6 August 2006
Parliament, the courts, and the "mutual respect"
Whangamata Marine Society v Attorney General (rule 66 application) The Whangamata Marina resource consent application has been controversial enough in it’s own right,[FN1] but tomorrow the focus turns to a fascinating subplot: a “mutual respect” dispute between the courts and Parliament. The issue arises in the context of access to court records (which, incidentally, the President of the Law Commission last week described as a “dog’s breakfast” [full report]). One of Murray McCully’s researchers (and I understand subsequently McCully himself) sought to obtain copies of the court file in the Whangamata Marina case and was turned down by Wild J – even though the media had been allowed access to the file. Under the present provisions, an applicant must have a “genuine and proper interest” to access the file. The reason for the refusal was the possibility that the material obtained by McCully might be raised in the House. Wild J considered this would offend the constitutional principle that Parliament and the courts should “strive to respect each other’s role in the conduct of public affairs” and that members of Parliament should “refrain from commenting on matter before the Courts under the sub judice rule” (the latter being reinforced by Standing Orders and Speaker’s rulings). Referring to the Nick Smith contempt case as an example, he suggested “prevention is better than cure” and declined access. Intuitively, this decision seems plainly wrong – refusing a political actor access to material relating to a political matter seems to undermine, not enhance, the mutual independence of the courts and Parliament and is going to do nothing but create unnecessary friction between the two bodies. It seems to me that McCully ought to have access and if he misuses the information then it’s either a matter for Parliament (under standing orders) or the courts (if the misuse amounts to contempt). Anyways, the Court of Appeal is hearing McCully’s appeal tomorrow, Monday 7 August 2006 (11am in Courtroom 1 of the High Court). McCully is down to appear in person so it might be an interesting watch! [FN1] I’m not sure I’ve commented on the substantive decision. But that might be because I’m not convinced it’s the great travesty of justice some make it out to be. Fundamentally, the decision ultimately lay with the Minister, following an inquiry and recommendation of the Environment Court. The value judgement he made differed from the Environment Court. That’s no surprise to anyone who understands the Resource Management framework. Even when faced with the same primary facts, two decision-makers are quite capable of reaching ultimately different decisions – largely because of the heavily value-laden nature of decision-making under the RMA. Unlike decision-making of some other courts and tribunals, there’s no (notionally) correct answer! In some respects, this means it might more appropriate for what is an essentially political decision to be made by a political actor rather than a so-called “neutral” tribunal. UPDATE (11/8/06): McCully won! See McCully v Whangamata Marina Society