Justice Minister Paul Goldsmith announced the government would amend climate laws earlier this month. (File photo)
Photo: RNZ / Mark Papalii
The New Zealand Bar Association is calling on the government to reconsider proposed legislation to prevent companies from being sued over damage caused by greenhouse gas emissions.
It said the overuse of retrospective legislation to remove existing rights or claims “creates a bigger more general uncertainty and unpredictability for citizens” than the uncertainty the government says its trying to remove.
This month, Justice Minister Paul Goldsmith announced the government would amend climate laws to deal with “uncertainty in business confidence” created by a landmark case heading to the Supreme Court.
Climate activist Mike Smith was arguing major emitters including Z Energy and Fonterra, which collectively contributed about a third of New Zealand’s emissions, had a legal duty to him and others in communities that were being damaged by the effects of greenhouse gas emissions.
The Bar Association said if the government passed its legislation, it would prevent that case from being heard and decided.
The politically neutral group that represented members at the independent bar said it had raised with the government over the past year the way in which the legislative power of Parliament had 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 wrote.
“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 group acknowledged the aim of the intended legislation was to provide certainty in the affairs of some citizens, but it said 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.”
Politicians react
Attorney-General Chris Bishop said the government didn’t pass retrospective legislation lightly, “but sometimes it’s required.”
Chris Bishop. (File photo)
Photo: RNZ / Mark Papalii
Bishop said the retrospective criticism didn’t apply in the Smith case, “there are no fruits of the litigation that Mr Smith enjoys, because the tort hasn’t been found.”
He argued the proposed amendment was an example of the rule of law operating properly.
“This government has seen a court decision that is potentially taking the law in the wrong direction, and we are acting to clarify the law through parliament, which is exactly the way the rule of law is meant to work.”
New Zealand First leader Winston Peters also rejected the criticism, saying “sometimes retrospective law is good.”
“Don’t just come to me with this blanket idea of retrospective law being bad, because many countries in the Western democracy do not think that at all.
“In fact, retrospectively writing things and correcting people’s damage and paying them compensation has been one of the illuminating things about our democracy.”
But Labour leader Chris Hipkins said he agreed with the Bar Association, “this government is showing an absolute contempt for good democracy and good law making.”
“They’re overturning court decisions before the courts even had a chance to rule on issues.
“They’re rushing law changes through parliament under urgency with no real public scrutiny. This is a government that’s showing absolute contempt for good law making process.”
He acknowledged Parliament was sovereign, “absolutely.”
“Parliament should have the right to change the law, but it should follow good process, because parliament has that ultimate power.
“It should exercise some restraint in making sure the processes that it’s following in doing so are robust.”
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