February 1, 2020

Kiwi party progress update

Kiwi party progress update

Kiwi Party v Attorney General

constitutionality of the amendments to the Arms Act case

High Court

The one cause of action which was not struck out maintained that Order in Council 2019/55 was unlawful. The argument was that it should not have incorporated pistols when the provision of the Arms Act which empowers OIC’s specifically excluded them. Submissions were heard by Katz J on 2 December 2019. No decision has been given yet.

Court of Appeal

The Kiwi Party filed of a notice of appeal, appealing against the strike out of all but one of the causes of action alleged in statement of claim. The Attorney – General cross-appealed against the remaining cause of action, the Order in Council point but then abandoned the cross-appeal.

A waiver of fees was sought but refused by the registrar. A review of the registrar’s decision was sought but the decision was upheld by Miller J. Miller J upheld the refusal to waive fees on the basis that this was a political case. Application (view attachment) and refusal (view attachment). However, in the UK Prorogation case their Supreme Court held that constitutional cases are often political and that having political issues were not a bar to consideration by the Court, as follows:

  1. Secondly, although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.

day hearing before a five-member panel of the Court of Appeal was sought, on the basis that fundamental constitutional issues were in play. Cooper J directed that the case be heard over ½ a day by the Divisional Court in Auckland. This Court comprises of two High Court Judges and one Court of Appeal Judge. Its primary work is considering criminal appeals and it is colloquially known as the ‘B Team”. Direction by Cooper J (view attachment).

An application was made to file more extensive submissions that the 25 permitted (view attachment). There was no reply from the Court of Appeal. The requisite 25 page submission has been filed (view attachment).

The hearing is set down for 3 March 2020 for ½ a day.

Supreme Court

The importance of the issues in this case were always seen as ones that could only be determined by the Supreme Court but the appeal was made to the Court of Appeal as generally it is preferable that issues get refined as cases go up the Court hierarchy.

Because a hearing by the 5 mender court was refused then this refining process was unlikely to have occurred. An application for leave to appeal to the Supreme Court, leap-frogging the Court of Appeal was filed (view attachment). After consideration this application was accepted for filing, although the fee waiver application was denied. The crown has filed submissions in opposition to this application (view attachment). The application will now go before a panel of Supreme Court judges, who will determine if leave is to be given.

Kiwi Party v Censor

In the first instance the Kiwi Party sought the review of the Censor’s decision by the Review Board. This was necessary as any judicial review of the Censor’s decision could have been challenged on the basis that judicial review is only available if other options are exhausted.
Predictably the Review Board upheld the Censor’s decision. However, because of lack of funds we have not been in a position to seek judicial review.

List of attachments referenced in this article