A-G speaks at ADLS breakfast in Christchurch

Christchurch lawyers made the most of a recent opportunity to hear from the Hon David Parker at a recent ADLS breakfast at The George in the Garden City.

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The breakfast follows a series of similar events over the past few years as part of ADLS’ ongoing commitment to foster links between the government and the legal profession around the country, with ADLS Council Member and Christchurch lawyer Tony Herring welcoming and thanking the Attorney-General on behalf of ADLS.

The Attorney-General focussed his remarks on the rule of law and its particular importance in a number of areas, including the economy, the promotion of egalitarian outcomes for all New Zealanders, the environmental arena, and in terms of the protection of fundamental rights.

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In the economy space, he stressed the need to ensure investment capital is being applied to the productive parts of our economy, in order to grow incomes and job prospects.

“We’re trying to take the country on a volume-to-value journey. New Zealand has started that journey, but it remains true that our productivity performance is poor compared to Australia’s. So, while we’re wealthy compared to some other countries, given our natural bounty, we’re probably not as wealthy as we ought to be.”

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The government hopes to encourage the growth of new points of comparative advantage by measures such as the introduction of a research and development tax credit, regional development (through the Provincial Growth Fund), the Green Party’s Green Investment Fund, and other initiatives that create business opportunities out of our environmental journey, with the aim of lifting research and development expenditure from 1.5% of GDP to 2% within ten years.

The Attorney-General also spoke to the importance of the international rule of law relating to trade and the prevention of unfair competition as administered by the World Trade Organisation (WTO) – particularly to a small country such as ours – and his concerns over the current situation whereby new judges are not being appointed to the WTO’s appellate body once the current ones retire. Such threats increase the desirability of well-negotiated plurilateral agreements, such as the CPTPPA.

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Moving on to the government’s goal of achieving more equal outcomes for New Zealanders, the Hon Mr Parker considers that the answer lies largely in housing policy (which includes building new houses and restricting foreign buyers) and tax policy (with the Tax Working Group review headed by Sir Michael Cullen having recently issued an interim report, with the final version due out in February next year).

“The rule of law is absolutely essential in the environmental space,” the Attorney-General continued. “I’m one of those people who don’t think you have to choose between a clean environment and a healthy economy. I’ve come to the conclusion that if New Zealand – with all our advantages of huge natural capital in our soils, our forests, our water and fishery resources – can’t control our emissions and keep our waterways clean, who can? And if we don’t, what hope is there that the rest of the world will? However, if we can do it, we have the potential to be a beacon of hope to other countries as to how things can be done.”

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The Attorney-General considers three factors are crucial in how the government can promote such change – education, regulation and price. “If you use those three levers in combination, you can change consumption and investment behaviours, which are the drivers of environmental outcomes.”

As for the operation of the rule of law closer to home, the Attorney-General noted he is frequently asked whether he believes in New Zealand one day having a written constitution. For his part, he is not in favour, considering written constitutions unnecessary in countries (such as ours) which have a strong tradition of respect for human rights. Conversely, having a constitution doesn’t necessarily offer the protection touted (think Zimbabwe and Libya). He noted a number of topical examples in support of this view, including the US’ ongoing inability to effect constitutional change in relation to gun control, and its “ridiculous” position on campaign financing (due to a Supreme Court decision to the effect that corporates’ rights of free speech are identical to those of individual voters).

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“And then, when you look across the ditch to the position in Australia where dual citizens are unable to hold parliamentary office, this has created an absurd situation in the case of people having grandparents who they didn’t know were originally New Zealand citizens, and they can’t fix that because it’s so difficult to change the constitution.”

Having said that, he noted the need to reconcile the lack of a written constitution with appropriate recognition of the Bill of Rights – which is what proposed High Court powers to make declarations of inconsistency are designed to address.

“If the High Court makes a declaration that legislation is inconsistent with the Bill of Rights, that would then trigger an internal process in Parliament. Parliament would thus retain control over reconsidering the legislation – it could consider remedial legislation (which could be voted down) to amend the offending provision, or it could affirm the legislation. But, more often than not, I think Parliament would act as guardian of the protections pursuant to the Bill of Rights.”

While the Attorney-General noted that this Bill has not yet been introduced, he is hopeful that in due course it will become a useful balance to parliamentary sovereignty. 

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