Henry v Attorney-General [1983] CKCA 1; [1985] LRC (Const) 1149 (19 April 1983)

[1985] LRC (Const) 1149

IN THE COURT OF APPEAL OF COOK ISLANDS

HENRY

v

ATTORNEY-GENERAL

Court of Appeal:
Richardson, Coates and Dillon, JJ.
11th, 12th March and 19th April, 1983 (Rarotonga)

(1) Constitutional law - Legislation amending the Constitution inaccurately identifying the source of the Constitution - Validity of the Constitutional Amendment (No. 9) Act 1980-81.

(2) Constitutional law - Entrenched provisions - Constitutional Amendment (No. 9) Act 1980-81 changing the title of the Chief Minister of the Cook Islands from Premier to Prime Minister - No requirement of compliance with the special procedure established for a change in the entrenched provisions of the Constitution.

In 1964 the government of New Zealand exercising its sovereign power to make laws for the peace, order and good government of the Cook Islands enacted the Cook Islands Constitution Act 1964: the Act provided (inter alia)

"4. The Constitution set out in the Schedule to this Act shall be the Constitution of the Cook Islands, and shall be the supreme law of the Cook Islands.

5. Nothing in this Act or in the Constitution shall affect the responsibilities of Her Majesty the Queen in right of New Zealand for the external affairs and defence of the Cook Islands, those responsibilities to be discharged after consultation by the Prime Minister of New Zealand with the Premier of the Cook Islands."

By virtue of Article 41 of the Constitution the passage of a law inconsistent with or amending the Constitution required (inter alia) two special affirmative votes of not less than two - thirds of the total membership of the Legislative Assembly: in addition, any law amending or modifying sections 2 to 6 of the Cook Islands Constitution Act 1964 had also to be submitted to a poll of electors in the Cook Islands and be supported by not less than two - thirds of the votes cast.

In 1965, before the commencement of the 1964 Act, the New Zealand Parliament enacted the Cook Islands Constitution Amendment Act, which made a small number of changes to the Constitution as set out previously in the first schedule to the 1964 Act: the Constitution, thus amended, was set out in the second schedule to the 1965 Act.

Prior to 1980 the Legislative Assembly of the Cook Islands had passed eight pieces of legislation amending the Constitution, all of which had referred to the Constitution as set out in the second schedule to the 1965 Act. However, the Constitution Amendment (No. 9) Act 1980 - 81 mistakenly identified the Constitution as set out in the second schedule of the 1964 Act.

The plaintiff, a member of the Legislative Assembly, commenced proceedings by way of an originating application, alleging that in view of the fundamental importance of the Constitution as the supreme law of the Cook Islands it was necessary for any amending legislation to refer to and identify a permitted source of that Constitution free from any error, uncertainty or ambiguity: thus the failure to identify correctly the source of the Constitution rendered the amending legislation invalid.

Further, the Constitution Amendment (No. 9) Act 1980-81 purported to substitute the words "Prime Minister" for all previous references to the office of "Premier" (sections 2(6), 3 and 18(2) of the amending legislation). It was the plaintiff's contention that the change in the title of the chief minister of the Cook Islands amounted to an amendment of constitutionally entrenched provisions: for although the responsibilities of the chief minister had in no way been altered that change of nomenclature would require the reference to the Premier in section 5 of the Cook Islands Constitution Act 1964 (supra) to be read as the Prime Minister of the Cook Islands; the special procedure laid down in the Constitution (Article 41) had not been followed, thus it was submitted that the amendment was unconstitutional and void.

The proceedings were originally commenced in the High Court of the Cook Islands, however, because of the absence from the Cook Islands of the Judges of the High Court, the plaintiff applied to have the proceedings transferred to New Zealand. That application was refused by the Chief Justice, who was at the time in Fiji, on account of the public interest in having constitutional matters heard in the Cook Islands. Subsequently, but before any determination by the High Court, the case was removed into the Court of Appeal of the Cook Islands pursuant to section 53 of the Judicature Amendment Act 1980-81.

HELD: Application dismissed.

(1) The manifest intention of the legislature when enacting the Constitution Amendment (No. 9) Act 1980-81 was to amend the one and only Constitution of the Cook Islands: section 1 of that Act has sufficiently identified, although not with complete accuracy, the source of the Constitution, leaving no doubt as to the subject-matter and application of the amending legislation. (See p.xxx post)

(2) A mere change of nomenclature cannot, by itself, be considered as falling within the ambit of Article 41. A change in a purely descriptive title arising from a valid exercise of the power to amend the Constitution takes effect without compliance with the procedural requirements of Article 41 which would be necessary had a substantive alteration to the Constitution been made. (See p.1153 post)

Cases referred to in judgment:

Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319, [1979] 2 WLR 889, [1979] 3 All ER 21
Pillai v Mudanayake [1953] AC 514, [1955] 2 All ER 833

Legislation referred to in judgment:

Constitution of the Cook Islands, Articles 2, 41(2)
Cook Islands Constitution Act 1964 (New Zealand), sections 1(1), 2-6, 2nd Schedule
Cook Islands Constitution Amendment Act 1965 (New Zealand), sections 1, 2, 18(2), 1st and 2nd Schedule
Constitution Amendment (No. 11) Act 1982, section 2(1)

Application

The plaintiff commenced proceedings by way of an originating application under the Declaratory Judgments Act 1908, a New Zealand statute extended to the Cook Islands by the New Zealand Laws Act 1979, seeking a ruling as to the validity of the Constitution Amendment (No. 9) Act 1980-81. Those proceedings were removed into the Court of Appeal of the Cook Islands pursuant to section 53 of the Judicature Amendment Act 1980-81.

G. P. Barton for the plaintiff.
V. A. K. T. Ingram, A.-G., M. C. Michell, S.-G., P. B. Temm, Q. C., and A. Manarangi for the defendant.

19th April, 1983

In the course of delivering the judgment of the Court of Appeal,

DILLON, J., said:

Section 2(1) of the 1964 Act defined "The Constitution" to mean "the Constitution of the Cook Islands, as set out in the Schedule to this Act."

The following year, and before the commencement of the 1964 Act, the New Zealand Parliament enacted the Cook Islands Constitution Amendment Act 1965. Section 1 provided for the Amendment Act to be read together with and deemed part of the 1964 Act. Section 2(1) made a small number of limited changes to the Constitution as set out in the Schedule to the 1964 Act. These amendments were contained in a First Schedule. Section 2(3) went on to provide:

"The Constitution of the Cook Islands (as so amended) is set out in the Second Schedule to this Act."

The first eight amendments to the Constitution had referred to the Constitution as described in the 1965 Amendment Act. When the Legislative Assembly enacted the No. 9 Amendment a different formula was employed. Section 1(1) of the No. 9 Amendment reads:

"This Act ... shall be read together with and deemed part of the Constitution of the Cook Islands as set out in the Second Schedule to the Cook Islands Constitution Act 1964 of the Parliament of New Zealand, as amended by Acts of the Legislative Assembly (hereinafter referred to as the Constitution)."

To the extent that it speaks of a "Second" Schedule to the 1964 Act that description does not match precisely the definition of the Constitution in section 1(1) of the 1964 Act. It was the 1965 Amendment which set out the Constitution in a Second Schedule to the 1965 Act. Clearly the description of the Constitution in section 1(1) of the No. 9 Amendment does not correspond precisely with the definition in the 1964 Act. Nor does it refer in specific terms to the Constitution as being set out in the second schedule to the 1965 Act. That misdescription was obviously brought to the attention of the Legislature for in section 2(1) of the Constitution Amendment (No. 11) Act 1982, assented to on 24th August 1982, it was provided:

"Section 1(1) of the Constitution Amendment (No. 9) Act 1980-81 is hereby amended as from its commencement by omitting the words 'Cook Islands Constitution Act 1964', and substituting the words 'Cook Islands Constitution Amendment Act 1965'."

Against that legislative background Dr. Barton for the plaintiff submitted that the No. 9 Amendment had failed to identify a permitted source of the text of the Constitution. It had failed to hit the mark and was wholly ineffective. He accepted that with the omission of "second" the reference to the 1964 Act would have been perfectly accurate and that a reference to the second schedule of the Constitution Amendment Act 1965 would have been a proper alternative. His argument was that in view of the fundamental importance of the Constitution as the supreme law of the Cook Islands it was of paramount importance that any reference to it in subsequent legislation should be completely free from error, uncertainty and ambiguity.

While a reference to an enactment may contain an error, nevertheless at the same time when considered fairly it may be free from uncertainty and ambiguity. In such a case the error does not in itself render the enactment totally ineffective. To hold otherwise would frustrate the clear intention of the legislature to amend an instrument which it had identified sufficiently (although not entirely accurately) as to leave no doubt as to the subject matter of the legislation. In this case the reference is to the Constitution of the Cook Islands. There is no room for uncertainty or ambiguity. In that regard there are three considerations that are of particular importance. The first is that the Cook Islands has only one constitution. The text of the Constitution as set out in the schedule to the 1964 Act is necessarily identical with the text of the Constitution as set out in the second schedule to the 1965 Amendment Act. And those two Acts are required to be read together (section 1 of the 1965 Act). The second is that the No. 9 Amendment is described in the long title as "an Act to amend the Constitution". As evident from the short title it was the ninth amendment to the Constitution. The third is that any analysis of the provisions of the No. 9 Amendment with its constant references to particular provisions of the Constitution demonstrates that the No. 9 Amendment was truly directed to the constitutional instrument set out in the schedule to the 1964 Act and in the second schedule to the 1965 Act. There can be no doubt as to the intention of the Legislature to amend the Constitution of the Cook Islands and, notwithstanding the trifling error in the reference in section 1(1) to the source of the text of the Constitution, no one reading the No. 9 Amendment could be in any doubt as to the subject matter and application of that legislation.

DILLON, J., later stated:

The argument for the plaintiff on this branch of the case is that in order to be valid the change of title from Premier to Prime Minister in the various provisions of the Constitution itself should have been accompanied by an amendment of section 5 of the 1964 Act which uses the term "Premier of the Cook Islands"; and that that cannot be regarded as achieved by necessary implication because the special procedure provided in Article 41(2) for amending the entrenched provisions of the 1964 Act was not followed in this case.

Dr. Barton submitted that the change in title of the head of the Government of the Cook Islands from Premier to Prime Minister was intended to reflect the attainment of a new stage in the evolution of the Cook Islands towards complete autonomy. However, the change was not accompanied by any change in the powers or responsibilities attaching to the office. The Chief Minister who was previously designated as Premier simply became the Prime Minister. The respective roles and powers of the Legislature, the Executive and the Judiciary - the three branches of government under the Constitution - were not affected in any way by the change. And the respective roles and powers of the Government of New Zealand as the former colonial power with the continuing responsibilities referred to in section 5 of the 1964 Act on the one hand and the Cook Islands Government on the other remain unaffected by the change in title. This was all freely accepted by the plaintiff. It was common ground too that the Legislature was empowered to change the Constitution in that way.

Dr. Barton's argument was that, given all that, the change of title in the Constitution itself necessarily required the reference to Premier in section 5 to be read thereafter as Prime Minister of the Cook Islands and that, in his submission, involved amending that entrenched provision. He did not contend, and we think rightly so, that it was intended by the conjunction of Prime Minister of New Zealand and Premier of the Cook Islands in section 5 to create a fundamental inequality between the two heads of government which could only be redressed by the invocation in the Cook Islands of the special machinery of Article 41(2). There can be no doubt that the two heads of government consult as equals and in that regard no other implication should be drawn from the different titles attaching to the chief ministers of the two countries when the Constitution came into force in 1965. His submission was simply that any change in title in the Constitution involved a like change in section 5.

Mr. Temm, who argued this branch of the case for the Attorney-General, freely acknowledged the importance of nomenclature and titles in affecting the image of an office and the holder of the office in the eyes of the public both within and outside the country. But, he submitted, to have regard to the change in title in the Constitution when reading section 5 was not the kind of substantive alteration to section 5 that could fairly be regarded as an amendment, modification or extension of that section within the meaning of those words in Article 41(2).

For the reasons we can give quite shortly we are unable to accept the plaintiff's argument on this issue. It is convenient to consider the underlying question in several steps. The first concerns the power under the Constitution to designate a different title for the post. As to that, there can be no doubt that the Cook Islands had the power to change the title of the head of its government from Premier to Prime Minister; and to do so without any reference to New Zealand. It was for the Cook Islands and the Cook Islands alone to assess the symbolic significance of the title and to make that decision.

The second step concerns the interpretation of Article 41(2). Its machinery is called into operation only where, adopting the generous interpretation of the Constitution counselled by Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 it can fairly be said that what is involved is truly an amendment modification or extension of section 5. In the ordinary course a change of nomenclature alone cannot, we think, be characterised in that way so as to come within the amendment prescription in Article 41(2). To do so would require too legalistic and mechanical an approach to its construction. If the strictly literal approach contended for in this case were taken to its inevitable conclusion it would require a constitutional amendment to be passed on the succession of a male Head of State under Article 2 (also entrenched) and under section 5 in both of which the specific reference is to Her Majesty the Queen in right a of New Zealand. That could never have been intended. If then a change in a purely descriptive title used in a particular provision arises from a valid exercise of constitutional power in the enactment of a constitutional amendment, the need when reading the particular provision to make that adjustment happens automatically and does not require compliance with the procedural requirements of Article 41(2).

That is sufficient to dispose of the matter. However, we reach the same conclusion on question 3 if we take a third step and consider quite separately the impact of the change in title on section 5 itself. Section 18(2) of the No. 9 Amendment provides:

"Every reference to the Premier of the Cook Islands in any other law in force at the commencement of this Act in any instrument or document of any kind whatsoever in force at the commencement of this Act shall, after the commencement of this Act, be read as a reference to the Prime Minister of the Cook Islands."

In so doing it states the obvious. However, the question at this point is whether that process of reference does change section 5. Clearly the substance of the section remains unchanged. The responsibilities of Her Majesty the Queen in right of New Zealand for the external affairs and defence of the Cook Islands are exactly the same after as before the No. 9 Amendment. The process of consultation remains. All that is affected is the label attaching to the Head of Government of the Cook Islands. The terms Premier and Prime Minister are in common use and on any fair reading they are synonymous for the purposes of section 5. To put it in terms of the language used in Pillai v Mudanayake, [1955] AC 514 the pith and substance of section 5, the true character of that provision, is not affected by the change in nomenclature.

For the reasons given each of the questions is answered in the affirmative. In the result we are not called on to express any views on two questions which were canvassed in argument: the constitutional significance of the expression "Her Majesty the Queen in right of New Zealand" in relation to the external affairs and defence of the Cook Islands under section 5 of the 1964 Act; and the severability of invalid provisions in a constitution. As agreed by counsel costs are reserved.

Solicitors for the Plaintiff: Short & Tylor (Rarotonga)
Solicitors for the Defendant: Crown Law Office (Rarotonga)