Retroactive Law How Dodgy Was Duynhoven Law Change

Retroactive Law: How "Dodgy" was Duynhoven law change?

The law change that saved New Plymouth MP Harry Duynhoven's seat in Parliament was constitutionally "dodgy," says Victoria University Visiting Law Professor Jeremy Waldron.

Earlier this month Parliament passed retroactive legislation to rescue Mr Duynhoven from the effects of the Electoral Act following his reacquisition of Dutch nationality.

In a public lecture at the Victoria University School of Law today (Thursday 21 August), Professor Waldron examines the principle of retroactive legislation, which is believed by most jurists to undermine the rule of law.

“Some say that retroactivity is only really objectionable in the context of criminal law, when new offences are defined or new punishments imposed ex post facto, of which New Zealand has had more than its share in recent years as well," says Professor Waldron.

“But I believe it is a mistake to confine the principle opposing retroactivity to the context of penal law. Changing electoral law retroactively, under urgency, and without all-party support, sets a dangerous precedent for a country in which democratic arrangements rest on nothing more resilient than the voluntary self-restraint of Parliamentary majorities."

Mr Duynhoven did not break any law nor violate any prohibition. There was nothing wrong with his reacquisition of Dutch citizenship. What was "dodgy," Professor Waldron believes, was the legislative manoeuvre used to rescue him, under which the Select Committee's decision that the Electoral Act had rendered Mr Duynhoven’s seat vacant was overturned.

Professor Waldron says principle and precedent are at stake. "Why should a Government hesitate before solving its political or administrative problems with enactments of this kind? While the Duynhoven incident itself may be relatively insignificant, our law works as a system, but it works only if the integrity of the system can be held together.”

Jeremy Waldron is Maurice and Hilda Friedman Professor of Law and Director of the Center for Law and Philosophy at Columbia University in New York. A New Zealander by birth, he is currently a Visiting Professor at Victoria Law School, Wellington.

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