On constitutional outrage

Last week, the Supreme Court effectively scuttled the Ruataniwha Water Storage Scheme by ruling that it is unlawful for the Department of Conservation to swap a small amount of conservation estate for a larger amount of private land. The conservation estate land was to be flooded by the Scheme, and so the land swap was essential for the Scheme to proceed. The land swap required the Minister (or in this case, the Director‑General of Conservation acting on the Minister’s delegated authority) to revoke constitutional status for the land in question. The Supreme Court set aside the Director‑General’s decision to revoke on the basis that this could only occur if the land in question no longer justified the special protection involved in retaining conservational status. In other words, the decision was to be driven by the value of land already held, not the value of land that was to be received by the land swap (which might result in a net increase in the conservational value of the estate, assuming conservational value could be quantified in some reasonable way).

I think it's important to emphasise that the Court made this decision by simply applying the law in front of it (in this case, the Conservation Act 1987) in the usual way that courts do. It did not set aside the Director‑General’s decision on any metaphysical grounds of the importance of conservation and environmental values that it divined for itself via some mystical process, or do anything else over and above what the law says it is required to. This is not a ‘constitutional’ case in the ordinary sense that fundamental constitutional issues are in play, only in the mundane sense that government power is subject to the law as enacted by Parliament and interpreted by the courts.

Nonetheless, the case has sparked a kind of constitutional controversy because of the government’s reaction to it. The Minister for the Environment, Maggie Barry, has indicated that the government will look to amend the law to allow these types of land swaps to happen in the future. The Prime Minister himself has suggested, in light of the Supreme Court’s decision, that the Conservation Act ought to be amended to allow for this.

To me, this all seems very sensible. The part of the role of government is to seek Parliament’s permission to amend the law where it is shown to not work in the way intended or expected. We might question how government goes about this, which I will come back to, but this basic position is something I consider to be relatively uncontroversial.

It was therefore a bit of a shock to read an opinion piece penned by Sir Geoffrey Palmer suggesting that any law change would be a “constitutional outrage”. Sir Geoffrey’s concern seems to be that the law change could be used to take the Ruataniwha land swap decision again, this time with no grounds of appeal to get in the way. If this happened, it would nullify the Court’s decision as the law would allow land swaps to occur when it previously did not. Sir Geoffrey sees this as a kind of interference with a decision of New Zealand’s highest court, which the government ought to respect by simply accepting and getting on things.

Is there really any constitutional tension here of the kind that seems to have Sir Geoffrey so worked up? It’s hard to immediately see the issue. As I have already foreshadowed, there are no fundamental issues of constitutional importance involved. The government is not signalling a change to the constitution, merely a change is the law as it stands. And in the reports on the government’s position I have read, there is nothing to suggest that the law change will be specifically targeted to the Ruataniwha decision. That could look like direct interference in a way the crosses constitutional boundaries between government and the courts, but as already mentioned governments seek to change the law on a general basis all the time in response to court decisions that set inconvenient precedents.

So far, so good constitutionally. But I wonder if Sir Geoffrey’s concerns are actually more political than constitutional. That is, as I foreshadowed earlier, it may not be about what the government is doing, but how it is doing it. It suggests a certain degree of political arrogance, for example, for the government of the day to assume that it can simply change the law when it suits. This is a matter for Parliament, not the government, and while that distinction may be constitutional in nature the ability of the government of the day to carry the support of a majority of Parliament (or more technically the House of Representatives) to secure a change to the law is ultimately a political question. While there doesn’t seem to be a statement from the government to this effect, it could be inferred from the government’s previous practice in situations where it disagrees with court decisions (such as the family carer’s case) and the government’s apparent commitment to the Ruataniwha Water Storage Scheme. There might also be some concern at a political level because of certain statements of the Prime Minister in relation to the issue that are at best inaccurate and at worse misleading. While by no means determinative, these issues are indicative of a government predisposed to a certain outcome but are uncomfortable with the political scrutiny required to achieve that outcome.

The government’s response to the Supreme Court’s decision is arguably politically dubious but (so far, at least) a long way from constitutionally outrageous. There are important points to be made here to hold the government to account, but in my view terms like “constitutional outrage” should be reserved for the most serious matters when the fundamental aspects of our government are at stake. When such a respected member of our profession makes these types of claims I think they are taken very seriously, but I worry that there is also a risk that inappropriate use of strong constitutional critique makes that critique less effective when something constitutionally outrageous actually does occur. In the meantime, let's question the politics of the government's approach to the issue of land swaps rather than its constitutional merits.

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