Tuesday, August 11, 2020

Submission: Parliament needs a better way to protect our human rights

On the last day, I've finally put together a submission on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill:

  1. I support the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill and asked that it be passed with amendments.

  2. The bill is a response to the ruling of the Supreme Court in Taylor v. Attorney General, which found that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 was inconsistent with the New Zealand Bill of Rights Act. In doing so, it agreed with the Attorney General when the law was passed, who found that it was "unjustifiably inconsistent with the electoral rights affirmed by s12 of the Bill of Rights Act".

  3. The conduct of the House in passing the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill in 2010 was disgraceful, as was its foot-dragging in response to a clear ruling from the Supreme Court that that law was inconsistent with the NZBORA. The conduct is perfectly captured by ACT MP Hilary Calvert's third reading speech, which reads in its entirety:
    "I rise to take a call on the third reading of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill. I cannot pretend this bill is my favourite thing. Trevor Mallard leaving the House earlier, and not being able to vote while he was away, could count as a favourite thing. Perhaps popping a ping-pong ball in the mouth of the honourable member over there who all day keeps turning his head from side to side with his mouth open could count as my favourite thing. This bill is not my favourite thing. However, Act is supporting National on this bill."
    (Emphasis added)

  4. This speech displayed a casual attitude to human rights from Members of Parliament. It bought the House into contempt. More importantly, it showed that Parliament was unwilling to seriously perform its duties of scrutinising legislation and acting as a guardian of our human rights under NZBORA.

  5. The New Zealand Bill of Rights Act 1990 currently respects the supremacy of Parliament, and MPs hide behind that phrase whenever their lawmaking decisions are questioned. But an assumption of the NZBORA is that Parliament will do its duty properly, not abuse its power, and pass laws which unjustifiably infringe upon our human rights only in exceptional circumstances, when - for lack of another way to say it - it is justified, and only after due consideration. Parliament's passage of the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill calls that assumption - and the legitimacy of Parliament to be the guardian of our human rights - into question.

  6. In the face of that question, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill represents the bare minimum that Parliament can do, a grudging acceptance of wrongdoing. Declarations of inconsistency by the courts will now need to be reported to the House. But there is no suggestion that Parliament will treat them any more seriously than it treated the removal of prisoner voting rights in the first place. While I understand that there will be Standing Orders requiring such reports to be debated, fundamentally it will be within Parliament's power to ignore them, or to casually reject them as the 49th Parliament did the entire notion of human rights. And that seems to be insufficient both as a constitutional safeguard, and as a means of restoring Parliament's legitimacy.

  7. Fundamentally, this Bill needs to be stronger. What I would like to see in its place is a provision automatically revoking any law declared to be inconsistent with the NZBORA by the courts, unless affirmed within a short space of time by a majority or supermajority of Parliament, or clauses echoing s33 of the Canadian Charter of Rights and Freedoms ensuring that any over-ride of the NZBORA is explicit and temporary, as well as the entrenchment of the NZBORA to prevent casual meddling and implied repeal. These would be a better balance between Parliament and the courts in New Zealand's modern democracy, and better respect the public judgement about who is a fair and impartial guardian of our rights.

  8. I recognise that such provisions are well beyond the scope of this Bill, and any beyond the first would require public consultation. It would therefore be best to view this Bill as a temporary measure to enable such consultation. I therefore ask that the Bill be amended to include a statutory review clause, requiring the Attorney-General to establish a public and impartial panel within three years to review its operation and advise on what stronger measures should be taken to rebalance Parliament and the courts in this area.

  9. I do not wish to appear before the committee.