Speech to the Law Association

Thank you to the Law Association for inviting me to speak this morning. As a former president under its previous name — the Auckland District Law Society — I take particular satisfaction in seeing this organisation, and its members, in such good heart.

As Attorney-General, I am grateful for these invitations to engage you — practitioners at the frontline of the profession — in discussion about New Zealand’s legal and constitutional framework. That is, how powers and responsibilities are shared across our system of government.

Today I wish to speak about a topic that has been front of mind for me recently — comity. 

New Zealand does not have a written constitution, at least in the style of other Western liberal democracies. That is, we do not have a single document with “supreme law” status, or a constitutional court capable of striking-down laws enacted by Parliament. 

Indeed, one of the strengths of our constitutional arrangements is they are flexible enough to respond to the needs of different generations of New Zealanders, and the times in which they live. 

But the absence of such a written constitution means the boundaries between our constitutional actors are not always clearly demarcated, like lines on a map. Indeed, they can sometimes look a little fuzzy — but they are there, nonetheless.

Maintaining boundaries

Boundaries are maintained, and our system of government strengthened, by our constitutional actors respecting the roles each other play. This includes giving each other appropriate “constitutional room” within which to play our respective roles.

Such a system can only work effectively if the constitutional actors have a shared institutional morality. This shared morality is encapsulated in the concept of comity.

Our three branches of government — Parliament, the Executive and the Judiciary — are underpinned by a separation of powers. Comity between the branches is one manifestation of that separation.

Comity requires each branch to act with mutual restraint and respect towards the others. In interactions between them, comity provides a framework for each to respond in a way that reinforces, rather than undermines, the others’ legitimacy. 

We all need to respect the roles each branch plays even when – in fact especially when – it is inconvenient to do so.

As the Crown’s Senior Law Officer, I carry principal responsibility for the Executive’s relationship with the Judiciary. On the other side of that relationship, responsibility rests with the Chief Justice, as head of New Zealand’s judiciary. She and I have established channels of communication to discuss matters of mutual interest, including the health of the relationship between our branches. 

An example of us doing so, in a transparent way, was the Chief Justice’s recent publication — with my agreement — of a memorandum she provided to me shortly after I became Attorney. It articulated her perspective on the current and future state of the courts and judiciary. To my mind, this respectful dialogue between our branches is a practical example of comity in action.

Comity between Executive and judiciary

I want to reflect on some of the other ways in which comity governs the relationship between the Executive and the judiciary. One of the most significant is the principle that the branches should not criticise one another publicly. For example, the courts should not comment adversely on the good faith or wisdom of the Executive’s policies. And the Executive should not comment adversely on the good faith or wisdom of individual decisions made by judges. 

That said, from time-to-time judgments can expose issues with our laws — that they are not functioning as Parliament intended, or are out of step with community expectations. It is legitimate for Ministers to express public views on the adequacy and efficacy of our laws. They are elected representatives of their communities. And as members of the Government, they have a unique ability to do something about them.

The Cabinet Manual guides Ministers on how to calibrate any public expressions of views about the work of the judicial branch, in a manner consistent with comity. It outlines the need to exercise judgement before commenting on individual decisions,  especially matters still before the courts. It also says Ministers should not express public views that could be regarded as reflecting adversely on the impartiality, personal views, or ability of a judge.

As Attorney-General, I have particular responsibilities for the administration of criminal law. But to avoid the reality or perception of political influence, my predecessors and I have continued the practice of leaving day-to-day administration of the criminal justice system to the apolitical Solicitor-General.

In particular, neither I nor my Ministerial colleagues involve ourselves in the investigation of offences, decisions as to whether particular people should be prosecuted, or whether a particular sentence should be appealed. Observing these principles is a further example of comity in practice.

As members of the profession, you will know that judges generally speak publicly only once about any particular case: through their reasons. Once judgment has been delivered, judges are generally unable (with a few recognised exceptions) to defend it, or themselves.

One of my functions as Attorney-General is to ensure judges are shielded from improper attacks or criticism. That includes from Ministers. If my colleagues have concerns about particular judgments, they know to bring them to me in the first instance. I can then help ensure their concerns are expressed in a manner which ensures comity between the Executive and judicial branch is observed.

Parliament and the courts

I turn now to examine the operation of comity in the relationship between Parliament and the courts. 

Some key examples include parliamentary privilege, the principle that courts ought not interfere with pre-legislative steps, and Members of Parliament avoiding discussing ongoing court proceedings in the House. 

On the latter, Parliament’s Standing Orders – the rules it operates under - provide that matters before the courts may not be referred to in any motion, debate, or question. This is subject to the discretion of the Speaker, and the House’s right to legislate on any matter. In exercising his discretion, Standing Order 116 provides explicitly that the Speaker is to take account of comity.

Some well-known examples of comity between Parliament and the courts play out through the New Zealand Bill of Rights Act 1990. The courts have developed  the remedy of declarations of inconsistency — a formal declaration by a senior court that an Act of Parliament cannot be interpreted consistently with human rights.

But the consequence of a declaration is not that the law is struck down, as would be the case in the United States or Canada. Rather section 4 of our Bill of Rights Act preserves parliamentary sovereignty: courts may not hold the law to be invalid or may decline to apply an enactment, simply because it is inconsistent with human rights.

Instead I, as Attorney-General, notify the House within six sitting days of the court’s declaration.  The notice is referred to a select committee for consideration, and report to the House within four months. Within a further two months, the Minister responsible for the inconsistent law must notify the House of the Government’s response. 

That response may be to amend the law to make it consistent with the court’s view of what human rights require — or do nothing. But all of this is comity in action — the courts and Parliament exercising mutual restraint and respect.

Section 7

The Bill of Rights Act also gives me another particularly important role to play in the legislative process. Section 7 requires me to bring to the House’s attention any provision of a Bill which I consider appears inconsistent with the Bill of Rights Act. This is a parliamentary function. 

The courts have clarified that my decision as to whether or not a provision of a Bill is consistent with the Bill of Rights Act is not justiciable. To subject it to judicial review would be the “antithesis of … comity”.

In a hypothetical world where it were justiciable, this would increase the possibility of confrontation between the elected branches and the courts.

Any judicial declaration to the effect that an Attorney had made an error in performing their obligations in the House would inappropriately interfere with the legislative processes.

Before leaving the topic of comity between Parliament and the courts — I want to expand on something I said earlier. It is legitimate for Ministers — indeed, any Member of Parliament — to express public views on the adequacy and efficacy of our laws.

The challenge for us — as a Government, and parliamentarians — is to ensure the laws on the statute book function as Parliament intends, and are in line with community expectations.

We do this best when our legislation articulates clearly what Parliament does intend, and is kept up-to-date through a programme of regular stewardship. The Government is greatly assisted in this task by the Parliamentary Counsel’s Office — but politicians also have a part to play.

Civil litigation

Another context in which comity governs constitutional actors is the way the Executive conducts itself in civil litigation. 

The rule of law requires that the lawfulness of Executive actions can be tested in the courts, using judicial review. But the way in which that is done reflects comity, not coercion. 

This preference for co‑operation, rather than confrontation, manifests itself both in remedies, but also in rules and practices of evidence.

With remedies, the usual relief when a court finds the Executive has breached the law is a declaration. The courts expect, rightly, that the Executive will observe and give effect to declarations. The courts should not generally have to resort to coercive remedies against the Executive — because each branch exercises restraint and respect for the other.

In respect of evidence, courts do not ordinarily compel the Executive to discover documents, or file particular kinds of evidence. This is because courts expect, and the Executive observes, a duty of candour. That is, the Executive voluntarily discloses relevant information, and gives a frank account of its actions in evidence.

It would generally be regarded as extraordinary for a court exercising a judicial review jurisdiction to summons a Minister to give evidence and be cross‑examined. Comity requires restraint: a compelling case is needed before such a course would be embarked upon.

As you will have seen, the question of what comity between constitutional actors permits and requires has recently been explored in the senior courts.

In the context of an urgent inquiry to the Government’s policy to repeal section 7AA of the Oranga Tamariki Act 1989, the Waitangi Tribunal took the very unusual step of summonsing the Minister for Children to give evidence.

The Minister considered the summons infringed comity. In particular, she considered there was a risk that if she appeared under summons, she would be asked questions in the Tribunal, the answers to which would infringe Cabinet confidentiality and collective responsibility. 

The Minister sought judicial review. The High Court took the view that given the significant amount of evidence the Crown had already provided by to the Tribunal — voluntarily, and in furtherance of the principle of comity — it was inconsistent with that principle for the Tribunal to then summons the Minister.

The Court of Appeal disagreed.  It noted the breadth of the Tribunal’s jurisdiction — conferred by an Act of Parliament — to inquire into whether a Crown policy would prejudicially affect Māori claimants. This gave the Tribunal a wide remit to determine what evidence might be relevant to assist it in fulfilling its important constitutional task.

While the Crown’s position was ultimately not accepted on Appeal, both judgments provide useful analysis of the principle comity — a previously underexplored area of jurisprudence.

This particular matter was not taken further by the Crown and became, a moot point, once the Bill was tabled in Parliament. 

Unusual move

Summonsing a minister on a matter of proposed legislation was a highly unusual move by the Waitangi Tribunal, and the Executive’s action essentially nullified the effect of any such summons. 

In conclusion: since responsible government was established in New Zealand 1853, our constitution has not remained static. In reality, it has been the opposite.

But comity between branches of government has underpinned every iteration — and it is critical to our democracy.

The reciprocal obligations of comity recognise that each branch of government approaches its task with conscientious integrity and respect for each other.

By acting with mutual restraint and respect, constitutional actors avoid escalating conflict. This is critical to ensuring the New Zealand people retaining confidence in our constitutional arrangements — and in the actors which exercise power on their behalf under it.

Thank you for your time and attention.