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Will the Regulatory Responsibility Bill empower activist judges?

  • June 9th, 2011

The Maxim Institute has asked whether I support the Regulatory Responsibility Bill. They fear that it will encourage judicial activism. Their question was prompted by my May post on the flag-burning decision.

That concluded – "When judges rule that the NZ Bill of Rights allows them to say that clear Parliamentary words do not mean what they say they accelerate four bad trends:
· legislator contempt for judicial reasoning.  MPs can interpret demands from judges that Parliament respect "the rule of law" as just a mask for judicial  dislike of democracy, an ambition to usurp elected law-makers;
· a law drafting style that spells out rules in ridiculous detail, lest judges abuse discretion by negating the Parliamentary intention;
· public mistrust of judicial common sense and values; and,
· Police cynicism about strict adherence to a rule of law which is the plaything of judges. When Police lose respect for judges they can justify extra-legal conduct to keep the peace and to protect the reasonable expectations of innocent people.
None of these consequences add to respect for the Bill of Rights."

Maxim published a paper by Richard Ekins and Chye Huang  critical of the Regulatory Responsibility Bill. Their grounds include concerns about the role it gives judges in issuing declarations of inconsistency and the way it replicates the interpretative direction in the BORA.

The paper is an extraordinarily well written compendium of the arguments against the Bill.

Nevertheless I think its conclusions are wrong.  It suffers from unworldliness, the factor that prompted the Irish farmer to respond to the request for directions to Dublin with “Well I would not start from here”.

I too am anxious about recent constitutional usurpations by an intellectually unpersuasive Supreme Court.  But I would deal with those anxieties by a few simple amendments to the Bill, reminding the judges directly what they should not do, to respect our rule of law and constitution. Such a reminder from the legislature is overdue. This Bill extending  the Judges' role would be as good a place as any in which to deliver it.

The Maxim paper authors essentially say to the promoters of the RRB ‘you have not proven things are broken and anyway there are better ways to fix it’. Both may be true to varying extents. But they are irrelevant observations. They assume a willingness and a capacity and an opportunity  to be systematic and thorough in evaluating a constitutional problem. That is not how consitutions evolve. Upgrading the rules that might influence the quality and the processes of legislation will almost always be opportunistic.

None of the implicit Ekins and Huang desiderata are present. Nor are they likely to be in any form that would result in the kind of actions that they imagine. Constitutional reforms, and indeed reforms in almost any government processes come only in crisis, or from the drive of one or two people who find a happy coincidence of political sponsor and the alignment of political planets for opportunity. None of those factors is visible outside the current opportunity. Indeed the current constitutional reform exercise that National has promised the Maori party is likely to make rational reform even more unlikely, as it explores tender points for all participants.

So to me the Maxim article exemplifies the old saying, “the best is enemy of the good”.

On the substantive concern that it could exacerbate the current problem of over-mighty judges acting in ignorance, I also differ. The judges are doing it anyway. Ngati Apa, the cases mentioned in the article and others show courts naively extending their traditional role into territory where lions fear to tread. 

But I think it is always better to acknowledge and to channel safely such natural pressures and ambitions. It does not work to act as if they do not exist or will go away if we are fervent enough in our belief that they should not be there.

I think the RRB instruction to apply an interpretative assumption is a sensible way to infuse desired principles across legislation. I think, for example, it worked as it should in the Court of Appeal’s decision in Moonen and the other cases on the disgraceful censor’s attempts to ban Christian free speech.

So I would make strong and plain the procedures for getting the advisory opinions of the court on consistency, and strengthen the strictures against them also expanding their intended interpretative bias to the point where it makes plain words a nonsense. I would be happy to see that interpretative bias apply only pro-actively (not retrospectively).

The risks have already matured. To me the article displays our  wide-spread inability to recognise that in political and policy matters the optimum is only a mildly useful benchmark. It should never substitute for the real counterfactuals.  

Jack Hodder SC delivered at a recent conference a compelling explanation of his strong support for the RRB. He tells me a paper with those arguments will be published this year. Ask him for a pre-publication copy if you want to balance the views of lawyers who would rather see no change in a bad trend than a change they fear will be less than perfect.

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