crossed the floor on one issue or another that term (albeit the traffic was two-way). Muldoon had had enough. In June 1984 he called a snap election and went to the people. The issue was Muldoonism, and the people had had enough of it. The Lange Labour government was elected with a majority of 19.

Even then Muldoon sought to manage from the political grave. The

²⁴⁵ (4 November 1976) 407 NZPD 3678–3679.

^{246 Muldoon, n 223, at 186.}

^{247 (29 April 1986) 470 NZPD 1349.}

^{248 Templeton, n 37, at 48 (the latter words being a reference to the 1975}

^{campaign slogan “New Zealand the way you want it”).}

^{249 Above.}

^{250 In fact it was Kirk in 1973 who reordered the Civil List order of precedence,}

^{demoting the judiciary. Muldoon did not touch it. See John Priestley}

^{“Chipping Away at the Judicial Arm?” [2009] WkoLawRw 1; (2009) 17 Waikato L Rev 1 at 17.}

election coincided with a foreign exchange crisis. Labour wanted urgently to devalue. Muldoon refused, in breach of the constitutional convention concerning caretaker governments. “Who had won?” Lange demanded to know. Muldoon’s colleagues knew the answer, and forced his hand: conform to convention or be sacked. Brought to his senses, Muldoon finally took the former course.²⁵¹

Muldoon’s premiership began with an affront to constitutional law. Fittingly, it ended with an affront to constitutional convention. Muldoon concentrated remarkable power in the hands of the executive, through sheer ability and force of personality. Paradoxically, as we shall see, the result was a subsequent rebalancing of power back in favour of the legislative branch. History, whether constitutional or economic, is unlikely to judge Muldoon’s administration well.²⁵²

Wild

Fitzgerald v Muldoon is Wild’s best-remembered judgment. He did not long survive its release. A little more than a year after, in late 1977, Wild suffered a series of strokes. A brain tumour was diagnosed. Courageously he continued to work, and lead, despite his affliction. But it could not continue, and on 20 January 1978 he resigned as Chief Justice.

Muldoon respected Wild’s courage, and capacity. In February 1978

^{Wild’s knighthood was promoted GBE. Muldoon must have approved}

^{that step. On 22 May 1978 Wild died. Muldoon attended his funeral.}

^{At the end of the service he walked over to Wild’s son John. “Robert}

^{Muldoon,” he said, offering his hand. (If any one person in New Zealand}

^{did not need in 1978 to identify himself, it was Muldoon.) “Your father}

^{was a great man. It is very sad.”253}

At a special sitting of the High Court at Wellington in June 1978, Wild’s successor paid tribute to him in the words of Steven Spender:²⁵⁴

I think continually of those who were truly great

^...

^{The names of those who in their lives fought for life,}

^{Who wore at their hearts the fire’s centre.}

^{Born of the sun, they travelled a short while towards the sun,}

^{And left the vivid air signed with their honour.}

In his judgment in Fitzgerald v Muldoon in particular, Wild left the vivid air signed with his honour. As has been pointed out, options existed to avoid making a decision unpalatable to the government. But “he flirted

²⁵¹ Templeton, n 37 at 221; Hensley, n 40, at 263–265; Gustafson, n 30 ch 22

^{Lange, n 37, at 174–177.}

^{252 Gustafson, n 30, a sympathetic biography on the whole, begins with a}

^{bleak introduction that encapsulates brilliantly the ultimate wreckage of}

^{the Muldoon dream: see at 7–16. Gerald Hensley’s memoir, above n 40}

^{at 265 describes the end even better, if that is possible, in a single page.}

^{253 Hon Justice Wild, personal communication, 6 November 2013.}

^{254 Stephen Spender “The Truly Great” in Collected Poems 1928–1953}

^{(Random House Inc, 1955).}

with none of them”.²⁵⁵ He did not delay, as the government had wanted. Declaration was regarded as a discretionary remedy, but a declaration was granted. Fine-grained legal arguments did not meet his robust approval. In the terms of his own swearing-in remarks,²⁵⁶ he “upheld and protected the citizen and his freedom, even against the State itself”.

Conclusion 2: Economic policy

The replacement superannuation scheme, which Muldoon had assured the electorate in 1975 was affordable, immediately proved not to be. The Labour scheme geared up over time, paying out fully only in 2028; the new scheme was required to pay a larger number of people a larger individual sum, sooner, and without any additional tax impost. New Zealand was not prosperous in the late 1970s. In a single year, national superannuation became the highest single cost in the government’s budget. Where state pension and superannuation costs were 3 per cent of GDP in 1971–1972, they leapt to 6.9 per cent in 1978–1979, and to nearly 8 per cent in the early 1980s.²⁵⁷ The increase, without contribution, was utterly unsustainable. Within a year of its scheme coming into operation, National was compelled to reduce payment levels.²⁵⁸ By the late 1990s, through a series of politically unpopular constraints, such as a temporary surcharge on superannuitants in 1985, the cost had fallen to a more manageable 5 per cent.

In the 1996 general election a minor party, New Zealand First, campaigned for a contributory scheme. Following its entry into coalition government with National, a referendum was conducted in 1997 on whether a compulsory retirement savings scheme should be re-enacted. Both employer and union groups opposed it this time. In the result, on a high turnout, 91.8 per cent voted against it. Eventually, in 2007, a minority Labour government (backed by New Zealand First) instituted a voluntary contributory superannuation scheme, Kiwisaver.²⁵⁹ Only modest changes were made after Labour lost office in 2008. The hot potato of retirement savings seems to have become, at last, generally palatable. But the meal is rather smaller than it might have been.

A respected New Zealand business commentator, Brian Gaynor, has since called the abolition of the 1974 New Zealand Superannuation Scheme a “dreadful political decision”, one which transformed New Zealand from a potential Switzerland of the southern hemisphere into

²⁵⁵ Palmer, n 1 at 267.

^{256 Tribute to the late Sir Richard Wild, GBE, KCMG, ED [1978] NZLJ 226 at}

^227.

^{257 Preston, n 100 at 14–16.}

^{258 From 80 per cent of gross ordinary time wage levels to net ordinary time}

^{wage levels, after tax: Preston, n 100, at 15.}

^{259 Participation is voluntary (and not limited to persons in paid employment);}

^{employees may opt out; employer contributions for employee participants}

^{are compulsory.}

a low-ranking OECD economy.²⁶⁰ Writing in 2007, Gaynor estimated that the 1974 New Zealand Superannuation Scheme would then have been worth $240 billion. Each employee contributor would have had

$111,200 of superannuation assets (compared with $6,300 in 2007), and the scheme would have represented 146 per cent of GDP. By contrast, Australian superannuation, which started later in 1992 and is considered an international benchmark, then had A$74,400 (or $86,821) in assets per contributor and equated only to 82 per cent of that country’s GDP.²⁶¹

As Professor Gary Hawke points out,²⁶² one cannot assume that the New Zealand Superannuation Scheme would necessarily have increased net savings substantially. That is because it would have been bound to have altered alternative private savings behaviour. While that may be true, there was clear public utility in encouraging saving by those who, but for compulsion, would not otherwise have done so. And the Australian evidence rather suggests a net public utility gain. A valuable doctoral study remains to be written on this issue. It is tempting to think that the electoral decision of 1975, and the repeal of the New Zealand Superannuation Scheme in 1976, was one of the worst self-inflicted economic disasters to befall this country.

Conclusion 3: Constitutional law

Five concluding points should be made about the state of New Zealand constitutional law after Fitzgerald v Muldoon.

A branch divided

The first is that the Muldoon administration began life with an early judicial rebuke from Wild in the form of an emphatic, orthodox restatement of parliamentary sovereignty. Ironically, however, later judicial pronouncements in response to the perceived executive branch’s capture of the legislature were very different. Thus Muldoon managed to achieve both a judicial declaration of orthodoxy and a series of judicial observations directly undermining that orthodoxy.

To go back a bit, every law student can tell you that four centuries ago a jurist named Coke contended for the capacity of the common law courts to invalidate legislation that was “against common right or reason”, and that Dicey condemned that view utterly. The Coke view was pronounced

²⁶⁰ Brian Gaynor “How Muldoon Threw Away NZ’s Wealth” New Zealand

^{Herald (22 September 2007) at C2.}

^{261 Australia now has an employee compulsory contribution rate of 3 per}

^{cent, employer compulsory contribution rate of 9 per cent of ordinary}

^{time wage levels (to rise to 12 per cent by 2020), over $1.6 trillion dollars}

^{in invested superannuation assets: Association of Superannuation}

^{Funds of Australia, www.superannuation.asn.au (August 2013). In 2005}

^{Australia took over from the United States as the country with the highest}

^{per capita superannuation savings: AAP “Australia ‘Tops’ in Managed}

^{Funds” Sydney Morning Herald (online ed, 23 January 2006).}

^{262 Gary Hawke, personal communication, 26 December 2012.}

“obsolete” by Lord Reid in 1974,²⁶³ which is not (it may be noted) at all the same thing as extinct, let alone bad. Yet within five years of Lord Reid’s declaration another jurist, Cooke, breathed renewed life into the qualified view of parliamentary sovereignty. There is no real question that this was a product of the times, and of Muldoon’s extraordinary executive dominance of the legislative branch. Thus, when the head of the Prime Minister ’s Department raised a legal impediment in the way of Muldoon’s desired course, it earned the retort:²⁶⁴

Mr Hensley, we keep a little room down there [pointing to the dome of the legislative chamber] to change the law.

What was said in private was widely perceived in public. In five judgments, beginning in 1979, Sir Robin Cooke gently questioned the Diceyan view of parliamentary sovereignty. Two of the five decisions directly concerned emergency economic regulations made by the Muldoon administration.²⁶⁵ In the first, concerning carless days regulations, Cooke suggested that the umbrella legislation was not to be supposed to be a parliamentary abandonment of the economy to the executive.²⁶⁶ In the second, concerning wage freeze regulations, the majority of the Court of Appeal said it doubted the extent to which in New Zealand even an Act of Parliament could take away the rights of citizens to resort to the ordinary courts of law for the determination of their rights.²⁶⁷

Such remarks were regarded as heresy by some, including Kirby J in Australia.²⁶⁸ But as Professor Joseph has noted, the Cooke dicta have not caused great constitutional ructions, and no court has invalidated legislation for encroaching fundamental rights.²⁶⁹ As warning shots, they served a purpose. Professor Waldron made a very good point in

²⁶³ British Railways Board v Pickin [1974] UKHL 1; [1974] AC 765 (HL) at 768.

^{264 Hensley, n 40, at 231.}

^{265 Brader v Ministry of Transport [1981] 1 NZLR 73 (CA); and New Zealand}

^{Drivers Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA).}

^{The others were L v M [1979] NZCA 59; [1979] 2 NZLR 519 (CA); Fraser v State Services}

^{Commission [1984] 1 NZLR 116 (CA); and Taylor v New Zealand Poultry}

^{Board [1984] 1 NZLR 394 (CA). See generally Geoffrey Palmer “The New}

^{Zealand Constitution and the Power of the Courts” (2006) 15 TL&CP}

^{551; Jeffrey Goldsworthy “Is Parliament Sovereign? Recent Challenges}

^{to the Doctrine of Parliamentary Sovereignty” (2005) 3 NZJIPL 7; Dame}

^{Sian Elias “Sovereignty in the 21st Century: Another Spin on the Merry-}

^{go-round” (2003) 14 PLR 148; Karen Grau “Parliamentary Sovereignty:}

^{New Zealand – New Millennium” (2002) 33 VUWLR 351.}

^{266 Brader v Ministry of Transport [1981] 1 NZLR 73 (CA) at 78.}

^{267 New Zealand Drivers Association v New Zealand Road Carriers [1982] 1 NZLR}

^{374 (CA) at 390.}

^{268 Builders Labourers Federation v Minister for Industrial Relations (1986) 7}

^{NSWLR 372 (NSWSC) at 406.}

^{269 Philip Joseph Constitutional & Administrative Law in New Zealand (3rd ed,}

^{Thomson, Wellington, 2007) at 522.}

2005 when he said:²⁷⁰

I think that often in the New Zealand debate, when ministers are defending legislation against judicial activism, what they are defending is not the law-making privileges of Parliament as such, but the rights of the executive. They are defending the right of the Cabinet to have “its” legislation enacted on the schedule that it wants, the right of the Cabinet to have the legislation it sponsored enforced by the Courts in exactly the way that it intended, and the right of the cabinet to have “its” legislation immunised from any judicial challenges that the executive finds politically uncomfortable.

The balance adjusted

A fundamental shift in balance between Parliament and executive occurred in the 1990s, following the adoption of a proportional representation electoral system – MMP – in 1994 (with effect from 1996).

In 1978 National won 39.8 per cent of the popular vote, but gained

^{55 per cent of the parliamentary seats. Labour gained a slightly higher}

^{popular vote at 40.4 per cent, but only 45 per cent of the seats. In 1981}

^{a similar thing happened. In 1984 Labour had a landslide win (but}

^{with only 43 per cent of the popular vote). In 1985 it established a royal}

^{commission to look into the electoral system. In 1986 the Commission}

^{reported, recommending MMP, and that a referendum be held at the 1987}

^{general election, or thereafter. In 1987 Prime Minister Lange promised}

^{a referendum. But Labour changed its mind. Prominent members}

^{such as Helen Clark271 favoured retaining the existing electoral system}

^{because it offered “stable government”.272 But National leader Jim Bolger}

^{repeated the promise in 1990 and, in government in 1992, a non-binding}

^{referendum was held. The existing system was trounced 85 to 15 per}

^{cent, and there was then 64 per cent support for MMP as the new system.}

^{A second, binding referendum was held at the 1993 general election.}

^{MMP beat off the existing system 54 to 46 per cent.}

By this stage the electorate had endured executive-dominated radical political change for 20 years. Discomfort with both the Muldoon and Lange administrations clearly contributed to popular adoption of MMP. Muldoon had not been alone in holding the view that Parliament was a “little room” in which to change the law. The fourth Labour government had been just as radical. Each administration started in economic crisis. Each had a very different response (counter-intuitively in Muldoon’s case, by resort to emergency regulation, and in Lange’s case by adopting free- market reforms to dismantle Muldoon’s tottering regulatory edifices). But each liberally bent Parliament to its will to get the executive’s work done.

²⁷⁰ Jeremy Waldron “Compared to what? Judicial activism and New

^{Zealand’s Parliament” [2005] NZLJ 441 at 444.}

^{271 Prime Minister 1999–2008.}

^{272 Michael Bassett Working with David: Inside the Lange Cabinet (Hodder Moa,}

^{Auckland, 2008) at 307.}

As the Electoral Reform Bill passed through the House in 1992–93, members on both sides referred repeatedly to an expectation that MMP would alter the balance between the first and second branches of government. As one seasoned member, Jim Anderton, put it:²⁷³

Nearly 9 years of experience in the House show me that the present system has been captured by executive government. There is an irrelevance about Parliament, its operation, and, in many case, even its select committees.

MMP has seen significant reduction in executive authority, and an increase in parliamentary authority (for instance, in the effectiveness of its select committees). As Sir Geoffrey and Dr Matthew Palmer observe, MMP has not reduced the adversarial nature of politics, but “it is necessary to have a greater degree of consensus before controversial policies are embarked on”.²⁷⁴ By and large marquee electoral promises have been delivered under MMP. But new caution is needed in making the initial promise. And greater compromise is needed in introducing and passing resultant legislation.

In 1975 Muldoon’s landslide victory was 47 per cent of the popular vote. The balance of power, had MMP been in place then, would have been held by the Social Credit Party (a now-defunct political party with no present equivalent) and the Values Party (a precursor to the Greens). Imagine, then, what would have happened to New Zealand superannuation in that altered context. Would we have had Fitzgerald v Muldoon at all?

Parliamentary abdication

MMP is no certain failsafe against executive predation of legislative authority. Parliament may abdicate its ultimate authority, at least pro tem.

Only with the antecedent authority of Parliament may the executive suspend the operation, or alter the content, of an Act.²⁷⁵ It follows, then, that Parliament may abdicate temporarily its ultimate authority. The best-known example is the “Henry VIII clause”. Parliament may thereby abdicate to the executive the power to make regulations suspending, or altering, primary legislation. As Joseph notes, the Muldoon administration “expressed an unhealthy interest in Henry VIII clauses.”²⁷⁶ Three 1979 Acts included such clauses, and a fourth was added to the Economic Stabilisation Act 1948, the primary instrument used by Muldoon to regulate New Zealand’s ailing economy in its second and third terms. The latter amendment gave stabilisation regulations “primacy ... over the parent Act and 14 further statutes”.²⁷⁷

²⁷³ (3 August 1993) 536 NZPD 17130.

^{274 Geoffrey Palmer & Matthew Palmer Bridled Power (4th ed, Oxford}

^{University Press, Melbourne, 2004) at 376. See also Ryan Malone}

^{Rebalancing the Constitution (Institute of Policy Studies, Wellington, 2008)}

^{at 234.}

^{275 Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (SC) at [87].}

^{276 Joseph, n 269, at 504.}

^{277 Above.}

In 1995 Parliament’s Regulations Review Committee enquired into the use of Henry VIII clauses. It recommended that such clauses be used only exceptionally, and that a three-year sunset clause be embedded.²⁷⁸

Two uses prevail: to alter the commencement (or expiry) of the principal Act, and to correct inadvertent error (eg as to references, or to preserve rights not intended to be altered).²⁷⁹ Cabinet’s departmental disclosure statement now explicitly requires the following question to be answered:²⁸⁰

Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

It is however difficult to imagine a Henry VIII clause availing a government seeking to suspend or repeal legislation enacted at the behest of a predecessor administration, as Muldoon contemplated in December 1975.

Executive non-enforcement of parliamentary law

More relevant in the context of Fitzgerald v Muldoon would have been an alternative executive course of passive non-enforcement of the existing legislation. The legislation required contributions to be paid to the account of the New Zealand Superannuation Corporation. A statement of intent or expectation by Muldoon alone would not have sufficed. But, as we have seen, the board resolved, in light of the Prime Minister ’s statement, not to enforce employee and employee payment obligations. And, too, we have seen that Muldoon justified his actions in part on the precedent of Labour ’s 1973 statement that men need not register for national service (compulsory military training), pending repeal of the National Military Service Act 1961.

No one today would say, seriously, that the Crown is bound to enforce every statutory obligation, or to prosecute every statutory infraction. There is a measure of discretion. In particular, prosecution policy will normally reflect public sentiment on social issues. Some laws rightly wither before ultimately being repealed when the letter of the law catches up with its practical application. There have been occasions when courts have been asked to review decisions not to prosecute. They have been reluctant to do so. In part because the decision involves discretion, with its higher review threshold. And in part because the courts seldom intervene to decide what should be brought before them, unless an abuse of process is involved.²⁸¹ But a blanket policy of non-enforcement may

²⁷⁸ Regulations Review Committee “Inquiry into the Resource Management

^{(Transitional) Regulations 1994” [1995] AJHR 116C at 16.}

^{279 See Ryan Malone & Tim Miller Regulations Review Committee Digest (4th}

^{ed, New Zealand Centre for Public Law, Wellington, 2012) at 73.}

^{280 The Treasury Disclosure Statements for Government Legislation: Technical}

^{Guide for Departments (Treasury, Wellington, 2013) at 70.}

^{281 See Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) at [29]–[31]; and Hallet}

^{v Attorney-General (No 2) [1989] NZHC 3; [1989] 2 NZLR 96 (HC).}

be reviewable, because it involves abdication of discretion.²⁸²

One thing that may affect relief in such a case is the availability of the alternative right to bring a private prosecution.²⁸³ In 1976 the unions prosecuting the Ford Motor Company over its discontinuance of superannuation payments were stopped in their tracks by a stay of prosecution entered by the Attorney-General.²⁸⁴ The common law today is less respectful of the Attorney’s power of stay. If used to a political end, and this surely was, review is likely to be granted.²⁸⁵

The importance of good men and women

Fitzgerald v Muldoon is a case of its time and context. The advent of MMP has constrained the opportunity for radical and exorbitant executive diminution of legislative authority. But there is still one constant across the ages, from John Hampden to Archbishop Sancroft and Thomas Austin²⁸⁶ on down to Paul Fitzgerald. And that is the example of a firm-minded citizen standing alone against the government, at a time of political upheaval and public disinterest in the normal rule of law. And saying, “This you may not do”.

But for the willingness of a 28-year old junior public servant to tackle the most powerful man in the country, at the risk of denigration, employment disadvantage, and unmet economic cost, this emphatic footnote in New Zealand’s constitutional history would not have been entered. As Mill once said, “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”²⁸⁷

²⁸² R v Commissioner of Police of the Metropolis, ex p Blackburn [1968] 2 QB 118 (CA); R v Catagas (1997) 81 DLR (3d) 396 (Man CA); Polynesian Spa Ltd v Osborne [2004] NZHC 1186; [2005] NZAR 408 (HC) at [63] and [69].

²⁸³ R v Commissioner of Police of the Metropolis, ex p Blackburn [1968] 2 QB 118 (CA).

^{284 See page 279.}

^{285 See the discussion in Joseph, n 269, at 679.}

^{286 See n 11.}

^{287 JS Mill Inaugural Address (University of St Andrews, 1867).}

Paul Fitzgerald (ca 1976, Fitzgerald collection)

National Party leader Rob Muldoon at party conference. Further negatives of the Evening Post newspaper. R e f : E P / 1 9 7 5 / 3 0 5 6 / 5 - F. Alexander Turnbull Library, Wellington, New Zealand.

Chief Justice of New Zealand, Sir Richard Wild. Further negatives of the Evening Post newspaper . Ref: EP/1966/0507-F. Alexander Turnbull Library, Wellington, New Zealand.

For Immediate Release

Monday, 15 December 1975

PRESS STATEMENT BY THE HON R. D. MULDOON, MINISTER OF FINANCE

The Prime Minister, Hon. R. D. Muldoon, today issued a statement on the future of the New Zealand Superannuation scheme. This was to give effect to National’s election policy to abolish the scheme and refund all contributions to employees.

Mr Muldoon said that early in the next Parliamentary session legislation would be introduced to carry out

the government’s election promises relating to the

New Zealand Superannuation Scheme. In particular the compulsory element in the law would be removed with retrospective effect.

The compulsory requirement for employee deductions to the New Zealand scheme will cease for pay periods ending after this date. Mr Muldoon said that he recognised

that because of arrangements made for payment of wages and salaries in advance through computer systems or by other means, deductions would in some cases continue for limited periods. All deductions and contributions,

including any which may be made from now until 31 March

1976, will be returned to employees through the income tax refund system or could be transferred to another scheme.

Similarly the compulsory requirement for employer contributions will cease as from today in respect of salaries or wages paid from now on.

Mr Muldoon said that employees who wish to receive a refund of their own and their employer’s contributions could elect to do so when they completed their tax returns after 31 March 1976. The Prime Minister expected that some contributors and their employers would wish

to continue their membership of a superannuation scheme and if so their contributions will be transferred to the National Scheme of the National Provident Fund or some other scheme.

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Mr Muldoon said that the board of the Superannuation Corporation had decided that, until legislation is passed, it would not take action to enforce the payment

of deductions and contributions in respect of pay periods after the date of this announcement. Mr Muldoon went on

to say that when legislation was introduced it would also provide that all persons who have relied on his statement, and acted in accordance with it, would be excused from any penal provisions of the Act. A similar provision would be made to protect officers of the Superannuation Corporation.

The Prime Minister emphasised that his statement did not apply to those who belonged to other schemes. These are governed by a trust deed or some similar instrument and often membership could be part of an employee’s conditions of employment. Mr Muldoon advised members to discuss the matter with their employers or the trustees of the scheme.

The text of the “PRESS STATEMENT BY THE HON R D MULDOON, MINISTER OF FINANCE” is to be found in Fitzgerald v Muldoon [1976] 2 NZLR 615 at 616–617.