Constitutional Statutes and Implied Repeal: The Thoburn Decision and the Consequences for New Zealand

Abstract

The United Kingdom case of Thoburn v Sunderland City Council suggests that there might be statutes that may not be impliedly repealed because of their "constitutional" status. This article examines the Thoburn decision and considers its implications for both the United Kingdom and New Zealand. This article questions whether Thoburn can be applied directly to New Zealand’s constitutional situation, and in particular whether New Zealand even has statutes that might be called "constitutional". The role of the New Zealand Bill of Rights Act 1990 is considered, as is the case of R v Pora, which can be seen as New Zealand’s forerunner to Thoburn.
The article also examines the broader significance of the Thoburn decision and its implications for parliamentary sovereignty. Thoburn can be seen as a mid-point between the traditional supremacy of Parliament and a more rights-based jurisprudence because it protects rights without fettering Parliament’s ability to legislate.