Reports — Complaint Regarding the Resource Management (Forms, Fees, and Procedure) Amendment Regulations 2009 (SR 2009/73)—Consideration of Interim Report of Regulations Review Committee

I move, That the House take note of the interim report of the Regulations Review Committee on the complaint regarding the Resource Management (Forms, Fees, and Procedure) Amendment Regulations 2009. I am pleased as a member of the Regulations Review Committee to have the opportunity to discuss this report, which, at the time of the increase in filing fees for the Environment Court, was a particularly controversial matter. Before I go into the detail of the complaint that was heard by the committee, and the subsequent report, I would like to give some context to this complaint for the benefit of the House. On 2 February 2009 Cabinet made the decision to increase filing fees for appeals in the Environment Court. That decision was swiftly put through the motions, and the regulations were gazetted on 9 April 2009, coming into force on 7 May 2009. Those regulations essentially provided for an increase for filing fees for appeals under the Resource Management Act from a modest $55 to a whopping $500.

At the time of the increase, Labour, the Greens, and a significant number of community organisations expressed concern and outrage at the potential impact of this significant and hefty fee. The House will see from the very short time it took for this change to occur that very little consultation occurred before this change occurred. These concerns were deeply held, and for very good reason. They were translated into two complaints, which eventually came before the Regulations Review Committee. As the House will know, the committee has the role of scrutinising all regulations that are gazetted. Those complaints come from Dr Russel Norman and also from the Royal Forest and Bird Protection Society.

I want to acknowledge those groups, in particular the Royal Forest and Bird Protection Society, for voicing the concerns of many community groups about the impact of these changes. But those groups may not have known the parliamentary procedures and processes that were available to them to make this complaint, so I acknowledge the fact that the Royal Forest and Bird Protection Society took the complaint on behalf of many other community organisations.

The grounds for the complaint were clear, well articulated, and quite simple. The concerns of both groups were that this increase could undermine the rights of the public participation, which is already enshrined in the Resource Management Act. There was concern that they would act as a barrier to representation in the courts, and reduce access to justice. There was also a concern that it would put the Environment Court out of step with courts that held equivalent powers. For instance, the District Court does not hold such weighty filing fees. There was also a concern that it undermined the position of the Environment Court as an informal and accessible court. I want to highlight that again. The major concern of both the Regulations Review Committee and of the complainants themselves when considering this complaint was whether this will become a barrier for people to access the court that is there for their use. Of course, there was the additional complaint that it would be unfair to community groups who are there to represent community interests. Those concerns were significant, valid, and they deserved a full hearing of the committee.

Now that we have touched briefly on some of the main concerns of the complaint and the background to it, it is useful to go back to one of the key criteria, as I mentioned, for the committee itself when assessing these claims. It relates to the word “access”. Has this change impinged on community groups’ ability to access the courts? Access to the courts is one of the key criteria that departments have been asked to consider when making a policy change like this. It is not just some airy-fairy point that has been brought up by a range of groups. It is enshrined in the procedures that departments followed. In fact, I think it was highlighted particularly well by a Cabinet paper that was provided to the Minister of Justice. It was a comment from the Ministry of Justice on Resource Management Act reforms. In the paper it stated that some of the principles when assessing filing fees were that filing fees should not prevent citizens from having access to appropriate dispute resolution. That was one of the basic principles outlined by the Ministry of Justice that should be adhered to when considering fees.

An interesting test is to ask whether the Ministry of Justice feels that the changes made by the Minister for the Environment were counter to that principle. The Cabinet paper produced by the Ministry of Justice clearly shows that it did. It states in paragraph 37 of this document released under the Official Information Act that the Cabinet paper of the Minister for the Environment “justifies the increase on the basis that it may deter vexatious litigants. The Ministry does not consider that court fees are the appropriate tools to do this. There is no evidence that higher fees will deter vexatious litigants, and, generally, vexatious litigants are more prepared to pay fees than other court users. The High Court already has powers to declare litigants vexatious and a legislative provision like this would be a more effective tool.”

I do not think it could be articulated more clearly. Not only did the Ministry of Justice perceive that the Minister for the Environment had inappropriately used a hike in fees to deter vexatious litigants; it was its view that that was inappropriate and would not work. It was always maintained by officials from the Ministry for the Environment that deterrence of vexatious litigants was not the key reason for that increase. But when we held the officials to account during the hearing of the committee, I think it became quite transparent that that was not the full story. I want to refer to the transcript of the committee, when a very simple question was put by the committee to the officials—I will just read it briefly—“Could you please explain the major policy reasons which this fee increase is based on?”.

There was a long silence before officials stated: “I think the rationale was quite clearly articulated in the paper that the Minister took to Cabinet.” I will jump down to the next question. “OK, so the recovery of costs was considered. So the one in the Cabinet paper, was that a reference to vexatious litigants?”. “Yes.” was the answer, and further on. So we have acknowledgment there that vexatious litigants did drive the reason for the increase. Later on, the question was put: “Would you argue then, if one ground would be to create a deterrent for vexatious litigants, that $500 therefore in itself is a deterrent, and that if actually that $500 was a deterrent to a vexatious litigant, could it not equally be a deterrent for a small community group?”. The answer from officials: “Potentially.”

I think we have there a very clear admission from officials that if one of their main goals was to deter a particular group, there was no way they could ensure it did not deter everyone, vexatious or otherwise. In fact, as the Ministry of Justice pointed out itself, vexatious litigants are more likely to get around such a deterrent where other smaller community groups may not.

One particular issue that the Regulations Review Committee was faced with was that it had to base its decision on existing evidence. Given that this decision was gazetted only earlier in the year, the amount of evidence to date was always going to be limited. But I think that the Regulations Review Committee made the right decision by recommending the following: “That the Government uses its best endeavours to find ways to monitor over the next 12 months any deterrent effect the increased filing fee may be having on people or groups who might otherwise have commenced appeal or inquiry proceedings in the Environment Court.”

The onus is now on the Government to ensure over the next 12 months that appropriate monitoring mechanisms are put in place, to ensure that we have a good understanding of the effect of this change. I have to acknowledge my significant concerns over whether this will be done in good faith, given that the officials already had enough evidence, from other Government departments and from community groups, of the impact this would have, and that advice and information was still ignored. My only hope is that in 12 months’ time we will have the evidence to demonstrate the true impact of this change.

Resource Management (Forms, Fees, and Procedure) Amendment Regulations 2009, which