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

1 comment:

Rich said...

Personally, I don't see why the media should get any special rights to access information. The public (including MPs and the media) form one category and the parties to the case form another. If the court allows the media to get the records and not anyone else, then they're effectively delegating their decision on what information is released to the editor of the Whangamata Weekly (etc).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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