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Legal Aid Review Panel Decision No 308/09 [2009] NZLARP 194 (9 December 2009)

Last Updated: 20 September 2015

LARP NO. 308/09

Summary:

Part refusal of application for aid

The applicant is serving a sentence of preventive detention. He claims that he was to be considered for parole at 7 and a half years, not 10 years, but although he has been in prison for 9 years he has not yet been considered. In May 2009 the applicant applied for civil legal aid for proceedings for judicial review of the failure to consider him for parole, and various declarations and compensation under the NZ Bill of Rights Act and international law arising out of that failure. He also sought declarations of inconsistency and unconstitutionality relating to the possible impact of the Prisoners and Victims Claims Act ("PVCA") on his claim for compensation. The Agency accepted the application and granted aid only for an order in the nature of mandamus requiring the Parole Board to consider parole. The Agency refused aid for the other proceedings under sections 9(4)(d)(i) and (ii). The Agency's view was that it doubted that there had been arbitrary detention; legal aid was to protect an applicant's personal rights, not to fund international law or human rights arguments which would not benefit the applicant personally; any compensation for breach of the ICCPR and BORA would be subject to a claim under the PVCA; a NZ court would not issue a declaration of inconsistency to the effect that the PVCA was in breach of the ICCPR, BORA or the Convention on Torture, nor would it rule that the PVCA was in breach of the common law. To the Panel the applicant submitted that the Agency was bound by human rights law and there was no reason why it could not fund a claim based on international law or human rights; a person must first exhaust domestic remedies before he can seek an international remedy; the prisoner could still receive compensation in spite of the PVCA; and declarations were important in human rights cases. The Agency submitted that when considering legal aid applications it was bound by the Legal Services Act even if it was inconsistent with BORA; it doubts that a court would make a formal declaration of inconsistency between the PVCA and BORA and funding could not be justified because it was too far removed from the client's interests; the alleged breach by the Crown of s25(3) of the Parole Act was sufficient to vindicate the applicant's rights; there was no realistic possibility of compensation being awarded; the case is about the applicant's parole application and all the other courses of action were academic.

The Panel noted that there were 4 different sets of remedies sought by the applicant: "The mandamus application" requiring the Parole Board to consider him for parole; Compensation for denying that right under the ICCPR and BORA - "the compensation claim"; As any claim for compensation was subject to the PVCA, a declaration of inconsistency between ICCPR, the Convention on Torture and BORA - "application for declarations of inconsistency"; On the basis that any restriction of his right to compensation was a breach of his fundamental rights - "application for declaration of unconstitutionality". Mandamus Application: Aid was granted for this application, but the Panel noted that the declaration sought in relation to arbitrary detention under the ICCPR appeared to have a dubious foundation. Compensation Claim: The Agency had accepted that the allegations about the unlawfulness of the failure to consider the applicant for parole had sufficient merit because it granted aid for the mandamus application. It therefore seemed illogical to the Panel that if the failure was unlawful, the Agency should consider that it could not lead to an award of public law compensation under the BORA. The Agency had doubted that the failure to consider the applicant for parole amounted to arbitrary detention and had also not decided (due to its conclusion as to the impact of the PVCA) whether the failure to consider the applicant for parole gave some residual right to seek compensation based on loss of chance principles. The Panel considered that the Agency should have considered the question of compensation properly and the failure to do so amounted to an error of law. Although the Agency accepted that the claim was subject to the PVCA it did not properly evaluate the effect of the PVCA on the applicant's prospects of success and likely personal benefit from the claim. The Panel set out the relevant features of the PVCA and noted that it did not mean that a prisoner would never actually receive any compensation he had been awarded. However the Panel agreed with the Agency's assessment that there was no realistic basis for seeking damages in a domestic court for breaches of an international treaty. The treaty would first have to be incorporated into domestic law. Declaration of Inconsistency The Agency refused aid for these applications due to its assessment that the prospects of success were low and its view that there was insufficient value to the applicant in the relief sought. The Panel considered that the Agency's approach to the evaluation of the prospects of success was conclusory and there was no evidence of any analysis or reasoning. However, there were some obiter judicial statements and scholarly comment which suggested that a declaration of inconsistency with BORA might be available. There were also authorities against that, making the jurisprudence equivocal, but the Agency did not seem to have analysed it at all. In Timmins v LARP [2004] 1 NZLR 708 it was stated that a successful outcome was not restricted to financial success but could include vindicating an important point of principle. A declaration of inconsistency may be valuable to the applicant in facilitating his complaints in the international legal system about the PVCA regime. The Agency had concentrated on the need for the applicant to maintain a personal interest in the outcome of the proceedings, and not considered the wider issues. Declaration of Unconstitutionality The Panel agreed with the Agency's assessment that a court would not issue a declaration that the PVCA was in breach of the common law. For the reasons set out above and instead of determining the review the Panel directed the Agency to reconsider its decision taking into account whether there was a reasonable prospect that the applicant may obtain a declaration and/or compensation under BORA; whether he might be awarded compensation and whether he would actually receive any; whether he could obtain a declaration of inconsistency with BORA and whether that was a sufficient interest to justify a grant of aid.


THE PANEL'S DECISION

The Outcome

The Panel directs the Agency to reconsider its decision.

Index Paragraph No.

Introduction [1]
Grounds of the Application [2 - 3]
The Facts [4 - 9]
The Applicant's Submissions [10]
The Agency's Submissions [11]
The Issue [12]
The Law [13 - 15]
Discussion [16 - 52]
Decision [53 - 54]

Introduction

[1] An applicant for legal aid (the "Applicant") has applied for a review of the decision of the Legal Services Agency (the "Agency") dated 2 June 2009. By that decision the Agency declined in part an application for legal aid.

Grounds of the Application

[2] A decision may be reviewed on the grounds that it is either manifestly unreasonable or wrong in law.

[3] The Applicant submits the Agency's decision was both manifestly unreasonable and wrong in law.

The Facts

[4] The Applicant is an inmate of the Wanganui Prison who is serving a sentence of preventive detention. The Applicant contends that he was to be considered for parole at 7½ years, not at 10 years - a point clarified in a decision of the United Nations Human Rights Committee. Nine years have passed and the prisoner has not been considered for parole.

[5] On 6 May 2009, the Applicant applied for civil legal aid for proceedings seeking judicial review of an alleged failure to consider him for parole, along with various declarations and compensation under the New Zealand Bill of Rights Act 1990 (the "Bill of Rights Act") and international law arising out of that failure. The proceedings also sought declarations of inconsistency and unconstitutionality relating to possible impact of the Prisoners and Victims Claims Act 2005 (the "PVCA") on his claim for compensation.

[6] After consideration by a specialist advisory panel, on 2 June 2009 the Agency granted the application in part. It accepted the Applicant had "an arguable case for an order in the nature of the mandamus requiring the Parole Board to consider parole forthwith" and granted 15 hours for the preparation and filing of proceedings seeking that relief.

[7] The Agency declined the balance of the application for "various claims for declarations and compensation" under section 9(4)(d)(i) and (ii) of the Legal Services Act 2000 (the Act"). The Agency said the Applicant's prospects of success "are not sufficient to justify a grant of aid" and "having regard to the nature of those proceedings and the applicant's interest in them, financial or otherwise, aid is not justified". In particular:

(a) It doubted whether there had been arbitrary detention.
(b) It did not see any "practical utility for the applicant" in arguing the various claims for declarations or compensation.
(c) It took the view that "the intent of the Legal Services Act is to provide legal aid to protect and vindicate the applicant's personal rights, not to fund [international] law or broad human rights arguments of no practical benefit to the applicant".
(d) It said any compensation for breach of the International Convention of Civil and Political Rights and Bill of Rights Act would be subject to a claim under the PVCA and "[t]hus the applicant would gain no personal benefit from such a claim".
(e) It said there was "no realistic possibility" that a courts would issue declaration of inconsistency to the effect that the PVCA is in breach of International Covenant on Civil and Political Rights, the Convention against Torture and the Bill of Rights Act and, in any event, took the view that such a declaration "would be of no practical benefit to the applicant".
(f) It said it "was not aware of any valid basis for a court awarding 'international compensation" that was not restricted by the PVCA.
(g) Finally, it saw "no likelihood that a New Zealand Court would rule that the PVCA is in breach of the common law", noting that there is no authority for such a proposition and "[s]tatutory law passed by Parliament is not subject to common law".

[8] The Applicant responded on 23 June 2009 seeking review.

[9] On 6 July 2009 the Panel received the application to review the Agency's decision of the 2 June 2009 to decline legal aid in part.

The Applicant's Submissions

[10] The Applicant submits:

(a) The case is complex.
(b) The Agency fails to understand international and human rights law. It is simply wrong for the Agency to say "the intent of the Legal Services Act is to provide legal aid to protect and vindicate the Applicant's personal rights, not to fund [international] law or broad human rights arguments of no practical benefit to the Applicant".
(c) The Agency is bound by human rights law, including the Bill of Rights Act. There is no provision in the Act that provides the Agency does not fund claims based on international law or human rights.
(d) The prisoner client cannot seek international remedies unless he has first exhausted domestic remedies.
(e) The Agency is wrong in its conclusion that any compensation would be awarded to a prior victim. It would be possible for the prisoner to have a "direct pecuniary intent".
(f) The PVCA does not prohibit a claim of compensation at international law.
(g) The Agency's stated objection that "no New Zealand Court would rule that the PVCA is in breach of common law" indicates the Agency fails to understand that the argument is that, "the PVCA is in breach of customary International Law, which forms part of the common law".
(h) In this regard, the Applicant states that it is like having to run the case before the Agency as if it were the Court hearing the case.
(i) The Applicant says the Agency is wrong in law in its reasoning to conclude that a declaration of inconsistency is not a realistic possibility and of no practical benefit to the prisoner.
(j) The Agency fails to understand that declarations are important, especially in human rights cases.

The Agency's Submissions

[11] The Agency submits:

(a) The Agency does not accept the decision was wrong in law, or manifestly unreasonable.
(b) The Agency noted that it is governed by the Act when considering legal aid applications. Section 4 of the Bill of Rights Act confirms that the Act applies even if it is inconsistent with the Bill of Rights Act, although an interpretation consistent is to be preferred under section 6.
(c) The Agency applied the test in section 9(4)(d)(i) and (ii) of the Act and adopted a reasoned and consistent approach was made when considering likely outcomes and practical consequences.
(d) Considerable uncertainty exists whether the courts will make a formal declaration of inconsistency.
(e) Because the declaration sought is too far removed from the essential subject matter of the proceedings and the client's interests, funding cannot be justified.
(f) There is no apparent link between the client's interest, ie being considered for parole, and whether the PVCA is inconsistent with the Bill of Rights Act.
(g) The Agency takes the view that a consideration of the alleged breach by the Crown of section 25(3) of the Parole Act 2002 is sufficient to vindicate the Applicant's rights. The considerable additional funding to establish whether the delay in dealing with the Applicant's parole was a breach of Bill of Rights Act is not warranted.
(h) The Agency submits that the proceedings in respect of which they have approved legal aid would be sufficient to test the lawfulness of the Crown's conduct and thus obtain a meaningful remedy for the client.
(i) There is no realistic possibility of compensation being awarded. The case is about when the Applicant is entitled to have his parole application considered. Any parole application will be determined by the Board, not the Court.
(j) The Agency submits that other courses of action are all academic as far as the applicant is concerned and the expense in pursuing them is not justified.

The Issue

[12] The issue before the Panel is whether the Agency's decision to deny a part of the claim was either manifestly unreasonable or wrong in law, or both.

The Law

[13] A decision is "manifestly unreasonable" if it is shown "clearly and unmistakably" that the Agency's decision "went beyond what was reasonable or was irrational or logically flawed" (Legal Services Agency v Fainu [2002] 17 PRNZ 433).

[14] A decision may be wrong in law for a variety of reasons. It may be wrong in law, for example, if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle. It may be wrong in law if a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter, or if the decision depends on findings which are unsupported by the evidence (Legal Services Agency v Fainu (above)).

[15] In Legal Services Agency v A and O [2003] 17 PRNZ 443 John Hansen J said at paragraph 11 that manifestly unreasonable meant "something different from what is "wrong in law"", and would be made out "where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed". His Honour also said that "manifestly unreasonable" required "not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for". His Honour added that "the determination of what is "manifestly unreasonable" is to be made objectively by the members of LARP applying their judgment to the matter in accordance with the principles stated" and that it was "not for LARP to substitute its view of what the decision should have been for that of the Agency".


Discussion

[16] In the proceedings for which legal aid is sought, the Applicant effectively seeks four different, but related, sets of remedies:

(a) First, by way of judicial review, the Applicant seeks an order in the nature of mandamus requiring the Parole Board to consider him for parole, along with associated declarations ("the mandamus application").
(b) Secondly, assuming the Applicant has been unlawfully denied that right and on the consequential basis that he has therefore been arbitrarily detained, he seeks compensation under the International Covenant on Civil and Political Rights and the Bill of Rights Act for any arbitrary detention ("the compensation claim").
(c) Thirdly, as any claim for compensation is subject to the PVCA, the Applicant seeks a declaration of inconsistency about the effect of the PVCA on his compensation claim ("application for declarations of inconsistency"). That is, he argues any restriction of his right to claim compensation amounts to an unjustified restriction of his rights under the Bill of Rights Act, Convention Against Torture and the International Covenant on Civil and Political Rights and he is entitled to a declaration from the court to that effect.
(d) Fourthly, on a similar basis, the Applicant seeks a declaration of unconstitutionality, on the basis that any restriction of his right to claim compensation amounts to an unjustified breach of his fundamental common law rights ("application for a declaration of unconstitutionality").

[17] The Panel notes at the outset that the confusing draft pleadings and obscurity of Applicant's submissions to this Panel made it difficult to evaluate the prospects of the claim and were also not particularly helpful in identifying the key issues in review or assisting the Panel in resolving those issues.

[18] This review turns on the Agency's evaluation of the proceedings and the Applicant's interest in the outcome of those proceedings under section 9(4)(d) of the Act. Section 9(4)(d) allow the Agency to refuse aid in the following circumstances:

"The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:
...
(d) in the case of original proceedings, -
(i) the applicant's prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant's interest in them (financial or otherwise), in relation to the likely cost of the proceedings; or
(iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case:"

[19] The Agency granted aid for the mandamus application seeking an order that the Parole Board consider the Applicant for parole. However, the Agency has declined aid in relation to the compensation claim and declarations. It formed the view that the prospects of success of the compensation claim and declarations were "not sufficient to justify a grant of aid" and the proceedings would not provide the Applicant with any "practical" or "personal" benefit.

[20] The Panel considers that the Agency's evaluation of the prospects of success and applicant's interest in the compensation claim and application for declarations of inconsistency is flawed, for the reasons set out below. However, the Panel sees no basis for interfering with the Agency's conclusion in relation to the application for a declaration of unconstitutionality. The Panel addresses those remedies separately below.

[21] Before doing so, the Panel notes the submission by the Applicant that effectively suggests the Agency is bound to give effect to international treaties, such as the International Covenant on Civil and Political Rights, and the Bill of Rights Act when making decisions about whether to grant aid under the Act. In this review, the Panel leaves open the question of whether and how those matters need to be considered in relation to the Agency's evaluation under section 9(4)(d) of the Act. The Panel accepts that proposed proceedings, which incorporate human rights and international law arguments, must properly be evaluated in terms of the section 9(4)(d). However, in terms of the application of the Bill of Rights Act and international law to administrative decisions made by the Agency under section 9(4)(d), the Applicant has not explained whether or how reliance on such instruments would otherwise materially affect the interpretation and application of that provision. In the absence of any argument on the point, the Panel cannot see how resort to international law or the Bill of Rights Act will materially affect the interpretation and application of the clear legislative statement in section 9(4)(d) of the Act about the circumstances in which aid may be refused. However, as the matter was not usefully developed in the Applicant's submissions, we leave that point open for other reviews in which the point is squarely raised.

Mandamus Application

[22] As noted above, the Agency granted aid for the mandamus. It is unclear whether the grant of aid also covered the associated administrative law declarations also sought in the first cause of action. The Panel assumes that some of the aid granted relates to some of these declarations. The declarations relating to the denial of parole are inextricably linked to the mandamus application. The declaration about arbitrary detention under the Bill of Rights Act has some foundation (as is discussed in relation to the claim for compensation below). However, the declaration sought in relation to arbitrary detention under the International Covenant on Civil and Political Rights appears to have dubious foundation. In the light of the uncertainty, the Panel leaves the scope of the legal aid granted to be clarified by the Agency in its reconsideration.

Claim for compensation

[23] The Agency accepted that the allegations about the unlawfulness of any failure to consider the Applicant for parole have sufficient merit to justify aid under section 9(4)(d) of the Act because it granted aid for the mandamus application.

[24] As the Agency accepted the unlawfulness of that failure could be established, it needed to consider whether there were any reasons why that unlawfulness would not lead to an award of public law compensation under the Bill of Rights Act. Without more, it would illogical to conclude that a mandamus application (based on the unlawfulness of any failure to consider an application for parole) is arguable and justifies legal aid, while at the same time concluding that an application for compensation for arbitrary detention based on that same failure lack merit and is not justified. We consider the grounds relied on by the Agency to justify any distinction are flawed.

[25] First, the Agency doubted that the failure to consider the Applicant for parole amounted to arbitrary detention. It reasoned the mere fact the Applicant should have been considered for parole did not mean he would have been granted parole. It considered it would have been "unlikely" that the Applicant would have been granted parole if he had been considered, mainly because he had not completed a sex-offender treatment programme. The Agency raised, but did not decide (due to its conclusion as to the impact of the PVCA), whether the failure to consider the Applicant for parole "gives some residual right to seek damages or compensation based on loss of chance principles".

[26] As we note below, the Agency's assumption about the impact of the PVCA was insufficient to dispose of the application. This means the Agency ought to have considered whether there was a reasonable prospect that the Applicant might obtain compensation for arbitrary detention under the Bill of Rights Act, on a loss of chance basis. The failure to consider this question therefore amounts to an error of law. The Panel notes that the authorities suggest any unlawful detention will inevitably amount to arbitrary detention (Manga v Attorney-General [2000] 2 NZLR 65) and for detention to be arbitrary it must depart from the substantive and procedural standards involved (Neilson v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433).

[27] Secondly and the main reason for not granting aid for the compensation claim, the Agency baldly concluded that "the applicant would gain no personal benefit from such a claim", due to the claim being subject to the PVCA. The possibility that any compensation may be diminished by the PVCA was fairly foreshadowed by the Applicant in his application when it was noted that PVCA "could diminish it to nothing".

[28] Although the Agency accepted the claim was subject to the PVCA, it did not undertake any detailed analysis of the impact of the PVCA. The failure properly to evaluate the effect of the PVCA on the Applicant's prospects of success and likely personal benefit out of the claim amounts to an error of law.

[29] In general terms, the PVCA has two relevant features:

(a) First, the PVCA restricts a prisoner's right to claim compensation. The PVCA prevents claims for compensation unless the prisoner has not obtained effective redress in internal or external complaints mechanism or other remedies cannot provide effective redress (s 13) and sets out a number of factors to guide compensation awards for prisoners (s 14) (see, for example, the application of these factors in Firmin v Attorney-General (High Court, Christchurch, CIV-2007-409-1429, 15 February 2007, Chisholm J) and Edgecombe v Attorney-General [2005] DCR 780).
(b) Secondly, the PVCA contains a regime allowing previous victims of a prisoner to make claims against any compensation awarded to the prisoner (part 2, subpart 2). However, the disposal of any compensation funds to victims is not automatic. No claims might be lodged. The claims might not succeed. The claims might not exceed the amount of the compensation funds.

Overall, the regime contemplates the possibility that a prisoner may be still awarded some compensation and may still personally receive some of the compensation awarded to them.

[30] The Agency appears to have erroneously assumed that the PVCA means the Applicant would not receive any compensation. Such a conclusion requires greater analysis of the provisions of the PVCA, which is not evident in the Agency's decision. Although the Agency is not obliged to give reasons for is decisions, the absence of any reasoned justification for its conclusion may lead to a conclusion on review that it has failed to consider relevant provisions or misdirected itself as to their impact (Legal Services Agency v G (High Court, Wellington, AP190/01, 30 April 2002, Doogue J) and Legal Services Agency v Minchington [2003] 1 NZLR 263).

[31] Finally, the Agency rejected the contention that because proceeding was seeking "an international right of compensation", any compensation claim was not restricted by the PVCA. The Agency said it "was not aware of any valid basis" for a court awarding such compensation.

[32] Like the Agency, the Panel is not persuaded that is it sufficient to characterise the compensation sought as "international compensation" in order to circumvent the reach of the PVCA. In his application, the Applicant himself foreshadowed the novel nature of this claim, noting that "the claim for damages is more tricky being the first claim for a breach of an International Treaty".

[33] The Panel agrees with the Agency's assessment, albeit brief, that there is no realistic basis of seeking damages in a domestic court for breaches of an international treaty. It is axiomatic that international treaties are not enforceable (in the sense of being capable of founding direct claims) in domestic courts unless and until those treaties have been incorporated into domestic law (Law Commission: A Guide to International Law and its Sources (Wellington, 1996, at page 14; Philip A Joseph, Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007) at page 32). A claim made in a domestic court for compensation for breaches of international treaties that have not been relevantly incorporated into domestic law fundamentally misconceived the relationship between the domestic and international legal systems and has no realistic prospects of success.

Declaration of Inconsistency

[34] The Agency refused aid for the various applications for declarations of inconsistency, due both to its assessment that the prospects of success were low and its view that there was insufficient value to the Applicant in the relief sought. The Agency concluded that there is "no realistic possibility that such declarations would be made" and, in any event, the declarations "would be of no practical comfort to the applicant".

[35] First, the Agency's approach to the evaluation of the prospects of the success is conclusory and there is no evidence of any analysis or reasoning about the prospects of a declaration being granted. The application and issues raised by it demanded greater consideration.

[36] As the Applicant notes in his submissions to this review, there is some judicial obiter, along with scholarly comment, which suggest a declaration of inconsistency with the Bill of Rights Act may be available (for example, Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and Manga v Attorney-General (No 2) [1999] NZAR 506; see also R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1). However, there are also a number of authorities which have rejected applications for declarations in particular contexts and for different reasons (for example: Taunoa v Attorney-General [2006] NZSC 95, Belcher v Chief Executive of Department of Corrections [2007] 1 NZLR 507; [2007] NZSC 54, and Boscawen v Attorney-General [2009] NZCA 12; [2009] 2 NZLR 229). See generally the analysis of the case-law in Claudia Geiringer "On the Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act" (2009) 40 VUWLR (forthcoming)).

[37] It is sufficient to note at this point that existing jurisprudence is equivocal about declarations of inconsistency, both in terms of the circumstances in which any inconsistency may be declared and the status of any "declaration" as a formal remedy. As Geiringer notes:

"[T]he Supreme Court decision in R v Hansen ... confirms emphatically that the New Zealand courts are entitled to inquire into the conformity of legislation with the standards contained in the NZ Bill of Rights and to document their conclusions in their judgments. There is, however, a separate question as to whether the courts are entitled to grant formal declaratory relief. ... [T]he prospects for such a remedial jurisdiction are, if anything, receding. Recent case law purports to narrow considerably the scope of a jurisdiction, if indeed it exists at all. Further, the tenor of this body of case law suggests that even if a residual jurisdiction to make declarations of inconsistency is eventually recognised, it will be exercised only rarely."

[38] In its submissions on this review, the Agency accepted that there is "considerable uncertainty" about whether the courts will make a formal declaration of inconsistency. In some respects this later statement appears to be inconsistent with the Agency's earlier assertion that there was no prospect of a declaration being granted. At worst, it suggests the Agency now accepts that position is not clear-cut.

[39] The short point is that there is no indication that the Agency has engaged in any analysis of this body of jurisprudence or assessed whether the Applicant's case might be one of those (perhaps rare) cases in which some form of declaration of inconsistency with the Bill of Rights Act might be available. Again, the absence of any reasoned justification for its conclusion necessarily creates an inference that it has failed to consider the relevant jurisprudence relating to declarations of inconsistency or it misdirected itself as to its application. That failure amounts to an error of law.

[40] The Panel accepts, however, that the Agency's conclusion that there is no realistic prospect of the domestic courts granting a formal declaration that domestic legislation is inconsistent with international treaties, such as the International Convention on Civil and Political Rights and the Convention on Torture.

[41] Any claim for such a declaration misconceives the relationship between the domestic and international legal systems. As noted earlier, international treaties are not enforceable (in the sense of being capable of founding direct claims) in domestic courts unless and until those treaties have been incorporated into domestic law. While the courts have accepted that international treaties may be relevant to the interpretation of domestic legislation (see for example Tavita v Minister of Immigration [1994] 2 NZLR 257, Puli'uvea v Removal Review Authority [1996] 3 NZLR 538, Zaoui v Attorney-General (No 2) [2005] NZSC 38; [2006] 1 NZLR 289 and Ye v Minister of Immigration [2009] NZSC 76), there is no indication that the courts are prepared to contemplate a free-standing power to declare domestic legislation inconsistent with international law. The appropriate places for seeking such remedies are international bodies, not New Zealand's domestic courts.

[42] Secondly, the Agency baldly stated that any declarations granted would be of no practical comfort to the Applicant. The Agency reiterated this point in its submission on this review when it stated that this relief (along with the compensation claim) was "all but academic as far as the applicant is concerned".

[43] Once again this statement is conclusory and there are no indications of the grounds relied on to support this conclusion. The absence of any reasoned justification for its conclusion necessarily creates an inference that the Agency has not properly assessed the interest the Applicant has in the obtaining a declaration of inconsistency.

[44] It is well established that the standard set by section 9(4) of the Act envisages potential outcomes other than simply pecuniary awards. Outcomes which involve other practical value or even the mere vindication of important points of principle may be sufficient to justify aid. See Timmins v Legal Aid Review Panel [2004] 1 NZLR 708, paragraph [33]:

"Prospects of success", in my view, refers to the prospects of achieving a successful outcome. Those prospects need to be assessed in a pragmatic way and, somewhat obviously, in the circumstances of the particular case. After all, no two cases are the same. The assessment invited by the words in s 9(4)(d)(i), "sufficient to justify the grant of aid", involves weighing the likely benefits against the likely costs. Whilst the benefits in some cases will be measurable mainly, and perhaps even wholly, in dollar terms, in other situations that will not be so. Examples might include obtaining an injunction restraining the destruction of an area of native bush, or the closing of a road or access track or some other facility, or a judgment upholding the reputation of a person or a product (even if unaccompanied by significant damages), or vindicating some important point of principle."

[45] On its face, the Applicant's application for a declaration of inconsistency with the Bill of Rights Act raises the possibility of some outcomes which may be of interest to the Applicant:

(a) A declaration of inconsistency may be valuable to the Applicant in seeking to pursue his complaints in the international legal system about the PVCA regime. While the legal aid regime does not extend to directly funding proceedings brought before international judicial bodies (see Tangiora v Wellington District Legal Services Committee [1999] UKPC 42; [2000] 1 NZLR 17), the significance of a finding of a domestic court in terms of the pursuit by an applicant of redress from international bodies in separate proceedings cannot be ignored.
(b) A declaration may be valuable to the Applicant to obtain a declaration of inconsistency in order to lobby the government for changes to the PVCA regime. The scholarly literature, such as Geiringer noted above, notes that the raison d'être of declarations of inconsistency is the ability to encourage inter-branch dialogue and legislative reform to ensure the consistency of legislation with human rights norms.
(c) A declaration may be valuable to the Applicant merely as the vindication of a point of principle, in this case, the argument that the PVCA unjustifiably prevents him as a prisoner from obtaining compensation for breaches of his human rights.

[46] Once again, there is no indication that the Agency has considered the significance of these outcomes to the Applicant and their consequential influence on the evaluation required under section 9(4)(d) of the Act. While these outcomes are reasonably raised by the Applicant's claim and plausible, the Panel does not express a view on the significance and weight to be give to these possible outcomes in the section 9(4)(d) analysis. In the first instance, that is a matter for the Agency to determine. However, the Agency has not demonstrated that it even turned its mind to these interests that the Applicant may have in obtaining these outcomes. That amounts to an error of law.

[47] To avoid any doubt, the Panel accepts, as the Agency noted, that the purpose of legal aid is to "protect and vindicate the applicant's personal rights". For the purposes of the evaluation under section 9(4)(d) of the Act, the interest in the outcome of the proceeding is not to be augmented by any generic or general public interest at large in the outcome. Any interest in the outcome must be a personal one, as it clear from the reference to "the applicant's interest" in section 9(4)(d)(ii). The outcomes discussed at paragraph [45] are legitimate outcomes which the Applicant may have a sufficient personal interest in (although the factual evaluation of whether the Applicant genuinely holds those interests is for the Agency to determine) and are not interests of a generic kind which can be summarily dismissed.

[48] The Panel believes that this was the point the Agency was seeking to make when it noted that the purpose of legal aid was "not to fund [international] law or broad human rights arguments of no practical benefit to the applicant". However, the point was perhaps expressed somewhat infelicitously. The Agency is correct to emphasise the need for the Applicant to maintain a personal interest in the outcome of the proceedings. But the statement should not be taken as a rejection of appropriate claims which incorporate elements of international law jurisprudence or human rights arguments, if it can be established that an applicant has sufficient personal interest in the outcomes of those claims.

[49] Finally, the Panel notes that in its submissions on this review the Agency characterises the Applicant's case as being "about when the applicant is entitled to have his parole application considered" and submits that the mandamus application will be "sufficient to vindicate his rights, if he succeeds". Although this point was not made explicitly in the Agency's original decision (and therefore need not be directly addressed in this review), it suggests the Agency has improperly framed the purpose of the Applicant's claim in narrow terms. As the Panel notes, the Applicant's claim is multi-faceted. Amongst other things, it is plausible that the Applicant is not only seeking vindication for the denial of a parole hearing. That is, he is also seeking the same vindication for alleged arbitrary detention up to that and, if it arises in his claim, vindication for any unjustified restriction imposed by the PVCA on any entitlement to compensation for that detention.


Declaration of Unconstitutionality

[50] While the Panel considers the Agency has erroneously assessed the cause of action seeking a declaration of inconsistency with the Bill of Rights Act, the Panel sees no reason to interfere with the Agency's assessment that there is "no likelihood" that a court would issue a declaration that the PVCA is in breach of the common law.

[51] The Applicant's original application noted that this claim was "novel", relying on scholarly speculation about the possibility of such a formal declaration (David Jenkins "Common Law Declarations of Unconstitutionality" (2009) 183 I?CON 183). However, as the Agency noted, there is no authority for such a claim and any such a development is unlikely. The Panel agrees with that analysis. Such a development is improbable and, in any event, as Wylie J noted in Legal Services Agency v MA (2008) 19 PRNZ 1 at [46] "the Agency?.[is] not charged with responsibility for overseeing the development of the law".

[52] Further, the Panel does not consider that the Applicant's claim is more likely to succeed if, as the Applicant advances in submission to this review, it is argued that the PVCA is in breach of customary international law which forms part of the common law. Whether or not the "constitutional norms" on which the application for a declaration are based are to be found in the common law per se or customary international law as part of common law, the position remains that there is no authority which supports the courts making formal declarations about incompatibility with common law norms. Nor are there any indications that the courts would seriously consider making a formal declaration to that effect, particularly in the light of the present diffident attitude towards making declarations of inconsistency with the Bill of Rights Act.

Decision

[53] For the reasons set out above, and instead of determining the review, the Panel directs the Agency promptly after receiving this decision to reconsider its decision. In particular, the Agency is directed to reconsider the following matters:

(a) whether, regardless of the impact of the PVCA, there is a reasonable prospect that the Applicant may obtain a declaration of and/or compensation for arbitrary detention under the Bill of Rights Act;
(b) whether, in the light of impact of the PVCA discussed at paragraphs [29] - [30] of this decision, the Applicant may still be awarded compensation for any arbitrary detention and obtain the benefit any compensation awarded;
(c) whether, in the light of current jurisprudence discussed at paragraphs [35] - [39], there is any prospect of the Applicant obtaining declarations of inconsistency with the Bill of Rights Act; and
(d) whether, in the light of the discussion in paragraphs [42] - [49] of the different interests that may be sufficient to justify aid, the Applicant has an interest (including interests other than pecuniary interests) in obtaining a declaration of inconsistency that is sufficient to justify aid.

[54] While the Agency has failed to assess adequately some of the matters relating to the evaluation under section 9(4)(d) of the Act, it is not appropriate for the Panel to adjudicate on whether aid should be granted or not. In the first instance, it is for the Agency to consider those matters and to assess the weight and significance to be given to them in terms of the evaluation under section 9(4)(d).


Dated this 9th day of December 2009

(original signed by)
__________________________
D.J. Maze, Convenor