The New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture is urging the Government to reconsider proposed legislation by taking a broader view of long-term effects of making such retrospective laws.
The Government has said that it intends to introduce legislation to prevent the courts from deciding claims for climate change damages. If enacted this legislation will prevent a case that is before the courts from being heard and decided.
Over the past year the Bar Association has raised with the Government the way in which the legislative power of Parliament has been used with retrospective effect on existing rights and claims. The trend is disturbing, particularly where legislation may be rushed through with limited time to consider and debate its content, and whether there are truly circumstances justifying making laws with such an effect.
It is an important part of our system that the laws made by Parliament are forward-looking with retrospective legislation reserved only for exceptional circumstances. This principle of law-making provides for certainty for everyone to order their affairs and act on existing law.
The principle also respects the role of the courts in deciding cases on the meaning of laws and under the common law of New Zealand. New Zealand has been well served by this balanced constitutional settlement.
If retrospective legislation becomes a regular occurrence or norm, citizens will not know with any certainty what their rights are. The certainty and stability provided by the established way in which law is made for all is put at risk, and the important role of the independent court system is undermined.
The aim of the intended legislation is to stop the courts deciding certain claims and provide certainty in the affairs of some citizens. But the overuse of retrospective legislation to remove existing rights or claims creates a bigger more general uncertainty and unpredictability for citizens.
We consider that it is time for Parliament to allow the courts to do their work as independent decision-makers on the law and respect this role; and for legislative power to be exercised on established principles, with retrospective legislation reserved for exceptional circumstances that may justify it after appropriate consideration and debate.
Paul David KC,
President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture
E: president@nzbar.org.nz
T: (+64) 9 379 5589
The Bar Association represents members at the independent bar and provides training and other services for independent barristers who advocate for clients in the courts and tribunals across Aotearoa New Zealand. It is politically neutral. www.nzbar.org.nz
