Preservation of ancient Imperial acts advocated

Press, 19 April 1982, Page 13

Preservation of ancient Imperial acts advocated

Parliamentary reporter Ancient acts ensuring a people's parliament, an independent judiciary, and the law of habeas corpus should be preserved in the Imperial Laws Application Bill, a Wellington specialist in constitutional law. Mr G. B. Chapman, has told a Parliamentary Select Committee. The bill anticipates another that will repeal all ■obsolete Imperial acts still in force in New Zealand. Mr Chapman said that no Imperial act of constitutional importance or continuing general utility should be repealed by default. Listing acts’that should be retained, and not included in the bill. Mr Chapman said . that the Habeas Corpus Act. 1640. should be preserved in toto. The act effectively destroyed the ability of the Crown to govern without a Parliament, and alone of other legislation passed in

Britain in 1641, retained its relevance. It recited the Magna Carta and the constitutional legislation of Edward 111. affirming the continuity of a "great line of legislation" dealing with the primacy of the rule of law and the right of all subjects to due process of law. Mr Chapman said. It also abolished the notorious Star Chamber — the Court of Barons that met in closed session to decide the. sentence of enemies of the Crown — and declared that such matters should be determined in the "ordinary courts of justice, and the ordinary courts of the law." This was an enduring guarantee against usurpation by the Crown or the executive of the role and function of the ordinary courts of the land, said Mr Chapman. It was a fundamental provision in law.’ The Habeas Corpus Act' was misleadingly so called. Mr Chapman said, because it dealt, wun the law of habeas;

corpus only incidently. For this reason relevant sections of the Habeas Corpus Acts of 1679, 1803, 1804. and 1816 should be preserved. Mr Chapman said. It was not clear todav whether the writ of habeas corpus issued by' virtue of the common law or the 1679 act. Retention of relevant parts of the acts would ensure that substantive legislation on the writ of habeas corpus was retained. The 1816 act was of particular importance because it enabled the court to inquire into the truth of the facts stated in the return to the writ, he said. 'The Act of Settlement. 1700. was a "cornerstone of our constitution." Il not only established the succession to the Throne, but ended the appointment of judges at the' will of the Sovereign. It provided that judges held their commissions "during good behaviour." 'This latter provision and a

judges could be removed from the bench only by Parliament, were written into the Judicature Act. but the Act of Settlement should continue to apply in NewZealand because of its “authoritative and traditional basis" for New Zealand legislation. The main reason for preserving the Act of Settlement was that it established succession to the Crown. Without it. a gap would open in New Zealand's constitutional structure at the highest level, Mr Chapman said. The Parliamentary Privilege Act, 1770. should be retained. It affirmed in clear terms that members of Parliament may be sued in any court unhindered by pretence of any privilege of Parliament. This did not extend to anything said or done in the House itself. The British Settlements Act. 1887. had importance for New Zealand in relation to its legal authority over the Ross Dependency. Il

authorised the Governor- | General of New Zealand as i Governor-General of the Ross Dependency and to make all lawful' rules and regulations for its "good government." Mr Chapman urged that other enactments which should be preserved or reviewed for preservation were: the Statute of Marlborough. 1267 (providing that leasees may not dispose of leased property without agreement with the lessor): the Landlord and Tenant Act. 1730 (providing that a tenant must pay rent double the value of property which he wilfully holds beyond term): the Landlord and Tenant Act. 1851 (dealing with agricultural tenants' fixtures): and the Prescription Act, 1832 (dealing with acquisition of rights to easements). Mr Chapman said the bill should also ensure the authoritative status of the Imperial acts finally retained, and their continued reprinting.