15 December 2008

An Urgent Submission

It's like the cricket. You're watching it on the telly, then you have to leave the room for whatever reason. Undoubtedly, when you return, there have been 2 or 3 wickets lost in your absence. So I was in Sydney last week at the 25th annual conference: W(h)ither Human Rights? And when I returned, I found that the government had passed a number of Bills under urgency. The circumvention of the public submission process through Select Committees is particularly egregious. The value of public examination of legislative proposals is self-evident. Palmer and Palmer refer to this step as "one of the most important features" of our legislative process (Bridled Power, 2005, 4th ed, p 194). Some commentators suggest an essential element of the Rule of Law is the ability for the public to participate in its development. As Brian Tamanaha says: "Law obtains its authority from the consent of the governed. ... Rational democratic mechanisms must accord everyone affected by the law an equal opportunity to participate, and must secure everyone's consent." (On the Rule of Law, 2004, p 99) The mere fact that the proposal has been foreshadowed in an election manifest (to whatever degree) does not obviate the need for this scrutiny. While, at best, the broad policy may have some implied mandate (which is arguable here), there are matters of detail and implementation that are worthy of scrutiny. And, the process of participation in the development has some intrinsic value in itself. It's disappointing to see that there are plans to pass further proposals through all stages under urgency this week.

1 comment:

Andrew Geddis said...

Dean - I'm taking the liberty of hijacking your comments section to post an op-ed I've sent to a bunch of the country's papers ... in case they don't pick it up, this can be its outlet to the world!
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In just its first week in office, the new National Government has pushed five enactments through Parliament. This is a quite extraordinary rush of legislation, one that raises important questions about Parliament’s status as a lawmaking institution.
I acknowledge at the outset that most, if not all, of these new laws relate to policies that National telegraphed during the election campaign. Therefore, the problem is not that National is foisting a secret or surprise legislative programme on the country.
Furthermore, the previous Labour-led Government was not above using urgency and other parliamentary tricks to rush through law changes when it suited. Therefore, the problem is not that National is behaving worse than its Labour predecessor did.
The concern instead is that National appears to be behaving no better. Its first week in control of the new Parliament indicates it also intends treating this institution’s lawmaking power as nothing more than a convenient means of getting the outcomes it wants.
Why should we care about this fact? After all, political parties campaign for office on a wide range of policy promises. When the voters give a party the reigns of government, they expect it to deliver on those promises. Indeed, there would be good grounds to complain if it did not do so.
However, the government and Parliament is not the same thing. Parliament’s enactments form our nation’s highest laws, not the policies of the governing political party. Moreover, the way Parliament turns those policies into enactments through considered deliberation and scrutiny is critical to its status as our highest lawmaker.
Where Parliament is reduced to a rubber-stamp that transforms the wishes of the governing parties into law as quickly as possible, its basic purpose is undermined.
This concern is not an abstract one. In a lecture delivered earlier this year, Professor Jeremy Waldron of New York University damned our Parliament as “a unicameral legislature, which has evolved procedures for fast-track legislation which are quite disgraceful by world standards, and which is by and large the plaything of the executive.”
To put these words in context, Professor Waldron arguably is New Zealand’s finest living legal theorist. And the conservative think tank, the Maxim Institute, has just published his lecture under the title Parliamentary Recklessness: Why we need to legislate more carefully, so his hardly are the views of some dewy-eyed left-winger.
Professor Waldron’s basic critique is that New Zealand’s parliamentary lawmaking process has sacrificed its fundamental dignity to a purported need for streamlined efficiency. The critical qualities of deliberation, care and reflection have given way to speed and expediency.
I think Professor Waldron has a good point to make. I also think that this trade-off has produced at least three negative consequences.
First, legislation passed in haste often is repented of at leisure. While no one can foresee every consequence of proposed legislation, laws rushed through Parliament are far more likely to contain unexpected fishhooks that catch the public.
Remember, whatever Parliament puts into its enactments becomes our nation’s highest law. It cannot be argued after the fact, “yes, that is what Parliament said, but it did not really mean that to be law!”
Second, viewing legislation simply as an immediate solution to a particular problem erodes its overall quality. As the Law Commission recently reported, New Zealand’s statute books are a confusing mélange of multiply revised enactments, often confusingly worded, and extremely difficult to access.
This basic impenetrability of law made by Parliament is a disgrace in a democratic society. Yet, as long as legislation is considered little more than a vehicle to deliver the government what it wants, there will be no concern to remedy this problem.
Finally, the further Parliament moves away from good – that is, deliberative, careful and reflective – legislative practice, the more its basic authority is undermined. As a society, we entrust Parliament with supreme lawmaking power not only because we elect it, but also because of how it then uses that power.
An institution that produces rushed, ill-considered enactments to satisfy the ruling party’s policy desires deserves little respect. There hardly can be complaints when other institutions, such as the courts, begin to question whether Parliament’s enactments really should be followed in every case.
I reiterate that I am not accusing the present National Government of being the sole villain in this piece. I also note that there will be some situations where Parliament really must move with speed to resolve a pressing matter.
However, there always will be an apparently good reason to set aside long-term values of good lawmaking in the name of “getting the job done”. In addition, as Professor Waldron notes, “We have to get away from a situation where those who support a bill support rushing it through the legislature, and only those who oppose the measure express any concern about the process.”
What is needed is greater recognition that deliberative, careful and reflective lawmaking is an independent good. This point is one that our representatives in Parliament appear to have forgotten.

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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