Keeping up with government law

Can the courts declare legislation inconsistent with human rights? How is the Crown-Maori relationship changing? How closely should the courts supervise decisions made by elected representatives? These were among the questions taking centre stage at Victoria Law’s inaugural Government Law: Year-in-Review half-day seminar.

Hosted by Victoria’s New Zealand Centre for Public Law, the half-day seminar sought to explain some of the key developments in government law over the past year, and explore their significance for those working inside and outside of government.

“There is so much going on in the government law space – whether related to the Treaty, the Bill of Rights, judicial review, the shape and form of government, international law, legislation, and so on,” says Dr Dean Knight, Senior Lecturer at Victoria Law and Co-Director of the New Zealand Centre for Public Law. “There’s huge activity, and an incredible appetite from people to stay on top of the tensions and shifting sands.”

Dr Knight says that the value of the seminar, which looks like it will become an annual event, lies in the fact that “you’ve got academics who care passionately about these different components of government law tracing them and translating them for a busy civic and professional audience.”

Highlights included a talk from Professor Claudia Geiringer (Chair in Public Law at Victoria University of Wellington and Co-Director of the New Zealand Centre for Public Law) on the Bill of Rights Act, in which she discussed the prisoner voting case, which was heard by the Supreme Court shortly after the half-day seminar.

In 2010, Parliament banned all prisoners from voting in elections (previously, they could vote if serving terms of less than three years). In 2015, five inmates fought the ban in the High Court. Though it couldn’t overturn the legislative ban, the Court declared it was inconsistent with the Bill of Rights Act. Last year, the Crown tried, and failed, to have this ‘declaration of inconsistency’ overturned in the Court of Appeal. The Supreme Court has since heard the appeal and a judgment is expected some time this year.

“Claudia unpacked the intellectual and constitutional stories that are embedded in the Court of Appeal’s decision in the prisoner voting case. They’re stories that are all in tension with each other – about what sort of model our constitution is, what sort of model our Bill of Rights is, and what’s the judicial mandate and role in relation to these types of fundamental disputes,” says Dr Knight.

Fellow Victoria Law academics Dr Eddie Clark and Dr Carwyn Jones also offered food for thought. “Eddie charted the quagmire of judicial review cases being heard by all levels of the courts, and identified themes in how the courts are expressing themselves when supervising the body of decisions made by public bodies, ministers, officials and so on,” says Dr Knight. “Carwyn looked at the state of play regarding Treaty and non-Treaty Maori issues – what’s changed compared to previous years and where the Crown-Maori relationship is heading in 2018.”

As well as these in-depth talks, the event featured a series of quick-fire sessions hitting some of the hot topics over the past year – such as the lack of prosecutions arising from Pike River, political advertising during the election, pay equity, and the revised Trans-Pacific Partnership Agreement.

It also featured scholars and practitioners from around the world patching in by pre-recorded video to fill attendees in on up-to-the moment developments in their home countries, such as Brexit (United Kingdom), President Trump and obstruction of justice (United States), indigenous rights and freedom of religion (Canada), and constitutional method (Australia).

Dr Knight says that access to international perspectives is a key aspect of what a university can offer. “As academics, we’re able to draw on a broader international scholarly community to share in these conversations in a way that’s unparalleled in any local professional or civic context. In this case, we were able to select people who are familiar with what’s going on in New Zealand, and they provided points of connection and leaping-off points for us here.”

To close the seminar, Dr Knight gave the keynote address, ‘Vigilance and Restraint in the Common Law of Judicial Review’, based on his book of the same name. “The book is about the way the courts decide how closely to scrutinise the decisions of government, and the voices they use – their language and form and style – when they do.”

He warns against disregarding what may appear to be an abstract, methodological topic. “The way the courts go about their business has very real impacts on the people who are affected by government action. Clarity on this can make the process of raising a matter easier and more efficient, while a lack of clarity makes things more troublesome and complex.

“Essentially, we’re talking about people’s ability to challenge government action – to raise grievances, seek redress, or seek support from the courts to address the misuse of power.”

You can view videos from the seminar (including the keynote address) and the full programme here.

The New Zealand Centre for Public Law hosts a wide range of public events, many of which are free to attend. You can sign up for event invitations here.