web analytics

NRT: A constitutional change

Written By: - Date published: 3:01 pm, May 26th, 2017 - 8 comments
Categories: class war, human rights, law, national, useless - Tags: , , , , ,

I/S at No Right Turn writes:


A constitutional change

There’s been a landmark decision from the Court of Appeal today, one which lawyers are saying changes the New Zealand constitution. The decision? The Court has ruled that the High Court was right to declare that National’s 2010 prisoner voting restrictions (the ones which were so shabby and shoddily passed that they brought Parliament into disrepute) were inconsistent with the Bill of Rights Act.

On the one hand, such a declaration changes nothing. Section 4 of the BORA is very clear that the courts can not effectively repeal laws in this way. But OTOH, it serves a valuable purpose in providing vindication to the plaintiffs while formally notifying Parliament that it has failed to do its job properly.

The full decision is here. It’s interesting reading, both for its long analysis of the court’s power to declare inconsistency, and for its takedown of the Speaker of the House’s assertion that it violates Parliamentary Privilege. It also has formal guidance for future courts on when such declarations should be issued. I don’t think we’ll see a flood of such declarations, because in most cases BORA issues are resolved by the ordinary processes of analysis for justified limitations or interpretation to ensure consistency with the BORA. They will happen only in extreme cases. But this is an extreme case, where Parliament essentially ignored its obligation to guard our rights. As the Court notes:

[B]ecause it underpins equality and sustains consent to government, the right to vote is a core prerogative of citizenship in a free and democratic society. The undiscriminating limitation imposed by the 2010 Act on so central a right demanded justification. None was forthcoming.

In a case where Parliament has so manifestly failed, and has overriden protected rights for apparently no good reason, it is entirely appropriate for the Courts to say so. As with other judicial reminders that the law is an arse, hopefully Parliament will now pay attention and change the law appropriately.

8 comments on “NRT: A constitutional change ”

  1. dukeofurl 1

    It seems to be a 5 judge appeal panel thats ruled , not the normal 3

    It seems that the Parliamentary Privilege Act 2104 was introduced to get around such instances of the BORA being used to get around ‘tricky situations’

  2. Draco T Bastard 2

    I don’t really think we’re seeing a constitutional change here but that the government ignored the constitution as it is so that they could pass some ideological claptrap and the courts have called them on the BS.

    Now if only we could get it firmly in law so that the next time that they do it, and they will, we can throw the whole damn anti-democratic lot of them in jail.

    • Yeah, I’m mostly with you on this.

      It’s not really a change in the constitution as such because it doesn’t really institute any new powers, just new process for the court to metaphorically slap the government’s wrist.

      That said, giving BORA supremacy over Parliament, while something I support, has to be done carefully so we don’t end up with judges becoming highly politicised like they are in the US.

  3. Is the Bill of Rights Act, if that’s what it is called, just an ordinary Act, or is it entrenched? If it is just an ordinary Act, then it can be repealed. Any government with a majority of one could do it. If the rights were embedded as part of a written constitution, then the shameful denial of voting rights to those in prison could be legally contested as unconstitutional.

    • lprent 3.1

      Ordinary act.

    • While it’s just an ordinary act, it’s also most definitely part of our constitution. Just because our constitution isn’t codified formally doesn’t mean that parts of it aren’t written down.

      • Draco T Bastard 3.2.1

        But John does have a point in that the BORA could be removed with a simple majority in parliament. Of course, that also applies to legislation that is ‘entrenched’. The legislation requiring that Aucklanders have a referendum about the Supershitty merger was ‘entrenched’ but a simple majority removed it.

        Our constitution is somewhat flaky because the MPs have been weary about them not being able to do anything they want when in power.

        • I deliberately dodged the point about entrenchment because LPrent had answered his question, not because I think it’s unimportant…

          So, to your point, yes, it could be. The thing is, there’s no particular reason to repeal or replace BORA right now, even for the National or ACT Party, as they can just ignore it whenever they like, the only situation in which it potentially costs them anything is if the BORA report comes out on a slow news day and the mainstream media actually goes digging, which is becoming increasingly unlikely.

          The reason to entrench BORA would be if you amended it to give it sovereignty over parliament, (ie. judges ruling something inconsistent with BORA would make the law unconstitutional and therefore remove either the law or the relevant section of the law from force) because then it would be a real constraint on Parliamentary power.

          I agree completely with your point about the constitution being reasonably flaky still. The thing to keep in mind of course, is that there is absolutely a tradeoff between a constitution that protects important rights, and one that calcifies your political system and prevents it from evolving and growing better over time. The USA, for instance, has the latter- they’re constitutionally forbidden from having a national election system, for instance, because they were too paranoid about centralisation of power back in the day, and they made it horrendously difficult to amend their constitution. If we ever codify our constitution, we probably want to err on the side of being cautious in that regard, and to set up independent institutions not vulnerable to capture to reform the system further if necessary.

Recent Comments

Recent Posts

  • Alert Level 2 in Wellington, Wairarapa and Kāpiti Coast
    Alert Level 2 measures are now in place for Wellington, Wairarapa and Kāpiti Coast to the north of Ōtaki, COVID-19 Response Minister Chris Hipkins says. These measures are precautionary, following the potential exposure of New Zealanders to a COVID-19 case from Sydney. The person visited a range of locations in ...
    BeehiveBy beehive.govt.nz
    6 hours ago
  • Speech to the India New Zealand Business Council Summit
    5pm, Wednesday 23 June 2021 [CHECK AGAINST DELIVERY] Tuia te Rangi e tū nei Tuia te Papa e takoto nei Tuia te here tangata Ka rongo te pō, ka rongo te Ao Tihei Mauri Ora   Introduction Namaskar, tēnā koe and good evening. Thank you for your kind invitation to ...
    BeehiveBy beehive.govt.nz
    7 hours ago
  • Agencies to have powers to secure maritime domain
    A Bill introduced to Parliament today aims to prevent serious criminal offending at sea, including transnational offending and organised crime, Foreign Minister Nanaia Mahuta announced. “Aotearoa New Zealand will be better placed to keep our maritime environment secure against threats like drugs trafficking, wildlife trafficking and human trafficking with the ...
    BeehiveBy beehive.govt.nz
    10 hours ago
  • Critical support for New Zealand’s budding researchers
    Fellowships to attract and retain talented researchers in the early stages of their career, have been awarded to 30 New Zealanders, Associate Research, Science and Innovation Minister Dr Ayesha Verrall announced today. “I am pleased to congratulate these researchers, who will be receiving funding through the MBIE Science Whitinga Fellowship. ...
    BeehiveBy beehive.govt.nz
    15 hours ago
  • Bill to stop taxpayers having to fund oil field decommissions
    The Government is preventing taxpayers picking up the bill for the decommissioning of oil fields, says Energy and Resource Minister Dr Megan Woods.  “After the Crown had to take responsibility for decommissioning the Tui oil field, it became clear to me that the current requirements around decommissioning are inadequate and ...
    BeehiveBy beehive.govt.nz
    16 hours ago
  • Quarantine Free Travel from New South Wales to New Zealand to pause
    New Zealand’s Quarantine Free Travel from New South Wales to New Zealand will be paused while the source of infection of new cases announced in Sydney is investigated, says COVID-19 Response Minister Chris Hipkins. There are 10 new community cases of COVID-19 today in New South Wales, taking the Australian ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Milestone reached for Iwi Affiliation Population Counts
    Iwi affiliation data released today provides updated population counts for all iwi and addresses gaps in Māori data originating from the 2018 Census, says Associate Minister of Statistics Meka Whaitiri. “The release of the 2018 Iwi Affiliation Estimated Counts is a really important step, and I acknowledge the hard work ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Ngāti Rangitihi Claims Settlement Bill passes first reading
    Treaty of Waitangi Negotiations Minister Andrew Little welcomed Ngāti Rangitihi to Parliament today to witness the first reading of The Ngāti Rangitihi Claims Settlement Bill. “I know it took a lot of hard work, time and patience by all parties involved to reach this significant milestone. I am honoured to ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Speech to the Sustainable Healthcare and Climate Health Conference Aotearoa
    Mihi Tēnā tātou katoa Kei ngā pou o te whare hauora ki Aotearoa, kei te mihi. Tēnā koutou i tā koutou pōwhiri mai i ahau. E mihi ana ki ngā taura tangata e hono ana i a tātou katoa, ko te kaupapa o te rā tērā. Tēnā koutou, tēnā koutou, ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Infrastructure Acceleration Fund opening for business
    Criteria to access at least $1 billion of the $3.8 billion Housing Acceleration Fund (HAF), announced in March, is now available, and an invitation for expressions of interest will be released on 30 June, Housing Minister Megan Woods has announced.  “This is a key milestone in our plan to accelerate ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Bringing back the health of Hauraki Gulf
    New marine protection areas and restrictions on fishing are among a raft of changes being put in place to protect the Hauraki Gulf for future generations. The new strategy, Revitalising the Gulf – Government action on the Sea Change Plan, released today, draws on input from mana whenua, local communities, ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Speech to AI Forum – Autonomous Weapons Systems
    AI Forum New Zealand, Auckland Good evening and thank you so much for joining me this evening. I’d like to start with a thank you to the AI Forum Executive for getting this event off the ground and for all their work and support to date. The prospect of autonomous ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • New Zealand boosts support to Fiji for COVID-19 impact
    Aotearoa New Zealand is providing additional support to Fiji to mitigate the effects of the current COVID-19 outbreak on vulnerable households, Foreign Minister Hon Nanaia Mahuta announced today. “Recognising the increasingly challenging situation in Fiji, Aotearoa will provide an additional package of assistance to support the Government of Fiji and ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Round 2 of successful energy education fund now open
    $1.65 million available in Support for Energy Education in Communities funding round two Insights from SEEC to inform future energy hardship programmes Community organisations that can deliver energy education to households in need are being invited to apply for the second funding round of the Support for Energy Education in ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • New Ngarimu scholarships to target vocational training
    Associate Education Minister Kelvin Davis today announced three new scholarships for students in vocational education and training (VET) are to be added to the suite of prestigious Ngarimu scholarships. “VET learners have less access to study support than university students and this is a way to tautoko their learning dreams ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Recognising the volunteers who support our health system
    Nominations have opened today for the 2021 Minister of Health Volunteer Awards, as part of National Volunteer Week. “We know that New Zealanders donate at least 159 million hours of volunteer labour every year,” Minister of Health Andrew Little said in launching this year’s awards in Wellington. “These people play ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Drug Free Sport supported to deal with new doping challenges
    Drug Free Sport New Zealand will receive a funding boost to respond to some of the emerging doping challenges across international sport. The additional $4.3 million over three years comes from the Sport Recovery Fund announced last year. It will help DFSNZ improve athletes’ understanding of the risks of doping, ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Government support for South Auckland community hit by tornado
    The Government is contributing $100,000 to a Mayoral Relief Fund to support Auckland communities impacted by the Papatoetoe tornado, Acting Minister for Emergency Management Kris Faafoi says. “My heart goes out to the family and friends who have lost a loved one, and to those who have been injured. I ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Celebrating World Refugee Day
    World Refugee Day today is an opportunity to celebrate the proud record New Zealanders have supporting and protecting refugees and acknowledge the contribution these new New Zealanders make to our country, the Minister of Immigration Kris Faafoi said. “World Refugee Day is also a chance to think about the journey ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Face to face meeting delivers significant progress on NZ-UK FTA
    New Zealand and the UK have committed to accelerating their free trade agreement negotiations with the aim of reaching an agreement in principle this August, Trade Minister Damien O’Connor announced. “We’ve held constructive and productive discussions towards the conclusion of a high-quality and comprehensive FTA that will support sustainable and inclusive trade, and ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Government taking action to protect albatross
    New population figures for the critically endangered Antipodean albatross showing a 5 percent decline per year highlights the importance of reducing all threats to these very special birds, Acting Minister of Conservation Dr Ayesha Verrall says. The latest population modelling, carried out by Dragonfly Data Science, shows the Antipodean albatross ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Adoption laws under review
    New Zealand’s 66-year-old adoption laws are being reviewed, with public engagement beginning today.  Justice Minister Kris Faafoi said the Government is seeking views on options for change to our adoption laws and system. “The Adoption Act has remained largely the same since 1955. We need our adoption laws to reflect ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Wider roll-out of cameras on boats to support sustainability and protect marine life
    Up to 300 inshore commercial fishing vessels will be fitted with on-board cameras by 2024 as part of the Government’s commitment to protect the natural marine environment for future generations.  Minister for Oceans and Fisheries David Parker today announced the funding is now in place for the wider roll out ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Plan for vaccine rollout for general population announced
    New Zealanders over 60 will be offered a vaccination from July 28 and those over 55 from August 11, Prime Minister Jacinda Ardern announced today. The rollout of the vaccine to the general population will be done in age groups as is the approach commonly used overseas, with those over ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • New Zealand introduces Belarus travel bans
    New Zealand has imposed travel bans on selected individuals associated with the Lukashenko regime, following ongoing concerns about election fraud and human rights abuses after the 2020 Belarus elections, Foreign Affairs Minister Nanaia Mahuta has announced. The ban covers more than fifty individuals, including the President and key members of ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • NZ economy grows driven by households, construction and business investment
    The Government’s efforts to secure the recovery have been reflected in the robust rebound of GDP figures released today which show the economy remains resilient despite the ongoing impact of the COVID-19 pandemic, Grant Robertson said. GDP increased 1.6 percent in the first three months of 2021. The Treasury had ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Milestone 250th tower continues to improve rural connectivity
    The Government has welcomed the completion of the 250th 4G mobile tower, as part of its push for better rural connectivity. Waikato’s Wiltsdown, which is roughly 80 kilometres south of Hamilton, is home to the new tower, deployed by the Rural Connectivity Group to enable improved service to 70 homes ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Quarantine Free Travel pause with Victoria to lift on Tuesday
    Following a further public health assessment of the COVID-19 outbreak in greater Melbourne, New Zealand’s Quarantine Free Travel pause with Victoria has been extended to 11.59pm on Tuesday 22 June, COVID-19 Response Minister Chris Hipkins says. It has been determined that the risk to public health in New Zealand continues ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Prime Minister mourns passing of Dr Sir Ian Hassall
    Prime Minister Jacinda Ardern is mourning the passing of Dr Sir Ian Hassall, New Zealand’s first Children’s Commissioner and lifelong champion for children and children’s health. As a paediatrician Sir Ian contributed to a major world-first cot death study that has been directly credited with reducing cot deaths in New ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • APEC structural reform meeting a success
    APEC ministers have agreed working together will be crucial to ensure economies recover from the impact of COVID-19. Minister of Commerce and Consumer Affairs David Clark, chaired the virtual APEC Structural Reform Ministerial Meeting today which revolved around the overarching theme of promoting balanced, inclusive, sustainable, innovative and secure growth ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Digital hub to boost investment in forestry
    A new website has been launched at Fieldays to support the forestry sector find the information it needs to plant, grow and manage trees, and to encourage investment across the wider industry. Forestry Minister Stuart Nash says the new Canopy website is tailored for farmers, iwi and other forestry interests, ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government continues support for rangatahi to get into employment, education and training
    Over 230 rangatahi are set to benefit from further funding through four new He Poutama Rangatahi programmes, Minister for Social Development and Employment Carmel Sepuloni announced today. “We’re continuing to secure our economic recovery from COVID by investing in opportunities for rangatahi to get into meaningful employment, education or training ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • NCEA subjects up for consultation
    The education sector, students, their parents, whānau and communities are invited to share their thoughts on a list of proposed NCEA subjects released today, Education Minister Chris Hipkins says. This is a significant part of the Government’s NCEA Change Programme that commenced in 2020 and will be largely implemented by ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Major investment in plantain forage programme aims to improve freshwater quality
    The Government is backing a major programme investigating plantain’s potential to help farmers protect waterways and improve freshwater quality, Acting Agriculture Minister Meka Whaitiri announced at Fieldays today. The Sustainable Food and Fibre Futures (SFFF) fund is contributing $8.98 million to the $22.23 million seven-year programme, which aims to deliver ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • America’s Cup decision
    The Minister responsible for the America’s Cup has confirmed the joint Crown-Auckland Council offer to host the next regatta has been declined by the Board of Team New Zealand. “The exclusive period of negotiation between the Crown, Auckland Council, and Team New Zealand ends tomorrow, 17 June,” said Stuart Nash. ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Food and fibres sector making significant strides towards New Zealand’s economic recovery
    The Government is backing the food and fibres sector to lead New Zealand's economic recovery from COVID-19 with targeted investments as part of its Fit for a Better World roadmap, Forestry Minister Stuart Nash said. “To drive New Zealand’s recovery, we launched the Fit for a Better World – Accelerating ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to He Whenua Taurikura – New Zealand’s annual hui on countering terrorism and violent...
    Check against delivery Can I begin by acknowledging the 51 shuhada, their families and the Muslim community. It is because of the atrocious violent act that was done to them which has led ultimately to this, the start of a dialogue and a conversation about how we as a nation ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Cost of Government Southern Response proactive package released
    The Government has announced the proactive package for some Southern Response policyholders could cost $313 million if all those eligible apply. In December, the Minister Responsible for the Earthquake Commission, David Clark announced a proactive package for SRES claimants who settled their claims before October 2014. It trailed the judgment ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • First period products delivered to schools
    The first period products funded as part of the Government’s nationwide rollout are being delivered to schools and kura this week, as part of wider efforts to combat child poverty, help increase school attendance, and make a positive impact on children’s wellbeing. “We know that nearly 95,000 9-to-18 year olds ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New support to reduce emissions from public building and construction projects
    Government agencies are getting new support to reduce carbon emissions generated by construction of new buildings, with the release of practical guidance to shape decisions on public projects. The Ministers for Building and Construction and for Economic Development say a new Procurement Guide will help government agencies, private sector suppliers, ...
    BeehiveBy beehive.govt.nz
    1 week ago