The body highlighted what it said was a disturbing trend in relation to retrospective legislation
The New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture (NZBA) has challenged the government’s plan to introduce legislation stopping courts from ruling on climate change damage-related claims.
Per justice minister Paul Goldsmith, the pitch to modify Climate Change Response Act 2002 would prevent courts from finding liability for tort for climate change damage or harm arising from greenhouse gas emissions in present and future proceedings. He indicated that the amendment would further clarify the obligations of businesses as they pertain to climate change.
He added that it would hinder the development of a regime counter to parliament’s framework for greenhouse gas emission management.
“The courts are not the right place to resolve claims of harm from climate change, and tort law is not well-suited to respond to a problem like climate change which involves a range of complex environmental, economic and social factors”, Goldsmith said in a government press release.
However, NZBA president Paul David KC argued in a statement that the use of retrospective legislation to take away current rights or claims would result in more significant uncertainty and unpredictability for citizens. The body had flagged parliament’s use of legislative power with retrospective effect on current rights and claims with the government in the past year, he said.
The bar association called on the government to rethink the plan by considering the long-term impact of enacting retrospective laws.
“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”, David said. “It is an important part of our system that the laws made by parliament are forward-looking with retrospective legislation reserved only for exceptional circumstances”.
David explained that this law-making principle provided “for certainty for everyone to order their affairs and act on existing law”.
“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”, David said.
The NZBA urged parliament to let the courts do their job.
“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; and for legislative power to be exercised on established principles, with retrospective legislation reserved for exceptional circumstances that may justify it after appropriate consideration and debate”, David said.
