Source: New Zealand Government
Tēnā koutou Nau mai haere mai ki tenei hui
Thank you to Vice Chancellor Williams, and the University of Western Sydney, for inviting me to speak today.
I speak to you today in my capacity as Attorney-General – the New Zealand Crown’s Senior Law Officer. In this capacity, I serve as the government’s principal legal adviser.
In New Zealand, the Attorney-General is also an elected Member of Parliament and may hold other Ministerial portfolios – I am the Member of Parliament for the Papakura electorate and Minister for Defence, Digitising Government, NZ’s two security agencies, Science Innovation and Technology and Minister for Space.
I am grateful for the opportunity to discuss a very pertinent topic – constitutional and rule of law challenges in today’s uncertain global environment.
It is irrefutable that we have found ourselves in increasingly challenging times on a global scale.
From a marked increase in conflict around the world, to responding to the impacts of COVID-19 and the development of new technologies – we are traversing unchartered territories in many different respects.
This uncertain global environment, in turn, presents new challenges to the rule of law. Yet at the same time, it illustrates how adherence to the rule of law is needed.
Today, I will offer some reflections on the rule of law. I will then turn to some areas that I consider present increasing challenges to the rule of law in our current uncertain global environment.
The rule of law
As we know, the rule of law is a foundational doctrine underpinning the law and order of any civilised society.
Upholding the rule of law is a fundamental prerequisite for the transparency and functions of government.
It ensures that government authority is exercised in accordance with written, publicly disclosed laws and in accordance with established procedure.
The rule of law further ensures that minimum standards of justice are upheld and provides safeguards against the arbitrary exercise of power.
The rule of law and the Attorney-General
In undertaking my duties as Attorney-General, the rule of law is something that is always at the front of mind.
As set out in the Cabinet Manual, the Attorney-General has “particular responsibility for maintaining the rule of law.”
There are several constitutional functions that I exercise in my role as Attorney-General that serve as safeguards and ensure that the government acts in accordance with the rule of law.
For example, this includes vetting new legislation for consistency with the New Zealand Bill of Rights Act.
If I consider a Bill to be inconsistent with a right under the Bill of Rights Act, section 7 of the Act requires me to bring this to the attention of the House of Representatives so that Parliament can properly consider the Bill.
In New Zealand, Parliament may still pass a Bill that has been identified as being inconsistent with the Bill of Rights Act. This is an example of a role conferred upon the Attorney-General within the legislative process, that ensures law-making powers of the legislature are exercised in accordance with the rule of law.
The Treaty of Waitangi/te Tiriti o Waitangi – a political agreement made in 1840 between the Crown and Māori chiefs and tribes – is an integral part of New Zealand’s constitutional framework.
It is regarded as a founding document of government in New Zealand and establishes a consensual basis for the relationship between Crown and Māori.
Ultimately, the Attorney-General, as the New Zealand Crown’s Senior Law Officer, has an important constitutional role in upholding the rule of law through representing the public interest on behalf of the general community within New Zealand.
This entails enforcing the law as “an end in itself.” To achieve this, the Attorney-General is able to intervene in Court proceedings that have wider public interest implications.
In this respect, it is important to note that the Attorney-General must act independently of political interests, or the interests of the government of the day.
As Attorney-General, I ultimately serve as a guardian of the public interest. This provides a fundamental safeguard upon the exercise of government power, to ensure the rule of law will prevail without the interference of politics or other considerations.
Freedom of speech in troubling times
I’d like to talk in particular about the importance of the right to freedom of expression.
Striking the correct balance between upholding the right to freedom of expression and other protected rights can present a challenge.
However, getting the balance right is fundamental to ensuring that the rule of law is upheld.
Freedom of expression is recognised as one of the most fundamental rights within the New Zealand Bill of Rights Act.
This view is of course not unique to the New Zealand context. The right to freedom of expression as set out by section 14 of our Bill of Rights Act is based upon Article 19 of the International Covenant on Civil and Political Rights and has long been an important value of the common law.
One of the most influential rationales underpinning the right to freedom of expression is the marketplace of ideas.
The metaphor sets out that permitting all opinions to exist within the marketplace of ideas, regardless of how offensive they may be, allows people to subject the bad ideas to criticism – and as a result, the best arguments will prevail.
It is also, of course, irrefutable that upholding the right to freedom of expression is a prerequisite for the existence of a functional democracy.
An effective functioning democracy requires debate and discussion, alongside the ability for all people to be able to express their views.
Undue restrictions on the right to freedom of expression would constrain the function of our democracy, which requires active participation and engagement from all people.
Limits to the right to freedom of expression
Given the scope of the right to freedom of expression is so wide, it is frequently subject to limitations that are reasonably justifiable in a free and democratic society.
This includes where it is necessary to uphold the rule of law, or to protect other rights.
Given the importance that is afforded to the right to freedom of expression in a functional democratic society, any decision to limit this right is not one to be taken lightly.
Hate speech
The criminalisation of speech is one of the most serious limitations on the right to freedom of expression that can be contemplated.
There are situations where this may be justified, such as where speech serves to incite violence.
However, criminalisation should not extend to speech that is merely insulting or offensive.
It is important to condemn speech that is purposefully designed to insult or offend, but this is quite distinct from criminalising it.
To do so could have a chilling effect on democratic participation, leaving people reluctant to express their opinions or views for fear of prosecution.
Criminalising speech that forms part of public discourse carries a risk of undermining the function of democracy.
In the words of Lord Justice Sedley, free speech allows for “not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.”
It is, therefore, fundamental to a functioning democracy that all people are able to freely express their views. While words matter, the fact that someone possesses an unpopular view, or an opinion that may cause offense to another individual, does not serve as a basis for limiting the right to freedom of expression.
It is undisputable that certain forms of speech are unacceptable – but what level of harm does the speech need to meet for criminal prosecution to be appropriate?
We can, and should, take steps as a society to clearly condemn speech that is offensive or insulting, without always needing to resort to measures that create a chilling effect on freedom of expression.
Conclusion
The rule of law retains as much importance today as it did in the 19th century, when the term was first coined. Some may argue it is now more important than ever, when it comes to the unprecedented challenges we are facing today.
We are seeing new challenges to the rule of law, in ways that would never have previously been contemplated. As we continue to respond and adapt to these challenges, it is clear that our responses must be rooted in adherence to the rule of law.
I wish to reiterate my gratitude to the University of Western Sydney, and to Vice Chancellor Williams, for having me here today. I look forward to the discussion to come.
