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Recourse to Independent Courts Most Valued Right


Howard’s End by Maree Howard

The most valuable human right in New Zealand access to the independent courts

Access to the independent courts is one of the most valued and valuable human rights in New Zealand. But this was ousted earlier this week when the Government signed-off on a new code of ACC claimants rights which denies people access to the courts over ACC decisions under the code and leaves them to the winds of chance of a wholly-owned company owned by ACC itself. Maree Howard writes.

For hundreds of years access to the independent courts has been one of the essential pillars of a credible democracy. It is the foundation of the fundamental element of basic human rights - the right to place the decision of a Government, or its its organisations, under proper independent scrutiny.

If the ramparts of justice are manned by anyone, they are manned by lawyers and judges. Those ramparts in New Zealand have fallen almost without a struggle.

Earlier this year our so-called democratic Parliament passed new ACC legislation which provided for a Code Claimants Rights and most people applauded.

But the devil, as always, is in the detail.

Who would ever have contemplated that Parliament would have passed legislation where an ACC decision made under this code could never be scrutinised by an independent judge in our courts.

Rather, the decision is to be left to the scrutiny of a reviewer appointed by a wholly-owned company of ACC, whose Chairman was reported in the Sunday Star-Times just last week saying that the review process is not as neutral as it could be.

The company is Dispute Resolution Services Limited where, it was also reported in the Star-Times, at least 50% - 60% of reviewers are ex-ACC people.

Reviews have already been described as a sham with conflicts of interest and bias. Lawyers describe it as a lottery and, it now seems, simply don't think it worthwhile or cost-effective to continue turning up.

So what chance is there for people who are now unable to have ACC decisions made under the new code examined by a court?

What on earth were our politicians thinking when they passed this totalitarian and oppressive piece of legislation? - a piece of legislation, in my view, which can never belong in any country which deems to call itself a democracy.

It was very easy, in fact - the safeguards didn't work - with the result that the politicians blindly and un-thinkingly passed the legislation.

When the New Zealand Bill of Rights Act was passed in 1990 there was a decision by the Parliament of the day not to enact it as supreme law - by the way, we don't have a written constitution which protects people and guarantee's human rights either.

So, in the Bill of Rights Act there was provision put in for the Attorney-General to give notice to the Parliament when proposed legislation was likely to infringe the Bill of Rights. That was what is called a section 7 notification.

The Court of Appeal has held that this provision means that Parliament must know what is occurring and give proper consideration to proposed legislation in that light.

Did that happen with this particular section of the new ACC legislation which denies people access to the independent courts? - Nah!

The politicians, therefore, have not proceeded according to mandatory law governing the procedure for enacting new legislation. The courts, I believe, will be most upset - more particularly, when they find out that they've been side-lined, or ousted.

This sounds exactly like Zimbabwe where their judges firstly had their jurisidiction removed, and finally, they themselves were removed and replaced with the more compliant.

Most people probably couldn't care less about injured ACC claimants but, in doing so, they forget the old saying - "there but for the grace of God go I.'

OK, that might be your view. But you sure as hell should be deeply concerned about what our politicians are up to.

As they say, God Defend New Zealanders - because it sure seems our politicians won't.


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