New Zealand has soaked up a lot of constitutional arrogance from this National government (see here, here), but Key might have gone too far this time. On 17th May Geddis posted this on Pundit:
I think National just broke our constitution
In the wake of the budget, the Government is pushing through a whole bunch of bills in one great rush of non-stop, orgiastic lawmaking. Most of these measures are to do with the budget. But at least one isn’t […] a bill intended to sort out the problem of paying family members of severely disabled people to look after them.
… all the relevant discussion of legal risks produced by the legislation has been redacted from the publicly available information about it. You can see this for yourself in the Regulatory Impact Statement that must be provided to the House when the Bill is introduced (there’s a more arresting visual of it here). So not only can’t I say for sure what risk there may have been that the legislation would have had the effect of dumping the Government back in court, neither can the MPs who are being asked to debate it and vote on whether it should be law.
… By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary’s primary function – to declare the meaning of law and its application in particular cases – has been nullified.
… what Tony Ryall’s doing here is, as far as I know, unprecedented (at least in recent constitutional history).
I covered the post here the next day. Yesterday Keith Ng at Public Address unleashed his version on an unsuspecting world:
What Andrew Geddis Said, But Shorter and With More Swearing
… Geddis suggested that you “might need a moment to let the implications of this sink in”. In the interest of expediency, I’m going to start you off:
NOT. FUCKING. OKAY.
In the GCSB case, they did something illegal, then just changed the law to make it legal (which is already quite a large crazy basket of NOT OKAY). Here, they’re doing something which was against the Human Rights Act before, and is still against the Human Rights Act after, but just made sure the people on the receiving end can’t have their legal rights recognised or enforced.
It’s saying, sure, the Government’s doing something illegal to you, but it’s okay, because we just made a law to say there’s nothing you can do about it. Lolz!
Well, it’s not okay. It’s not okay that human rights promised by law are not honoured because it costs money. It’s not okay that due processes promised by the Bill of Rights doesn’t apply because the Government says it doesn’t apply. It’s not okay that advice about how Parliament is about to piss all over the rule of law (at least I assume that’s what the legal advice says, because we can’t see it) is denied to Parliament. It’s not okay that saying “Budget, Budget, Budget” means that the Government can bypass all the checks and balances of Parliament itself and just put itself above the law overnight.
NOT. FUCKING. OKAY.
With that tail wind the story crossed over (via Twitter) to the MSM. The Herald has covered it, so has 3 News, and it was the focus of a Bryce Edwards political roundup. Which seems to have put enough pressure on Key for him to issue a weak denial:
PM says family carers legislation is constitutional
Prime Minister John Key says a new law that pays family members for looking after their disabled relatives is constitutional, even though it prevents legal action by new claimants.
… The bill caps payment at 40 hours a week, enables family carers to be paid less than others and prevents legal action by new claimants. It contains a clause stating that no one can complain on the grounds of discrimination, which the Attorney-General says breaches the Bill of Rights Act.
Mr Key said on Monday the Government believes that the legislation is legal and constitutionally correct.
John Key, of course, believes whatever it is convenient for him to believe. But his own Attorney General disagrees:
18. New s 70E appears to limit the right to judicial review because it would prevent a person from challenging the lawfulness of the decision on the basis that it was inconsistent with S 19(1) of the Bill of Rights Act.
19. On balance, I have concluded that limitation cannot be justified under s 5 of the Bill of Rights Act.
20. I draw these matters to the attention of the house.
To make matters worse Key’s government will not release the advice on “SIGNIFICANT LEGAL ISSUES AND RISKS ARISING FROM THE PREFERRED RESPONSE” with respect to the Bill. Those sections (and many others) of the Regulatory Impact Statement have been completely blacked out:
Why would anyone believe this thoroughly tarnished PM when legal experts have raised the alarm, when is own Attorney General has raised the alarm, and when his own government won’t release its advice? Bollocks to that. If Key wants to make his case then at the very least he needs to start by releasing the advice that has so far been redacted. What is he afraid of I wonder?
Update: An anonymous editorial in The Herald this morning “Disability bill demonstrates contempt for due process”…
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