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

  • Celebrating the Entry Into Force of the Treaty on the Prohibition of Nuclear Weapons
    [Opening comments, welcome and thank you to Auckland University etc] It is a great pleasure to be here this afternoon to celebrate such an historic occasion - the entry into force of the Treaty on the Prohibition of Nuclear Weapons. This is a moment many feared would never come, but ...
    BeehiveBy beehive.govt.nz
    1 day ago
  • Supporting disabled people to stay connected
    The Government is providing $3 million in one-off seed funding to help disabled people around New Zealand stay connected and access support in their communities, Minister for Disability Issues, Carmel Sepuloni announced today. The funding will allow disability service providers to develop digital and community-based solutions over the next two ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Voluntary saliva testing offered to quarantine workers from Monday
    Border workers in quarantine facilities will be offered voluntary daily COVID-19 saliva tests in addition to their regular weekly testing, COVID-19 Response Minister Chris Hipkins said today. This additional option will be rolled out at the Jet Park Quarantine facility in Auckland starting on Monday 25 January, and then to ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Next steps in firearms buy-back
    The next steps in the Government’s ambitious firearms reform programme to include a three-month buy-back have been announced by Police Minister Poto Williams today.  “The last buy-back and amnesty was unprecedented for New Zealand and was successful in collecting 60,297 firearms, modifying a further 5,630 firearms, and collecting 299,837 prohibited ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • New Public Housing Plan announced
    The Government has released its Public Housing Plan 2021-2024 which outlines the intention of where 8,000 additional public and transitional housing places announced in Budget 2020, will go. “The Government is committed to continuing its public house build programme at pace and scale. The extra 8,000 homes – 6000 public ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Prime Minister congratulates President Joe Biden on his inauguration
    Prime Minister Jacinda Ardern has congratulated President Joe Biden on his inauguration as the 46th President of the United States of America. “I look forward to building a close relationship with President Biden and working with him on issues that matter to both our countries,” Jacinda Ardern said. “New Zealand ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Jobs for Nature funding will create training and employment opportunities
    A major investment to tackle wilding pines in Mt Richmond will create jobs and help protect the area’s unique ecosystems, Biosecurity Minister Damien O’Connor says. The Mt Richmond Forest Park has unique ecosystems developed on mineral-rich geology, including taonga plant species found nowhere else in the country. “These special plant ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Pre-departure testing extended to all passengers to New Zealand
    To further protect New Zealand from COVID-19, the Government is extending pre-departure testing to all passengers to New Zealand except from Australia, Antarctica and most Pacific Islands, COVID-19 Response Minister Chris Hipkins said today. “The change will come into force for all flights arriving in New Zealand after 11:59pm (NZT) on Monday ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • Bay Cadets learn skills to protect environment
    Bay Conservation Cadets launched with first intake Supported with $3.5 million grant Part of $1.245b Jobs for Nature programme to accelerate recover from Covid Cadets will learn skills to protect and enhance environment Environment Minister David Parker today welcomed the first intake of cadets at the launch of the Bay ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Cook Islanders to resume travel to New Zealand
    The Prime Minister of New Zealand Jacinda Ardern and the Prime Minister of the Cook Islands Mark Brown have announced passengers from the Cook Islands can resume quarantine-free travel into New Zealand from 21 January, enabling access to essential services such as health. “Following confirmation of the Cook Islands’ COVID ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Supporting communities and landowners to grow employment opportunities
    Jobs for Nature funding is being made available to conservation groups and landowners to employ staff and contractors in a move aimed at boosting local biodiversity-focused projects, Conservation Minister Kiritapu Allan has announced. It is estimated some 400-plus jobs will be created with employment opportunities in ecology, restoration, trapping, ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Border exception for some returning international tertiary students
    The Government has approved an exception class for 1000 international tertiary students, degree level and above, who began their study in New Zealand but were caught offshore when border restrictions began. The exception will allow students to return to New Zealand in stages from April 2021. “Our top priority continues ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Tiwai deal gives time for managed transition
    Today’s deal between Meridian and Rio Tinto for the Tiwai smelter to remain open another four years provides time for a managed transition for Southland. “The deal provides welcome certainty to the Southland community by protecting jobs and incomes as the region plans for the future. The Government is committed ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New member for APEC Business Advisory Council
    Prime Minister Jacinda Ardern has appointed Anna Curzon to the APEC Business Advisory Council (ABAC). The leader of each APEC economy appoints three private sector representatives to ABAC. ABAC provides advice to leaders annually on business priorities. “ABAC helps ensure that APEC’s work programme is informed by business community perspectives ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Govt’s careful economic management recognised
    The Government’s prudent fiscal management and strong policy programme in the face of the COVID-19 global pandemic have been acknowledged by the credit rating agency Fitch. Fitch has today affirmed New Zealand’s local currency rating at AA+ with a stable outlook and foreign currency rating at AA with a positive ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Additional actions to keep COVID-19 out of NZ
    The Government is putting in place a suite of additional actions to protect New Zealand from COVID-19, including new emerging variants, COVID-19 Response Minister Chris Hipkins said today. “Given the high rates of infection in many countries and evidence of the global spread of more transmissible variants, it’s clear that ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • 19 projects will clean up and protect waterways
    $36 million of Government funding alongside councils and others for 19 projects Investment will clean up and protect waterways and create local jobs Boots on the ground expected in Q2 of 2021 Funding part of the Jobs for Nature policy package A package of 19 projects will help clean up ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • New Zealand Government acknowledges 175th anniversary of Battle of Ruapekapeka
    The commemoration of the 175th anniversary of the Battle of Ruapekapeka represents an opportunity for all New Zealanders to reflect on the role these conflicts have had in creating our modern nation, says Associate Minister for Arts, Culture and Heritage Kiri Allan. “The Battle at Te Ruapekapeka Pā, which took ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Better care for babies with tongue-tie
    Babies born with tongue-tie will be assessed and treated consistently under new guidelines released by the Ministry of Health, Associate Minister of Health Dr Ayesha Verrall announced today. Around 5% to 10% of babies are born with a tongue-tie, or ankyloglossia, in New Zealand each year. At least half can ...
    BeehiveBy beehive.govt.nz
    3 weeks ago