Escaping the judges: New Zealand

Apparently, the New Zealand Parliament just passed the Public Health and Disability bill under urgency which included a rather nasty clause which puts paid to a saga of government court defeats on the fairness of disability payments:

[When this law kicks in], no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.

In New Zealand, they call them ouster clauses, and it’s a pretty awful way to escape scrutiny of your policy and doesn’t reflect well on the maintenance of the rule of law.

Aside from the shabby parliamentary procedure (urgency is incredibly overused in New Zealand and some of the restrictions on debate across the Commonwealth can be deplorable), there are similarities with another case I know about which should give some hope.

First, a bit of history. The UK used to have these sorts of clauses too. The Foreign Compensation Commission was created in 1950 to decide who was entitled to get compensation paid by foreign governments for the sequestration or nationalisation of property owned by British people. Under the Foreign Compensation Act 1950:

The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

So, if you didn’t like the decision, there’s nothing you could do. An Order in Council was issued to ensure that with regard to Egyptian nationalisations between 1956 and 1959 the applicants were both the owner of the property of his or her successor in title and that both were British nationals at the time. Anisminic Ltd made a claim to the FCC over a sequestration by the Egyptian government of its property which was sold to an Egyptian Government Agency, but it was thrown out because the successor in title was the Egyptian Government Agency and not a British National. The Commission’s decision was blatantly unfair and contrary to natural justice.

The House of Lords (the Supreme Court of the time) was not happy and overturned the decision in Anisminic v. FCC [1969] despite the clause stating no determination of the Commission could be challenged in law. To do this they created a bit of a legal fudge. They ruled that that ouster clause couldn’t possibly apply to a determination that the courts decided was invalid. On the other hand, if it was ruled valid by the courts, then it was a proper determination and so couldn’t be called into question in any court of law. There’s no legal basis for that part of the judgment, they simply needed to make a decision and performed logical and lexical acrobatics over the words of the statute in order to get a just result.

I’m no lawyer. I don’t know whether any equivalent cases exist in New Zealand, or if this case would help a similar legal battle on this bill. but it proves that judges can often find reasons to do the right thing when it’s necessary to do so, especially when it counters the government taking power away from the courts! Who knows, it might be a useful case to cite in any legal battles on this bill.

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