I know many of you hold misgivings about some of the government’s recently announced legislative intentions. Regrettably, the level of concern is prompting discussion outside the of the proper channels of LawNews opinion pieces and New Zealand Herald columns – where the topics are correctly limited to recruitment for the presently underpopulated bandwagon of people who think Ellis v R was written by a judicial fifth column. As a result, I am here to explain some of the recent decisions taken to confirm to you the government’s commitment to the rule of law, and to reassure the profession.
The position is very clear. Judges can’t be trusted to make decisions about tort law, but AI can be trusted to make decisions about benefits people need to live.
Our intention to legislate to prohibit climate torts reflects the need for certainty in this area. Climate plaintiffs should not have to conduct years of expensive litigation with uncertainty over whether the fruits of any victory will ultimately be legislated away by Parliament when we can offer them that certainty now. There is simply no need to have the argument and to have first-instance and appeal courts give considered reasons, to which Parliament can then respond if it wishes. The beauty of the common law is sometimes you don’t need to hear from it at all.
Criticism in this area reflects an ugly double standard. When the government announced it would abolish the Broadcasting Standards Authority, some commentators said that was because it had given a decision we did not like. We took that criticism on board and resolved to do better. We have changed our ways and now we are abolishing things before we get decisions we do not like. Yet those same commentators are still dissatisfied. These people are not engaging in good faith.
Winfield and Jolowicz famously described the field of tort as the dustbin of laws. I’m not sure what you call it when the dustbin of laws meets the dustbin for laws. I think Fonterra wrote it down for us in briefing materials but I never saw those and now there’s simply no way to know (short of discovery in civil litigation that you won’t be allowed to bring any more). The point is, government has to balance a range of interests. Yes, official advice to Ministers was not to legislate to end active litigation, but officials don’t understand what businesses need. We know what businesses need because they’ve told us. I know you’ve asked for copies of what they told us but I have a funny story about that for another time and I don’t want to spoil the punchline for the Ombudsman.
The important thing is that this is an entirely appropriate thing for Parliament to do – to not just legislate over court decisions it does not like but to preempt them entirely. That reflects Parliamentary sovereignty. It’s important to try to keep this a debate about whether Parliament can rather than whether Parliament should. That is because we can win the can debate. The risk that Parliament might legislate over court decisions declaring rights has always existed because Parliament can do what it wants, in much the same way that there has always been a risk that you’ll be killed by a homicidal clown. And to the people saying that it’s just that, legislatively speaking, four people they know have died to homicidal clowns in the last two years, I say you try walking a mile in my (comically large) shoes.
As for the amendment to social welfare legislation that we are passing under urgency to permit greater use of artificial intelligence in decision-making about benefits, that is entirely different. There’s not a lot I can say about why we need it, because we redacted those parts of the regulatory impact statements. And the urgency means there won’t be any select committee review. But the legislation is merely permissive. In the right areas, this type of decision-making can be done properly. Unlike judges making decisions about tort law.
Of course, there is some concern about heartless automatons making decisions about people’s lives. But these ad hominem jibes at the Cabinet are beneath you. Technically, nothing about the rule of law requires that decisions are made by human beings. I should know – I looked it up in Magna Carta – the famous statement about removal of fish weirs from the Thames.
Discussion about these things risks diverting our attention away from true threats to the rule of law: te reo Māori greetings in court, what the name of the Law Society’s committee that deals with the rule of law should be, and – and I cannot emphasise this enough – just how angry we should all be about Ellis v R. So, calm down, go outside, touch grass, spend some time reading something that has nothing to do with the law.
The government’s commitment to the rule of law is unwavering. If there is any doubt about that then we will legislate for certainty.
Strictly obiter 