Bill of Rights given teeth in bold public law move
IT is not every week that Parliament enacts legislation which has constitutional ramifications, which made Wednesday a redletter day for public law devotees.
The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act is hardly a title to roll off the tongue, but it has the potential to have farreaching implications for how law is made in this country and the ability of people to challenge those laws.
The New Zealand Bill of Rights Act (NZBORA) was passed in 1990, although many of its provisions date back far longer.
In the absence of New Zealand having a formal, written constitution, NZBORA is as close as it gets to summation of the rights and responsibilities of citizens and the state, albeit a summation which Parliament can alter by a bare majority should it so wish.
Having a Bill of Rights is one thing, abiding by it quite another.
Parliament can, and often does, pass laws which are inconsistent with the Bill of Rights: I recall as a fresh Gallery reporter thinking I had stumbled across a scoop when told a Bill had been found to breach NZBORA, only to be laughed at and told that happened all the time.
‘‘All the time’’ is an exaggeration, but each law Parliament proposes to pass is scrutinised by the AttorneyGeneral to see if it conforms to NZBORA, and most years a few fail the test.
Often Parliament will amend the law so that it conforms, but it does not have to and it often deliberately does not: a recent example is the law which banned a percentage of prisoners from being able to vote.
It was that law which, largely, got Parliament to where it was on Wednesday morning.
It was challenged in court by jailhouse lawyer and sometime Dunedin resident Arthur Taylor, who scored a hollow victory: the court agreed that the law was unconstitutional, but New Zealand courts cannot strike down such a law as, for example, the US Supreme Court can.
Instead, the judge issued a ‘‘declaration of inconsistency’’, a statement with no legal force whatsoever, but which basically told MPs that in this situation the law was an ass.
And there the story might have ended, but for the fact various constitutional scholars, who had long wished that NZBORA actually had some teeth, thought that the declaration of inconsistency might be a way to stick some molars in between its gums.
Hence, former Otago MP David Parker, who as AttorneyGeneral and chairman of the privileges select committee has done much of the heavy lifting on this Act, got to steer the Bill through third reading.
‘‘This is the most significant change to the New Zealand Bill of Rights Act since the New Zealand Bill of Rights Act was passed in 1990, Mr Parker said.
‘‘The protections in the New Zealand Bill of Rights Act are very, very important, and perhaps they’re a bit too easy for us to ignore when Parliament gets it wrong.’’
So, what does the Act do about that? Well, the courts can still issue a declaration of inconsistency, but now Parliament actually has to pay attention.
The AttorneyGeneral has six sitting days to advise the House that a declaration has been made, MPs are obliged to reconsider the declaration, and then have to report on their deliberations.
It may well be that Parliament digs its toes in and says ‘‘we don’t care’’, but MPs will be obliged to explain exactly why they don't care that NZBORA has been breached on their watch.
So, will this be a regular occurrence?
Probably not, as National Dunedin list MP Michael Woodhouse noted . . . but the point is that a mechanism to review such sensible law making/ constitutional outrage (delete as appropriate) now exists.
As one of Nationals MPs on the privileges committee, Mr Woodhouse has been involved with the law change the whole way through and his nonlegal background has helped focus the debate so it makes sense to anyone other than law geeks.
‘‘Like the AttorneyGeneral, I don’t think this is something that we’re going to be troubled by too terribly often, but when we do, we now have, I think, a sensible framework for being able to consider the declarations that the courts may make, he said.
‘‘I continue to aspire to, I suppose, the hope that this Parliament will also take the AttorneyGeneral’s vets very seriously and consider them in our deliberations of future legislation, as I think we have, by and large, in the past.
Southland National MP Joseph
Mooney, who is a lawyer, has also taken more than a passing interest in this law since arriving at Parliament.
‘‘Reasonable minds can differ, as to the inclusion of what is demonstrably justified in a free and democratic society,’’ he said. ‘‘Certainly there have been examples over the last couple of years where there has been significant consternation and debate about which limitations are appropriate and which are not.
‘‘We support the rule of law, we support the rights and freedoms of New Zealanders, and we support the Government being held to account on laws that will impact on the rights of New Zealanders.’’
And, there being few who could or would argue with that, it is now law.
Three southern MPs have had plenty of TV time in the past three weeks, although not in a way they would have wanted.
The networks have needed a lot of BRoll — incidental shots aired underneath a reporter’s track — of both National MP Sam Uffindell and former Labour MP Gaurav Sharma.
For Mr Uffindell it has frequently used a shot of him in the House, seated alongside Southland MP Joseph Mooney, while for Dr Sharma it has often broadcast footage of him heading to caucus, in which Dunedin list MP Rachel Brooking is prominent in the foreground.
Again in Dr Sharma’s case, Mr Woodhouse had the misfortune of standing beside him when the new ambassador from Ukraine was welcomed to Wellington, images which prompted at least one newspaper letter writer to wonder why Mr Woodhouse was turning up to support Dr Sharma.
Gnashing his teeth
One thing politicians should always do before speaking publicly is to check whether any journalists are watching.
Somehow last Friday regional development minister Stuart Nash failed to spot the person with a notepad and recorder in the front row when he spoke to the Southland Otago Regional Engineering Collective summit, and embarked upon a long anecdote about how the Finance Minister is more important than the Prime Minister . . . before realising how careerthreatening expressing such a proposition might be.
To be fair, it was said in the context of securing money in the Budget and was clearly meant in jest . . . and it did earn Mr Nash a second laugh when he suddenly remembered to check if the media was about.