I think the National Government broke the Constitution. John Key thinks it didn't. We both may be right.

My last post on the Public Health and Disability Amendment Act 2013 appeared to strike something of a chord. Certainly, it's been the most viewed piece that I've written here. 

However, there's at least one person who remains quite unmoved by my claim that the MPs who approved of the Government's legislative proposal to oust court oversight of future family care policies acted in breach of New Zealand's constitution. Our Prime Minister, John Key, dismissed the notion on the grounds that his Government "believes that the legislation is legal and constitutionally correct."

In some ways, that's a bit of a relief. You really wouldn't want to see governments asking our Parliament to pass laws that they believed were illegal or constitutionally incorrect. But I think its still worth spending a few minutes considering the Prime Minister's claim and seeing what it means. Because if I'm saying that the legislation was a breach of our constitution, and he says it was constitutionally OK, we can't both be right. Or can we?

Well, on the first part of the PM's claim - that the "legislation is legal" - you'll get no argument from me. Under our system of parliamentary sovereignty, whatever the Parliament of New Zealand enacts is the law ... so the statement is a tautology. 

Thus, if there is going to be any disagreement between us, it must relate to the second part of his claim; that the legislation is "constitutionally correct". I'll start by putting the case for the defence of the Public Health and Disability Amendment Act 2013, before posing some questions to it. 

John Key might tell a story about our constitutional arrangements that goes something like this. In our system, the final decision making power about any issue lies with those elected members of the political branches of government. So, at each election the New Zealand people choose members of Parliament to represent them in the House of Representatives. A majority of those MPs then choose from amongst themselves the individual who they will support to run the country as Prime Minister, and in turn she or he  will choose ministers to join her or him in a Government. That Government will then get on with the business of actually governing, a part of which is proposing laws for Parliament to consider and (virtually always) pass into effect.

All of this activity is then subject to a regular review by the voters of the country. If those voters think those in the Government are doing a good job, they will reward them by letting them keep it. If those voters think those in the Government are screwing things up, they'll boot them out and get someone else in to do it instead.

However, while regular elections may be the main way in which elected representatives are held to account for their actions, it isn't the only way. Ministers do not have complete freedom to make decisions on running the country as they see fit. They must abide by any legal restraints that the Parliament has imposed upon them, as well as ensure their decisions accord with procedural constraints that the Courts have seen fit to impose over the years. If you as an individual believe that a Minister (or some bureaucratic underling) has decided something in a way that is inconsistent with these legal or procedural limitations, then you can go to the courts to seek a review of that decision. And if a court agrees with you, then that Court can tell the Minister (or underling) that the decision will not stand.

This then can set up a potential clash between a Minister and a Court. The Minister may genuinely believe her or his decision (or that of her or his underling) is the best one in the circumstances and for the good of the country as a whole. Furthermore, the Minister may genuinely believe that the Court doesn't have a clue about the issue and is standing in the way of that which is for the best - a state of affairs that in turn may harm the Minister's chances of keeping her or his job come the next review by the voters. But even so, the Minister's hands are tied, in that if a Court says that her or his decision is unlawful or procedurally flawed, then that is what it is.

Unless, that is, we go back to where we started this story: in our system, the final decision making power about any issue lies with those elected members of the political branches of government. Because it is always possible for a Minister to go to those elected members in Parliament and ask them to tell the courts, as a matter of law, to keep their noses out of some particular policy issue. And if a Minister does that, and the members of Parliament agree to it, then the courts in turn must abide by it. Because those MPs are the elected representatives of the people, and so what they say ultimately must go.

Now - that is a story that one can tell about our constitutional arrangements. And here is the thing ... there is nothing in that story that I can point to and say "no - that's descriptively wrong." In other words, as an account of where power lies and how power can in fact be used, it is pretty accurate. As, indeed, the whole saga of the Public Health and Disability Amendment Act 2013 demonstrates.

Having said that, however, note what is missing from this account. There is no discussion of how the power that the elected branches of Government possess should be used. And any story about a constitution must include more than just an account of what can be done, and also encompass what ought to be done (or, in this case, not done). 

In particular, the story I've told has a very thin (or, quite rudimentary) notion of "the rule of law". Here is how the public consultation materials distributed by the government's own Constitutional Advisory Panel describes this concept:

The rule of law means everyone in New Zealand must follow the law, including governments.

It also means the law must be clear and understandable, new laws apply to future and not to past activities, and everyone should easily be able to find out what the law is. 

We can expect the government and other people to treat us according to law and if they don’t we can get help. In particular, public officials – including Ministers, members of Parliament, and public servants – have to make decisions according to the law, not according to their personal beliefs or interests.

All New Zealanders have certain basic human rights and freedoms that the state should not interfere with, unless it has a lawful and justifiable reason. 

The rule of law ensures we have a free, safe, and orderly society. The rule of law also ensures the economy can function smoothly, since businesses can be sure about the rules that apply to them and how they will be enforced.

Now, I don't think it is unfair to say that the action of Parliament in agreeing to enact the Government's Public Health and Disability Amendment Bill (No 2) was inconsistent with this account of the rule of law. It gave a green light to the Government to make policies that will discriminate against individuals on grounds that the law prohibits - and then prevented those individuals from accessing any external, independent review to test the Government's reasons for doing so. Thus, for all intents and purposes, the Government is freed from any effective oversight as to how it interprets and responds to Parliament's requirement under the New Zealand Bill of Rights Act 1990 that it not unjustifiably discriminate against people based on their family status.

Of course, John Key might argue (or, more likely, Attorney General Chris Finlayson may argue on behalf of the Government that John Key leads) that even if the Public Health and Disability Amendment Act 2013 is inconsistent with this particular description of "the rule of law", that doesn't actually matter. Because the "rule of law" simply means whatever those in control of the law-making powers at any given time say it means, in that once they say something is "the law" then it is the law

That then sets up a choice for us. Which story about our constitution and the role played in it by the principle of the rule of law is preferable or more desirable? Do we want a system whereby a majority of elected representatives can, whenever they think it best to do so, free the Government from any effective judicial oversight of its actions so as to give it maximum freedom to make whatever decision it believes is necessary? Or do we think that the principle that individuals should have access to judicial remedies for any wrongs done to them so as to ensure that governments operate within the requirements of the law is so important that Parliament should not act against it, no matter the inconvenience caused to a particular Government.

The point is that there's no way to say that one or another of these is "the true and correct" account of our Constitution as a normative matter. It is instead a question of which version better accords with our views of how government power ought to be used, and what sorts of constraints on that power it is desirable to have. So seen in that light, both John Key and I can be "correct" in our claims about the Constitution ... because we're telling different stories about what it is and how it ought to work.

However, there's then a secondary set of issues we might want to consider. Let's say you actually like the constitutional story that John Key is telling. You think it is better that final decisions on matters do rest with elected representatives - even to the extent of them being able to exclude court oversight of the lawfulness of those decisions when this becomes too inconvenient. You then still have to answer another set of questions: how should those elected representatives make their decisions; and in particular, what process should they follow when enacting measures into law?

Because, again, our constitution must say more than who gets to make certain decisions. It must also spell out the proper way that such decisions should be made, so as to be legitimate or viewed as acceptable. In particular, we have to assess whether it is acceptable for a majority of elected representatives to take a piece of proposed legislation which they have been warned contains breaches of individual rights that cannot be justified, refuse to allow the general public a say on it, then pass it into law on the very day it was first announced. 

And once again, the issue is not "could the Government do this?" Parliament's Standing Orders (and the agreement of the ACT, United Future and Maori Parties) let it do so. Rather, even if you think Parliament ought to be able to make these kinds of laws, should it make them in this way - and what is those laws' moral (as opposed to legal) status if it does?

I'm not going to end this with any sort of grand denunciation of the Government's actions. In my last post I made it clear that I think it was wrong in what it did, and why I thought that. My purpose here is to try and unpick some of the threads in the issue so that we can see what is at stake in it ... above and beyond, of course, the interests of those heroic individuals who spend their lives taking care of loved ones that nature has afflicted. 

Because in the end a constitution isn't really about abstract rules of behaviour or arcane matters of theory. It's about how ordinary people get treated by the government that is given power to rule over them.

Comments (9)

by Graeme Edgeler on May 27, 2013
Graeme Edgeler

I can't see an argument for the urgency at all, but I think a better argument for the government's actions on the policy is that it is a notwithstanding clause, not unlike those the Canadian system recognises.

The government has been called on its treatment of the families of people with disability. It proposes to make it better, but it recognises that what it is doing will still unjustifably discriminate against them. It is stating that it know that it is doing so, so telling everyone it will be a waste of time and money to ask courts to declare it so. What is the utility in getting the Human Rights Review Tribunal or the High Court to declare the government's policy unreasonably discriminatory, if the Government itself recognises that its policy is unreasonably discriminatory, and has asked Parliament to sanction it?

by Ross on May 28, 2013

What is the utility in getting the Human Rights Review Tribunal or the High Court to declare the government's policy unreasonably discriminatory, if the Government itself recognises that its policy is unreasonably discriminatory?

Has the government recognised that? I can imagine a similar claim can be made by those who require medicines which they are not able to access. Until fairly recently, women with breast cancer were unable to undertake a full course of herceptin because that simply wasn't an option, unless those women financed the treatment themselves.  

Prior to the budget announcement, Tony Ryall said: “Our society expects parents to care for and support their dependent children...[b]ut the Court of Appeal ruled that this ‘social contract’ does not extend to continuing to care for adult sons and daughters who have a lifelong disability."

I'd be interested to know if that is correct and, if so, what else the Court of Appeal said about this issue.

by Andrew Geddis on May 28, 2013
Andrew Geddis

I think a better argument for the government's actions on the policy is that it is a notwithstanding clause, not unlike those the Canadian system recognises.

Yes - I think that is what the Government might say. And there would be some precedent for that. However, that isn't what s.70E does.

After all, the NZBORA still applies to the creation and final content of any family care policy. So, the Government still is required to abide by its requirements. It's just that no-one can go to the HRC, HRRT or the High Court to have them examine and pass judgment on whether or not the Government has done so. Meaning that the Government itself gets to decide what the law requires of it and adopt policy that it itself says is lawful ... and as there's then no-one who can overrule that decision, it to all intents and purposes determines what the law is in this context.

In other words, s.70E doesn't say "notwithstanding s.19 of the NZBORA, the Government may make an unjustifiably discriminatory family care policy". If it did say that, we could have an open debate about what the Government is doing - it would have opened itself to political criticism for setting aside the application of fundamental human rights laws. Instead, s.70E says "although s.19 of the NZBORA will still apply to family care policies, the Government will decide what this law requires of it and act accordingly." Which is what makes this provision so odd ... it's essentially merges the adjudication and declaration functions of the judiciary with the executive's policy making functions.

by Quentin on May 29, 2013

Thank you for your article. As a layperson (with little legal/constitutional knowledge) I found it thought provoking and clear. Keep up the good work.

by Dean Knight on May 30, 2013
Dean Knight

I, too, am interested on whether the privative clause is effectively a notwithstanding clause - and, if so, whether it might be justifiable on the merits. (A couple of aborted attempts to blog on this - just too damn busy...)

On a theoretical level, I'm not always precious about privative clauses per se. In some circumstances, with sufficient justification, they may be justifiable. Understandably, this is a high bar to meet.

But justification the nub of it. Even if the clause might potentially be justifiable, we haven't had the procedural opportunity to test it. And, importantly, the government hasn't taken the opportunity to justify it (notably, the privative clause was not specifically addressed in any calls by the government).

So, for me, the procedural and substantive are intertwined. The egregious aspect is the urgency which undercuts the justification of the merits. Is this particular clause justifiable (given the understandably high bar for excluding review by the courts)? I just don't know.

There are lots of things I might want to know. Why wasn't the policy itself specified in legislation? If it couldn't be, could it be subject to some parliamentary approval anyways? Is the policy effectively similar to that ruled justified in the HRRT process (suggesting a notwithstanding clause override)? If not, how different is it? Why was the clause so widely framed? What relief is actually being removed (noting that common law grounds are still available)? What is the concern about the lack of deference by the courts in the HRRT process? How cogent is that concern? What other ways might that be addressed. etc etc etc

Our weak-form judicial review emphasises reflexive justification and dialogue.  The crime here is, I think, unnecessarily rushing the changes through to avoid taking responsibility for the position on the merits.

As Lord Hoffman said in Simms:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process." 

Although this quite is directed at ambiguity in wording, the poor process raises similar concerns. The haste of the legislative process means the government full implications have not been addressed and the government has not been exposed to the political cost of legislating inconsistently. Shameful.


by Andrew Geddis on May 30, 2013
Andrew Geddis

On a theoretical level, I'm not always precious about privative clauses per se. In some circumstances, with sufficient justification, they may be justifiable. Understandably, this is a high bar to meet.

Yes. Here's what the Legislation Advisory Committee says about the issue ... readers may decide for themselves if shielding from judicial scrutiny the ongoing development of a policy by the executive branch of Government (i.e. the Ministry of Health) meets the conditions in which the LAC says such clauses are acceptable:

Ouster clauses are objectionable because they interfere with the courts' constitutional role as interpreters and expounders of the law. In general, legal obligations are enforceable by the courts. Where judicial review is ousted, it is often argued that the public body whose decisions cannot be reviewed is not subject to the law and therefore has legally unlimited power. The courts' extremely strict approach to interpreting ouster clauses proceeds on the assumption that Parliament cannot have intended those exercising public power to be permitted to act unlawfully.

Strictly speaking, it is incorrect to say that an ouster clause allows a decision-maker to act unlawfully. Legal duties do not necessarily connote judicial enforcement - the obligation of the Privy Council to comply with the law cannot be enforced by a court but it is undoubtedly a legal duty which binds the Privy Council. Moreover, there are other mechanisms beyond judicial review that ensure compliance with the law: for example, specific statutory structures or parliamentary officers. Quite properly, however, the courts presume that Parliament does not intend to entrust a body other than courts of superior jurisdiction with unenforceable or unreviewable legal power. The risk of public power being exercised unlawfully or arbitrarily is too great.

This has two consequences. First, the undoubted normative strength of the presumption against ouster clauses means that Parliament should only seek to oust the courts' review jurisdiction in exceptional cases. Exceptional cases may arise where there is an overwhelming need for finality, in respect of a one-off situation. Excluding the courts' power to review is also less objectionable with respect to matters that are generally regarded as non-justiciable.

A successful ouster of judicial review gives a body other than a court final decision-making power (subject to statutory appeal or objection). Parliament must be confident that such a body is competent to exercise this power and can be trusted in strictly observing its legal duties without oversight by the courts. These criteria will rarely be satisfied.

I'd also note that the Attorney-General obviously did not believe that "these criteria [were] satisfied", as he stuck a s.7 notice on the Bill. With, as we all should note, precisely zero effect on the legislation's rapid race into the statute books. 

Incidentally - small thought experiment. Substitute the Minister for Primary Industry's regular decision on fishing quota for the MoH's family care policy, and substitute the fishing industry for family carers for disabled people. Anyone think there's any chance at all the Government would say "you can't go to court to challenge the executive's decision" in that analogous situation?

by Ross on May 30, 2013

Anyone think there's any chance at all the Government would say "you can't go to court to challenge the executive's decision" in that analogous situation?

I'm not sure I'm the right person to answer that. But let's face it, this is a political exercise which is about spending (or saving) taxpayers' money. There is a limit to what the Government spends on health. I used the herceptin example earlier, which for a long time Pharmac didn't consider a good use of taxpayer funding (except for a 9 week course). For political reasons, the Government stepped into the debate and said it would fully fund herception for women with breast cancer for 12 months. Was that the right thing to do and are taxpayers getting bang for their buck? Something similar has happened here but in reverse.

by Andrew Geddis on May 30, 2013
Andrew Geddis


You are proving my point.

The Government has chosen to protect its particular views of how "scarce" health dollars should best be managed from judicial intervention - just as the Government could chose to protect its views of how "scarce" fisheries resources should best be managed from judicial intervention (which has happened time and time again - fishing companies seek judicial review of the Government on an almost continuous basis). But it would never, ever do the latter, because the response from fishing companies (who are wealthy, able to hire very good lawyers and PR companies, and are businesses and thus can never be messed with) would be apocalyptic.

But when those affected are ordinary people looking after their disabled family members? Not such a problem. Which makes the idea that the law is equally available to all a bit of a lie, doesn't it?

by Dean Knight on May 31, 2013
Dean Knight

@Andrew: Agreed. From a very quick read of the s 7 report, my sense was the AG's concern was the enlarged scope of the privative clause - in who is covered? But, if it was more circumscribed, do you agree with him that it would be justifiable? 

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