Respecting our Rights and the New Zealand Constitution

Written By: - Date published: 8:30 am, February 27th, 2018 - 35 comments
Categories: greens, human rights, labour, law, Politics - Tags:

So in constitutional terms, Andrew Little and the Prime Minister dropped something of a bombshell at her post-cabinet press conference yesterday, announcing plans that the Government would give courts the ability to send legislation back to Parliament for them to review if it was ruled inconsistent with the Bill of Rights Act, colloquially known as BORA.

This is, arguably, a step towards both making BORA sovereign over parliament, although Labour clearly has no plans to do that themselves at this stage, (I’ll get back to what that means soon) and in the long term perhaps even larger constitutional reform, but in traditional Labour style, it’s just a single step, and they were very clear about how much they love every other aspect of the status quo. So there is no reason for those of you who view any sort of constitutional reform as a highway to a Republic to get on your horses and warn people that the British may be leaving. This is small step down a big road that could lead in any number of directions.

The plan doesn’t currently give courts the ability to force any particular change on Parliament, and is just making formal and developing a clear legal framework for something courts have already done informally in the past with regards to a certain law banning prisoners from voting, where the courts verbally reprimanded the National Government for bulling ahead with a law that was unnecessarily inconsistent with BORA. Parliament can still decline to amend an Act, amend it to remove the inconsistency, or repeal it at its own discretion, so this power is in some ways more a measure to allow the courts to bring inconsistencies of previous governments’ bills to Parliament’s attention, or to try and shame the government into rethinking after it passes a bill that breaches New Zealanders’ rights without due reason.

We currently have a preventative version of this in our legal process, where all Bills are vetted for consistency with the Bill of Rights Act before they can be passed into law, but it has frequently been ignored in the past to allow bad law to pass the house, (ACT’s Three Strikes Law comes to mind) and because this mechanism requires people to be actively taking someone to court over an issue, it will likely be treated as a much more serious step because it is likely to attract more news, with it potentially being a big public relations hit to any future governments that manage to have a law returned to them while still in office after having passed it. Overall, this is a moderate but good change, and if some future government did wish to consider making Parliament accountable to BORA, this process would have established some existing case law around the matter, so that Parliament can have an informed debate about what types of laws might be returned and why, and how to best amend the Bill of Rights Act to ensure good laws that bend our rights in order to keep them in balance aren’t sent back, but bad laws that trample over them without due reason are firmly returned to Parliament for judicious disposal or heavy reform.

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.

As to what sovereignty over Parliament means in this context, basically that’s the step at which the courts can require Parliament to amend or repeal bills to deal with an inconsistency with BORA, 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. While this might seem like a straightforwardly good thing, and it is eventually where I want to see our constitutional reforms head in terms of human rights, it doesn’t come without risks. Allowing courts to review and potentially overturn Parliament’s legislation gives Governments a motivation to try and politically bias the court, something that we haven’t done before and a large impediment to both justice and good legislation in the USA, so there is a legitimate slippery slope argument to be made that this is a risky step to consider. There’s also a good argument that because we don’t elect judges, (nor should we) they shouldn’t have a voice on policy matters, and that allowing them to review laws in a way that gives them any sovereignty over Parliament muddies that water.

There are good safeguards we can take for that including amending BORA to allow a bit more wiggle room around when it’s acceptable for Parliament to bend our rights in the name of arguably important legislative goals, and clearly delineating the circumstances under which such judgements would be appropriate to make in the law, but for now, this is a good first step in that direction for those who support sovereignty of BORA over Parliament, and a worthwhile reform even for those who don’t, as it currently does nothing to sacrifice Parliament’s sovereignty at all.

David Parker, in his capacity as Attorney General, also made it quite clear in the press conference that he’s not seeing this as a step to a more codified constitution, (one written down as a single document rather than existing in principle over multiple laws and conventions of practice) praising the flexibility of our current constitutional system and how it works well, but he and the Justice Minister did say laws that allow for reviews like this are appropriate given our lack of an upper house, unlike all other major Westminster Parliaments. I would however note that a politician saying a constitutional arrangement is flexible should arouse suspicion in the same way as a prisoner saying the bars of their prison are flexible- really, politicians aren’t supposed to like the limits on their power.

In any case, as you can see above, right now the only Party willing to stand up and say that they actually want Parliament to go towards sovereignty of BORA in the future is the Greens, (although Shaw’s a bit ahead of himself proclaiming Parliament will in any way be “bound” by BORA under this planned legislation- let’s say it’s more like a Parliament has given BORA a friendship bracelet than has in any way bound itself to it) so it looks like for the immediate future it’s not on the cards, but it’s incredibly likely to come up at some stage in future constitutional reviews, whether or not such reviews end up heading towards a Republic, and that means it’s open for future coalition talks if it happens that the bigger obstacle to going further was in fact New Zealand First rather than the Labour Party.

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

  1. You_Fool 1

    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

      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

    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

      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

        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

          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

            “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

    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

      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

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

        • weka 3.1.1.1

          Thanks, saved me having to read it.

        • alwyn 3.1.1.2

          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

          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

            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

          “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

            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

              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

                Keith Locke’s mate

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

                • alwyn

                  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

                    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

                      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

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

              • KJT

                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

      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

    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

      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

        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

          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

            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

              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

      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

    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

      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

    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

      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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