Suspension orders as a form of "constitutional dialogue"

This essay argues that New Zealand’s courts, when considering constitutional matters on which there is no domestic jurisprudence, should draw upon foreign jurisprudence where the principles informing foreign judicial decisions on similar subject-matter are principles of the New Zealand legal system. This essay explores this idea with reference to the principle of “constitutional dialogue”, which legitimises judicial orders that suspend declarations of constitutional invalidity thereby giving temporary effect to unconstitutional statutes. It first explains how “constitutional dialogue” can both describe and lend legitimacy to the interactions between the executive, legislature and judiciary in New Zealand. Drawing upon the Canadian, South African and Hong Kong “suspension order” jurisprudence, it then explains how these orders facilitate a “dialogue” between the different branches of government. Finally, the essay criticises the New Zealand High Court’s decision in Spencer v Attorney General in which the Court held that the Human Rights Tribunal could not grant “suspension orders” that validated unlawful government policies. In particular, the essay focuses on the Judge’s failure to recognise “constitutional dialogue” as the principle that underlies the decision to grant these orders in foreign jurisdictions, which would have allowed her Honour to follow Canadian authority when reaching her decision.