The Art of Public Law

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.

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3 thoughts on “The Art of Public Law

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  1. Teenaa koe Joshua, you have presented a sound argument re. the Consultation and written Submission process of the Government proposed MOM Model. However in all fairness, there were several discrepancies and misninformation throughout this process that confused, for want of a better word, “Grass roots” tangatawhenua. I am of the mind that the negative submissions sent in and spoken at the Consultation Hui were initially based on the fact that the intent of Government was to remove Section 9 from the SOE Act 1986 in order for the partial sales to go through. This in my view created the scene for the Consultation Hui held at the various locations throughout the motuu. This saw the Maaori Party make their threat to leave their Relationship Accord and the New Zealand Maaori Council submit their Court Application. On 08 February 2012, during the Q & A session in the House, Te Ururoa Flavell asked a question to the Prime Minister John Key of which he replied, “The Government has no intention of removing Section 9 from the SOE Act 1986.” or words to that effect. At the time this was said, the Consultation Process was already underway. Upon having heard that answer, I was trying to figure out the point of the Consultation Process if the Government had no intentions of removing Section 9, then what was the actual intent? Fast forward to the Consultation Hui held on 20 February 2012 for Ngaati Kahungunu I was given the opportunity to make a somewhat short oral Submission based on my written Submission that was due on 22 February 2012 no later than 5pm. I questioned the intent of the Government re. the Q & A session in the House on 08 February 2012. I also questioned the transferral of the four [4] said assets from the SOE Act 1986 to the Public Finance Act 1989 as outlined in their Powerpoint Presentation, but knowing full well that it is the Public Finance Amendment Act 2004. Within my written Submission I made mention of the fact that the Crown Entities Act 2004 may also be an option for Government, but either way Sections 9 and 27 A-D were intended to work in unison and must be duly transferred. The Consultation process may have indeed been an ‘opportunity lost’ given the fact that the time constraints on the tangatawhenua to produce and present their Submissions hindered the effectiveness. I count myself lucky in knowing that the whole process reeked of historical repetitions as successive and present Government continually rely on the natives to become confused and eventually divide due to this confusion. As Albert Einstein once said, “Insanity: doing the same thing over and over again and expecting different results.” I for one regard myself as no longer confused as to the intent of past, present and future Government.

    1. Kia ora Wikitoria, that you for your korero. It is always enlightening to hear the perspectives of those who attended the different hui as each one appears to have been told different things about the process!

      I agree that it was often difficult to ascertain what the true purpose of the consultation process was in light of the subsequent backdown. I think the Government planned to withdraw section 9 protections, perhaps not realising the full extent of the meaning of section 9 within Te Ao Māori.

      1. Hee, hee, thank you for your reply Joshua. I am of the same mind that this Government did not perhaps think their plan through as revealed in the National Business Review last week. Oh my, what a wicked web they weave eh…. I wait with anticipation for the outcome which I suspect may take some time within the hallowed corridors of Whare Paremata or perhaps behind closed doors. Ngaa mihi ki a koe Joshua.

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