Virtual Insanity: AI and Judicial Review

I am far from an expert on the growing trend in law and life towards “algorithmic justice,” or decision-making by machines. But a report released by the Law Foundation of New Zealand and the University of Otago got me thinking about the use of neural networks, predictive modelling, and other forms of algorithmic learning in the field of administrative law. Specifically, as these complex models and machines develop, there will be an urgent need for administrative law—conceived as a form of control over delegated decision-making—to adapt to its new subjects. The key question is whether new rules governing “machine-learning” administrative law need to be developed, or whether existing rules can be massaged to apply to new contexts. In my view, with some trepidation, I think our existing rules of administrative law developed over centuries can meet the task of regulating the brave new world of algorithmic justice. The New Zealand report raises a number of interesting issues, but I want to moot a few of them to show how our rules of administrative law and judicial review can evolve to the challenge of machine learning.

Consider first the problems of delegation that might occur when considering the use of machines to make decisions. One can imagine two scenarios. In scenario one, Parliament could delegate to a machine in an enabling statute to make decisions, such that those decisions are binding. In scenario two, Parliament could delegate to a human to make decisions, but the human—perhaps due to internal agency rules or guidance documents—might in turn subdelegate to a machine.

Each situation presents important challenges that traditional Canadian doctrines of delegation will need to meet. Take the first scenario. Why would Parliament ever delegate like this? The New Zealand report notes a worrying trend, among experts and non-experts alike: automation bias. Automatic bias occurs when human operators “trust the automated system so much that they ignore other sources of information, including their own systems” [37]. We might imagine a world in the not too distant future where Parliament, as entranced by “experts” as it already is in traditional administrative law, might trust machines more than humans.

For the New Zealand report, the real problem in such scenarios is the “abdication” of decision-making responsibility [40]. For Canadians, this language is familiar—as I noted in a recent blog post, Canada’s only restriction on delegation articulated by the Supreme Court is a prohibition on “abdication” of legislative power. What if a machine is given power to formulate and apply rules? This may constitute the abdication of legislative power because a machine is not responsible to Parliament, and it is worthwhile to ask whether a machine could ever be traditionally responsible—or if a human could be made fully responsible for a neural network, given that it is so difficult to disentangle the factors on which the neural network relies [42]. Rather than delving into this morass, courts might think about adopting an easily administrable rule that is based in the Constitution and the precedents of the Supreme Court: they may need to be more willing to apply a version of the non-abdication rule to the machine context than they would in the human context.

Scenario #2 is trickier. Here, there is no abdication problem at first blush, because the delegation runs from Parliament to a responsible Minister or decision-maker formally answerable in Parliament. But what happens when subdelegation occurs to a machine, and the machine makes the decision for the responsible delegated party? The existing law in this area does not seem to see a problem with this. Take for instance the rule that a decision-maker is permitted to adopt subdelegated investigative reports as the final decision (Sketchley, at para 36 et seq). Here, courts do not apply a more searching standard of review to subdelegated parties versus primary delegations.

But the existing rule presents new challenges in the context of machine learning. In the human context, where an agency head adopts a subdelegated party’s report, the lines of accountability and authority are clear. Courts can scrutinize the subdelegated report as the reasons of the agency. But the same possibility is probably precluded in the machine learning context, at least at first blush. Courts would need to know how and why humans have accepted the “thinking” of an algorithm; or it would otherwise need to understand the modelling underpinning the machine. While these sorts of factors would be apparent in an ideal subdelegated human report, they would not appear at first impression in a decision by a machine–again, especially if the way the machine has made the decision is not easily amenable to scrutiny by a human. In such a context, if humans cannot deduce the basis on which machines made decisions, courts should afford little weight to a machine decision, or otherwise prohibit subdelegation to such machines.

This might appear as a drastic response to the potentially boundless potential of machines. But much like expertise as a reason for deference, courts should only countenance the existence of machine decision-making to the extent that it is compatible with fundamental premises of the legal system, like the rule of law. While one could have different conceptions of the rule of law, most would concede that the ability of parties to seek judicial review is one of its fundamental elements (see, on this note, Crevier). Where a court cannot conduct judicial review, and administrative decisions are immunized from review, the decisiomn is not subject to judicial review through the ordinary channels. Courts already worry about this in the context of deficient administrative records on judicial review (see Tsleil-Waututh, at paras 50-51). The same concern is present where humans, for reasons of lack of expertise or technological impediments, cannot look behind the veil of the machine in a way that is cognizable to a court.

In situations where it is possible to deconstruct an algorithm, courts should, as an element of reasonableness review, insist that humans present the modelling to courts in a way that courts can understand. Just like when courts might be asked to review economic analysis and modelling, they should insist that experts  be able to deduce from complex formulae what the machine is actually doing and how it made its decision. Subjecting machines to the ordinary world of judicial review is important as a matter of the rule of law.

Of course, all these thoughts are extremely tentative, and subject to change as I learn more. But it seems to me that courts will need to, at the very least, adjust existing rules of judicial review to suit the modern world of machine decision-making. Importantly, we need not move machines out of the realm of normal judicial review. The rule of law says that all are subject to the law, regardless of status. Even experts—machines or humans—are subject to this fundamental tenet.

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

End of a Scandal

An attempt to criminalize criticism of New Zeand’s judges is rejected by a parliamentary select committee

Last year, the New Zealand Parliament took up a bill to update and reform the law of contempt of court. A worthy endeavour, but one that was seriously flaw in at least one very important way, as I argued at the time: one of the ways in which the bill changed the law was that it not only codified but seriously expanded the common law offence of “scandalizing the court” ― that is, according to a classic definition in R v Gray, [1900] 2 QB 36, doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority”. (40)

Obviously, the common law offence, if understood broadly, might have applied to vast amounts of perfectly legitimate criticism, including of the sort that is this blog’s trademark, so the courts applied it sparingly and with an eye ― indeed both eyes ― towards preserving the freedom of expression in this context. Even so, the offence has been abolished by statute in the United Kingdom, and left in a zombie-like state in Canada following the decision of the Court of Appeal for Ontario in R v Kopyto, which held that, in its current form, the law of scandalising the court was not consistent with the Canadian Charter of Rights and Freedoms.

By contrast, the bill before the New Zealand Parliament would have expanded the offence, notably by criminalizing the expression of opinion ― including opinion honestly held on the basis of publicly known or fairly stated fact ― if that opinion could undermine public confidence in the independence, integrity, or impartiality of a judge or court. The bill would also have criminalized the true statements of fact having that tendency, unless the accused were able to prove their truth on a balance of probabilities ― thus trenching on the presumption of innocence. And, in addition to this, the bill would also have created enforcement powers that would have made it possible for the prosecutors to exact apologies and retractions from people merely suspected of having committed the “scanadalizing” offence.

In addition to blogging about this, I co-wrote (with Edward Willis) a submission to the Justice Committee of Parliament, which studied the bill. Dr. Willis and I were joined by a number of scholars from across New Zealand. We also presented our views to the Committee in person (we come in at ca. -1:04:07). Our submission recommended that the offence of “scandalizing the court” be abolished, but it also set out alternative provisions that could have ameliorated the worst abuses of the original bill, should the Committee have been inclined to preserve the offence. Of course, our submission was not the only one (though not all the submissions were directed at the issues that interested us).

The Committee delivered its unanimous report last week, and I am happy to say that the expanded offence and created in the original bill is now gone, as are, mostly, the novel enforcement mechanisms. The common law offence, as it now stands, remains, if I understand correctly. (Subclause 29(2) of the Bill provides that “[n]othing in [it] limits or affects any authority or power of a court … to punish any person for contempt of court in any circumstances to which [the Bill] does not apply”, which I think would encompass the contempt of “scandalizing the court”.) There is also a provision, a new Clause 25, allowing the High Court to order a person “to take down, or disable public access to” “a false statement about a Judge or court [such that] there is a real risk that the statement could undermine public confidence in the independence, integrity, impartiality, or authority of the judiciary or a court”. An interim order can be made on a showing of an “arguable case”, but a final order requires the government to prove the falsity of the statement concerned on a balance of probabilities.

This is not perfect. It would have been better for the offence of “scandalizing the court” to have been abolished altogether. And while, in this second-best of all possible second-best worlds, take-down orders for information which has actually been shown to be false (with the burden of proof, albeit the civil one, being on the government) are not the biggest freedom of expression concern there is, I’m also not a fan of the low threshold for the making of interim orders. Still, much worse has been averted.

As Andrew Geddis ― one of the scholars who have joined Dr. Willis’ and my submission ― has put it,

the system works as you would hope it does. A well intentioned, but overly punative, proposed legislative measure is identified and criticised by those with some expertise in the matter, with MPs having time to reflect and recommend changes in response.

The system has, indeed, worked remarkably well in this case, though when we say “the system”, we should also give credit to the individual members of the Justice Committee. We should also, however, recognize that this is a technical bill of a sort that neither triggers any strong partisan reactions nor makes for good political point-scoring. As Professor Geddis explains, the system isn’t working nearly well enough with the gun control legislation being currently rammed through the New Zealand Parliament; nor did it work especially well in the case of a recent bill to ban some offshore drilling, about which I have written elsewhere.

Professor Geddis also points out that, while the Justice Committee has recognized that it is wrong to punish people for expressing unpleasant opinions about the judiciary, or to make them apologize for it, the New Zealand House of Representatives still takes a different view where it is itself concerned:

 Basically, saying rude things about an MP (even true rude things about an MP) can be regarded as a contempt by the House and punished accordingly.

And what can the House do in response to some contempt? Well, it can censure the person responsible. It can fine them up to $1000. It can imprison them for a period up until the next election. And … it can require that they apologise to an MP and to the House itself for committing a contempt.

This power is still used from time to time ― and not just against MPs, but against members of the public too. So there is still some way to go before the evil of compelled apologies is banished from the land. But the Justice Committee has, at least, taken a stand against allowing it to fester.

And I would like to think that, in some small part, this is because I raised hell, and encouraged others to raise hell with me. And of course others still engaged in their own hell-raising activities with which I had nothing to do. Some people, it appears, are not fans of this blog’s rabble-rousing ways. That’s their right, of course. But if the rabble is of the right kind, it can help do great things. As Boris Vian told us, en protestant/quand il est encore temps/on peut finir/par obtenir/des ménagements ― by protesting while there is still time one could end up getting some concessions.

Reading from a Palimpsest

The Supreme Court of New Zealand holds that declarations of inconsistency are available when Parliament disregards the New Zealand Bill of Rights Act

I have previously written about the litigation concerning the power of New Zealand courts to make formal declarations to the effect that an Act of Parliament is inconsistent with the New Zealand Bill of Rights Act 1990. This litigation has now reached its conclusion with the New Zealand Supreme Court’s decision in Attorney-General v Taylor, [2018] NZSC 104. The Court holds, by a bare 3-2 majority, that this power does indeed exist. The decision is interesting for what the judges say, what they suggest, and what they do not say; at least from a theoretical perspective, it might be of some interest to Canadians, as well as New Zealanders.

The case concerns a 2010 statute that disenfranchised prisoners serving sentences of less than three years. (Longer-term prisoners were already disenfranchised by then, and the consistency of denying them the ability to vote with the Bill of Rights was not in issue.) The Attorney-General, having told Parliament that this statute was inconsistent with the Bill of Rights Act before its enactment, conceded the inconsistency, but denied the ability of the courts to issue a formal declaration to the effect that such an inconsistency existed. He had lost at both the High Court and the Court of Appeal.

There are three sets of reasons: what might be described as a quasi-majority opinion by Justice Ellen France, joined by Justice Glazebrook; a concurring opinion by Chief Justice Elias, who largely shares Justice Ellen France’s approach (hence my labelling the latter a quasi-majority); and a dissent by Justice O’Regan, joined by Justice William Young. (For the purposes of writing about New Zealand, I shall follow the local convention of mentioning the first name of a judge to distinguish her or him from a colleague—not necessarily from the same court—who shares that judge’s surname.)

Justice Ellen France starts from the well-established proposition that, even though the Bill of Rights Act contains no provision authorizing remedies for its breach (equivalent, say, to section 24 of the Canadian Charter of Rights and Freedoms), “in order for the Bill of Rights to be effective, the courts had to provide remedies for breaches”. [29] For Justice Ellen France, declarations of inconsistency are just an additional remedy that can serve this purpose. There would need to be “statutory language” to prevent the courts from granting this particular remedy; [41] in its absence, they can do so. Justice Ellen France points out that, by its own terms, the Bill of Rights Act applies to Parliament, and that while it explicitly prevents the courts from refusing to apply inconsistent legislation, the specificity of the provision doing so suggests that other remedies against inconsistent statutes are not categorically excluded.

Moreover, Justice Ellen France rejects the Crown’s submission that legislation inconsistent with the Bill of Rights Act effectively changes the contents of the rights the latter “affirms”, and thus cannot be regarded as inconsistent with it. Rather, “the Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard”. [46] Justice Ellen France also rejects the argument that a declaration should not be made since it is inconsistent with the judicial function and it will have no further consequences. A declaration “provides formal confirmation” of the “rights and status” of the person to whom it is granted, [53] of his or her legal position, even in the absence of any further relief. (On this point, Justice Ellen France refers to the Supreme Court of Canada’s recent decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.) In any case, a declaration provides vindication for the infringed right, and might be useful should the matter be revisited by an international instance or by Parliament itself.

That said, Justice Ellen France pointedly explains that, while “the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution”, she does not “undertake a similar exercise”. [66] The purpose of the declaration is to provide such vindication as can be provided consistently with the Bill of Rights Act to the person whose rights have been infringed—not to goad or guide Parliament. While the Court of Appeal had embraced the view that declarations were part of a constitutional dialogue between the legislative and the judicial branches of government, no judge of the Supreme Court so much as mentions the word “dialogue” in his or her reasons.

As noted above, Chief Justice Elias largely agrees with Justice Ellen France. In addition, she emphasises the courts’ inherent jurisdiction (recognized by statute) to “administer the law”, and their statutory power to declare what the law is even if they cannot grant any additional relief. The Chief Justice also stresses “the fundamental nature of the enacted rights (declared as such in the legislation)”, [102] and says that while Parliament is free to legislate in disregard of these rights, their scope can only be modified by an amendment to the Bill of Rights Act, not merely “by inconsistent action”. [103] Indeed, the declaration of inconsistency is address “to those whose rights are affected”, instead of “serving “to assist Parliament in its function, as the Court of Appeal suggested”, [107] a position with which Justice Ellen France expresses her agreement (n87).

The majority judges leave a number of significant issues unresolved—notably that of just when a declaration, which is a discretionary remedy, ought to be granted in response to an infringement of a right protected by the Bill of Rights Act. But they do not endorse the Court of Appeal’s suggestion that formal declarations should be a last resort. While they provide little guidance beyond that, this suggests that declarations may now become a relatively unexotic feature of New Zealand’s constitutional landscape.

Justice O’Regan is none too pleased. He accepts “that effective remedies should be available for breaches of the Bill of Rights Act”. [124] The question, though, is whether a standalone declaration of inconsistency can be such a remedy. It is one thing for a court to point out, in the course of deciding other issues, that a statute is inconsistent with the Bill of Rights Act — this has been done before; it is another to address the question of inconsistency if it is the only issue between the parties, and when nothing else follows an affirmative answer.

In such circumstances, Justice O’Regan says, there simply isn’t anything for the courts to do. Although the Bill of Rights Act provides that it applies to Parliament, it also prevents the courts from refusing to apply inconsistent legislation, and thus is not truly a

limitation on Parliament’s power to legislate. It is at least arguable that to the extent that there is a breach of the Bill of Rights resulting from the passing of inconsistent legislation, it is not of a character for which the courts are required to fashion a civil remedy. After all [the Bill of Rights Act] removes the only truly effective remedy from consideration. [133]

In any case, the bare declaration of inconsistency might not even count as a “remedy” at all, let alone an “effective” one. Justice O’Regan worries that such a declaration “may be simply ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary”. [134] He is also concerned about “the considerable expenditure in money and resources” [143] that might result from what he sees as pointless litigation about abstract questions of consistency with the Bill of Rights Act. And, after all,

We have had the Bill of Rights Act now for 28 years and a declaration has never been made. … It can hardly be said that this has undermined the objective of the Bill of Rights Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand. [144]

I don’t think that Justice O’Regan is right about this. He sees the matter in absolute terms: in the absence of declarations of inconsistency, the Bill of Rights Act has already provided some level of protection for rights and freedoms; at the same time, even if declarations are available, the level of protection will remain low, since “the only truly effective remedy”, which is to say invalidation of inconsistent legislation, is still off the table. The majority, by contrast, approach the matter in relative terms. For Justice Ellen France and the Chief Justice, what matters is that the availability of declarations will improve the protections provided by the Bill of Rights Act. Considering that essentially symbolic remedies exist elsewhere—for example, very low damages awards that are supposed to “vindicate” rights violated by the executive—the view that another such remedy constitutes a real reinforcement of rights-protection is, I think, more coherent with the big picture of public law.

The majority are also right to reject the Attorney-General’s arguments based on implied repeal of the Bill of Rights Act by inconsistent legislation. Although neither Justice Ellen France nor the Chief Justice raise this point, in my view the interpretive role of the Bill of Rights Act—section 6 of which provides that “[w]herever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”—strongly suggests that it must have a meaning independent both of prior and of subsequent legislation. (Of course, legislation that explicitly amends the Bill of Rights is possible, and only requires a simple majority in the House of Representatives to pass; but the parliamentary majority must, nevertheless, at least be willing to go to the trouble of enacting it).

Justice Ellen France’s palimpsest metaphor is apt. Legislation inconsistent with the Bill of Rights Act adds another layer to the pages of the statute book, but they do not fully erase the rights and freedoms inscribed underneath them. Depending on the purpose for which one reads the statute book, one must sometimes focus on the inconsistent statute (applying it notwithstanding the inconsistency) and sometimes on the Bill of Rights Act (when ascertaining and declaring the inconsistency), but both layers continue to exist.

Speaking of metaphors, I think that the majority do well not to follow the Court of Appeal’s embrace of the “constitutional dialogue” theory. In an article published in the New Zealand Universities Law Review, I argued that, despite its superficial attractiveness as a means to address a “majoritarian malaise”—the worry about a  sovereign Parliament’s ability to define or deny the rights of minorities—, this theory is not well-suited to the constitutional context of New Zealand (or any polity that adheres to Parliamentary sovereignty. It makes little sense to speak of dialogue when one of the supposed interlocutors is free to simply ignore what the other has to say, as a sovereign Parliament is free to ignore the courts’ pronouncements about rights.

I concluded that article by writing that

New Zealand’s constitution is one that makes Parliament supreme, and the courts cannot mitigate this fact. They can only point out the abuses of this supremacy that sometimes occur, and they will do so more clearly and with more force if they do not pretend that what they are faced with is a provisional, revisable opinion stated as part of a conversation among equals rather than an abuse of power.  (917)

This is what the Supreme Court has done. So much the better.

Scandalizing!

Read Edward Willis’ and my submission on legislation that would censor criticism of the judiciary

A few weeks ago, I wrote about a bill, currently before the New Zealand Parliament, which would codify ― and expand ― the law of contempt of court, in particular as it relates to criticism of the judiciary. (At common law, this is known as the offence of “scandalizinig the court”.) I argued that the offence the bill would create is overbroad, that the defences to it are insufficient, and that the bill, if enacted, would unjustifiably violate the freedom of expression, the freedom of conscience, and the presumption of innocence.

Well, for once, I thought that just ranting on my blog was not enough, so Edward Willis and I started to work on a submission to the Justice Select Committee, which will be studying the bill. We have been joined by my boss, Charles Rickett, my colleagues Warren Brookbanks and Vernon Rive, as well as Andrew Geddis and Eddie Clark, in arguing that, if the provisions related to criticism of the judiciary are not removed from the bill entirely, they need at least to be amended to be more compliant with fundamental constitutional principles and rights. In particular, we propose making the falsity of any statement punishable as contempt an element of the offence, to be proven beyond a reasonable doubt by the prosecution, rather than a defence to be proven the accused; introducing a defence of honest opinion; and removing the ability of the Solicitor General to request, or of the High Court to order, that a person correct, retract, or apologize for a statement that has not been proven to constitute contempt of court; indeed we are proposing getting rid of forced corrections and apologies entirely.

You can read our submission here. Working on it with Dr Willis has been great fun, and I’m very grateful to our co-signatories for their help and support.

The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill  ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ―  and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ);  R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now  come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor …  resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.

The NZBORA and the Noble Dream

Introducing my new paper on the whether the idea of dialogue about rights between courts and Parliament makes sense in New Zealand

Last year, I posted here about a decision of the New Zealand Court of Appeal, Attorney-General v Taylor, [2017] NZCA 215, which held that when a court found a statutory provision inconsistent with the New Zealand Bill of Rights Act 1990, it had the power to make a formal declaration to this effect, in some circumstances anyway. As I noted in that post, the Court of Appeal invoked the idea of constitutional dialogue between courts and Parliament to support its view that courts had an inherent power to make such formal declarations, despite the absence of an explicit authorization in the Bill of Rights Act. I noted, too, that I was skeptical about the usefulness of that idea in New Zealand.

I developed these initial thoughts into an article which the New Zealand Universities Law Review published over the holidays under the title “Constitutional Dialogue: The New Zealand Bill of Rights Act and the Noble Dream“. Here is the abstract:

In its recent decision affirming the courts’ power to issue “declarations of inconsistency” between legislation and the New Zealand Bill of Rights Act 1990, the Court of Appeal embraces the notion of a “constitutional dialogue” between the judiciary and Parliament regarding issues of rights. It suggests that, since both branches of government are engaged in a collaborative process of giving effect to the Bill of Rights Act’s provisions, Parliament can be expected to take the courts’ views on such matters into serious consideration.

This article questions the suitability of the notion of constitutional dialogue to New Zealand’s constitutional arrangements. The idea of dialogue, largely developed as a means to alleviate concerns about the “counter-majoritarian difficulty” that arises in jurisdictions with strong-form judicial review of legislation, cannot be usefully adopted to a system of very weak judicial review, such as the one put in place by the Bill of Rights Act. Dialogue may seem to be an attractive way of addressing what might be termed the “majoritarian malaise” caused by a sovereign Parliament’s sometimes cavalier approach to the rights of individuals and minorities. Yet meaningful dialogue cannot take place if one of the parties is entitled to ignore the other, which has no resources to impress its views upon an unwilling potential interlocutor.

As others have argued in the context of constitutional systems with strong-form judicial review, there is no need to attribute the positive connotations of the dialogue metaphor to a set of institutional interactions that is, in truth, very far from being a conversation, because the participants may neither understand nor be interested in understanding each other. Indeed, there is a danger that the embrace of the notion of dialogue will serve to obscure the reality that, the Bill of Rights Act notwithstanding, New Zealand’s constitutional framework remains one of essentially untrammelled parliamentary sovereignty, which can be, and sometimes is, abused.

Of course, a meditation on New Zealand’s peculiar form of weak judicial review may be of limited interest to most Canadian readers. If it is interest to you, however, I’d be happy to hear what you make of it. And at least my call for transparency about constitutional power dynamics is, I think, relevant beyond the shores on which I now find myself.