Chris Finlayson and Andrew Harmos Demand Answers. Judith Collins Says Nothing

John Bowie, LawFuel publisher

When former Attorney-General Chris Finlayson KC and former NZX Chair Andrew Harmos – both key ‘power list lawyers’ FYI – start calling for investigations, you’d typically expect National Party MPs to at least clear their throats. Instead? Nothing. Zip.

Despite having a letter written to her raising serious constitutional concerns, Attorney General Judith Collins and her government remain tight-lipped. Shtum. Not a word. Not a murmur. Not a whisper.

The government’s proposed retrospective changes to consumer protection laws, a move that would conveniently shield ANZ and ASB from litigation already underway, have triggered fierce backlash from these legal heavyweightys, including also Rachael Reed KC.

The lawyers are supporting formal investigation calls into what Finlayson describes as “serious process failures by MBIE officials” in developing retrospective legislation which, according to the government’s own analysis, will benefit exactly two Australian-owned banks: ANZ and ASB from litigation already underway.

The Heavyweights Aren’t Holding Back

Harmos delivered a particularly withering critique when he appeared before the Finance and Expenditure Select Committee, arguing that “Parliament is being asked to assume the Court’s decision-making role in favour of the defendant banks’ interpretation of the current law”.

The government of effectively asking Parliament to play judge and jury by adopting the banks’ version of events in litigation that’s been active for over four years.

The Harmos criticism hits hardest on the government’s reliance on that now-infamous $12.9 billion risk figure, which he argues “hasn’t had its assumptions and outputs tested in any open and transparent way”.

The mathematical absurdity is striking.

The ANZ and ASB have rejected settlement offers capped at around 5 percent of the claimed $12.9b, yet they’re simultaneously claiming system-wide risk. If that doesn’t raise eyebrows about the validity of the headline figure, what would?

When the two largest banks involved reject settlements representing a tiny fraction of the alleged sector-wide risk, serious questions arise about whether this figure is designed to frighten rather than inform.

As Reed KC put it bluntly: “The RBNZ modelling… appears to be a mathematical impossibility. It defies logic and credibility.”

Finlayson went further still. In a scathing statement, he warned of “systematic failures” at MBIE that “strike at the heart of our constitutional arrangements.”

He accused officials of failing to deliver complete, balanced, and properly tested advice, a failure that undermines both ministerial responsibility and Parliamentary sovereignty.

When officials fail to provide complete, balanced advice, Finlayson argues, “they undermine both Ministerial decision-making and Parliamentary sovereignty”.

The Law Society Weighs In

The New Zealand Law Society isn’t pulling punches either. Their submission on the Credit Contracts and Consumer Finance Amendment Bill makes their position crystal clear, that retrospective legislation targeting specific court proceedings is inappropriate.

The Society argues that while retrospective application of the relevant provisions might be justified generally, “it is not appropriate to extend their application to any proceedings which are already underway”.

Their concerns center on rule of law principles and the “strong convention” that Parliament shouldn’t interfere with judicial processes except in very limited circumstances.

The Law Society particularly objects to Parliament revisiting earlier legislative decisions in a way that affects live proceedings, especially “in the absence of new evidence which justifies revisiting the earlier legislative changes”.

Where’s National’s Constitutional Backbone?

Here’s what makes National’s silence particularly puzzling: this party has traditionally positioned itself as the guardian of constitutional principles and rule of law.

When you have a former National Attorney-General supporting investigation calls into what he describes as an “assault on the legislative process, judiciary and rule of law”, you’d expect current National MPs to be all over this.

Instead, we get nothing.

The lack of response from the National benches is telling. Either they’re asleep at the constitutional wheel, or they’re quietly endorsing a move that benefits powerful Australian banks while leaving tens of thousands of Kiwi borrowers out in the cold.

Opposition to retrospective legislation has historically been bipartisan in New Zealand. Politicians across the spectrum have traditionally recognized the dangerous precedent such laws create. Yet National MPs appear unwilling to support investigation calls even when backed by such distinguished legal figures.

What’s Really Going On?

The silence from National MPs becomes more curious when you consider the broader context. We’re witnessing legal heavyweights from across the spectrum—including a former National Attorney-General—supporting calls for investigation into process failures that allegedly “strike at the heart of our constitutional arrangements”.

Even NZ First, part of the governing coalition, had reservations about the retrospective aspects of the legislation.

Yet National remains conspicuously quiet.

The Bottom Line

As Harmos concluded in his committee appearance: “Let the courts apply the existing law to the existing case and give ASB, ANZ and their customers their day in court. That’s the approach that accords with New Zealand law, convention, common sense and fairness”.

There are precious few voices in the legal community supporting the government’s move to retrospective legislation, other than what might charitably be called the paid cheerleaders for the banks.

The question that hangs over all of this remains unanswered: why won’t National Party MPs support these investigation calls when senior legal figures are demanding accountability for process failures?

Their silence speaks volumes about their priorities when Australian bank interests clash with New Zealand constitutional values and the rights of ordinary Kiwis.

And frankly, the longer it continues, the more questions it raises about what exactly they’re afraid might be uncovered.