The invaluable Andrew Geddis has yet another good post on Pundit:
I think National just broke our constitution
In the wake of the budget, the Government is pushing through a whole bunch of bills in one great rush of non-stop, orgiastic lawmaking. Most of these measures are to do with the budget. But at least one isn’t [...] a bill intended to sort out the problem of paying family members of severely disabled people to look after them.
… it’s a policy with a lot of gaps in it (caring for your kids or your spouse still is unpaid labour), and even those family members whom it covers don’t get the same pay rate as strangers coming in to care for their loved ones. Which has made some of the family caregivers in question a bit angry.
… the Government cannot make policies as to who will/won’t get paid that breach the New Zealand Bill of Rights Act 1990 (unless specifically authorised by Parliament to do so). After all, the courts backed this argument last time, so you’d think the family carers would have a better-than-even chance of winning this time around.
Now, this is where things start getting a bit weird. I assume the above is roughly the advice that was given to the Minister as the Bill was being put together. I say “assume” because all the relevant discussion of legal risks produced by the legislation has been redacted from the publicly available information about it. You can see this for yourself in the Regulatory Impact Statement that must be provided to the House when the Bill is introduced (there’s a more arresting visual of it here). So not only can’t I say for sure what risk there may have been that the legislation would have had the effect of dumping the Government back in court, neither can the MPs who are being asked to debate it and vote on whether it should be law.
Pause and think about that fact for a moment.
Because, things are about to get even weirder. What’s a good way, you might ask, to create a policy on paying family caregivers without running the risk of it being overturned? And the answer I assume you’d give is “make sure that the policy isn’t unlawfully discriminatory, so there is no reason for this to happen.” If so, you are an idiot. Because there’s a far, far better way to respond.
You simply tell the Human Rights Review Tribunal and the courts that they are not allowed to look at the policy and decide whether or not it is unlawfully discriminatory. That’s just what the Government is seeking to get Parliament to do under section 70E(2):
[When this law kicks in], no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.
You might need a moment to let the implications of this sink in. By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary’s primary function – to declare the meaning of law and its application in particular cases – has been nullified. Furthermore, the judiciary’s role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land has been removed. While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.
… what Tony Ryall’s doing here is, as far as I know, unprecedented (at least in recent constitutional history).
The quotes above are the short form of a much fuller and better referenced argument, go and read the full post for more.
So let’s take a count of National’s outbreaks of constitutional arrogance here:
• An unprecedented sidelining of the judiciary as described above.
• An unprecedented attempt to tie the hands of Parliament for the next 35 years on behalf of Sky City.
• An unprecedented canceling of democratic elections and the ousting of democratically elected representatives in Canterbury.
• Granting itself unprecedented and unnecessary powers in the wake of the Christchurch earthquakes.
• An unprecedented level of abuse of urgency and Parliamentary process.
• And many other lesser examples.
These are the actions of politicians who are drunk on power, and not being held to account for it. It will continue for as long as we let it.
Update: See also an excellent followup post by Claire Browning at Pundit.