Attorney-General v Taylor – A public law geek gets very excited

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May 30, 2017

Last week, a five member bench of the Court of Appeal issued their decision in the matter of theAttorney‑General v Taylor. It’s a remarkable judgment that confirms the existence of a novel remedy for someone who has had their fundamental rights interfered with by legislation – a formal declaration of inconsistency. That may not sound like much of a remedy to some people, but as the Court itself said (at paragraph [76]) a declaration of inconsistency “is made in the reasonable constitutional expectation that the other branches will respond to it by reappraising” the offending legislation.  

I won’t rehearse the detail of the decision. Professor Andrew Geddis has written a very good account of what was decided and why it is important. I want to step back from the detail of the decision and talk about what I think it might mean in a broader context.

A remarkable judgment

First, I want to nerd out and gush a bit about the decision. I got genuinely excited multiple times when I was reading it. The mix of the important subject matter (fundamental rights), the grandeur of some the underlying concepts (the role of courts in a liberal democracy) and the fluency with which the judges parsed the various arguments before the court all left me very impressed (and perhaps a little breathless). I’m not too proud to say that there was more than one moment where I literally stopped reading to pump my fist, despite being the only one in the room.

I know not many other people will have had this reaction, and fair enough. I’m a special case. But it really took me back to some of the more impressive judgments I read when I was an undergrad or young lawyer.  Simple phrases like “Thomas J (dissenting)” or Baragwanath J’s “It is necessary to start from bedrock” in Air New Zealand Ltd can send shivers down my spine. That happened reading this case. I wish it happened more often.

Why do we have courts?

Much of the judgment deals with the complex issue of the relationship between the different branches of government, and how they interact with each other. The Attorney‑General, who represents the government in these proceedings, argued that only Parliament could authorise the courts to issue a declaration of inconsistency (which it hasn’t). If the courts were to claim that jurisdiction for themselves, they might be overstepping their constitutional boundaries. They might be doing Parliament’s job instead of their own, which could undermine their political independence (and therefore their legitimacy) or strain the relationship between the judicial and political branches of government.

These are cogent arguments, and from reading between the lines in the judgment the Attorney‑General’s lawyers put them forcefully. They have particular force in a New Zealand context because of the way we organise our government. We like Parliament to have the final say on difficult issues, and prefer that the courts take a back seat on most occasions. There is an active debate going on in New Zealand at the moment about whether this is the best way to organise government, but in any case it’s what we have. So the argument to the Court was taihoa, don’t get ahead of yourselves, and leave this issue to the political system without interfering.

Thankfully, the Court was having none of that. It acknowledged the constitutional concerns involved, and essentially concluded that it is the courts’ job to deal with breaches of fundamental rights the best they can. This will mean being sensitive to the constitutional issues involved, but as long as they do so the courts are not going beyond their ordinary role. Rights issues may well have a political dimension, and Parliament is never excluded from having its say. But in any system that relies on legal rules and processes, human rights also have a legal dimension. It is for the courts first and foremost to investigate that legal dimension, and that role is preserved by confirming the power to issue a declaration of inconsistency in appropriate circumstances.

This, I would argue, is precisely what we have courts for – to ensure that we, as a social and political group, vindicate fundamental rights. Good on the Court of Appeal for affirming this in unambiguous terms (and doing so with such style).