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Boscawen appeal fails

By Steven | February 17, 2009

The Court of Appeal has thrown out the Bill of Rights challenge to the Electoral Finance Act. That’s not to say that they thought the EFA was consistent with the BORA. Just that they wouldn’t consider the issue.

I’m not too surprised that they threw out the challenge to the Attorney-General’s decision not to report to Parliament that the bill appeared to be inconsistent with the BORA. I didn’t think that the courts would want to wade into something so closely associated with the proceedings of Parliament.

But the Court of Appeal also whiffed on the second, more interesting and important point: do the courts have power to issue declarations of inconsistency with the legislation itself? The Court of Appeal leaves the question open (but suggests the answer will be no). Why didn’t it even address the question? Because:

Our earlier conclusions make it unnecessary to deal with the issues relating to declarations of inconsistency…. because of our views on the non-justiciability of the s. 7 obligation, there is no need to make a decision on this aspect of the case…

I don’t understand this. The earlier conclusions were about the Attorney-General’s report to Parliament. They were mostly about the reasons the courts shouldn’t mess with that process. But once the Bill is law, the ballgame is different. The question of declarations of inconsistency is a separate question, and it’s not self-evident that the answer to one determines the answer to the other.

Anyway, the flavour of the judgment is that the courts will be reluctant to address “abstract” issues (ie BORA questions that don’t arise in the course of a separate dispute). They even leave to another day whether a declaration will be available as a remedy in separate-dispute cases. I’m inclined to think this is a shame.

Topics: Electoral speech, General, NZ Bill of Rights Act | 38 Comments »

38 Responses to “Boscawen appeal fails”

  1. Andrew Geddis Says:
    February 17th, 2009 at 4:07 pm

    I agree – the general declaration of inconsistency in no way hinged on the availability of review of the A.G.’s original decision. However, I think the C. of A.’s judgment reflected a weakness in the pleadings and a misstep by the plaintiffs at the H.Ct level. Rather than focus on the A.G.’s act/omission under s.7 (always a loser, IMHO), they should have gone for a straight BORA declaration from the start. By appearing to mix the two issues, they ended up confusing them (and the court).

    As for the broader issue (can you ever get a BORA declaration ?), the answer increasingly is looking like “in theory maybe, in practice never.” While the courts keep leaving the door slightly ajar, the fact no-one has worked out how to get a toe into that crack yet is (I think) revealing. I also don’t get the court’s distinction between a declaration “in the abstract” (ie “without there being an underlying factual dispute between the parties”) and one where there is “a dispute between the parties” (ie “a case commenced for the purpose of seeking the declaration as a standalone remedy”). Why wasn’t Boscawen an example of the latter, rather than the former?

  2. Graeme Edgeler Says:
    February 17th, 2009 at 9:21 pm

    Andrew – I’d missed that statement in my first reading of the judgment. It is very odd. I’d assumed that they had considered this an abstract case, and the alternative, which they were still leaving open (at least in theory) was as an adjunct to some other case – for example, when someone was prosecuted under the EFA, they might be able to ask for a declaration of inconsistency.

    However, they really do seem to consider that “a case commenced for the purpose of seeking the declaration as a standalone remedy” might still be enough.

    The best I can come up with is that when they are discussing a case commences for the purpose of getting a declaration as a standalone remedy, that that case would still require some specific factual underpinning – a dispute. For example, as follows (using the EFA):

    Person X wishes to publish during a regulated period an advertisement criticising some policy. They wish to publish it across the country, and spend more than $120,000 on it. They are not sure whether this would be legal, because they are unsure whether their proposed advertisement falls within the definition of election advertisement.

    They make an application under s 3 of the Declaratory Judgments Act 1908 asking the court to declare that they would not be breaking the law in promoting their advertisement, or that if they would be breaking the law that the law be declared to be inconsistent with freedom of expression.

    p.s. for this purpose, s 3 of the Declaratory Judgments Act states:

    Where any person … desires to do any act the … legality… of which depends on the construction or validity of [a] statute …

    such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute … or of any part thereof.

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