Friday, January 13, 2006

A hole in the Bill of Rights Act

Quite apart from being an excellent illustration of why retrospective, post hoc punishment is unjust, the trouble over the Land Transport Amendment Bill has also exposed a flaw in the Bill of Rights Act. No, not the obvious one of Parliament still being able to overrule it, but a problem with the reporting of possibly inconsistent legislation.

While the BORA does not allow legislation which breaches fundamental rights to be overturned by the courts, it still acts as a check on Parliament. Section 7 of the BORA requires that the Attorney-General

bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights

whenever a bill is introduced to the House. This has resulted in the Ministry of Justice and Crown law Office conducting a consistency check on every piece of legislation (their results of this process can be seen here). The obvious problem is that they only do it once, at the beginning of the process. And where a Select Committee or a Supplementary Order Paper suggests amendments to a bill which are possibly inconsistent with the BORA, there is no formal process for notifying Parliament of this.

Clearly, this has to change. I am unsure whether it needs formal legislative approval or not (though that would be preferred), but we need subsequent amendments to be given the same check for consistency with the BORA, and for the Attorney-General to be required to stand up and notify Parliament where there is a possible inconsistency. I suspect that Parliament would have been a lot less eager to pass the retrospective passenger licensing amendment if that had been the case, and at the least it would not allow our politicians to plead ignorance and disclaim responsibility for doing so.


You raise a good point here. I have noticed amendments to Bills after the A-G's report that appear to contravene NZBORA. There is scope for considerable injustice here - as has happened in the case of this legislation. NZBORA needs amending - especially before a Hard Right government comes to power and starts cracking down on ordinary kiwis. Unfortunately, most people know very little about our system of government (a deliberate omission by those in power) and are unable to see the danger until it bites them, as it has in this case.

Posted by Anonymous : 1/13/2006 04:32:00 PM

Excellent points, both about the BORA flaw and retrospective legislation generally.

Parliament's rules ought to require a super-majority for clauses that include retrospective elements.

Posted by M'Lud : 1/13/2006 07:51:00 PM

Parliament's rules (or rather, the law) ought to require a supermajority to over-ride the BORA at all. But unfortunately, our parliamentarians still believe that they, rather than the people, are sovereign.

Posted by Idiot/Savant : 1/13/2006 08:06:00 PM

I/S makes a good point on the problems of section 7 reports and SOPs. You could always entrench the BORA as supreme law... but that opens another can of worms with judicial review and the like. That goes to the obvious problem I/S mentions...

The super-majority requirement for retrospective amendments probably won't address the problem of inconsistency with the BORA. I would say the best course without being too radical would be to increase the scope of s. 7 to include SOPs - although this obviously has problems in itself as it would slow down the legislative process, requiring Ministry of Justice legal counsel to address them overnight. That probably wouldn't produce satisfactory results either.

Posted by Lewis Holden : 1/14/2006 09:34:00 AM

This has happened before - e.g. the increased penalties for home invasions were also made retrospective after the first reading.

In any case, section 7 is pointless for government bills. If the government thinks the bill is "demonstrably justified' then there is no conflict with BORA, if not then they should not introduce it at all. It's possible the AG could take a view that conflicts with the government view, but in practice this is unlikely to happen.

Posted by Nigel Kearney : 1/16/2006 03:30:00 PM

I'm all for expanded scope for reporting on inconsistency. But, of course, there is still the ability of the courts to declare an inconsistency - particularly useful for late amendments! But there are no legal consequences from such a report. I wonder whether a reported inconsistency (which wasn't reported in the progress of legislation) could invalidate the legislation unless confirmed by Parliament within 6 months. Sort of "half-way house" entrenchment...

And, btw, (and because the previous entry on this topic doesn't seem to be accepting comments), I don't think the new LTA law actually breaches the Bill of Rights but agree, for other reasons, it's bad law. I've set out my analysis on my blog:

Posted by Dean Knight : 1/16/2006 04:48:00 PM

Well, the point of reporting is so that politicians know what they're doing - and so the public knows what they're doing. For a start, it would stop them from pleading ignorance in exactly the way they are doing now...

I'd just read your post; quite interesting (its useful to have a local lawblogger around). I'm still deeply concerned about the retrospective aspect, but a lot of it would be dealt with by having proper rights of appeal (including to the courts rather than just the director or Minister). Unfortunately, it'll take until after Waitangi Day for any fix to pass, and in the meantime people are going to be screwed over. And somehow, I don't think the government will compensate them for its mistake...

Posted by Idiot/Savant : 1/16/2006 05:20:00 PM


And I didn't mean to pour water on the Bill of Rights reporting idea either; I share your concerns! In particular, given the recent politicisation of the role of the AG, I wonder whether the reports are better tendered by an independent body.

Posted by Dean Knight : 1/16/2006 06:12:00 PM