April 16, 2020

Kiwiparty progress update for April 2020

This is a request for funding for the Kiwi Party’s case challenging the constitutionality of the recent amendments to the Arms Act. The funding is only for fees and costs as counsel is acting pro bono. There are two possible steps left in this litigation.

Kiwiparty progress update for April 2020

Kiwi Party v Attorney General

constitutionality of the amendments to the Arms Act case

Introduction

This is a request for funding for the Kiwi Party’s case challenging the constitutionality of the recent amendments to the Arms Act. The funding is only for fees and costs as counsel is acting pro bono. There are two possible steps left in this litigation. First an application for leave to appeal to the Supreme Court and second, if the leave application is granted, for an appeal to the Supreme Court. The fees for the former will be $1100 with costs of $2500. The latter is a bit more difficult to calculate as it depends on the time allocation. It would probably be ½ a day in which case fees would be about $2500 and costs would likely be in the region of $6k.

Background

The case was heard by Collins, Simon France and Lang JJ in the Court of Appeal ‘CA’ which give its decision on 24 March 2020.  The CA upheld the strike out by the High Court, essentially on the basis that there is no constitutional right to bear arms in NZ and because the conduct of the Select Committee cannot be questioned by the Court. An application for leave to appeal must be filed in 20 working days from this date, i.e 21 April 2020.

The only recourse left is to seek leave to appeal to the Supreme Court. Because the decision of the Court of Appeal was entirely predictable, the Kiwi Party attempted to leap-frog the CA and made an application directly to the Supreme Court. This application was denied by Winkelmann CJ, Glazebrook and O’Regan JJ. Following the Court of Appeal’s decision it is open to the Kiwi Party to again seek leave but it is my opinion that the same result could well be expected. Even if leave is allowed I do not think any appeal to the Supreme Court would be successful.

Why this appeal is important

One may well ask why further litigation should be funded when the chances of success are virtually nil.

The only reason for this litigation to run its course is to demonstrate that the NZ Court has failed in its core function, to uphold the NZ Constitution and to limit the power of the Crown.

If this litigation does that and thereby provides impetus for the adoption of a written constitution, then it will have been successful.

It is also important that there be resistance to the denial of fundamental rights. To lose is one thing, to give up without a fight is abject surrender.

The reasoning behind the Kiwi Party case is set out in the many submissions made to the Court and can be found on the Kiwi Party site. The submissions to the Court of Appeal  are at https://www.kiwiparty.co.nz/assets/docs/2020-02-01-kiwiparty-synopsis-of-submissions-27-01-2020.pdf. The most detailed are the first submissions to the High Court, which were rejected as they were over the permissible length. They are here: https://www.kiwiparty.co.nz/assets/docs/kiwiparty-declaratory-judgement-submission.pdf

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