Delayed proposals to give New Zealand’s unwritten constitution greater strength have kicked back into gear, with legislation giving courts the right to declare a law inconsistent with the Bill of Rights set to go to Parliament before the end of the year.

In February last year, Attorney-General David Parker and Justice Minister Andrew Little announced Cabinet had agreed in principle to create a statutory power which would allow senior courts to make “declarations of inconsistency” under the Bill of Rights Act, with Parliament required to respond.

The announcement came as notorious jailhouse lawyer Arthur Taylor prepared to go before the Supreme Court on the issue of prisoners’ voting rights, having in 2015 won a declaration from the High Court that a government ban was inconsistent with the Bill of Rights Act.

A promise of “further work” on the law change was not followed by any public progress, while in November last year the Supreme Court sided with Taylor and upheld the right of the judiciary to make a declaration of inconsistency, rejecting an appeal by the Attorney-General.

Documents obtained by the No Right Turn website under the Official Information Act show that the Government had initially planned to receive Cabinet approval on a final policy by October 2018, with legislation introduced in early 2019.

However, a Cabinet committee paper from February 2018 noted that the Ministry of Justice and Crown Law had not consulted widely on the proposals, as the focus was “agreeing an ‘in principle’ position primarily for the purposes of the current litigation” – a statement which led No Right Turn to question whether the Government’s announcement was a legal tactic rather than a genuine commitment.

Justice Minister Andrew Little says a judicial declaration of inconsistency should force Parliament to reconsider legislation. Photo: Lynn Grieveson.

Speaking to Newsroom, Little denied that was the case and said Cabinet was likely to sign off on a final policy next month, with the relevant legislation introduced to Parliament before the end of the year.

There had been “a fairly intense set of discussions in the last three or four months”, with the bulk of debate concerned with the balance between the role of any new legislation and what should be dealt with through Parliament’s standing orders.

“That’s where the argument’s been, what are the mechanics of that – you can’t legislate for parliamentary procedures, that’s standing orders, so there’s been a bit of negotiation with the Speaker.

“That is yet to be concluded, but I’m confident we’ll get there.”

While the Attorney-General had to provide a section 7 certificate informing Parliament whether or not a law complied with the Bill of Rights Act, and the issue could be raised in debate, Little said Parliament should be required to affirm, repeal or amend legislation if a court made a declaration of inconsistency.

“If it gets to the point where the court says, ‘You know what, this breaches the Bill of Rights, rights are being encroached upon’, actually Parliament should reconsider it for that reason alone.”

The Government had yet to consult with National over its plans given Cabinet had not finalised its position, with Little equivocal on his plans for any discussions.

“I certainly wouldn’t rule it out, but I have to confess, after the last couple of weeks I’m somewhat shaken by consultation with the Opposition at the moment…

“Ideally you want to get consensus, but equally I think this is an important constitutional development.”

Speaker Trevor Mallard says he does not want to see an American-style system where the courts can strike down legislation. Photo: Lynn Grieveson.

Mallard said there had been “a degree of consultation” between himself and the Government over its plans, with a desire to strike a balance between strengthening the courts and maintaining the sovereignty of Parliament.

“There’s quite a strong view that we don’t want to go to a US position where courts strike down legislation, but want to find a way that if a serious question is asked Parliament actually has a look at it, and that almost certainly has to be a combination of legislation and standing orders reform in order to make that happen.”

The Parliament needed to retain its ability to make conscious decisions to pass law which violated the Bill of Rights, he said.

Any changes to the standing orders had to be “generally acceptable” on a bipartisan basis, given the obvious constitutional issues at play.

“I can’t imagine even the law…going through without big discussions at either the privileges committee or between the senior members of the privileges committee, because that is a tradition with constitutional law reform.”

Mallard said any changes to standing orders could be considered as part of an upcoming, regular review. The final decisions from that process would be finalised in May or June but not take effect until after the next election, given the convention of a consensus which could withstand a change of government.

“There’s always going to be some very fiery issues such as the terrorism bill where there’s a lot of argy bargy, but the next day you still have to sit down and work on a whole lot of legislation.”

National’s shadow attorney-general Tim Macindoe said the caucus had not yet discussed the Government’s plans, but he believed the change was unnecessary given the ability of the Attorney-General to declare inconsistencies.

“That’s not a nice-to-have or something that he or she can do if they feel like it, it’s a requirement already.”

While the courts did not have that power themselves, giving them that right would not and should not make any meaningful difference to the supremacy of Parliament, Macindoe said.

“They’re not proposing in any bill that they bring forward to give the courts the power to strike down statutory law, they’re simply saying they’d have the ability to initiate a mechanism whereby Parliament would look at it again…

“That’s why I’m saying the current system actually achieves that without going through a lot of extra time and cost.”

However, National would still consider the bill once it was produced and work constructively on any changes that it felt would improve the law, he said.

“There’s always going to be some very fiery issues such as the terrorism bill where there’s a lot of argy bargy, but the next day you still have to sit down and work on a whole lot of legislation.”

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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