A Reply to Rodney Harrison on the GCSB Bill
One of our members, Colin Hunter, presents an opinion piece and reply to the talk we had by Rodney Harrison QC on the GCSB bill.
The following is my reply to a talk given by Rodney Harrison QC, who was discussing the Government Communications Security Bureau and Related Legislation Amendment Bill. What I want to do is flesh out a few of the technical points Harrison referred to and also discuss some of remedies and ethical questions he posed.
For those that are not familiar with the ramification and specifics of the bill I would recommend this article from Tech Liberty. From what I can tell it seems to accurately describe the issues. I would also encourage people to read the actual legislation and bill that amends it here. In my opinion the Tech Liberty article accurately describes the amendment bill, but for those who really want to read, go ahead and read the actual bill text.
One of the key questions around the GCSB bill is about how the courts will interpret the legislation. This is because the law is not just what the bill says, it is how the courts interpret it. I asked Harrison about some of these issues, which you can see in the question and answer part, but what I wanted to do is explain how this actually works in the context of a bill.
The Courts are the interpreters of law. They have a number of mechanisms at their disposal that allow them to determine what a statute actually means. Generally speaking the ordinary meaning of a statute is a good guide, so non-experts should be able to read the statute and determine what it means, most of the time. However when it comes to legislation that violates a fundamental right, the courts tend to interpret that law differently than they might any ordinary statute.
Law comes from two places (primarily); from statute law and there is the common law, which is the law that judges make. It is important to understand that in New Zealand there is a doctrine called Parliamentary Supremacy and that means that when push comes to shove, the intent of Parliament always triumphs, which is to say, statute law is superior to common law. Paradoxically, Parliamentary Supremacy is itself common law (but lets not think too hard about that). Some common law has to do with interpreting legislation (statute law). The “Principle of Legality” is one such mechanism and it says that so far as the courts are able they assume that Parliament did not intend to override a fundamental right. This means the courts will try to limit the meaning of section of a statute that breaches a fundamental right, when they interpret that law, as long as it does not frustrate the purpose of the act.
Statute law is important here too. Perhaps the most important statute to be aware of is The New Zealand Bill of Rights 1990 or NZBORA (here). That is the document which outlines many of our basic rights and freedoms. Included in the NZBORA is “s 21 Unreasonable search and seizure Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” This is the primary right that is argued has been breached by the GCSB. So the courts have developed a method of dealing with rights breaches in R v Hansen.
The first thing the court does, is it looks at whether on the ordinary meaning of the statute there is a conflict with the right. It seems this is the case here.
If that is the case they adopt the Oakes test that Harrison referred to determine if under s 5 of the NZBORA whether it is a reasonable and justified limit. “ Justified limitations Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
There are actual criteria that you can go through to determine this. They are, as outlined in R v Oakes, as restated in R v Hansen: 1. “The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 2. Assuming that sufficiently important objective has been established the means chosen to achieve the objective must pass a proportionality test; that is to say the must: 1. be ‘rationally’ connected to the objective and not be arbitrary, unfair or based on irrational considerations; 2. impact the right or freedom in question as ‘little as possible’; and 3. be such that their effects on the limitation of rights and freedoms are proportional to the objective.”
The answer must be yes to all these questions, that is if it fails a single step then it is not a reasonable limitation on that right. Now obviously such things are subjective, although judges will look at past judgments and various sub criteria for determining this, but it is important to understand, that most professionals other than Attorney General and the Crown Law office think that at least one of these answers is no, if not several. While Harrison was guarded in the talk about speculating too much with regards to the Supreme Court’s likely stance, I think it is likely that the legislation would fail a s 5 Oakes test.
Once this is established the next stop is s 6 “Interpretation consistent with Bill of Rights to be preferred Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.” This where the courts have the most room to manoeuvre. If they can read the offending provisions down, which is to say give them less meaning, they are required to do so. Remember that “Principle of Legality”, well here it is written into statute, it is best power our courts have to limit rights infringing legislation. I asked Harrison about how likely the courts would be to read down the legislation. He was guarded, as it is pure speculation, but he mentioned the court is generally conservative and places a lot of weight on that aforementioned Parliamentary Supremacy. However in cases like R v Poumako the courts have been willing to read down, significantly, legislation which is particularly egregious. In my opinion though, the GCSB bill is nowhere near as bad in terms of violating rights and principles of law as the home invasion legislation contained in that case.
If the courts cannot reasonably give the section a meaning consistent with the rights, then s 4 will apply. “Other enactments not affected No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),— (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) decline to apply any provision of the enactment— by reason only that the provision is inconsistent with any provision of this Bill of Rights.”
This will mean that the enactment will be given effect despite the fact it is an unreasonable restriction on a right.
Section 4 of the NZBORA is the reason that the courts cannot actually strike down legislation, unlike many other common law countries. As such we have no defence against a bill other than the power conferred in s 6.
Harrison pointed out I think correctly, that the issue is knowing your right is infringed. You see it may be that the courts will take a look at the legislation and might even read the enactment down, but given that the actions of the GCSB are secret, there is no ordinary way to know whether a right is infringed or not and whether you could get the courts to even read down the provisions. So it may well be that the courts would be willing to read down a provision, if a case came before them, but if you never know if your right is infringed and are never able to bring a case before the courts, they will not be able to rule (and thereby direct the GCSB in future cases) on the issue.
There is one potential solution to this problem and that is that a interpretive judgment could be pursued in the High Court. Someone (presumably a wealthy private citizen) could pay for such a judgment, which would then give instructions to the GCSB about how their powers under the act. I am not sure how plausible this is, but Harrison did discuss the possibility.
Warrants and Judicial Review
One of the other aspects that is worth considering is the issue of Judicial Review. This is when the courts examine the decision making powers of the executive, more specifically here the issuing of warrants. There are various grounds for such action illegality, procedural impropriety and irrationality. This allows the court to potentially overturn warrants and directions issued by the Minister and appropriate executive members. While this is not an ability for the courts to overturn any old decision, it can mitigate against the harshest and most flagrant abuses of power. Technically Judicial Review is not supposed to look at the content of such decisions, merely whether proper procedures have been followed. In practice there is a very limited ability to look at content, if ‘no reasonable decision maker could have come to that conclusion’. However courts are very hesitant about using this power unless it is obvious the decision maker is acting outside the scope of the power conferred.
Again however the difficulty here is getting Judicial Review, because everything is secret, there is no ability to know if a warrant has been obtained or not. So it makes it difficult to prevent in theory. Furthermore Judicial Review cannot give damages, it can only quash decisions and order them to be reviewed. This means that if a decision has already been made and your private communications were already looked at, nothing can be done. It is worth noting a couple things here. The warrants are the most worrying aspect of the whole bill, they are issued jointly by a former High Court Judge and the Minister, but given there is no real ability for oversight I think this is a major concern.
This is a popular topic at the moment. The difficulty is that the law is incredibly unclear with regards to this, there is not much to say, again we can hope the courts will give clarification.
Harrison brought up a few a few political issue that bear some consideration. The first of these is the idea that the s7 report from the NZBORA requires that there is a report issued with regards to right breaches in legislation. “ Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) in the case of a Government Bill, on the introduction of that Bill; or (b) in any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.”
Harrison brought up the problem that while a bill is prepared it is not independent as the Attorney General is a member of cabinet and also there is no binding nature on Parliament to implement its recommendations. He pointed out that in this case no report was issued, because it was determined there were no unreasonable breaches of rights. While I agree with Harrison that this seems odd in this context, it is not true that the reports are always in favour of the government’s position. In fact the Attorney-General does enjoy some independence in this role. Having said that in this case I would bet serious money, that it was made known that given the politically contentious nature of the decision, that it should be viewed as not breaching rights. Anyway that is just conjecture, but it is worth noting.
Furthermore Harrison also discussed that Parliament itself is bound by the NZBORA, when legislating. This is true in a technical sense, but there is no ability to review this. The courts have turned their face from interfering in the matters of Parliament because of the doctrine of Separation of Powers and Parliamentary Privilege (which prevents the courts looking at Parliament). This means that functionally Parliament is not bound by the NZBORA, since there is no one to hold them accountable. I believe Harrison was more making the point that Parliament is ethically obliged, rather than legally, which I would not dispute.
The issue of MP’s voting against their parties was brought up. MMP government has meant MPs have less power to do this, although traditionally it has been very rare when such action has been taken. This is a wider question for discussion and not one I hold an opinion on, but it is worth considering I suppose.
Some of the questions were of interest as well. One of the considerations was whether an entrenched constitution without s 4 of the NZBORA would alter the landscape. It seems likely that an entrenched constitution with courts that have an ability to strike down laws, might indeed help prevent abusive laws such as the GCSB Amendment Act. However this is a greater constitutional debate. I personally am not in favour of an entrenched Constitution, as I think rights based approaches are themselves ethically bankrupt, because they end up still resulting in hierarchies of legitimacy. Having said this if your desire was to safe guard a right to privacy, then I think an entrenched constitution with a corresponding power allowing the courts to strike down laws would probably offer protection from bills such as this. One thing to consider is whether we would in such a scenario have a constitution similar to the USA, where rights were absolute or one where we had a set of “reasonable” rights, such as what exists in Canada, where rights are allowed to be infringed, so long as they are reasonable. This is closer to what we currently have.
As I alluded to above, I am reticent about discussions of rights. This stems from a more fundamental ethical basis, that I think absolutism, is not a good way to make policy. I do not want to have that whole debate here in this article, but I think there are a few issues that are worth considering. It is all well and good to appeal to a right and attach some moral worth to that right, but at what point should that right over come arguments of utility? Is it really that rights are simply a short hand way of maximising utility anyway? Or is it the case that rights have some moral worth beyond the utility the provide? Is it possible that having a structure of rights, end up being oppressive, as it outline various default positions, that exclude those who fall outside the definitions of rights? If your moral object is not classified as a right, should that give it less force? Does it make it any less wrong? What I want to think about is whether rights discussions are even the best way for us to engage with the issues. Clearly that is how our established institutions deal with them, so perhaps we have little other recourse, but I see danger, even in the need to appeal to such institution for us to determine what is and is not ethical.
Furthermore I think that even if we were to accept a rights discourse as a legitimate way of discussing such things, there seem to be far more serious breaches of rights, that we stay silent about. I do not mean that we should not complain about the GCSB bill, far from it, but what I would encourage us to do, is think about some of the other Acts that the current government have passed or are intending to pass that seems to be far more egregious, or at least as questionable.
This is probably the best example, other than perhaps the Canterbury Recovery bills, that really were much more objectionable from a rights perspective.
The Public Health and Disability Amendment Act 2013 Legitimises a discriminatory practice of paying people less if they care for family members who are disable, even if doing the same job of some one who is paid more and not a relative. – Breaches right to be free from discrimination s 19 NZBORA. See Ministry of Health v Atkinson for a fuller discussion on this. Removes access to the courts to challenge any of the provisions – Breaches Right of Natural Justice and access to the courts – NZBORA s 27 – considered one of the most important of all rights (along with freedom of torture, double jeopardy, right against retrospective legislation and right to life) – see Ex Parte Witham for a fuller discussion on right to access the courts. There are many other rights infringing bills that have been passed and it is something that is not as rare, perhaps as it should be, but if you have an interest in such things, then I would suggest looking hard at such legislation, particularly anything that prevents challenges in court.
I personally do think the GCSB legislation is a bad idea, but I do not think it is quite as important as is made out. I just do not care that much ultimately, I am much more concerned about legislation that is discriminatory to those on benefit (such as the recent changes to the benefit scheme making it mandatory for parents to register children with doctors) or the Public Health and Disability Amendment Act 2013 or the proposed changes around child abuse and those with sexual convictions. I would must rather see us focus on other issues. None of this of course makes this legislation right and I guess I am glad at least that people have taken notice of something, but I must admit, my heart just is not in this one.
– Colin Hunter, RSS Member