What is judged to be non-justiciable and how that is determined has changed markedly in the last several decades and the concept remains in flux. There has been recent British and Australian case-law on the concept in the highest appellate courts, providing an opportune moment to survey the contemporary landscape of non-justiciability. The contemporary non-justiciability cases concentrate in the area of foreign relations law, in cases arising from the ‘war on terror’, though they range over broader subject matter. I argue that contemporary Australian and British approaches to non-justiciability, though developed in very different legal contexts, are presently converging, and situate New Zealand case-law in relation to these developments. I argue that non-justiciability is a concept of continuing utility in New Zealand and elsewhere in the common law world. Accounts discerning, and arguing for, the redundancy of non-justiciability mistake its transformation for its demise.
13 June 2016
'The Changing Landscape of Non-Justiciability' by Rayner Thwaites in (2016) New Zealand Law Review (Forthcoming) comments