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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.

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