Respecting our Rights and the New Zealand Constitution

35 comments on “Respecting our Rights and the New Zealand Constitution ”

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1. You_Fool 1

   27 February 2018 at 8:49 am

   Do the courts have the same review powers against the Treaty of Waitangi as well? Or is it just the BORA? Shouldn’t they be able to push legislation back if it violates the Treaty as well? Given that is our founding document…
   • Matthew Whitehead 1.1

     27 February 2018 at 3:27 pm

     The Treaty of Waitangi is already part of our constitution, so as long as Parliament doesn’t explicitly legislate Treaty rights away and instead merely fails to take them into account, the courts can absolutely rule them inconsistent with the treaty and open up claims for compensation where it’s due.
2. Ad 2

   27 February 2018 at 8:50 am

   It would take quite a rush at Parliament to entrench BORA (is it 66% of Parliament or 75%?).

   Labour is doing what it can under MMP.

   Even so, it was particularly useful to see Act give qualified support for the move yesterday. I guess National were a little busy with their internal stuff.

   There would need to be some impressive backroom lobbying to get near-unanimity across Parliament for reforms of the Courts’ power that are stronger than what is proposed.
   • Matthew Whitehead 2.1

     27 February 2018 at 3:28 pm

     Actually, no it wouldn’t. Entrenching something just needs a simple majority to pass and a three-quarters supermajority to repeal.
     edit: as per (6) below, apparently you DO need the same supermajority you want to impose, but the requirement is in standing orders, not in the entrenchment legislation.

     Although I haven’t actually discussed entrenchment in this post, I think once we’ve put BORA on a basis that we’re happy with, (ie. sovereign over Parliament) it should absolutely be entrenched.
     • Chris 2.1.1

       27 February 2018 at 4:04 pm

       There’s way more that needs to be done than entrenchment, too. Changes to the NZBORA itself are needed to reinstate many of the principles the courts over the years have abandoned – principles it was assumed would be remain firmly part of the legislation, like the prima facie rule of exclusion. The Court of Appeal has taken a machete to the NZBORA in ways never envisaged. If Labour are serious about bill of rights protections it needs to fix the Act itself, otherwise we’re simply entrenching the bad stuff as well. Lord Cooke of Thorndon must be spinning in his grave.
       • Matthew Whitehead 2.1.1.1

         27 February 2018 at 4:13 pm

         That sounds good in principle, although we’d probably need to hear from a proper lawyer about the consequences of the details first. We also need to add gender identity as a protected class, too, and a number of other modernizations could be considered.

         In addition, if you’re making BORA stronger by making it sovereign over Parliament, it’s okay to add a few exceptions or a bit of wiggle-room to legislation having to comply with it in trade. Sometimes we really do have to balance rights against each other, and I legitimately wouldn’t want the ability of Parliament to pass good law to be curtailed.
         • Chris 2.1.1.1.1

           28 February 2018 at 2:57 am

           “Although I haven’t actually discussed entrenchment in this post, I think once we’ve put BORA on a basis that we’re happy with, (ie. sovereign over Parliament) it should absolutely be entrenched.”

           Once what you’re suggesting happens, then the ability of Parliament to pass “good” law will be curtailed, at least to the extent entrenchment affects that ability. Entrenchment makes it harder to fix things the courts either get wrong or when the law protecting the right is weakened. I’m not against entrenchment, but there’s a bunch of obvious things that need fixing because of the damage the courts have done to the BORA before entrenchment occurs.

           The point you make about gender identity highlights an interesting point. The grounds for discrimination are listed in the HRA, not the BORA, so entrenchment of the BORA wouldn’t affect the ability to add or amend the list as the need arises. Adding the cause of disability instead of relying solely on disability is another example, arising from the Trevethick decision. But the point is that the BORA referring to or incorporating other legislation could be a useful mechanism generally to allow “good” law to be made without the curtailment entrenchment has the potential to bring. That said, that doesn’t remove the need to do whole lot of fixing of the obvious damage the courts have done to the BORA before thinking about or at least in preparation for entrenchment.
3. One Anonymous Bloke 3

   27 February 2018 at 9:02 am

   It’s a great wedge issue. National should roll out Paula Bennett to explain why some people have fewer human rights again. Pretty sure the new leader will back her up now Bill’s bailed, too.
   • alwyn 3.1

     27 February 2018 at 12:31 pm

     Why should the National Party bother to oppose the Bill directly?
     The only person who seems to think that this Bill has any meaning at all is James Shaw. By doing so he is merely demonstrating that he isn’t the sharpest knife in the drawer and that he was severely short-changed when brains were being handed out.
     When the Bill comes to the house National should argue that it is a completely meaningless piece of legislation. Then propose that the movers of the Bill be reported to the Privileges Committee for Contempt of Parliament.
     After that they could simply refuse to put up any speakers. After all the stupid thing is merely another filler for when the Government actually have nothing prepared. Remember how they kept opposing National attempts to get a vote on a Government Bill last year?
     If National really want to up the ante they could move an amendment that would suspend any law objected to until after Parliament had thoroughly reconsidered it and repassed it again. They would have to go through all stages in the House again.
     Labour wouldn’t risk that and the Green Party would then be forced to oppose the amendment.
     Poor James. Back to being the Governing Parties poodle.
     If such an amendment got through National wouldn’t actually have to vote for it at the final stage of course. If Labour, for some crazy reason, decided they could live with being hamstrung by the Courts National could vote against the Bill by arguing the supremacy of Parliament over unelected Jurists.
     • One Anonymous Bloke 3.1.1

       27 February 2018 at 12:36 pm

       Shorter Alwyn: “if this government does it, I hate it”.
       • weka 3.1.1.1

         27 February 2018 at 1:43 pm

         Thanks, saved me having to read it.
       • alwyn 3.1.1.2

         27 February 2018 at 1:50 pm

         OAB.
         What do you think would happen if they followed my suggestion?
         Add a bit of fun to the House I would think.
       • You_Fool 3.1.1.3

         27 February 2018 at 2:36 pm

         More like, “In my world National can be a dick and not be held to account”

         Slightly longer I know but still…

         I actually like his facetious amendment, and if NAct did do that then they should be held over the coals if they didn’t support the final bill
         • alwyn 3.1.1.3.1

           27 February 2018 at 6:05 pm

           What was facetious about it?
           I merely want to see the Public, as represented by the Judiciary, having the chance to rein in the wilder ideas of the nutters in the current Government.
           I imagine it would at least delay the dreadful “Protect Party Leaders” bill that they are crashing through into law.
           Can anyone with a conscience possibly support that disgraceful legislation?
       • alwyn 3.1.1.4

         27 February 2018 at 6:01 pm

         “if this government does it, I hate it”.
         I don’t hate anybody OAB. A total waste of time and terribly injurious to your health. Give your hatred up and you will lead a much happier and healthier life than you appear to.
         I just get a bit unhappy when a Government, of any colour, set out to do things that are bad for the people of New Zealand.

         That is why I disapprove of Winston the First and the Watermelons.
         Labour, having conveniently and very sensibly got the Green Party into a position of zero power and influence are generally only doing sensible things, so far. Signing the TPPA for example.
         Unfortunately they will find it impossible to avoid the urge to make us do what they want, not what we want or what is good for the country.
         They are also totally unprepared for being in Government. Look at the twits like Twyford with his wild promises that are quite incapable of being carried out.
         Look also at the billion dollar a year slush fund that they have given to Winnie to try and buy his way back to popularity. Great for the Racing Fraternity of course but God help the rest of us.
         • One Anonymous Bloke 3.1.1.4.1

           27 February 2018 at 6:04 pm

           The object of your hate in my comment is an “it”: that which this government does. Not a person.

           I hope that helps you grasp my meaning.
           • alwyn 3.1.1.4.1.1

             27 February 2018 at 6:15 pm

             Alright. If it makes you feel better and cheers you up I will reword it as “I don’t hate almost anyone or anything”
             I find it very, very hard not to feel hatred for people like Keith Locke’s mate Pol Pot though. I have friends who managed to get out of that benighted country although most of their family were murdered. That was one truly dreadful person.
             Stalin and Hitler come into the same category of course.
             There has never been New Zealand politician who could possibly be classed as someone to hate and no policy that has been so bad as to meet the qualification for “hatred” either.
             If you are honest I really think you would find it impossible to actually find anything done by any New Zealand Government that was really worthy of hatred.
             • One Anonymous Bloke …

               27 February 2018 at 6:27 pm

               Keith Locke’s mate

               And there it is, leaking out. Thanks for illustrating my point.
               • alwyn …

                 27 February 2018 at 7:01 pm

                 I presume you are someone who believes that Michael Cullen was a hater and a wrecker then? Pol Pot was a truly vile individual.
                 http://www.stuff.co.nz/national/323890/Cullen-almost-reduces-Green-MP-to-tears
                 • One Anonymous Bloke …

                   27 February 2018 at 7:14 pm

                   Did you read the article? Cullen had a nasty turn of phrase when it suited him. His accusation failed to find its mark.

                   You’re the one smearing Locke right now though, lashing out because your hate was exposed, so stop hiding behind Micheal Cullen, cowardly Alwyn.
                   • alwyn …

                     27 February 2018 at 8:08 pm

                     Have you been drinking again, or is your attitude caused by imbibing something much harder?
                     Give up this self-destructive attitude to the world.
                     It is only wrecking your health, both physical and mental.
                     Surely you can’t really be a fan of Pol Pot, Stalin, Hitler and Mao?
                   • One Anonymous Bloke …

                     27 February 2018 at 8:15 pm

                     Mr. Strawman,
                     Bring me a dream.
                     Make it the lamest,
                     I’ve ever seen.
             • KJT …

               27 February 2018 at 8:37 pm

               You think that knowingly condemning 300 thousand plus New Zealand children, to poverty and blighted lives, is not worthy of hatred?
   • Matthew Whitehead 3.2

     27 February 2018 at 3:31 pm

     I expect National will simply support this Bill on its introduction, given it has no actual teeth to it right now. What they’ll oppose is any attempt to reduce the sovereignty of Parliament- they want all that power for themselves, thanks. There seems to be at least some of that attitude in Labour, too, although I think they see it as “consitutional flexibility,” rather than power, and probably feel like they have a duty to use it responsibly, it’s still a very subtle distinction.
4. Bill 4

   27 February 2018 at 10:22 am

   From the reading of this piece, what’s to say government won’t, over time, decimate the Bill of Rights Act to make it consistent with preferred legislation?

   This bit from the sixth para seems to point to that possibility.

   …which effectively means Parliament must first amend BORA to pass new laws that would currently be inconsistent with it, at least if it doesn’t want to have them struck down.

   Given what seems to have been a general drift across “the west” to weaken Rights over the past few decades (“because security”), I can’t say I’m all together comfortable with this proposal. Maybe I just need to read more to get a better handle on things?
   • One Anonymous Bloke 4.1

     27 February 2018 at 10:28 am

     what’s to say government won’t, over time, decimate the Bill of Rights Act to make it consistent with preferred legislation?

     NZ’s ratification of the Universal Declaration of Human Rights.

     Other than that, the ballot box. Which is the status quo anyway.
     • Bill 4.1.1

       27 February 2018 at 10:40 am

       So the ballot box, since the Universal Declaration of Human Rights is more or less just a “feel good” (maybe “aspirational”)and largely unenforceable document.

       But then, since my question was asked in relation to government, not any particular party, and since both self proclaimed ‘right’ and ‘left’ have been party to the general drift of recent years that’s seen so-called “security” trump “rights”, the ballot box wouldn’t necessarily be of much use either.

       So the question stands. If government has the power to amend BORA, what’s to say government would only do so in a positive way?
       • One Anonymous Bloke 4.1.1.1

         27 February 2018 at 11:53 am

         largely unenforceable document.

         I refer you to the decision in Hamed v R (pdf) in the Supreme Court.

         It cannot be the case that this factor always prompts admission of the evidence obtained in breach of the New Zealand Bill of Rights Act where offending is serious. That would be to treat human rights, which are expressed as universal, as withdrawn from those charged with serious offending…

         The Justice Department says:

         The Declaration has had a profound influence on the development of international human rights law.

         But your basic premise is reasonable: human rights exist to protect us from abuses of power, including by the government, which is also the body charged with ensuring human rights. Who guards the guards?
         • Bill 4.1.1.1.1

           27 February 2018 at 12:36 pm

           What?

           I said the Universal Declaration of Human Rights (a UN doc) is largely unenforceable, and you throw up a quote from a case to do with the New Zealand Bill of Rights being circumvented or ignored due to “the seriousness” of the allegations in the case? Which goes on to say that “the seriousness” should be sat alongside other considerations before the Bill of Rights is circumvented!

           In future, the Bill of Rights may be simply be amended to accommodate government wishes – assuming some degree of parliamentary consensus. So no need to play footsie with additional cute legal/moral considerations.

           I’m also struggling with the “putty” of your second quote, which I read as simply saying that the Declaration has had a profound effect on laws drawn up in line with the Declaration. So fuck me dead Sherlock. Has it really?!
           • One Anonymous Bloke 4.1.1.1.1.1

             27 February 2018 at 12:43 pm

             The clue is in the word “universal”. I wonder where the SC got it from 🙄

             In 1978 New Zealand ratified the 1966 United Nations International Covenant on Economic, Social and Cultural Rights. This Covenant is one of two (with the International Covenant on Civil and Political Rights) which are intended to give legal force to the 1948 Universal Declaration of Human Rights

             Human Rights Foundation. My bold.

             I note you failed to address my agreement with your basic premise. There’s no pleasing some people.
   • Matthew Whitehead 4.2

     27 February 2018 at 3:41 pm

     This legislation doesn’t go that far, so it’s not a risk of the planned Bill, just a risk if we take things further.

     The point it does become a risk is if/when we give BORA sovereignty over Parliament in the future, but that’s only a risk, and that’s only one way a National Party looking to game the system might go- they might instead try to politicize the appointment of judges to simply avoid them declaring things as incompatible with BORA, or they might be defeated by their opponents and simply accept they have to try and legislate within the limit of human rights legislation. (that last one being pretty unlikely until they’ve at least tried and failed with the other two routes)

     The thing is, National and ACT will try to undermine BORA no matter what we do. I personally think it’s better to stake our institutions on stopping them and make it clear when they’re violating human rights, rather than to leave BORA toothless, so every step further along this road seems good to me, even if they’re risky.
5. weka 5

   27 February 2018 at 1:45 pm

   There’s also an implicit check on the government to take a court’s recommendation to review a law seriously because of the risk that if they allow an inconsistent law to stand with no review for blatantly unreasonable grounds, they might end up with a second court case touching on that law and sending it back to them, or their opposition, to take action on.

   Do you mean that the courts can keep sending the same piece of legislation back to parliament? Or that if govt don’t take it seriously it might come back to bite them via other legislation?
   • Matthew Whitehead 5.1

     27 February 2018 at 3:36 pm

     I expect that each new case touching on a piece of legislation would present an opportunity for a judge to send back a piece of legislation to Parliament, whether it had gone already or not. We’ll have to wait to see the Bill of course, but I think allowing courts to send legislation back again if it’s not amended or repealed the first time its inconsistency with BORA becomes relevant to a court case is absolutely something judges will do if their recommendations aren’t taken seriously and if the Bill allows for it.
6. Dawson 6

   27 February 2018 at 8:08 pm

   This post and the authors follow up comments are interesting but contain the following errors:

   – The proposal is that a finding of BORA inconsistency would mean Parliament has to reconsider the legislation, not amend or repeal it. Parliament could just decide to keep the legislation.

   – The Treaty of Waitangi is not at all enforceable as direct constitutional law except where incorporated into legislation. The courts have no power to order compensation on the basis of a breach of the treaty.

   – It takes more than a simple majority to entrench legislation. Standing orders state that “A proposal for entrenchment must itself be carried in a committee of the whole House by the majority that it would require for the amendment or repeal of the provision to be entrenched.”
   • Matthew Whitehead 6.1

     27 February 2018 at 10:02 pm

     1) I actually say that in the post that parliament is required only to reconsider it. From there, their options are to leave it in force as it currently stands, amend, or repeal.

     *goes back and checks*

     Yep, I definitely did talk in the post itself about how the government can take no action on being ordered to review legislation under the planned Bill. You’re mistaken. You may have been confused by the fact that I later move on to talking about making BORA sovereign over Parliament, which would remove that option.

     2) That’s not entirely my understanding given that there are some legal principles behind treaty claims that don’t actually rely on specific NZ legislation, but you’re certainly right that to date all restitution for broken treaty promises has been done through channels deliberately created by NZ law. That’s not to say in the future that judges won’t rule that such law actually applies more widely than the government thinks it does because of those constitutional documents.

     3) That’s interesting, because it’s not in the law itself, which suggests that it entrenchment could be done by simple amendment of the standing orders without a supermajority. I hadn’t considered checking standing orders for that, thanks for the correction.

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