BOSCAWEN AND ORS V ATTORNEY-GENERAL HC WN CIV-2007-485-2418

BOSCAWEN AND ORS V ATTORNEY-GENERAL HC WN CIV-2007-485-2418 22 November 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-2418BETWEEN JOHN SPENCER BOSCAWEN First Applicant AND GARTH NEIL MCVICAR Second Applicant AND GRAHAM STAIRMAND Third Applicant AND RODNEY PHILIP HIDE Fourth Applicant AND THE ATTORNEY-GENERAL OF NEW ZEALAND Respondent Hearing: 22 November 2007 Appearances: N Pender & P Butler for Applicants J Pike, C Inglis & U Jagose for Respondent Judgment: 22 November 2007INTERLOCUTORY APPLICATION BY APPLICANTS FOR URGENCY RULING OF CLIFFORD J This application[1] These proceedings are an application for judicial review of the Attorney- General's action in not bringing to the attention of the House of Representatives, pursuant to s 7 of the Bill of Rights Act 1990, provisions of the Electoral Finance Bill which the applicants say are inconsistent with rights and freedoms contained in the Bill of Rights 1990.[2] In their statement of claim, the applicants seek relief by way of the following declarations: a) The respondent erred in not bringing to the attention of the House of Representatives provisions in the Electoral Finance Bill that appeared to be inconsistent with the rights and freedoms contained in the Bill of Rights. b) The respondent should bring to the attention of the House of Representatives all provisions in the Electoral Finance Bill that appear to be inconsistent with rights and freedoms contained in the Bill of Rights. c) The respondent should recommend to the House of Representatives that the Electoral Finance Bill be reintroduced so that the House of Representatives can debate all inconsistencies with the Bill of Rights on the first reading of the Electoral Finance Bill. [3] This morning I heard in Chambers an interlocutory application by the applicants seeking urgency for the hearing of their judicial review claim. At the end of that hearing I indicated I wished to consider the various issues raised and that I would as soon as possible provide my ruling on that application in writing. I now do so.Background to this morning's urgency application[4] As recorded in my Minute of a telephone conference of 20 November, on 5 November I set down for hearing on 27 November an application by the Crown to strike the applicants' proceedings out. That application had been made by the Attorney-General in response to the applicants applying, on 1 November and at the time of the filing of their proceedings, for urgency in respect of the hearing of their substantive claim.[5] On 19 November 2007 counsel for the applicants filed a further memorandum in support of a request for urgency. [6] In that further memorandum counsel for the applicants advised that following the hearing on 5 November their instructing solicitors had written to the Clerk of the Justice and Finance Select Committee, seeking more information about the likely timetable for the Electoral Finance Bill. A copy of that letter was attached to the memorandum. That letter read, in part:The purpose of this letter is to alert the Select Committee to the fact that this matter is before the Court and that the issues raised could significantly impact on the Committee's deliberations.[7] On 6 November 2007, the Select Committee responded by declining to advise when it was likely to report back. However, the Committee did note that:The bill will be eligible to receive its second reading on the third sitting day following presentation of the committee report (Standing Order 292). Following a second reading, a bill is set down for consideration in committee the next sitting day (Standing Order 295). Once a report on a bill by a committee of the whole House has been adopted, the bill is available for third reading on the next sitting day (Standing Order 306).[8] A copy of that letter was also attached to the memorandum. [9] Counsel for the applicants then noted that the Select Committee had tabled its report on the Bill that day (19 November), and that it was now feasible that the Electoral Finance Bill could be passed by the House of Representatives as early as Wednesday 5 December 2007. [10] Counsel for the applicants repeated their earlier submissions that it was of public importance that the issues in these proceedings be determined before the Electoral Finance Bill passes into law, otherwise there was a risk that Parliament could enact legislation that breaches the Bill of Rights, without squarely addressing or taking responsibility for that fact. On that basis, the applicants requested an urgent hearing of the substantive claim as soon after the hearing of the respondent's strike-out application (then set down for 27 November) as was practicable.[11] Having considered that memorandum, I convened a telephone conference with counsel, where I canvassed issues raised by the new request for urgency, and the implications of that request for the hearing then scheduled for 27 November. As I recorded in my minute:[3] On reflection, and in light of the matters referred to in today's memorandum of counsel for the applicants, and having heard during a telephone conference from Ms Pender of counsel for the applicants and Ms Inglis of counsel for the Attorney-General, I have determined that the question of whether the applicants' application for review (that is their substantive claim) should now be given urgency is the issue that needs to be resolved. Were I, in terms of the order I had previously made, to hear the Attorney-General's strike-out application, and to decline that application, then I would inevitably, subject to rights of appeal, have to consider the question of urgency in terms of the substantive proceedings. [4] Accordingly, the hearing of the Attorney-General's strike-out application is vacated, and I will hear an application from the applicants for urgency in respect of their substantive proceedings at 10 am on Thursday, 22 November.[12] Prior to this morning's Chambers' hearing, I received a further memorandum from counsel for the Attorney-General. In that memorandum, counsel for the Attorney-General submitted that there would be a substantial error in principle in the Court proceeding to hear the substantive application. It was the respondent's case that the Court plainly had no jurisdiction to adjudicate on a matter before the House. A prior determination of jurisdiction on the question of whether the Court might look into the applicants' case was fundamental to prevent the Court from being brought into conflict with the House. [13] Counsel submitted there were two principal reasons why that was so. [14] First, the Electoral Finance Bill is before the House. An occasion of privilege plainly arises. Once the Court is satisfied (as it must be) that it is being required to adjudicate on a matter affecting the privilege of the House it may have no further cognisance of it. The question is not whether the applicants have a tenable case but is, at the more fundamental level, one of jurisdiction. [15] There was direct authority for the respondent's contention that the Court cannot inquire into proceedings involving the Attorney-General's actions under s 7of the New Zealand Bill of Rights Act 1990 – Mangawero Enterprises Ltd v Attorney-General [1997] 2 NZLR 451 and Huata v Prebble [2004] 3 NZLR 359. [16] The respondent submitted that the fundamental difficulties with the applicants' claim insofar as Parliamentary privilege was concerned were graphically reflected in their notice of opposition to the strike-out application and memorandum of counsel, where it was pleaded that if the Court did not hear the claim urgently Parliament may enact legislation that breaches the Bill of Rights (para [6], memorandum). The enactment of legislation, and the form that it takes, was squarely and incontrovertibly within the province of Parliament. Parliament may, it if so chooses, enact inconsistent legislation. That is made clear by s 4 of the New Zealand Bill of Rights Act 1990. Its privilege to do so without interference is protected by Article 9 of the Bill of Rights 1688. [17] Secondly, the respondent submits its objection to jurisdiction must logically be determined first. Authority for this proposition was to be found in Advanced Cardiovascular Systems Inc v Universal Specialities Ltd [1997] 1 NZLR 186, where the Court of Appeal held that there had been a procedural error in allowing a summary judgment application to go to hearing before the initial question of jurisdiction had been determined (pp 189-190).Submissions today[18] The submissions before me today addressed both the question of urgency, and the question of jurisdiction. From the Crown's point of view, the issues were essentially the same. That is, urgency should not be granted because the substantive proceedings were not justicable by this Court. [19] On the question of jurisdiction, Ms Pender's submissions were essentially as follows. [20] The substantive proceeding asks the Court to review the Attorney-General's performance of a statutory duty to report Bill of Rights inconsistencies. That review did not involve the Court in analysing, questioning or impeaching the Attorney-General's participation in Parliamentary debates, and therefore did not offend against the privilege of Parliament protected by Article 9 of the Bill of Rights 1688. [21] The statutory duty created by s 7 of the Bill of Rights Act 1990, and the Attorney-General's role under s 7, were important. They provided a framework for the consideration by the House of legislation. If, erroneously, the Attorney-General did not draw inconsistencies to the House's attention at the time of the introduction of a bill, Parliament's subsequent consideration of that legislation would be skewed and not fully informed. It was a question of law, properly able to be considered by this Court, as to whether the Attorney-General had erred by not reporting inconsistencies when the Electoral Finance Bill was introduced for the first reading. [22] As for the reason for urgency, the applicants' claim, for three non-binding declarations, would be materially curtailed if that claim was not able to be considered before the passage of the Electoral Finance Bill. Urgency was appropriate because, if urgency was not granted, the effect of possible remedies on the legislative process would be curtailed. Whilst a grant of urgency might involve some possible prejudice to the Attorney-General, if this Court reached an adverse finding and on appeal it was subsequently held this Court had no jurisdiction to carry out the relevant review, that possible prejudice was less than the prejudice the applicants would face if their substantive claim was not heard urgently. [23] Mr Pike, for the Attorney-General, based his response to Ms Pender's application for urgency squarely on the respondent's contention that these proceedings did impeach the privilege of the House. [24] The fundamental principle, and the starting point, was that Parliament and the Courts do not share concurrent authority over matters in the House. Mr Pike referred me to Prebble v Television New Zealand Limited [1994] 3 NZLR 1 and Pickin v British Railways Board [1974] AC 765, as being cases which recognised, and correctly expressed, that fundamental principle. [25] I was referred, in particular, to comments of Lord Reid in the Pickin case.[26] The application for judicial review brought by the applicant called into question proceedings in the House. Although expressed by Ms Pender as seeking non-binding declarations, even if expressed in that form the Attorney-General would traditionally comply with any such declaration of the Court. The declarations so sought required the Attorney-General to make statements in the House that, in terms of his earlier action, he had not agreed with and required him to make further statements to the House, recommending re-introduction of a Bill. That was, fundamentally, drawing this Court into conflict with Parliament. [27] There was, in Mr Pike's submission, no clearer occasion of the Court being asked to interfere in Parliament's proceedings.Discussion[28] The question I have to decide today, recognising the basis upon which Mr Pike for the respondent has approached that question, is whether the applicants' substantive claim should be heard as a matter of urgency. [29] In considering that issue, in my judgement the important question is whether any relief, such as – subject to the resolution of the jurisdictional issue in favour of the applicants – this Court might grant would in any material way, to use Ms Pender's phrase, be "curtailed" or otherwise prejudiced in a manner that would be unjust. [30] In considering that matter, I must take account of the fundamental principles relating to the relationship between the Courts and Parliament, as urged on me today by Mr Pike. In that context, I note that clearly the applicants seek urgency because of their concern as to the potential impact on the legislative process of orders – albeit termed non-binding by the appellants – that that this Court might make. They consider that such orders would be more efficacious if made now, and before the passage of this legislation, rather than afterwards. [31] That is, in my judgement and having regard to those principles, not a matter which can influence this Court to grant urgency.[32] I note the existing authority in New Zealand in Mangawero and Huata that indicates that Mr Pike's contentions as to jurisdiction may well be upheld. Nevertheless, were the Court to conclude it had jurisdiction to consider the applicants' judicial review claim, and make some order, it seems to me the most it would be likely to do would be to make some declaration akin, at least with reference to the Bill as originally introduced, to a declaration of inconsistency. The question of the response, if any, that Parliament might make to any such declaration, or indeed any other declaration, would at that time be a matter for Parliament. Parliament would, however, then be equally able to respond to such a declaration as it would now. [33] I do not, therefore, consider that this matter need be heard as a matter of urgency. [34] I decline the applicants' application for urgency accordingly. [35] The parties may now consider timetabling issues, and apply in the ordinary course for orders in that regard. In that context, the Crown will be able to pursue a strike-out claim in the normal manner, and likewise the applicants their foreshadowed intention to amend their statement of claim."Clifford J"Solicitors: Kiely Thompson Caisley, Wellington for Applicants Crown Law, Wellington for Respondent