KEY POINTS:
Whether groups seeking to have the Electoral Finance Act declared in breach of the Bill of Rights will have their day in court or not is now in the hands of a High Court judge.
Aucklander John Boscawen - a fierce opponent of the Electoral Finance legislation - along with ACT MP Rodney Hide, Sensible Sentencing Trust spokesman Garth McVicar and Grey Power president Graham Stairmand, want to take a case to court, seeking a declaration that Attorney General Michael Cullen should have told Parliament that the law breached the Bill of Rights.
In the High Court at Wellington yesterday, Dr Cullen sought to have the case struck out. Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.
The legal arguments took all day and traversed time and space - judgments from three centuries, spanning four continents, were cited by lawyers from both sides. Justice Denis Clifford reserved his decision, a judgment which will instigate an intense constitutional debate on the roles of Parliament and the courts if he permits the case to proceed.
Nikki Pender, for Boscawen and the other complainants, said the Electoral Finance Act contained myriad provisions which breached the Bill of Rights, and that the Attorney General should have warned Parliament of that - as section seven of the Bill of Rights obliged him to do.
"This reporting function is one of the fundamental starting blocks of the parliamentary decision-making process," Ms Pender said.
However, Mr Pike said Ms Pender's argument sought to set the court up as a second chamber of Parliament, which was not its function. Once the bill was before the House it was subject to parliamentary privilege, meaning the court should not inquire into it at all. "Interference with the privileges of the House is a contempt and may be treated as such by the House," he said.
The argument that the Attorney General's actions were reviewable because he was exercising a statutory power was misconceived and at odds with judicial authority, Mr Pike said. Nor was his power to report enforceable by outside request.
"The Bill of Rights is not supreme law. That is made clear in section four, which expressly prevents the court from striking down any provision of an enactment by reason of its inconsistency with any provision of the Bill of Rights," Mr Pike said.
However, Ms Pender said there was no principled reason for allowing parliamentary privilege to shield the Attorney General from review.
"Under the rule of law, the Attorney must carry out public duties in accordance with the law, just like other members of the executive, and it is the court's function to hold the executive branch accountable," Ms Pender said.
Declaring the act breached the Bill of Rights would not breach the boundaries between Parliament and the courts, but would rather be a neighbourly "chat over the fence" - something which was acceptable, particularly in human rights cases, she said.
BILL ISSUES
* Section Seven of the Bill of Rights says the Attorney General shall bring to the attention of the House of Representatives any provision of a bill that appears to be inconsistent with the Bill of Rights.
* Section Four of the Bill of Rights says no court shall hold any provision of any enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective, by reason only that the provision is inconsistent with any provision of the Bill of Rights.
