Wednesday, March 17, 2021

We need a parliamentary commissioner for human rights

The structure of our Bill of Rights Act is a little weird. Unlike the US (or Samoa, for that matter), the Act isn't supreme, and legislation can't be struck down for being inconsistent with it. Instead, Parliament is supreme, and so we let it violate our rights at will - but only if it actually knows what its doing first. To ensure this, Section 7 of the BORA requires the Attorney-General to report to the House on any bill which appears to be inconsistent with our rights and freedoms. The problem, which ought to have been obvious to a lawyer as experienced as Geoffrey Palmer, is that the Attorney-General is part of the government, and so inherently conflicted over government legislation, as are the government lawyers who actually do the work. The result is that a lot of BORA advice is substandard, as the government either ignores inconsistencies, or pretends they're "justified limitations" and so don't need to be raised with Parliament. The latest dodge - as seen in Andrew Little's control order legislation - is to say that the law will be interpreted through the lens of the BORA, and so any apparent inconsistency will disappear the moment it hits a courtroom (what happens before then apparently not mattering in the slightest). All of which makes a mockery of the idea that Parliament is a serious guardian of our human rights.

(Of course, you get a completely different attitude where opposition member's bills are concerned. There, the slightest inconsistency is highlighted and brought to the attention of the House. Which they should be, but it makes the partiality of the government's advice on its own bills all the more glaring).

Shadow Attorney-General Chris Penk thinks the solution to this is for the opposition to issue its own section 7 reports. While I expect they'll be every bit as partial as the government's ones, but in the opposite direction - a lawyer being someone who says what you pay them to say - this certainly isn't going to hurt. Competition may force the government to better justify its position, rather than being propped up by the artificial authority of office, and voters will be able to judge for themselves who is credible and who is not.

But if the goal is actual impartial legal advice to the House, so it can fulfil its duty of properly scrutinising legislation and engaging with and fixing any threat to rights and freedoms, then its obvious that parliament should use its own lawyer, rather than rely on one who works for someone else. In other words, we need to take the job of advising the House away from the inherently conflicted and partisan Attorney-General, and give it to a properly-funded Officer of Parliament. We could also task them with reviewing old law for consistency, and reporting to the House when the courts make a declaration of inconsistency with recommendations on how to remedy it.

This would cost a few million - the Parliamentary Commissioner for the Environment costs $4 million a year - but it would be worth it. And hopefully someone will take the idea and put it in a bill.