Wednesday, March 18, 2020

The tiniest of teeth

Back in early 2018, as a shoddy legal tactic to try and avoid the prisoner voting ban being formally declared inconsistent with the BORA by the Supreme Court, Justice Minister Andrew Little floated the idea of greater legal protection for human rights. When the Supreme Court case didn't go the government's way, the idea stalled. But after blowing through yet another deadline, the government has finally introduced legislation to the House, in the form of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. The Bill implicitly recognises the power of the courts to issue such declarations, and adds a new section to the BORA requiring the Attorney-General to report to Parliament on any declaration of inconsistency. What happens after that is up to Parliament, but the explanatory note suggests they will be seeking changes to Standing orders to require a referral to select committee, a formal report back with recommendations, followed by a debate and vote on whether to accept those recommendations. As for what happens next:

Once the House has been informed about, has considered, and, if it thinks fit, has responded to, a declaration of inconsistency, the Executive can then consider its approach to initiating legislative change to remedy the inconsistency.
Constitutionally, this is the tiniest of tiny teeth. Hopefully, it will see MPs listen to the courts, and recommend corrective legislation to remove any inconsistency. And if not, at the least, it will require them to breach the BORA knowingly, willfully, and in public, so the electorate (or international courts if required) can take any required corrective action.