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Henry v Attorney-General [1983] CKCA 4; CA 1.1983 (19 April 1983)

THE COURT OF APPEAL OF THE COOK ISLANDS
No 1/83

IN THE MATTER
of the Declaratory Judgments Act 1908

AND

IN THE MATTER
of the Constitution of the Cook Islands

AND

IN THE MATTER
of the Constitution Amendment (No 9) Act 1980-81

BETWEEN

GEOFFREY HENRY
Plaintiff

AND

ATTORNEY-GENERAL
Defendant

Coram: The Right Hon Mr Justice Richardson
The Hon Mr Justice Coates
The Hon Mr Justice Dillon

Counsel: G P Barton for Plaintiff
Attorney-General (V A K T Ingram)
Solicitor-General (M C Mitchell)
P B Temm QC, and A Manarangi for Defendant

Hearing: 11 and 12 March 1983
Judgment: Delivered by Dillon J in Rarotonga on 19 April 1983

JUDGMENT OF THE COURT
DILLON J

The Proceedings in this Court

These proceedings were instituted under the Declaratory Judgments Act 1908, a New Zealand statute extended to the Cook Islands by the New Zealand Laws Act 1979. The plaintiff brought the proceedings as a member of the Legislature of the Cook Islands (and we deliberately use that neutral term, Legislature, throughout this judgment because whether "Legislative Assembly" or "Parliament" is now the correct term depends on the answers to the questions raised). He seeks a ruling as to the validity of an enactment of the Legislative Assembly of the Cook Islands called the Constitution Amendment (No 9) Act 1980-81. An originating application was filed on 28 February 1983 on the eve of a general election scheduled to be held on 30 March 1983. In his accompanying affidavit the plaintiff sought an early hearing and, because of the absence from the Cook Islands of the Judges of the High Court, applied to have the proceedings transferred to New Zealand. This application was refused by the Chief Justice, who was then in Fiji, because of the public interest in having this important constitutional matter heard in the Cook Islands. Counsel for the Attorney-General, on whom the proceedings had been served pursuant to an order made in the High Court on 1 March 1983 that he appear to represent the public interest, filed an application to remove the proceedings into this Court on the ground that a decision of the High Court would be subject to appeal. That order was made by consent on 3 March. Steps were then taken to ensure an early hearing and in the result we are able to give judgment at the opening of the first sitting of the Court in the Cook Islands following the hearing of the proceedings.

We should add that in consenting to the removal of the proceedings into this Court the plaintiff expressly reserved the right to contend that the No 9 Amendment was wholly invalid. The point of this reservation was that it was that enactment which amongst other constitutional changes established this Court and we were being asked in effect to decide that the Court had not been properly constituted. Having regard to that potential jurisdictional difficulty and to certain other technical jurisdictional considerations under the Declaratory Judgments Act 1908 in relation to removing proceedings of this kind into this Court to which he adverted, Dr Barton, counsel for the plaintiff, submitted that we should entertain the present proceedings de bene esse. The Attorney-General concurred in that invitation.

We prefer to proceed from the premise that it is the responsibility of any court to satisfy itself as to its authority to make a decision in a particular case, even, we think, if in the process it has to consider questions going to the legality of its own existence; and in some circumstances - in respect of which the urgency of the issue, the absence of a reasonably available alternative procedure and the consent of the parties may provide a sufficient factual foundation - the doctrine of necessity may oblige it to do so. In expressing that view point we recognise, of course, that there is a considerable diversity of jurisprudential thinking on the role of judges in determining constitutional questions of this kind, and that, as the eminent constitutional lawyer Sir Kenneth Roberts-Wray has observed in Commonwealth and Colonial Law p 293, referring to the position of judges appointed under a constitution challenged as invalid:

"If they were to hold that the constitution was lawfully enacted, the effectiveness of the Judgment would still depend upon the assumption that they were right - that the constitution and therefore their appointments under it were valid."

In the present case we are satisfied as to our authority to entertain the proceedings. And on the answers we give to the questions posed in the originating application upholding the No 9 Amendment it is not necessary except in respect of one technical consideration to explore the jurisdictional aspects of the case any further.

What we have just described as a technical consideration is a point drawn to our attention by Dr Barton. The order for removal purported to be made under s. 53 of the Judicature Amendment Act 1980-81. That section provides for the removal into the Court of Appeal of certain classes of proceedings. The only class of proceedings which is possibly relevant is "any notice of motion". The Declaratory Judgments Act 1908 as it applies in New Zealand provides for an application for a declaratory order to be made to the High Court of New Zealand by originating summons. But originating summonses are not a recognised form of procedure in the Cook Islands under the Code of Civil Procedure of the High Court. And Rule 68 provides that proceedings for which no other mode of commencement is prescribed may be commenced by originating application - that is by notice of motion - as was done by the plaintiff in this case.

The Constitutional Background

As is common in the case of constitutions of newly independent countries established on the Westminster model the original Constitution of the Cook Islands was brought into force by Act of Parliament - in this case of the Parliament of New Zealand. In 1901 the Cook Islands were brought within the boundaries of New Zealand pursuant to an Order in Council made on 13 May 1901 under the Colonial Boundaries Act 1895 and a Proclamation dated 10 June 1901. In the exercise of its sovereign power to make laws for the peace, order and good government of the Cook Islands the New Zealand Parliament enacted the Cook Islands Constitution Act 1964. The long title states the object of the Act as being to make provision for self government by the people of the Cook Islands and to provide a constitution for those islands. The short title and commencement of the Act are provided for in s 1. There are only five other sections in the statute which we set out at this point because of their importance to the argument and so that our judgment can be read as a self-contained text:

"2. (1) In this Act -

'The Constitution' means the Constitution of the Cook Islands, as set out in the Schedule to this Act;

'The Cook Islands' has the same meaning as in the Constitution.

(2) This Act shall be in force in the Cook Islands and, unless the context otherwise requires, shall apply to the Cook Islands only and not to New Zealand.

3. The Cook Islands shall be self-governing.

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.

6. Nothing in this Act or in the Constitution shall affect the status of any person as a British subject or New Zealand citizen by virtue of the British Nationality and New Zealand Citizenship Act 1948."

The general scheme of these provisions is clear: s. 3 provides that the Cook Islands shall be self-governing; s. 4 provides that the Constitution set out in the Schedule is to be the supreme law of the Cook Islands; s. 5 reserves the responsibilities of the Crown in right of New Zealand for external affairs and defence and provides for their discharge to be after consultation; and s. 6 preserves the status of Cook Islanders as British subjects and New Zealand citizens under the relevant New Zealand legislation. The Act is thus the vehicle for giving life to the Constitution which is then set out in the Schedule. The original Constitution is a comprehensive instrument of 87 Articles divided into seven separate parts:

Part I The Government of the Cook Islands

II The Executive Government of the Cook Islands

III The Legislative Government of the Cook Islands

IV The Judiciary

V The Public Revenues of the Cook Islands

VI The Cook Islands Public Service

VII Transitional Provisions

The special status of the Constitution as the supreme law of the land is reflected in the provisions of the Constitution governing the legislative competence of the Legislative Assembly. Two articles are particularly in point. The first is Article 39. Clause 1 provides that "Subject to the provisions of this Constitution, the Legislative Assembly may make laws (to be known as Acts) for the peace, order, and good government of the Cook Islands." Clause 3 of the Article imposes the same qualification of subjection to the dictates of the Constitution when in expanding on that general law making authority it provides that "... that power [conferred by Clause 1] shall, subject to the provisions of this Constitution, include the repeal or revocation or amendment or modification or extension, in relation to the Cook Islands, of any law in force in the Cook Islands." Inasmuch as the Constitution is the supreme law and the legislative power is subject to its provisions, legislation inconsistent with the Constitution is invalid on the ground of unconstitutionality; a conclusion which is reflected in Article 39(4).

The second Article which is relevant in this regard is Article 41. It sets out the procedures for amending the Constitution. Clause 1 provides:

"Subject to the provisions of subclause (2) of this Article, no Bill repealing or amending or modifying or extending this constitution or any provision thereof or making any provision inconsistent with any provision of this Constitution shall be deemed to have been passed by the Assembly, unless -

(a) At both the final vote thereon and the vote preceding that final vote it receives the affirmative votes of not less than two-thirds of the total membership (including vacancies) of the Legislative Assembly; and

(b) There is an interval of not less than 90 days between the date on which that final vote was taken and the date on which the preceding vote was taken;

and no such Bill shall be presented to the High Commissioner for assent unless it is accompanied by a certificate under the hand of the Speaker to that effect."

A further degree of entrenchment is built into the Constitution by Article 41(2) with respect to amendments to ss 2 to 6 of the 1964 Act, or to Article 2 providing in the original Constitution for Her Majesty the Queen in right of New Zealand to be the Head of State of the Cook Islands, or to Article 41 itself. Article 41(2) reads:

"No Bill repealing or amending or modifying or extending any of the provisions of sections 2 to 6 of the Cook Islands Constitution Act 1964 or Article 2 of this Constitution or this Article or making any provision inconsistent with any of those provisions shall be submitted to the High Commissioner for his assent, unless -

(a) It has been passed by the Legislative Assembly in accordance with the provisions of subclause (1) of this Article; and

(b) It has been submitted to a poll, conducted in a manner prescribed by law, of the persons who are entitled to vote as electors at a general election of members of the Legislative Assembly; and

(c) It has been supported by not less than two-thirds of the valid votes cast in such a poll; and

(d) It is accompanied by a certificate under the hand of the Speaker to that effect."

In short, the passage of laws inconsistent with or amending the Constitution itself requires two special two-thirds majority votes in the Legislature except in those special cases specified in Article 41(2) where there is a further requirement of a two-thirds majority at a poll. The constitutional authority to determine the constitutionality of legislation, and for that purpose to declare (where the issue is raised) whether there has been compliance by the Legislature with the requirements imposed by Articles 39 and 41, rests with the Courts. Under Article 47 of the Constitution the High Court has all such jurisdiction as may be necessary to administer the law in force in the Cook Islands. That law includes the Constitution itself: (see the definition of "Law" in Article 1(1)). In exercising that responsibility the Court has "a duty to see that the Constitution is not infringed and to preserve it inviolate." (Bribery Commissioner v Ranasinghe [1964] UKPC 1; [1965] AC 172, 194; [1964] UKPC 1; [1964] 2 All ER 785, 790).

The No 9 Amendment

In the exercises of its constitutional power to amend the Constitution the Legislature had prior to 1980 passed eight enactments expressly amending the Constitution. No question arises in these proceedings as to the constitutional validity of those amendments. The Constitution Amendment (No 9) Act 1980-81 received the assent of the High Commissioner on 5 June 1981 and, in terms of s 1(2) of that enactment, came into force on that day.

On any view it is major constitutional legislation; and for his part the Attorney-General described it as probably the most important legislation enacted by the legislature since the adoption of the original Constitution. It replaced Parts III and IV relating respectively to the Legislative Government of the Cook Islands and the Judiciary with the new parts; it introduced a further Part IVA as to Fundamental Human Rights and Freedoms; and it made a number of other changes including relevantly for present purposes substituting "Prime Minister" for "Premier" and providing for a specific type of audit report in respect of certain government spending. These latter provisions will be considered in more detail when the specific questions for determination are dealt with in turn.

It is common ground that when the Bill which ultimately became the No 9 Amendment was submitted to the High Commissioner for his assent it was accompanied by a certificate from the Speaker in terms of Article 41(1). But it was not thought necessary to comply with the additional poll requirements of Article 41(2). The correctness of that assumption was challenged in the argument of the second and third questions posed for determination relating to the specific provisions referred to earlier concerning the Prime Minister and the audit report. The first question is more general. It is directed to the validity of the No 9 Amendment as a whole.

Before turning to consider those questions we propose to review the principles of constitutional interpretation we consider applicable in this case.

Principles of Constitutional Interpretation

A constitution on the Westminster model is in a technical sense created by statute. It does not follow that it should necessarily be construed in the manner and according to rules generally applicable to the interpretation of other statutes. It must be interpreted according to principles suitable to its particular character. This fundamental consideration is at the heart of Lord Wilberforce's exposition of the approach to constitutional interpretation in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 3191; [1979] 3 All ER 21. The question in that case was whether in the context of the relevant provision of the Constitution of Bermuda "child" included "illegitimate child". Lord Wilberforce observed at p 328 (p 25) that the antecedents of the Constitution and the form of Chapter I (which dealt with the protection of fundamental rights and freedoms of the individual) itself called for a generous interpretation, avoiding what had been called "the austerity of tabulated legalism", suitable to give to individuals the full measure of the fundamental rights and freedoms. He went on to refer to the two possible interpretation approaches open to the Court in this way (p 329; p 26):

"The first would be to say that, recognising the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts, such as those which are concerned with property, or succession, or citizenship. On the particular question this would require the court to accept as a starting point the general presumption that "child" means "legitimate child" but to recognise that this presumption may be more easily displaced. The second would be more radical: it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law.

It is possible that, as regards the question now for decision, either method would lead to the same result. But their Lordships prefer the second. This is in no way to say that there are no rules of law which should apply to the interpretation of a Constitution. A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences. In their Lordships' opinion this must mean approaching the question what is meant by "child" with an open mind."

The following year in Ong Ah Chuan v Public Prosecutor [1981] AC 648 the same question of the proper interpretation approach to a constitution on the Westminster model - in that case the Constitution of Singapore - arose again for consideration in the Privy Council. In delivering the judgment of the Judicial Committee Lord Diplock expressly adopted the approach taken by Lord Wilberforce in Fisher's case and said at pp 669-670:

"...the way to interpret a constitution on the Westminster model is to treat it not as if it were an Act of Parliament but 'as sui generis, calling for principles of interpretation of its own, suitable to its character ... without necessary acceptance of all the presumptions that are relevant to legislation of private law' ".

Most recently in Attorney-General of Fiji v Director of Public Prosecutions [1983] 2 WLR 275 the Judicial Committee in a judgment delivered by Lord Fraser of Tullybelton fully accepted that a constitution should be dealt with in the manner referred to in the two earlier judgments and "should receive a generous interpretation". A further recent decision where that same approach was taken in the interpretation of a Westminster model constitution in this part of the South Pacific is the judgment of the Court of Appeal of Western Samoa delivered on 26 August 1982 in Attorney General v Olomalu. (See too Riley v Attorney-General of Jamaica [1982] 3 WLR 557, 563; [1982] 3 All ER 469, 474).

Counsel for both parties submitted, and we entirely agree, that the Constitution of the Cook Islands should be interpreted in the spirit urged by Lord Wilberforce in Fisher's case. The Constitution has a special fundamental character of its own; austere legalism is to be avoided; a generous interpretation is required. The construction of the Constitution involves paying proper attention to the language used in the particular provisions but at the same time giving full weight to the overriding objects and scheme of the Constitution so as to avoid a blind literal and legalistic interpretation.

We are inclined to the view that the application of s 5(j) of the Acts Interpretation Act 1924 - well described as the cardinal rule of statutory interpretation in New Zealand - which applies in the Cook Islands (see Cook Islands Act 1915, s 622), involves an essentially similar approach to the construction of the Constitution of the Cook Islands. The importance that the Legislature attached to the adoption of the fair, large and liberal approach called for by s 5(j) in the interpretation of the Constitution is reflected in the inclusion of a specific provision in terms of s 5(j) in the No 9 Amendment itself (see Article 65(2)). The Attorney-General does not rely on that express interpretation provision which is of course part of the Constitutional Amendment under challenge. We have referred to it at this stage simply for the sake of completeness and as an indication of the interpretation approach it mandates for the future if the No 9 Amendment is valid.

There are some further interpretation considerations which we may conveniently refer to at this point. They relate to the need for and manner of amendment. A constitution as a living reality governing the members of the society and the institutions of the society to which it relates must be capable of adaptation to meet changing circumstances. Article 41 provides the machinery for that purpose. Speaking of the machinery for amendment in the Constitution of Jamaica in Hinds v The Queen [1977] AC 195, 214; [1976] 1 All ER 353, 361, Lord Diplock said:

"The purpose served by this machinery for 'entrenchment' is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up to the constitution, should not be altered without mature consideration by the Parliament and the consent of a larger proportion of its members than the bare majority required for ordinary laws.

So in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with the Constitution of Jamaica, neither the courts of Jamaica nor their Lordships' Board are concerned with the propriety or expediency of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering that entrenched provision."

Those considerations apply equally in this case. The remaining matter which should be noted in this part of the judgment is that at times it may be necessary to consider - as it is in this case - whether the challenged legislation amends constitutional provisions by implication. For as Lord Oaksey observed in Pillai v Mudanayake [1953] AC 514, 528; [1955] 2 All ER 833, 837:

"...there may be circumstances in which legislation, though framed so as not to offend directly against a constitutional limitation of the power of the legislature, may indirectly achieve the same result, and that in such circumstances the legislation would be ultra vires. The principle that a legislature cannot do indirectly what it cannot do directly has always been recognised by their Lordships' Board, and a legislature must, of course, be assumed to intend the necessary effect of its statutes."

In determining that question in the case before them the Judicial Committee applied the same test as had been applied to determine the validity of legislation in Canada and Australia; that is to say, what was the pith and substance, the true character of the legislation challenged. The short question was whether the legislation of Ceylon which was under challenge was legislation on citizenship and so not amenable to constitutional restraint or whether it was legislation intended to make and making Indian Tamils liable to disabilities to which other Indians were not liable, in which case it offended against the constitution. Lord Oaksey stated the test in this way (p 529; p 838):

"The cases which have been decided upon the British North America Act, 1867, and the Australian Constitution have laid down the principle which their Lordships think is applicable to the present case, although it is true that in those cases the question was as to the construction of legislative subjects assigned to the Dominion or Commonwealth Parliaments on the one hand and to the legislatures of the Provinces or States on the other, whereas in the present case the question is as to the construction of a constitutional limitation upon the general sovereign power of the Ceylon legislature to legislate for the peace, order and good government of Ceylon. But in their Lordships' opinion the question for decision in all these cases is in reality the same, namely, what is the pith and substance, as it has been called, or what is the true character of the legislation which is challenged (see Attorney-General for Ontario v Reciprocal Insurers [1924] AC 328-37 and Prafulla Kumar v Bank of Commerce Khulna (1974) LR 74 IA 23)."

He then applied that test in the following passage:

"It is, as the Supreme Court observed, a perfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals. Standards of literacy, of property, of birth or of residence are, as it seems to their Lordships, standards which a legislature may think it right to adopt in legislation on citizenship, and it is clear that such standards, though they may operate to exclude the illiterate, the poor and the immigrant to a greater degree than they exclude other people, do not create disabilities in a community as such since the community is not bound together as a community by its illiteracy, its poverty or its migratory character, but by its race or its religion. The migratory habits of the Indian Tamils (see paragraphs 123 and 203, Soulbury Report) are facts which, in their Lordships' opinion, are directly relevant to the question of their suitability as citizens of Ceylon and have nothing to do with them as a community.

For all these reasons their Lordships have come to the conclusion that the Citizenship and Franchise Acts are intra vires of the Ceylon legislature and they therefore humbly advise Her Majesty that this appeal ought to be dismissed."

Question 1

The question reads:

"Is the Constitution Amendment (No 9) Act 1980-81, which provides in s 1(1) that it is to 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 a valid and effective enactment of the Legislative Assembly of the Cook Islands to amend the Constitution of the Cook Islands whether set out either -

(i) in the Schedule to the Cook Islands Constitution Act 1964 of the Parliament of New Zealand as amended by s 2(1) of and the First Schedule to the Cook Islands Constitution Amendment Act 1965 of the Parliament of New Zealand; or

(ii) in the Second Schedule to the Cook Islands Constitution Amendment Act 1965 of the Parliament of New Zealand as amended by Acts of the Legislative Assembly?"

The challenge under this head is not directed to the legislative competence of the Legislature to pass the legislation. Some reference was made in argument to the extent of the changes made in relation to the Legislative Government of the Cook Islands: renaming the Legislative Assembly as the Parliament of the Cook Islands; increasing the number of members from 22 to 24; replacing multiple member constituencies with single member constituencies; creating a new overseas constituency; and extending the life of Parliament to five years (it had been extended from three years to four years in 1969). But there was no suggestion in argument that in any of these respects or considering the proposed amendments as a whole the Legislature had exceeded its powers of amendment. So we are not called on to consider whether and if so what, changes to the Constitution may be so fundamental as to be beyond the amending power. The point raised is a different and much narrower one. It concerns the effect in law of s 1(1) of the No 9 Amendment identifying the Constitution to which the amendments were to relate.

It will have been noticed that question 1 gives two different sources for the text of the Constitution. Some explanation is required. 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. Those 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 s 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 s 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 s 2(1) of the Constitution Amendment (No 11) Act 1982, assented to on 24 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 (s 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 s 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.

If authority be needed to support the conclusion that we have reached it is sufficient to refer to the statement of principle in 36 Halsbury's Laws of England (3rd ed) para 584 where it is said:

"...but [if] the intention of the legislature is plain on the construction of the statute as a whole, it is permissible, in order to give effect to the statute and avoid manifest absurdity or injustice, (1) to reject words or phrases as surplusage if no sensible meaning can be given to them; (2) to supply omitted words or expressions; (3) to transpose, interpolate or otherwise alter words; (4) to read negative words as affirmative, or affirmative as negative; disjunctive as conjunctive, and vice versa; (5) to put upon words a sense possible but not usually attributable to them; (6) to expand their literal meaning."

R v Wilcock [1845] EngR 820; (1845) 7 QB 317 and Re Boothroyd [1846] EngR 255; (1846) 15 M & W 1 are time hallowed examples of a misdescription in a legislative reference to a statutory provision which did not preclude the Court from recognising and giving effect to the true meaning of the legislation in question. The Payment of Workmen's Wages Act 1818, in part repealed several acts described by their titles and dates. Amongst those was an act stated in the 1818 Act to have been passed in 13th Geo 3 but agreeing in title with the statute 17 Geo 3 c 56 and with no Act passed in 13th Geo 3. In Wilcock's case Lord Denman said at p 338:

"A mistake has been committed by the legislature; but, having regard to the subject matter, and looking to the mere contents of the act itself, we cannot doubt that the intention was to repeal the 17 G 3, and that the incorrect year must be rejected."

In Boothroyd's case where the same statutory provisions were in question the Court of Exchequer reached a similar conclusion. Pollock CB said at pp 9-10:

"It is said, however, that we cannot consider the 58 Geo 3, c 51, as operating at all on the 17 Geo 3, c 56, as that is not among the recited acts. But the title of the statute intended to be affected is distinctly stated, and, there being no other statute but the 17 Geo 3, c 56, so entitled, and no statute of the 13 Geo 3 which could be affected by the 58 Geo 3, c 51, I think it must be read as referring to the 17 Geo 3, c 56, and the statement of time treated as a mistake, and as surplusage."

See, too, Parke B at p 12, Alderson B at p 14 and Platt B at p 14.

On the conclusion we have reached that the inaccuracy in the descriptive reference to the Constitution in s 1(1) of the No 9 Amendment is to be disregarded we are not called on to consider whether the enactment of s 2(1) of No 11 Amendment as legislation by reference is necessarily to be regarded as a constitutional affirmation of and so the enactment of all the amendments comprised in the No 9 Amendment.

Before leaving this part of the case we should refer to a further submission advanced by Dr Barton under this head. It was that an enactment which described the Constitution except in the exact terms of the definition in s. 2(1) of the 1964 Act or by reference to the constitution as set out in the second schedule to the 1965 Act would involve an amendment or modification or extension of the entrenched s 2 of the 1964 Act. So, it was said, in order to be constitutionally valid such an enactment would have to comply with the procedural requirements laid down by Article 41(2). We are unable to agree. First, Article 41(2) does not refer at all to the 1965 Act. There is no basis for an argument that the entrenched procedure of Article 41(2) must be followed insofar as the source of, the text of the Constitution referred to in s 1(1) of the No 9 Amendment may properly be regarded as the 1965 Act. Second, and for the reasons we develop when considering question 3, a misdescription of that kind is not a point of substance constituting an implied amendment or modification or extension of s 2 within the meaning which those words have for the purposes of Article 41(2).

Question 2

The question reads:

"Is s. 9 of the Constitution Amendment (No 9) Act 1980-81, which purports to insert a now article 70(3A) into the Constitution, a valid enactment of the Legislative Assembly?"

Article 70 of the Constitution appears in Part V of the Constitution which relates to the Public Revenues of the Cook Islands. It provides in some detail for expenditure from the Cook Islands Government Account with or without prior appropriation and for the crediting of revenue to that account or other public funds or accounts. The new clause (3A) provided for by s 9 of the No 9 Amendment reads:

"(3A) The Audit Office shall, in the last Session of Parliament before the date on which a general election of Parliament is required to be held, forward to the Speaker for presentation to Parliament a separate report specifying any expenditure made in any financial year that is in excess of the limits prescribed by subclause (3) of this Article or by any other enactment and has not been reported in any report previously presented pursuant to this subclause, and Parliament may by Act validate the whole or any part of that expenditure."

The obvious purpose of the new clause is to provide an external audit check in respect of the accounting for the expenditure of public moneys and to subject any proposals to validate any unauthorised expenditure to public scrutiny through the legislative process. In that regard it needs to be read in association with Article 70(4) which provides for a statement of the unauthorised expenditure for any financial year to be included in the accounts for that year to be laid before the Legislature.

Article 71 goes on to provide for the audit of the public revenues of the Cook Islands. It is not surprising given the limited population and other resources of the Cook Islands and the close association with New Zealand that clause 1 provided for the Audit Office of New Zealand (now in New Zealand terms the Controller and Auditor-General as administrative head of the Audit Department - see Public Finance Act 1977 (NZ) ss 14 and 15) to be the auditor of the Cook Islands Government Account and all other public funds and accounts specified in that Article. Clause 2 of Article 71 then defines the responsibilities of the Audit Office in that regard in these terms:

"The Audit Office shall, at least once annually, forward to the Speaker of the Legislative Assembly for presentation to the Assembly a report containing such information as is required to be submitted by any enactment, together with such other information relating to the Cook Islands Government Account or other funds or accounts which under this Constitution or under any other enactment are required to be audited by the Audit Office as that Office considers desirable."

The submission for the plaintiff under this head was that the new clause (3A) in imposing obligations on a New Zealand public official and department was enacting extra-territorial legislation. The legislative competence of the Legislature to enact such legislation was not disputed. A statutory provision for a government audit plainly falls within the general legislative prescription to make laws for the peace, order and good government of the Cook Islands (Article 39(1)). And Article 39(2) expressly states that the powers of the Legislature shall extend to the making of laws having extra-territorial operation. This is subject to the qualification expressed in the opening words of Article 39(1) that the law making power is subject to the provisions of the Constitution. The only possible constitutional restraint arises in the application of s 2(2) which as earlier noted in one of the entrenched provisions subject to amendment for Cook Islands constitutional purposes only if the procedure laid down in Article 41(2) is complied with. The critical feature on which the plaintiff relies is that in term of s 2(2), unless the context otherwise the Act in to apply to the Cook Islands only and not to New Zealand. It is common ground that Article 71 is a provision of the Constitution which in imposing obligations on the Audit Office of New Zealand may involve the discharge of those functions in New Zealand. The contention for the plaintiff is that to give the new clause (3A) its inevitable extra-territorial application involves an inconsistency with or extension of s 2(2) and requires compliance with the special machinery of Article 41(2).

We reject this submission for two reasons. The first is that it involves reading far too much into s 2(2). It fails to recognise the distinction between legislation of the Cook Islands which has extra-territorial effect so far as the laws of the Cook Islands are concerned on the one hand and legislation which has effect as part of the laws of New Zealand on the other. Article 70(3A), if considered on its own and apart from Article 71, is an example of the former not the latter. And the adoption by the Legislature of the Cook Islands of a special procedure for passing the legislation could not possibly convert the enactment into legislation applying to New Zealand for the purposes of the laws of New Zealand. To put it another way, it cannot be assumed that the Parliament of New Zealand contemplated that the legislature of another country could make laws which would be part of the laws of New Zealand. That being so there is no question of inconsistency between s 2(2) and the new Article 70(3A).

Second, and in any event, when regard is had to the object and scheme of that audit provision and to its relationship with Article 71(2), it is apparent that the new clause (3A) is an enactment within the contemplation of Article 71(2). The latter clause contemplates that the Legislature will pass enactments providing for information of the kind referred to in the clause to be included in audit reports. Dr Barton fairly agreed that the information to be contained in a report made pursuant to clause (3A) (which is itself "an enactment": see definition in Article 1 of the Constitution) fell within that prescriptions it was concerned with the reporting of the kind of information that could be sought by an enactment under Article 71(2). In the end he accepted that if his submission were to be upheld the Article 41(2) procedure would have to be followed whenever the Legislature wished to pass an enactment requiring tile provision of information contemplated by Article 71(2). Had the clause been intended to apply only in that way it is to be expected that Article 71(2) would have been expressly qualified accordingly. We prefer the contrary view that Constitution contemplates that such information may be called for by any enactment of the Legislature and whether or not the machinery of Article 41(1) or (2) is employed.

Question 3

The question reads:

"Are ss 2(6), 3, and 18(2) of the Constitution Amendment (No 9) Act 1980-31, which (inter alia) purport to substitute the words 'Prime Minister' for all previous references to the office of 'Premier', valid enactments of the Legislative Assembly?"

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 s 5 of the 1964 Act which uses the term "Premier of the Cook Islands"; and that that cannot be regarded as achieved 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 s 5 of 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 s 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 s 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 s 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 s 5 was not the kind of substantive alteration to s 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, it can fairly be said that what is involved is truly an amendment modification or extension of s 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 s 5 in both of which the specific reference is to Her Majesty the Queen in right 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 in 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 doing so 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.

JUSTICE RICHARDSON
JUSTICE COATES
JUSTICE DILLON

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