John Roughan: Queen v Parliament - it's a quiet revolution

It is two years today since an Algerian politician walked up to the immigration desk at Auckland Airport with no passport and said he couldn't go home. We still don't know what Ahmed Zaoui ever did to incur the suspicion of security services but two years on he has triggered a kind of uprising here.

This time next week he could be out of jail, released by our new Supreme Court in fairly clear defiance of Parliament's legislated intention. This is not the kind of revolution that relies on guns and terror or crowds in the streets but it is worth watching all the same. It could wreak just as much change in the way we are ruled.

Something is definitely stirring in the chambers of this court and politicians know it. All year there have been periodic public spats between Chief Justice Sian Elias and leading members of the Government, but they were only surface signs of truly tectonic friction.

In March Dame Sian gave a little-noticed address to a Melbourne law symposium in which she questioned the principle of Parliament's constitutional supremacy.

"It is not self-evident," she said, "that the political accommodation reached in England after the struggles between King and Parliament in the 17th century is a sufficient explanation for the constitutions of Australia and New Zealand in the 21st century."

The idea that Parliament has the ultimate right to exercise sovereignty, because it is elected and the judiciary is not, was "impoverishing our constitutional thinking". She wanted "to avoid the labels of supremacy and activism and protestations of democratic legitimacy".

We had "moved on", she believed, "from a monolithic and obsolete view of fundamentals of law as a quest for power that trumps".

She did not see the court as a rival for legislative power. There were legal theorists who held that because Parliament's laws require a set of judicial rules and procedures to work out what the law-makers intended, it is those rules of law that "command the ultimate allegiance of the courts".

She concluded: "Parliamentary sovereignty is an inadequate theory. An untramelled freedom of Parliament does not exist. We need to develop a better consciousness of the dependency of our societies upon the law and a feel for constitutional movement."

A couple of months later Michael Cullen chose the 150th anniversary of representative government in New Zealand to deliver a trenchant reply.

It was "settled doctrine", he said, that sovereignty in New Zealand is exercised by Parliament, which was "the supreme maker of law, the highest expression of the will of the governed ...

"But there is an increasing tendency to challenge this sovereignty, not just from some radical Maori but from within the heart of the judiciary," he said.

IT was almost as if there was an emerging view that sovereignty was shared between Parliament and the judiciary, with Parliament being the junior and less informed partner.

"In my view we are approaching the point where Parliament may need to be more assertive in defence of its own sovereignty, not just for its own sake but for the sake of good order and government."

The very next day, in London, Dame Sian and two fellow judges, Thomas Gault and Sir Kenneth Keith, were quizzed by a House of Commons select committee on the problems facing the creation of a supreme court. That's when the silly stuff started.

Dame Sian, probably unaware a transcript would appear on the House of Commons website, complained about her court's funding, its dependence on the Justice Department, its library and even its name. That notion of supremacy again.

Helen Clark, when she heard the litany, said the Chief Justice should take her problems to the Attorney-General, Margaret Wilson, which was exactly Dame Sian's complaint really.

Dame Sian said the Prime Minister's response indicated "a profound lack of understanding about judicial independence and our constitutional arrangements". Then Trevor Mallard made his memorable aside that it was a pity the Supreme Court had not been appointed on merit.

So much for the surface eruptions. Last week Justices Elias, Gault, Keith, Blanchard and Eichelbaum decided they had "inherent jurisdiction" under the English common law to hear Ahmed Zaoui's application for conditional release from prolonged detention.

To give themselves that power they had to read the Immigration Act quite differently from the way judges had read it in the High Court and Court of Appeal.

They scheduled Zaoui's hearing for next Thursday, which gave the Government a fortnight to reassert its authority with urgent legislation of some kind.

Opposition parties have been demanding that the Government do exactly that. NZ First offered Labour sufficient votes to immediately clarify the national security section of the Immigration Act in a way that would overrule the Supreme Court's rather strained interpretation of it.

The Government ignored the offer, which is a measure of how little faith it has in its security advice on this case. Zaoui will almost certainly be released into more tender care to continue the interminable wait for a clearance.

He is the first asylum-seeker to run up against a law passed in 1998 and the two years he has been in detention without charge or trial is an indictment of Parliament's work.

It is therefore a fairly safe subject for the Supreme Court to use as a signal of its intentions. But MPs are preparing to meet the challenge with the committee set up under Peter Dunne. The House, he has said, "is going to be less likely to stand by and allow some degree of activism to continue".

So take your positions for The Queen v Parliament. The case will continue next year and, ultimately, you'll be the judge.

* John Roughan is a Herald assistant editor.