Has the Attorney General (gasp!) made up his own mind about what the NZBORA means?

In a recent post on National's Public Safety (Public Protection Orders) Bill (aka, the "we know you are going to do bad things" law), I noted that:

[T]he Attorney-General has not attached a s.7 report to the Bill indicating his opinion that it is inconsistent with the New Zealand Bill of Rights Act ... . I don't know why the Attorney-General thinks that the Bill passes muster under that legislation as the advice he received on the issue isn't yet available on the Ministry of Justice's website. Let me say that I'll be very interested to see that thinking.

Well, as I'll explain in a second, while the advice the Attorney General still isn't available on the Ministry of Justice's website, we now know the Attorney General's reasons for concluding the Bill is not inconsistent with the NZBORA. Because he's placed on that website a document telling us just that.

In this document, the Attorney General states (at paragraph 7):

This is a useful example of how early engagement on Bill of Rights issues can improve legislative proposals.  The procedure under s 7 of that Act need not be only an “after the event” exercise, but can be a catalyst in the considered development of legislation.

On the whole, I agree. In my previous post, I gave the Department of Corrections something of a serve for what I regarded to be its sloppy and casual approach to the NZBORA when first proposing this legislation. But it is clear that once the Government decided it wanted to put the Bill before the House, some hard thinking was done about how it could be best made consistent with the rights that the NZBORA protects. Whether that thinking completely resolved the problems is a moot point. But the fact that it took place at all is, I think, a good thing that deserves praise.

So this post shouldn't be read as a swinging attack on the Government in general, or the Attorney General in particular, for the content of the legislation or the decision to seek its passage into law. Instead, it's intended to point out some rather odd and (for me, at least) quite interesting points about this statement as to why the Attorney General considers the Bill to be NZBORA compliant. Because that's what we academics (especially we legal academics) do ... we pick away at the hard work that those who actually have to make decisions out there in the real world. You may as well condemn the scorpion for stinging.

The first odd and rather interesting point about this document is when it is dated - 4 October, 2012. However, the Bill it relates to was introduced into the House on 18 September. And the Attorney General's duty under s.7 of the NZBORA is to advise the House of any inconsistency when legislation is first placed before it. Which means that this document was finalised and published over a fortnight after the Attorney General must have decided that a s.7 notice was not required. 

Which then leads to the second interesting point about the document: that it isn't really "advice" at all. Instead, it is the Attorney General's own personal view as to why this Bill is consistent with the NZBORA - it carries his name and his name only on it. Indeed, it represents a kind of "anti-s.7" statement; not his own personal view as to why the Bill is inconsistent with the NZBORA, but rather his own personal view as to why it is consistent.

As you will see if you click on any of the other links on the Ministry of Justice's website, this action is virtually unprecedented. In respect of virtually every other Bill, the information provided to the public is the advice from named officials (either from the Ministry or from Crown law) to the Attorney General. We can then assume that the Attorney General's own views mirror this advice, in that he has decided to accept it and not put a s 7 notice on a piece of legislation. But he (or she, in the case of Margaret Wilson) has not felt it necessary to put his (or her) own personal stamp on the opinion.

Now, I've said "virtually every other Bill" because there actually is one other example that I know of where an Attorney General issued a personally authored opinion concluding a Bill is consistent with the NZBORA. In May of 2004, the Hon Margaret Wilson authored this document to explain why the Foreshore and Seabed Bill was consistent with the NZBORA's guarantee of a right not to be discriminated against. And, so I have been informed, the reason she personally authored this document was because its conclusions differed from the legal advice she received from officials on this issue. In other words, she was told by officials that the proposed legislation was inconsistent with the NZBORA, but chose to make her own independent assessment of the issue ... an assessment she then published in place of the officials' advice on the Ministry's website.

As such, the current Attorney General's highly unusual action here - personally authoring this document rather than following the common practice of making public the advice he received from officials on the matter - lends itself to one of two possible explainations.

  • It may be that this Bill is so just so important, and the issues it raises are of such great legal significance, that the Attorney-General believed it necessary to personally lay out the reasons for his belief that it is consistent with the NZBORA. So, rather than hide behind his officials' advice and leave them to take the brunt of any criticism for their views, he chose to put his personal stamp on their conclusions. 
  • Alternatively, it may be that (as took place with the Foreshore and Seabed), the Attorney General has received advice on this issue with which he disagrees and prefers not to make that advice public. So he instead has replaced it in the public eye witha statement of his own views on the matter.  

l honestly don't know which of these possible explanations is correct. It may very well be that the former is the case - the legal officials advising the Attorney General concluded that the Bill at hand (with its retrospective effect and potential double jeopardy implications) has been crafted in a way makes it consistent with the NZBORA. There is then a plausible reason why the Attorney General may have felt a personal responsibility not to just make public this advice but rather to explain personally why he believes that this legislation is not inconsistent with the NZBORA. After all, it sits in some tension with his decision to issue a s.7 notice back in 2009 in respect of the Extended Supervision Orders legislation. In other words, perhaps this really is an example of the Attorney General openly providing a proactive justification as to why his views here differ from those he earlier expressed: "The state should not detain citizens purely on the basis of preventing future offending, nor should it punish offenders twice for the same offending". Which then would be an admirable exercise in individual accountability (even if you happen to disagree with his reasons for distinguishing between the two Bills).

But it is just as possible that the latter explanation is true. After all, the Attorney General's reason for finding there is no inconsistency between the Bill's proposals and the NZBORA comes down to his conclusion that the Bill will impose a "commital regime" and not a "penal regime" on those who fall under its ambit. And because he thinks this is a "commital regime", the right to be free from retrospective punishment and double jeopardy simply don't apply to it. While that's not a wholly unreasonable point of view, it also is one on which reasonable minds may differ. And it may well be that the legal officials advising the Attorney General balked at reaching that same conclusion - choosing instead to view a proposal that could result in at least some people staying in a form of custody for the rest of their lives other than through a sentence passed on them for their past actions as subjecting them to a second form of after-the-fact punishment.  

Now, let's assume (without, I carefully emphasise, actually knowing for sure) that this latter explanation is the case. Would that necessarily be a bad thing? After all, back when David Garrett was complaining that the Attorney General's decision to tag his three strikes bill with a s.7 notice was nothing more than the decision of "some oik in Crown Law", the Attorney General made it clear that:

I don't take the view that I'm some kind of automaton and just sign off on what is given to me [by officials]. I will examine the matter carefully.

Such independent assessment means that on occasion the Attorney General may conclude that some Bill is inconsistent with the NZBORA, even though his officials have told him that it is consistent. And on occasion it may mean the opposite - that the Attorney General concludes that some Bill that his officials think is inconsistent with the NZBORA actually is consistent. After all, s.7 of the NZBORA places a personal duty on the Attorney General to make this judgment call, not on his legal officials.

So even if this document has been issued to replace the advice of his officials, it simply represents an exercise of independent judgment by the Attorney General as to the meaning and application of the NZBORA in relation to a legislative proposal. (That said, perhaps a better and more transparent process would be to release both the original advice along with the Attorney General's contrary reasoning, but let's get past that.) Which is (as far as I know) only the second time that this has been exercised. Which is, for a legal academic like me, pretty interesting.

One last point. I'm told that the Attorney General sometimes reads this site's commentary on his performance in office. So if he, or someone in his office, wanted to email me and advise which of the above explainations best covers his reasons for personally authoring the NZBORA analysis of the Public Safety (Public Protection Orders) Bill, I'd be happy to update this post accordingly. Cheers!

Comments (10)

by Joshua Grainger on October 11, 2012
Joshua Grainger

Interesting that you think that the Attorney General's power to under s7 of the NZBORA is nondelegatable. Crown Law seems to disagree. I got curious about what powers are delegatable to the Solicitor General and officials and which are reserved for the AG, so I did an OIA request, the results of which reveal that Crown Law believes that the duty under s7 is delegatable (check page 9).

I may have to do a follow up OIA request to see whether any s7 reports were tendered to the Attorney-General and rejected as regards Public Protection Orders.

by BeShakey on October 11, 2012
BeShakey

I assume you (or someone else) has already lodged an OIA request for all the advice he received on the issue?

by Joshua Grainger on October 11, 2012
Joshua Grainger

BeShakey: For a start, you can't actually OIA the Attorney-General, he's exempt. You can OIA the Ministry of Justice however, and presumably they would have provided the advice. I expect that the actual advice would be withheld under s9(h) (legal privilege), but what can be OIA'd is the existence of any advice: aka whether any advice was tendered that was rejected by the AG.

Alternatively, somebody has already sent an OIA to the Minister of Justice on all advice they've received from the AG on its compliance with NZBORA. We'll wait and see if it is fruitful: I expect that many withholding provisions could apply (s9(h), s9(f)(iv), s9(f)(ii), s9(g)(i)).

Personally, I reckon that a public interest exemption may apply, but usually the Ombudsmen has taken a pretty hard line torwards overriding legal privilege. 

by Andrew Geddis on October 11, 2012
Andrew Geddis

I don't have the time to be doing sensible things like actually asking for information on which to base my conclusions! What do you think this is - a reputable news site or something? So all I would note that the MoJ website states that:

The Attorney-General retains legal professional privilege in respect of unpublished advice written before January 2003, as well as unpublished advice written since January 2003 on Bills on which the Attorney-General has tabled a section 7 report in the House of Representatives. The advice is not subject to the Official Information Act 1982; however, the Attorney-General will consider requests for the release of such advice on a case by case basis.

Where that then leaves unpublished advice that the AG does not base a section 7 report on is then an interesting question! 

by Graeme Edgeler on October 11, 2012
Graeme Edgeler

How would the Solicitor-General present a section 7 report to Parliament on Introduction?

Stranger Danger!

by BeShakey on October 11, 2012
BeShakey

Joshua - pretty sure the AG doesn't have a blanket exemption to the OIA, although S9(h) might as a matter of fact cover most or all of what they do. Andrew's quote from MOJ looks wrong (I think what they're trying to say is that the advice is subject to the Act, but there will always be a non-conclusive reason for withholding the advice. And as you point out (and Andrew's quote reenforces) the advice may stil be released in response to a request.

It'll be interesting to see the response to the request you mention. In my experience (which is admittedly a few years ago now) S9(f)(iv) doesn't usually apply once decisions have been made, S9(f)(ii) covers things like an email from one Minister to another slagging off an idea that Cabinet subsequently supports (and remember that there is no collective responsibility for section 7 reports). S9(g)(i) usually covers indelicate comments, but is intended for free and frank advice that generally no longer occurs in writing anyway. So S(9)(h) is probably what she'll go for. It'd be interesting to get some advice on whether that applies for information the AG gives on their own behalf. If so it might be a bit odd that a non-lawyer (such as Cullen) could have legal professional privilege.

by Jane Beezle on October 11, 2012
Jane Beezle

I am just so very pleased that the Attorney General and his army of legal minions were:

(a)  so obviously reading our repeated exchange on your last post on this subject,

(b)  agreed with me, and

(c)  thought fit to enshrine this for all time in paragraph 7 of Mr Finlayson's opinion.

By the way, I only break my language down into alphabetic subparagraphs like this, Andrew, when I'm so especially happy.

by Andrew Geddis on October 12, 2012
Andrew Geddis

Jane,

I am pleased that you are happy. But I also think that, despite our repeated exchanges, you still didn't understand the point I was making. Or, rather, you chose to ignore it in favour of arguing something else.

But, again, I am pleased you are happy.

by Iain Butler on October 12, 2012
Iain Butler

While that's not a wholly unreasonable point of view, it also is one on which reasonable minds may differ.

So, does this mean that by employing weasle-words like "committal regime", instead of squarely confronting the rights limitations inherent in this Bill, it is now open to being rendered impotent by a future court employing s6 of the BORA and finding it is actually an opressive double-jeopardy penal regime after all? 

by Andrew Geddis on October 13, 2012
Andrew Geddis

Iain,

That raises an interesting question as to whether a court's understanding of what was intended by a piece of legislation should be influenced by the A-G's interpretation or understanding of a particular Bill. In other words, if the A-G gets it wrong (in the court's view), does this alter what the "parliamentary intent" behind a law is understood to be? I don't know!

In addition, what then would follow is a moot point - even if a court decides the A-G's understanding of the Bill's content was wrong and that it actually does contain NZBORA inconsistencies, is there any wiggle room in the wording of the legislation that allows s 6 to have an effect? Or, would it be the case that the court has to apply the legislation under s 4 - thereby simply indicating to Parliament that it thinks the A-G got it wrong and that the law actually isn't NZBORA consistent?

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