At what point does executive action cross the boundary into the territory of legislative process so as to be beyond the jurisdiction of the Court on review? Two recent decisions of the High Court have considered where the fence posts lie in relation to pre-and post-legislative action.
At the heart of the constitutional rule of comity is the mutual respect that is to be paid by each branch of government (Parliament, the Executive and the Courts) to the others. In litigation, it precludes the Court from intervening in the legislative process, whether the action in question is an early step in the process of formulating legislation or whether it is action taken consequent upon its passage.
In Port Nicholson Block Settlement Trust v Attorney-General [2012] NZHC 3181 it was alleged that settlement redress being offered to one iwi was inconsistent with the exclusivity of redress provided already to another. Rather than seeking to intervene in the settlement process, the plaintiff sought a declaration that the redress intended to be provided in one case was inconsistent with that provided already in the other. Does that inch across the boundary line? While the claim did not succeed for other reasons, Williams J found that it did not cross the line, saying at [63]:
Provided they are careful not to cross the boundary into the domain of Parliament or the executive’s role in advancing legislation, it would be wrong and dangerous in principle for the courts to leave the Crown to “acquit itself the best it may” as the “sole arbiter of its own justice” where the controversy raises justiciable issues of statutory or deed interpretation or indeed of customary law if properly pleaded.
Soon after, in the ‘water case ‘ – New Zealand Maori Council v Attorney- General [2012] NZHC 3338 – the Court was asked to declare that a direction by Cabinet to the Governor General to bring into force by Order in Council the legislation (already passed) that would enable the sale of shares in energy-generating SOEs was inconsistent with the Treaty. As Ronald Young J found, at [70], the policy decisions enabling Mighty River Power to become a mixed ownership model company had already been made by Parliament and were not subject to review. It could not be suggested that Parliament intended the Crown to undertake a review of the consistency of the legislation with the principles of the Treaty at the Order in Council stage .
Therefore, a declaration about an existing state of affairs which informs Parliament that it was in some way mistaken in its views before it finalises legislation may not cross the Parliamentary boundary fence on one side of the Parliamentary territory, while procedural steps to give effect to legislation remain with the fence-line on the other.
Wherever the boundary fence may be placed in New Zealand though, its gate is locked reasonably firmly. We might spare a thought then for our counterparts in the United Kingdom where Westminster legislation can be set aside by the courts for failure to comply with EU law and possibly on the exceptional circumstances grounds in R (Jackson) v Attorney General [2005] UKHL 56 (such as legislative attempts to abolish judicial review of executive action or the role of the courts). Moreover, for Scottish legislation, there is a whole list of grounds in the Scotland Act under which an Act of the Scottish Parliament may be invalidated , including incompatibility with convention rights and impermissible trespass on matters reserved to Westminster. In this sense, several side gates in the United Kingdom Parliamentary fences remain open but the journey through them requires careful passage in each case through something of a minefield.