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Back Home 5 News 5 Attorney-General David Parker talks tough on the separation of powers

Attorney-General David Parker talks tough on the separation of powers

8 Dec 2022

| Author: Reweti Kohere

Attorney-General David Parker has warned that Parliament will disregard senior court orders declaring legislation inconsistent with fundamental human rights legislation if judges were to go “mad” in deciding every margin-call error rather than focusing on the most serious of breaches.

The courts and Parliament show mutual respect for each other’s respective roles and are aware of the dangers of encroachment, Parker says. But, in addressing judges and lawyers at the annual ADLS breakfast in Auckland last week, he said Parliament would put declarations of inconsistency “in the dustbin very easily” if the courts found alleged inconsistencies everywhere.

Parliament recently amended the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 to include a process by which the House of Representatives and the executive can respond to declarations of inconsistency. The “halfway house” measure would help improve the “comity” that the courts and Parliament shared, while ensuring Parliament remained supreme, “because, in the end, it’s elected politicians that should be making some of these line calls…rather than unelected judges”, Parker said.

Parliament always ran the risk of running roughshod over fundamental human rights, especially in the absence of an upper house, a judiciary empowered to strike down legislation or other checks and balances. While it didn’t happen that often, Parker said the legislature did contravene the Bill of Rights Act in some circumstances.

The senior courts for some years had been conscious that declarations of inconsistency might cause friction as the orders would essentially serve as criticism, given they lacked remedial effect. That’s partly why the government, with cross-party support, passed the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2020, Parker said. The utility of that statutory power, however, depended on how rare the issue was. The attorney[1]general cautioned there was a risk of erosion if the courts misused the remedy.

Overlay of democracy

Parker also spoke about the government’s “enormous” legislative work to reform the outdated Resource Management Act 1991. Thirty years after it was first passed, the RMA was replete with core failures. “It takes too long, it costs too much, it has not adequately protected the environment and neither has it enabled development, including housing,” he said.

The government in February 2021 announced the RMA would be repealed and replaced with three new statutes: the Spatial Planning Act (SPA), the Natural and Built Environment Act (NBA), and the Climate Adaptation Act (CAA). The first two Acts are with the Environment Select Committee while the CA Bill’s introduction is expected in 2023. Instead of a co-governance model, a “participatory” model has been proposed by the government for upholding and protecting Māori rights. It’s envisaged iwi will have at least two representatives on regional planning committees charged with developing spatial strategies for each region.

Parker said Te Tiriti issues were more complex under the RMA than in most other spheres of law. While central government was delegating its law-making powers over planning laws to local government bodies, as per article one of the treaty, Māori control of their interests, including in land, fisheries and forests, are protected under article two by the participatory model. “And then article three will be to move together as one people, [which] is relevant particularly given the overlay of democracy that has developed since the treaty was signed.”

Covid wind-down

Since last Friday’s breakfast, the government has announced a royal commission of inquiry into its covid-19 response, set to start early February 2023 and concluding in mid-2024.

It follows a recent paper on New Zealand’s legal framework for emergencies, written by Auckland University public law professor Janet McLean KC, which concluded the country should act on its recent experience “while it is still fresh”. One of McLean’s key recommendations is conferring on political officials, rather than public servants, powers to make orders over parts of or the whole country under the Health Act.

Parker said Parliament could theoretically legislate an Act containing all the emergency powers that the executive would need to respond to any given emergency. But he didn’t favour such an approach as it would require accounting for all eventualities. “That’s not to say we couldn’t have some principles enshrined, like the fact you should never override the Bill of Rights Act,” he said.

Parliament recently wound-down numerous extraordinary powers under the Covid-19 Public Health Response Act 2020, a statute that formed the legal basis for many of the restrictions New Zealanders lived under during the past three years. While the Act has been extended to enable continued management of covid-19, it has been significantly narrowed to safeguard the country against new waves or variants.

Three years ago, Parker was tasked with formulating a legislative response to the pandemic – a policy role the ministerial office usually lacks. A cross-agency team of lawyers helped write a Bill that contained “necessary” and “wise” protections, including an explicit commitment not to do anything that would override the Bill of Rights Act and to leave open the door for judicial review challenges “as we ought to have”, he said.

We had good advice from the courts on the way through. By and large, the actions of the executive were upheld. We had the occasional loss at the margin, which was proper. And we obviously learned from that as we went through.” ■


See page 18 in LawNews issue 44
 for photos from the event ■

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