Tuesday, August 31, 2010

Strengthening the BORA

Over the weekend, in my post celebrating 20 years of the New Zealand Bill of Rights Act, I called for the BORA to be entrenched and strengthened to allow inconsistent laws to be overturned. Today, Green MP Keith Locke has announced a Member's Bill which does half of that job, and takes an interesting approach on the other half. His New Zealand Bill of Rights Amendment Bill [PDF] entrenches the BORA, requiring a referendum or a 75% supermajority in the House to repeal or amend it. And it allows the courts to declare legislation to be inconsistent with our supreme human rights law. But instead of allowing those laws to be overturned or rendered invalid, it instead requires Parliament to be formally notified of, and to formally respond to, any inconsistency. We already use such a provision in the Human Rights Act (see s92J and s92K), but that applies only to the right to be free of discrimination. Locke's bill would extend it to all rights. So, for example, in future the courts could find s11 of the Flags, Emblems, and Names Protection Act 1981 to be in violation of the right to freedom of expression, and Parliament would have to say publicly what, if anything, it was going to do about it. While its not overturning, this would still be an advance, as the pressure will then be on Parliament to repeal or amend offending provisions so as to make them consistent.

The bill also has a couple of other amendments around s7 notifications, requiring the Attorney-General to give reasons backing up a notification of inconsistency (not required; they always do), and select committees and members proposing amendments to legislation to assess their consistency with the BORA (a role which should instead go to the Attorney-General). A more important change is to clarify that a justified limitation must be the least restrictive measure reasonably possible. This still involves a judgement call, but it again forces government to pursue less restrictive over more restrictive alternatives.

Overall, these are positive changes, and I look forward to them being passed. And while the entrenchment is a big move, I don't think it is such to require a referendum - the inconsistency provisions still leave ultimate power in the hands of Parliament, rather than the courts, so its not the sort of constitutional change that must be put to the people. Instead, these are changes which will make our BORA work better, make the politicians justify any deviation from it, and symbolise our commitment to human rights. And that's definitely worth doing.