Monday, February 26, 2024

An anti-constitutional government

Aotearoa has a lot of problems at the moment: climate change, housing, water, rich people refusing to pay their way. So of course the government has decided to crack down on gangs, as a distraction from all of the above. Their proposals violate the freedoms of expression and association, and based on past court cases, the Supreme Court is likely to say so. But the government says it doesn't care about that either, and that it will simply ignore the courts:

The Justice Minister says if the ban being imposed on gang patches is found to breach the Bill of Rights, that would not stop the government enforcing it.


Asked whether banning gang patches would breach that right, Justice Minister Paul Goldsmith said "people have also got the right to be able live peacefully in a society without being intimidated and harassed".

"There's always a balance and we'll work our way through the human rights implications but of course we campaigned on bringing in these policies, we've been elected, the Cabinet's made the decisions, we've prepared the legislation and we're going to do what we said we're going to do."

If the bill ultimately was found to breach the Bill of Rights, Goldsmith said it would not stop the government from making it law.

Effectively they are saying, out loud, that they will ignore our constitution to inflict their policies. And combined with other recent moves - abuse of urgency, one-day "submission periods" for select committees, attempting to bypass the Waitangi Tribunal - it makes it clear that this is an explicitly anti-constitutional government.

This sort of authoritarian bullshit is exactly what the BORA is meant to prevent, both through pre-enactment policy checks and post-enactment scrutiny by the courts. And while section 4 in theory gives Parliament the final word, the scheme of the BORA, the recent changes from the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022, and actual practice around such declarations makes it clear that if the courts find an inconsistency, it is absolutely Parliament's - which means the government's - job to listen and fix it. Refusing to do so violates our constitutional norms and undermines the legitimacy of Parliament (see also: the voting age).

Fortunately, we have a solution for that: if Parliament can't be trusted to do the job assigned to it and guard our human rights properly, then we can replace s4 BORA, take the job off them, and give it to the courts (who clearly can be trusted to do it). And the more the government bangs their authoritarian drum, the better and better that solution looks.