MPs’ big call on where rights and laws collide
New Zealand is generally well governed. No matter one’s political stripes, governments of each colour have kept the national lights on. Where we are less well served is in the legislature. Parliament is the whipping horse of the executive. It does a passable job of holding governments to account and does a slightly better job of scrutinising legislation.
This is why recent happenings in our own Parliament are cause for optimism. Evening sessions in Parliament and select committees over the past two years have seen a small group of parliamentarians grapple with a thorny constitutional problem. One that would – in a heavily caveated, arguably-maybe-possibly sense – see Parliament, the legislature, effectively hand over some of its power to the judiciary.
The legislation in question is an amendment to the Bill of Rights and Human Rights Acts which concerns what happens when a senior court declares that a law infringes on those rights in a way that cannot be justified in a free and democratic society.
Thanks to a case brought by Arthur Taylor, relating to prisoner voting, the courts have essentially decided they have the power to declare that some legislation is inconsistent with human rights laws. This is no secret to Parliament, which has always had the ability to pass laws that infringe on those rights should it so choose.
The Government, enacting a Labour policy from its 2017 manifesto, has decided Parliament needs a way to respond to those declarations – giving the legislature the opportunity to revisit poor decisions it made in the past. The idea is to have the government look at a declaration of inconsistency before putting something to Parliament where its own internal rules, standing orders, will work out a way of dealing with them.
A late-night debate in Parliament last year delved into the consequences of a change that would give the courts a great deal of power to influence what gets talked about in Parliament, though they would not have the ability to strike down legislation. Attorney-General David Parker, co-author of the bill with Andrew Little (then justice minister), told MPs that, while he absolutely believed Parliament must be sovereign, and wield power over the courts, there had to be a way to relitigate ‘‘line calls’’.
Parker described the legislation as a ‘‘halfway house’’ between an American-style judiciary that struck down legislation and New Zealand’s fairly, well, chilled-out approach to people’s rights.
National’s Chris Bishop put forward an opposing view. He said the bill asks what the role of judges is within our constitution; they can’t strike down law, but should they be able to signal that Parliament should repeal or amend statutes? He argued that Parker’s ‘‘halfway house’’ would have the effect of slowly politicising the judiciary, possibly leaving us with something similar to what exists in the United States.
By giving the judiciary the ability to make fairly political calls on pieces of legislation, he argued, it’s inevitable that, slowly, the judiciary would itself become politicised. That would be bad news for issues relating to people’s rights.
In the US, issues such as abortion, campaign finance, and gun control have each been decided through the courts, rather than elected politicians, perverting lawmaking and driving rifts through society. Bishop argued those essentially political issues should be ‘‘mediated through the battleground of democracy, and through political debates and back and forth between elected members of the legislature’’. Instead, when those issues were ‘‘battled out in the judiciary, of course the judiciary is politicised’’.
Things belatedly progressed to select committee, which heard oral submissions last week from the likes of Sir Geoffrey Palmer, and Sir Kenneth Keith, who served on the International Court of Justice. Palmer remonstrated that ‘‘the Bill of Rights Act was not the transformation I intended. Democracy is in decay globally. You must do more to protect human rights as a Parliament, and I fear you lack the courage.’’
Unsurprisingly, written submissions provoked a flurry of activity from the legal community. Victoria University’s Dean Knight wanted the changes to go further by requiring Parliament and the executive to respond to a declaration, either by confirming, repealing or amending the enactment declared inconsistent. Claudia Geiringer and Andrew Geddis, of Victoria and Otago universities, pondered whether any declaration should be sent to a select committee, further forcing Parliament into responding to such a declaration.
The committee is set to report back by the end of July. Where it lands, and how far the Government decides to take the declarations, is quite unclear. The deliberative and careful process Parliament has taken so far deserves mention as a depressingly rare example of a legislature handling a thorny, difficult, and important issue with the care and gravitas it deserves, and not an opportunity for cheap point-scoring.
David Parker ... told MPs that, while he absolutely believed Parliament must be sovereign, and wield power over the courts, there had to be a way to relitigate ‘‘line calls’’.