I am often asked what it is exactly that a Public Law Specialist does. This is not an easy question to answer, but one that is worth addressing as I feel that most New Zealanders, lawyers included, do not understand the full breadth of the work that we can offer.
If you want to read a detailed analysis of Public Law in New Zealand, Mai Chen has written a book called the Public Law Toolkit and I recommend that you add it to your reading list. I have yet to read it, but having worked for her in the past I have a good idea as to its contents. Most public law textbooks will focus on the very dry topic of judicial review – a legal challenge of a decision made by the Government or a Government official. Public law, however, is much more than challenging the decision of a Government official in Court. Very few judicial review cases are heard each year in New Zealand and even fewer of them are successful. As such, it is a very expensive and a very low-return option for those people or groups who seek to change the law.
What then is public law? Public law is part legal, part political, and part relationship building. It draws together the legal analysis of a problem, the political ramifications of any legal change, and the evolving dynamics of a MMP Parliament. Public law is all about using our skills as legal advocates to convince Government officials and Parliament of the need for law reform. Unlike a Court case, public law does not seek to oppose Government action, but to offer suggestions for improvements in the current legal framework.
I am often asked if I am a lobbyist. It is as if the work of a public lawyer is demeaning to the political system. The Hon. Clayton Cosgrove was a big fan of throwing around the term “lobbyist” to describe our work when I was at Chen Palmer as if we were the worst people in the world. But to think of public lawyers as merely lobbyists is to take a very cynical view of our political system. Yes, we advocate for our clients. That is the role of a lawyer. We fail our commission as lawyers if we do not do everything within the bounds of the law to uphold our clients interests. Public law is no different.
I firmly believe that if you have to go to Court, then you have already lost – regardless of the outcome of the Court case. Court cases are time-consuming and expensive beyond belief. Yet, for a fraction of the cost, you can achieve a superior result through the use of skilled legal advocates operated in the realm of public law. What do you think is the better result: to have legislation that reflects your concerns and upholds your rights and interests, or going to Court to fight over the nature of the rights and interests you may not may not have?
Take, for example, the recent consultation process undertaken by the Government in relation to the section 9 protection for State-Owned Enterprises. The vast majority of submitters approached the issue with a negative mindset. The Government was told by submitters, in no uncertain terms, that Māori did not want the partial sales to proceed but, if they did, then the section 9 protection must remain. It was hardly a nuanced discussion. Even the submission of the Māori Party failed to present a clear and legally sound analysis of the issue, let alone provide a solution which best protects Māori interests in any new legislation.
How would you use the public law toolkit in such a situation? The consultation period provided a prime opportunity to actively engage in the intellectual exercise of devising a legislative regime which provided for a more concrete protection of Māori rights under the mixed-ownership model, alongside the recognition of the need to provide security for private investors. If I was advising a Māori entity on the best approach to take in responding to the consultation process, I would have suggested the preparation of a thorough legal analysis of section 9, including the advantages and disadvantages of the general protection vis-a-vis more specific legislative protections for Māori interests. This legal analysis would have flowed into the preparation of a draft section which represents the core concerns of both Māori and the Government and which could be readily inserted into the proposed legislation. Instead of putting up a wall and saying no, you are actively engaging on the issue and presenting a solution to the Government which is designed to ensure the strongest protection of your clients rights and interests.
Māori will have another opportunity during the Select Committee consideration of the mixed-ownership model legislation to present a stronger case for more detailed protection of our rights and interests. While the consultation process was an opportunity lost, we do have one more chance to address this issue and fight for legislation which better protects our rights.