A law change to hold the Government and Parliament to account over constitutional breaches has been given greater teeth.
Parliament’s privileges committee has strengthened changes to New Zealand’s unwritten constitution – but the changes fall short of legally requiring lawmakers to respond to a breach of the Bill of Rights.
In early 2018, the Government announced that Cabinet had agreed to create a statutory power allowing senior courts to make “declarations of inconsistency” under the Bill of Rights Act, with Parliament required to respond.
The Government’s hand was forced by jailhouse lawyer Arthur Taylor’s legal action over prisoner voting rights, with the High Court then the Supreme Court affirming that a government ban was inconsistent with the Bill of Rights Act.
After legislation to create the new powers passed its first reading in mid-2020, Parliament’s privileges committee has finally reported back on the bill, recommending a suite of changes.
The committee said the bill as introduced would have created only “a mechanical requirement” for the Attorney-General to report a declaration to Parliament, and it recommended a stronger framework for responses.
As part of that process, a select committee would consider and report on a declaration within four months, while the Government would be legally required to respond to a declaration within six months (although that deadline could be extended or shortened as required).
“The House has exclusive cognisance over how its proceedings are conducted…together with the associated privilege of free speech, it is fundamental to parliamentary independence and the continuous balancing of New Zealand’s constitutional arrangements.”
– Privileges Committee
There would then be a parliamentary debate on the declaration, the select committee’s report, and the Government’s response.
The committee recommended adding a statutory requirement for a government response, saying the issues raised by a declaration of inconsistency needed to be given due consideration and a public response.
“The Government administers the legislation to which a declaration relates, and in practice has primary responsibility for initiating proposals for legislative change. It also has the resources and expertise of the public service at its disposal to develop a policy response to the issues raised by a declaration.”
However, it said the process for parliamentary responses to a declaration should be contained within the rules for a parliamentary term, rather than a law change.
“The House has exclusive cognisance over how its proceedings are conducted…together with the associated privilege of free speech, it is fundamental to parliamentary independence and the continuous balancing of New Zealand’s constitutional arrangements,” the committee said.
That decision may disappoint some submitters, with the Human Rights Commission and former Prime Minister Sir Geoffrey Palmer among those who had asked for a parliamentary response to be required through statute, or for the Bill of Rights itself to be legally entrenched.
Parliamentary sensitivities at play
University of Otago law professor Andrew Geddis told Newsroom the changes had gone some way towards addressing concerns raised about the lack of teeth in the original bill.
“The original proposal was really nothing more than, ‘The House will be told there has been a declaration’, which a lot of submitters said isn’t going to achieve the purpose of why declarations are given and how they should sort of fit into the constitution as a whole.”
Geddis said the majority of the committee shared Speaker Trevor Mallard’s wariness about compelling Parliament to respond to declarations through law, which could lead to questions of enforceability and whether the courts could scrutinise the inner workings of the legislature.
“You’ve essentially got the courts telling Parliament, ‘You didn’t do a good enough job with this legislation’, and then Parliament is now going to be looking at that and coming back – I think, given that there’s already sensitivities around that, they just didn’t want to add in another potential conflict point down the road.”
Creating a statutory requirement for the Government to respond to declarations of inconsistency was less fraught, as it was essentially the legislature instructing the executive through law.
Geddis believed the new requirements were unlikely to make governments more careful not to pass laws inconsistent with the Bill of Rights Act, but they could make the legislature and executive more likely to act on legislation with unintended consequences.
“Parliament legislates generally, and then [the law] gets applied specifically, and so it may well be that even trying to run a ruler over it, you just don’t foresee everything that’s going to happen, you don’t really realise its consequences.”
Attorney-General David Parker told Newsroom the Government supported the changes, and the amended legislation would represent “a significant advance in protection of the liberties that we have in New Zealand”.
Parker had long held the view Parliament needed a way to respond to declarations of inconsistency, but was opposed to those who wanted to entrench the Bill of Rights and give the courts the power to strike down legislation, saying parliamentary sovereignty was important when it came to what were often “line calls” on such laws.
Parker stood by the long timeframes to respond to declarations, saying it was important to develop considered responses without compromising pre-existing policy programmes.
“Sometimes the original legislation…will have been at the time of a heated political moment, or an area of public controversy that there may have been a slightly excessively populist response to.
“But by the time it’s gone through the courts, it will be, generally, years later, and there was general agreement across the committee that when those sorts of things are brought to the attention of the Parliament by the senior courts, that Parliament should just respond generally slowly – it doesn’t always have to do it slowly, but it should take a breath and reflect on it.”
He did not believe further action was needed to ensure governments took the Bill of Rights Act more seriously when preparing legislation, saying Section 7 reports assessing compliance were taken very seriously within the New Zealand system.