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Christ Church Cathedral Reinstatement Bill (Consistent) (Section 27(2)) [2017] NZBORARp 52 (5 December 2017)
Last Updated: 9 January 2019
5 December 2017
Hon David Parker, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Christ Church
Cathedral Reinstatement Bill
Purpose
- We
have considered whether the Christ Church Cathedral Reinstatement Bill
(‘the Bill’) is consistent with the rights and
freedoms affirmed in
the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights
Act’).
- This
advice replaces our previous advice as we have now received a revised version of
the Bill and have considered whether it is consistent
with the Bill of Rights
Act. We will provide you with further advice if the final version of the Bill
includes amendments that affect
the conclusions in this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 27(2) (right to judicial
review). Our analysis is set out
below.
Summary
- The
Bill provides for the Governor-General, by Order in Council, to grant an
exemption from, modify, or extend any provision of certain
enactments (and any
plan, programme, bylaw or rule made under the enactments) to facilitate the
reinstatement of the Christ Church
Cathedral (‘the Cathedral’). The
enactments specified in the draft Bill are:
- the
Resource Management Act 1991, and
- the
Heritage New Zealand Pouhere Taonga Act 2014.
- The
Bill appears to impose a limitation on the right to apply for judicial review
affirmed in s 27(2) of the Bill of Rights Act. Specifically,
cl 22 of the Bill
provides that any application for review under the Judicial Review Procedure Act
2016 that relates to an order
or a related recommendation or decision of the
Minister must be made to the High Court within 28 days after the making of the
order,
recommendation, or decision.
- Judicial
review is an essential mechanism for maintaining the rule of law. The right to
apply for judicial review should therefore
be limited only in the rarest of
situations where there is compelling reason and after careful
consideration.
- In
our view, the justifications for the limit imposed on the right to judicial
review by cl 8(3) are finely balanced against the importance
of s 27(2). We
consider, however, that the time-limit on applying for judicial review impairs s
27(2) no more than reasonably necessary
and is in due proportion to the
importance of the objective.
- We
therefore conclude that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
The Bill
- The
purpose of the Bill is to provide appropriate measures to facilitate the
reinstatement of the Cathedral.
- To
this end, cl 7 of the Bill provides for Orders in Council (‘Orders’)
to be made to grant exemptions from, modify, or
extend any provisions of an
enactment referred to in Schedule 2 of the Bill. An Order is made on the
recommendation of the Minister
responsible for the administration of the
enactment (‘the relevant Minister’) and can only be made in
connection with
the whole, or a part of, the Cathedral area.
- Clause
12 also requires the Minister responsible for the administration of the Bill to
appoint a Christ Church Cathedral Reinstatement
Review Panel (‘the
Panel’) to provide advice in relation to Orders in Council that may be
recommended.
- Clause
8 of the Bill requires that, before recommending an Order, the relevant Minister
must be satisfied that the Order is necessary
or desirable for the purpose of
the Act, and that the extent of the Order is not broader than reasonably
necessary to address the
matters that gave rise to the order. A draft of the
Order must have been reviewed by the Panel.
- Clause
18 provides that an Order can be made adding Acts to the list in Schedule 2. The
effect of an Order under cl 18 is to extend
the application of this Bill by
enabling orders to be made under cl 7 that modify provisions in the added Acts
to the extent that
those provisions apply to the Cathedral area. The Minister
must not recommend that the order be made unless he or she is satisfied
that the
order is necessary or desirable for the purpose of the Bill.
- Clause
11 of the Bill states that an Order in Council promulgated under the Bill may
not grant an exemption from, or modify a requirement
or restriction imposed by
the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the
Judicature Amendment Act
1972, or the Bill of Rights Act. Clause 17 provides
that an Order in Council may not be held invalid just because it is, or
authorises
any act or omission that is, inconsistent with any other
Act.
Consistency of the Bill with the Bill of Rights Act
Section 27(2) – Right to judicial review
- Section
27(2) of the Bill of Rights Act affirms that every person whose rights,
obligations, or interests protected or recognised
by law have been affected by a
determination of any tribunal or other public authority has the right to apply,
in accordance with
law, for judicial review of that determination.
- The
right to judicial review is intended to ensure that a person with an interest in
a decision can challenge the lawfulness of that
decision. The phrase “in
accordance with law” that appears in s 27(2) recognises that limits may be
imposed on the power
of judicial
review, but “any attempt
completely to deprive the High Court of its review powers would violate the
guarantee”1.
- Clause
22 of the Bill provides that judicial review proceedings relating to the
recommendation to make an Order in Council, or other
decisions of the relevant
Minister, must be made:
- no
later than 28 days after the making of the Order, recommendation or decision,
or
- within
such further time as the High Court may allow on application made before the
expiry of that 28 day period.
Does cl 22 of the Bill
limit the right to judicial review?
- Section
27(2) does not create a right to challenge Government policy decisions that have
general application.2 A recommendation to make an Order
may arguably fall within the scope of a Government policy decision, depending on
the exact nature
of the recommendation.
- We
understand the “decisions” in question to be where the relevant
Minister decides not to provide a draft of an Order
to the Panel, and the
Regulations Review Committee or the leaders of all political parties, if a
previous draft has been subject
to that process and the relevant Minister is
satisfied the differences between the current and previous draft are not
substantial.3 However, it is not clear if the
restriction of judicial review is broader than those decisions.
- In
any case, both recommendations and decisions made by the relevant Minister have
the potential to constitute determinations made
in respect of a particular
person’s rights, obligations, or interests protected or recognised by law.
To the extent that they
do, any limitation of judicial review in respect of them
will engage s 27(2).
- Statutes
will generally impose two types of limitation on judicial review; an ouster
clause, where the courts’ jurisdiction
is entirely excluded (‘a
substantive ouster’), or a procedural restriction regulating the
courts’ power to review.4 The time limit on
bringing proceedings in cl 22 is appropriately characterised as a procedural
restriction on the right to judicial
review and therefore prima facie
limits s 27(2) of the Bill of Rights Act.
Is the limitation
justified and proportionate under s 5 of the Bill of Rights Act?
- Where
a provision is found to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry may be
approached as follows:5
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
1 ‘A Bill of Rights for
New Zealand: A White Paper’ [1984-1985] I AJHR A6 at [10.175].
2 See, for example: Lumber Specialties Ltd v
Hodgson [2000] 2 NZLR 347 (HC), and Graham v Hawkes Bay Power
Distributions Ltd (High Court, Napier, CP 33/95, 25 September 2000, M
Thomson).
3 Refer cl 8(3).
4 Legislation Advisory Committee at [13.7.1].
5 Hansen v R [2007] NZSC 7 [123].
- is
the limit rationally connected with the objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
iii. is the limit in due
proportion to the importance of the objective?
Is the limit rationally connected to a sufficiently important
objective?
- We
understand the objective of cl 22 is to prevent the risk that Orders would be
delayed in the court process, slowing the reinstatement
of the Cathedral by
creating and prolonging legal uncertainty.
- We
understand that the rationale behind the Bill is that there has already been
protracted litigation in relation to the Cathedral,
and the intent is to provide
certainty about this important building’s future as soon as possible. We
consider that the speedy
reinstatement of the Cathedral constitutes a
sufficiently important objective to warrant some procedural limitation on the
right
to judicial review.
- Further,
limiting the period in which judicial review of the recommendations and
decisions of the relevant Minister may be sought
is rationally connected to that
objective, as cl 22 ought to enable swifter resolution of proceedings in
relation to the reinstatement
of the Cathedral.
Is the impairment
of the right no more than reasonably necessary?
- The
question of whether the right is impaired no more than reasonably necessary
involves consideration of whether the objective might
be sufficiently achieved
by another method involving less cost to the right to judicial
review.6
- Time
limits provide certainty to persons affected by an administrative decision and
speed up the process without denying review of
unlawful
action.7 Such limits are generally unobjectionable
unless they effectively preclude access to review
proceedings.8 We consider that the proposed time limits
are reasonable and do not have the effect of precluding review.
- We
note also the Bill includes some safeguards on the process for making Orders
which may lessen the impairment on the right to seek
judicial review.
- For
example, to recommend an Order, the relevant Minister must be satisfied that the
Order is necessary or desirable for the purpose
of this Bill, that the extent of
the Order is not broader than reasonably necessary, and that the Order does not
breach cl 11 of
the Bill. As noted above, cl 11 of the Bill states that an Order
promulgated under the Bill may not grant an exemption from, or modify
a
requirement or restriction imposed by constitutional statutes.
- Further,
cl 21 provides that Orders made under the Bill are disallowable instruments for
the purposes of the Legislation Act 2012.
Orders made under the Bill are also a
legislative instrument for the purposes of the Legislation Act and must be
presented to Parliament
under s 41 of that Act. Parliament could therefore, if
it considers the Minister has made
6 Hansen v R [2007] NZSC 7 at
[123].
7 Ibid.
8 Cooper v Attorney-General [1996] NZHC 1115; [1996] 3 NZLR
480, 484.
a decision to recommend an Order without proper consultation, pass a
resolution to disallow that Order.9
- On
balance, we therefore consider that the restriction on appeal rights in judicial
review proceedings in cl 22 means the right to
judicial review is impaired no
more than reasonably necessary to achieve the objective.
Is the
limit in due proportion to the importance of the objective?
- In
considering due proportionately, the balance is between social advantage and
harm to the right.10
- Judicial
review is an essential mechanism for maintaining the rule of law. The right to
apply for judicial review should therefore
be limited only in the rarest of
situations where there is compelling reason and after careful
consideration.
- The
Cathedral’s symbolic importance to the rebuild and regeneration of
Christchurch is readily apparent, as is the desire for
certainty for the status
of its reinstatement.
- However,
the urgency and extraordinary circumstances present in previous ouster
provisions relating to this Order in Council mechanism
(i.e. in the immediate
aftermath of the Canterbury and Hurunui/Kaikōura earthquakes) is not
present.
- We
acknowledge that those Acts were broader in scope and went further in their
restriction on judicial review, in that they included
a substantive ouster of
the courts’ jurisdiction. Equally, however, those Acts limited s 27(2) to
enable disaster recovery
efforts immediately following a major emergency where
there was a clear need to act quickly to preserve life and property and restore
essential services. In our view, the circumstances in this case are not
analogous to those urgent emergency situations.
- Further,
we also note that the legislation will be repealed on the close of the period of
15 years beginning with the date of its
commencement. This is a much longer
sunset period than provided for in respect of the Acts passed to address the
immediate aftermath
of an emergency.
- On
balance, however, the harm to the right affirmed by s 27(2) is relatively
minimal and does not appear to outweigh the social advantage
being pursued. We
therefore consider the limit on s 27(2) is in due proportion to the importance
of the objective.
Conclusion on the right to judicial
review
- For
the reasons above, we consider that the Bill appears to be inconsistent with the
right to judicial review affirmed in s 27(2)
of the Bill of Rights
Act.
General Consistency of Orders in Council with the Bill of Rights Act
- We
have considered whether cl 11 of the Bill prevents modification to the Bill of
Rights Act but nevertheless authorises Orders in
Council that modify other Acts
in a way that is inconsistent with the Bill of Rights Act.
9 Refer Legislation Act 2012, s 42.
10 Ibid at [134].
- In
our view, such an interpretation would defeat the clear intention of the Bill
that Acts of constitutional importance, including
the Bill of Rights Act, must
not be subject to derogation. In our view, cls 11 and 16 must be read
together.
- The
Bill, therefore, does not prevent a Court from finding that Orders in Council
are ultra vires on the grounds that the Bill does not authorise delegated
legislation that is inconsistent with the Bill of Rights
Act.11
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
11 Drew v
Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58.
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