New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill

I move, That the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill be now read a first time. I nominate the Privileges Committee to consider the bill.

This bill is very simple on its face, but it is very profound in its effect. This bill deals with the situation, responding to successive decisions of our courts, particularly our senior courts, who have found that they have the right to issue declarations of inconsistency in relation to the New Zealand Bill of Rights Act. And indeed, we recognise that and the nature of the relationship comity between this House and the judiciary—we recognise that. This bill, effectively, recognises that, but it does a very important thing, because for a citizen who is concerned that a piece of legislation has been passed that traduces their basic civil and human rights—something that is then found not only to cut across their rights but also not to be justified in a free and democratic society—merely getting a declaration is not enough. There must be a response.

And indeed, when this House is doing its job and members of this House are feeling a sense of responsibility and accountability when our senior courts issue a declaration of inconsistency, then we, as parliamentarians, ought to be concerned enough to say, “Hey, we should give this a rethink.” And that’s what this bill does. It goes as far as saying that when the courts issue a declaration of inconsistency, then the Attorney-General must bring that back to the House, and do so within six sitting days of any declaration being final—and, that is to say, all avenues of appeal have been exhausted—and then it will be a matter for this House to determine what happens.

The reason that I’ve nominated the Privileges Committee to consider the bill is not only because it is appropriate and proper—it’s a constitutional issue that affects the relationship between this House and the courts—but also, it will be for that committee in determining the appropriate Standing Orders that will accompany this bill to determine the process by which this House will respond to a declaration of inconsistency. There will be three options, really. One will be that the House could say, “You know what? We passed this law and we got it wrong, so we’re going to repeal the law.” And every citizen in the country will celebrate, once we move out of level 1, if that happens. Alternatively, the House might say, “You know what? We’ve got it wrong, but, with a little bit of massaging and a little bit of manoeuvring, we can bring the law within the bounds of those fundamental civil and human rights, and we can achieve the objective of the bill.”

And so the House might decide it is going to amend the legislation. Or there might be an occasion where the House thinks, “When we passed this bill, we did it with our eyes open. We knew we were cutting across these civil and human rights, and we knew that it wasn’t really justified in a free and democratic society. But we thought the objective was too important and too great, and we’re going to let it stand. We will not amend or repeal. We are going to affirm the legislation.” So those would be the three options. But at the very least, when a citizen who is affected by a bill that has passed through this House because it cuts across their rights, goes to the trouble of testing that, and the courts agree that it not only cuts across their rights but is unjustified in a free and democratic society, then that citizen ought to be able to look to Parliament to say, “Could you just have another look? Could you just have a look again and make sure you’ve got it right and maybe you can make some changes?”

Now, that happened most recently, coincidentally or ironically, in relation to the legislation passed in 2010 by the then National Government to remove the right of prisoners sentenced to two sentences of less than three years to vote. That was challenged in the courts, and the High Court, exercising its inherent jurisdiction, found not only that they had the right to issue a declaration of inconsistency but that it was inconsistent with the New Zealand Bill of Rights Act. That ought to be no surprise because the Attorney-General of the day held up a certificate saying that this not only breaches the rights in the New Zealand Bill of Rights Act but that it cannot be justified in a free and democratic society. But nevertheless, the National Government of the day had the majority, and no doubt fuelled by some sort of macho adrenaline about law and order and being tough on crime, they puffed out their chest, said, “We’re going to go ahead and do this anyway.”

And then it went to the court. And it didn’t just go to the High Court, of course; it went to the Court of Appeal, and then it went to the Supreme Court. And the Supreme Court said Parliament got it wrong—Parliament had traduced these rights with no justification. Now, responsible members of the House have seen that that was wrong, and we have, even before the Supreme Court issued its ruling, taken steps to rectify that particular anomaly. I know members opposite don’t agree with it, and they’ve been stamping their feet and pulling out their chest hairs, and we will deal with that issue, no doubt, in due course.

But this bill, apart from that very mechanical and technical thing that I’ve just described, actually what it does is this: it gives greater succour and protection of our basic human and civil rights, our very fundamental human and civil rights. The New Zealand Bill of Rights Act contains in it rights that appear in the Universal Declaration of Human Rights—that amazing document forged under the chairpersonship of Eleanor Roosevelt with Peter Fraser, our Prime Minister, playing a role as well as he helped to forge the United Nations, and a whole bunch of people pulled together a Universal Declaration of Human Rights. That’s reflected in our New Zealand Bill of Rights Act, as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—all there reflected in those very important rights.

We are developing, in my view, in New Zealand, a much greater appreciation of, and a literacy for, those basic and fundamental human and civil rights, and this gives sustenance to them. It lifts the status of those rights. And it ought to make this House think very carefully when we’re passing laws that cut across those rights, when doing so is not justified in a free and democratic society. It ought to make us just think a little more carefully and tread just a little more carefully. That’s what it does. That’s why this is very important, and that is why a committee as important and as powerful as the Privileges Committee ought to give it very close examination.

This is good for our New Zealand Bill of Rights Act, it’s good for every citizen of this country, and it’ll be good as we develop the law and an appreciation and a celebration of those basic and fundamental human rights.

It does one other thing, too, of course: amongst all of that—the technical and the mechanical and elevating our human rights—it preserves, of course, the sovereignty of Parliament. We recognise, in our system, that Parliament can pass whatever law it likes, but, actually, New Zealanders expect, our citizens expect, something more than that. They do expect this House to observe some basic moral and ethical values. So when we articulate basic and fundamental human and civil rights, we expect those to be protected to the greatest possible degree.

💬 Simeon Brown: Tell us about the bill you passed two weeks ago.

Members are bellowing opposite, and, of course, they’ve got to remember, and Mr Brown has to remember, that there are two tests that have to be met when we’re considering whether or not the rights under the New Zealand Bill of Rights Act have been traduced. One is whether the rights have been breached, and then the second is whether that breach can be justified in a free and democratic society.

We are constantly weighing those up because they’re not absolute. Article 29 of the Universal Declaration of Human Rights is very clear: they are not absolute. There will be occasions, there will be times, even in the Universal Declaration of Human Rights, even in that leading document, when it will be appropriate to legislate in a way that cuts across those rights. Very careful weighing up has to happen, and this House will be called upon to do that when it considers the legislation in relation to restoring that very basic right of being on the roll to vote. What happened in that case wasn’t just about taking away the right to vote; it was taking away the right to be on the roll, the register of electors, and the very insidious voter suppression mechanism that that turned out to be.

Of course, we know that the National Party likes that; they like suppressing the right to vote. But that’s part of their culture; that’s part of their fundamental values. But that’s good, because this bill will be a chance for a future National Government—whenever that may be, when they have a majority and are trying to ram things through the House, they will be pulled up short because they have to think, “Hold on, hold on, that law that says the courts can issue declarations of inconsistency means we have to think even more carefully before we unjustifiably traduce those rights.”

On that basis, I commend this bill to the House.

Thank you, Madam Speaker. Well, we know what the Minister of Justice had for dinner tonight: thesaurus of Scotch, because I haven’t heard for a long time such alliteration from a speech by the Minister. He talked about the succour and protection of our New Zealand Bill of Rights Act, the appreciation for and literacy of the New Zealand Bill of Rights Act, and the appreciation, celebration, and elevation of our human rights. And that would be fine if his actions and his words were even closely lined up, but I find it so ironic that he is the bastion of the protection of the rights of New Zealanders in the wake of what this House has experienced in the last two or three weeks.

Now, the shadow Attorney-General for the National Party is not able to speak to this bill at its first reading, but I know she has some very strong views about it, and it’s my pleasure, actually, to kick off, on behalf of the National Party, its view. I will say from the outset that we will be supporting this at first reading, but we do so with a very significant set of caveats that I and my colleagues will be elaborating on. And I must say—I need to check, and the Attorney-General may be able to signal whether I did hear this right, but the bill is actually going to go to the Privileges Committee. Is that correct?

💬 Hon Member: It’s what he said.

I believe that’s what the Minister said. Now, I’m a member of the Privileges Committee. It’s a privilege to be a member of the Privileges Committee, I must say—there’s my alliteration for the evening—but I’m not sure if the Privileges Committee has ever actually considered a piece of legislation, and I wonder if the Attorney-General may be able to elucidate with the normal ratiocination that I know he can give, but it is a most unusual place for a bill to be considered, even of this nature.

I want to just touch on the fact that I believe that this Government has run roughshod over the human rights of New Zealanders and actually the dignity of this House in the last couple of weeks, and it’s actually, I think, cut across a process that was under way in the Privileges Committee because we had been discussing the Taylor case that I think forms the basis of this bill. I’m not aware that that matter has been concluded by the Privileges Committee—they haven’t met for quite some time—but it was my understanding that there were still questions to be answered before the Attorney-General took a Cabinet paper on what to do, and now we find that it’s not even the Privileges Committee; that place to question matters of rights and privilege has actually been sidelined in the bringing of this bill to the House before that item of business was concluded.

Now, we can, I guess, comfort ourselves—“take succour”, as the Minister of Justice said—by the fact that the bill is now coming back to the Privileges Committee so we’re going to continue that conversation in some way. And that’ll be good because I know that the Attorney-General, who is the chair of that committee, will have plenty of insight into this bill, because he will help us understand. I hope we are able to bring the sort of constitutional expertise that I know exists outside of this place to help us understand what we’re actually doing with this bill. And I’m no lawyer—

💬 Chris Bishop: Sir Geoffrey will be there.

Well, I look forward to that. I’m sure there’ll be a number of others. Professor Geddis will be there. He will have a lot to say about this. I can assure the Minister of Justice that I haven’t pulled a single chest hair out over the things that have gone on over the last couple of weeks, but I can say I have held my head more in sadness than shame at the rights of New Zealanders being run roughshod over by this Government.

Now, it strikes me as highly ironic that the bill that provides for a response to a declaration of inconsistency by the courts is referred to the Attorney-General to provide an opinion back to this place when it’s actually the Attorney-General’s role in the first place to give an opinion on whether any piece of legislation breaches the New Zealand Bill of Rights Act and whether that breach is reasonable in the circumstances. Now, we deal with that. As the Minister quite rightly says, this is not unique. We try not to do it more often than is absolutely necessary, but it isn’t unusual for a couple of things to happen.

One is that the Attorney-General issues a vet that says that that bill is inconsistent with the New Zealand Bill of Rights Act—and I can’t remember the words in section 7—and whether it’s justified in the circumstances. So what we are now saying is that the courts, who are constitutionally separate from this court, this place, and who have to be very careful that those constitutional separations are maintained, may nevertheless now issue a declaration on that basis. That declaration goes back to the Attorney-General and the first thing he’ll say is “I know. That’s what I said.” He’ll come to this place six days later or whatever it is, and say, “Yep, I agree with the courts because that’s what I told Parliament, and Parliament passed the bill notwithstanding that.” Or, alternatively—and I may have got this wrong; Mr Parker may be able to clarify this—either they do that or they come back and say there’s an inconsistency with the New Zealand Bill of Rights Act, and he says, “Well, I don’t agree, because that was the vet that I gave to Parliament to inform that.”

So I’m somewhat at a loss to understand what on earth this is going to do except pay lip-service to the courts. Now, it may be entirely appropriate that we give, well, let’s call it respectful and serious lip-service to the courts, but nevertheless, Parliament is sovereign. Regardless of what I think about the quality of the legislation that has been passed under urgency without consultation with our New Zealand Bill of Rights Act vet that I frankly haven’t seen and don’t believe—but nevertheless, that is this place’s prerogative, and the courts inject themselves into that very carefully, I would suggest. That’s a historical comment, but it’s also, I hope, a prediction of future actions by the court, because this is what makes our constitutional democracy so strong: those separations between the executive, the legislature, and the judiciary. And that needs to be preserved. So while I understand because I was part of those very thoughtful conversations with firstly—well, it involved Mr Finlayson and Mr Parker, two very good gentlemen of law, and I want that conversation to continue as we consider this bill. It is absolutely vital that those important constitutional pillars of our democracy are maintained.

Now, I’ve got to say this: I was opposed to this type of bill, but after the behaviour of the Government in the last couple of weeks, I think we absolutely have to have that conversation because anything that strengthens the power of the people’s representatives to hold the executive to account has to be given reasonable thought. I am disappointed at what happened. I know—and I said this in the debate around the disestablishment of the Epidemic Response Committee—we make laws and we have processes for making laws, not for the good times but for when times are hard and when there is a temptation for the executive to act with haste, however necessarily. Those protections of consultation, submission, consideration, and passage are at the heart of what makes the sorts of beautiful alliterative descriptions that the Minister of Justice gave so important. So while I tease him a bit on his language, I actually support that as an aspiration for this country. I feel we have fallen below that standard in the recent past, and if this bill gives us an opportunity to perhaps lift the standard again, OK, let’s have that conversation, but I do so cognisant of that important constitutional separation. With that, I’m looking forward to that conversation. I commend the bill.

I rise in support of this bill. The underlying Cabinet paper which led to this bill being authorised by Cabinet was co-authored by Minister Little and myself, and it implements Labour Party policy that was in our manifesto at the last election, which actually pre-dated the Supreme Court decision in Taylor v Attorney-General.

Just before I get into the detail of this bill, the Privileges Committee in the last parliamentary term considered the Parliamentary Privilege Act under the chairmanship of the Hon Chris Finlayson. So it’s not unusual for this sort of issue to go there, although it doesn’t happen all that often.

In respect of New Zealand’s constitutional arrangements, I’m a great believer in them. I think that we are very, very lucky at this time in history to live in a country that has strong recognition for human rights, civil liberties, and the rule of law, and that we have a system that has very large power resting with the executive, moderated by the effects of MMP and controlled by the public through three-yearly election cycles. I personally think it should be four—but regular elections. I believe that we are fortunate not to have a written constitution. We have lots of written parts of our constitution, but we don’t have a written constitution in the tradition of the United States, which confers powers of striking down primary legislation on the courts.

I think that combination of events, together with strong conventions, which are still adhered to in our constitutional settings by both Parliament and the courts and the executive, are underpinned by other strong institutions like not just the courts but the Commerce Commission and the Law Commission, and the good councils, local councils, etc. We’ve managed to weave a way through controversies that a lot of other countries get stuck on. We’ve done this for two centuries now, and I think that at this point in time, where other countries are becoming rule-bound as a consequence of all of the checks and balances that they have with written constitutions, we’re much better placed to govern our country and maintain a social consensus.

If we look at countries that have got a written constitution, like the United States, they’re stuck on things like gun control and campaign financing. We’ve managed to deal with both of those issues as a Parliament. We actually, very often, agree across the House, but I’m not sure if we would if we had the politicisation of debates outside of this House relating to issues of political difficulty, whether it was relating to gun control, campaign financing, or abortion law. You know, about 10 years ago, we had Harry Duynhoven, who had a problem in New Zealand because he had dual citizenship. We had a citizenship law that, arguably—and it was not quite 100 percent clear, but perhaps it meant that it was difficult for him to be a Minister in a New Zealand Government. We actually resolved that as a Parliament through legislation. Australia, with a written constitution, couldn’t do it that way, and they had all of this turmoil in their Parliament because of the citizenship of members of their Parliament that they didn’t know about.

So for all of those reasons, I’m a great believer in the flexibility of our system. However, it is also underpinned by the New Zealand Bill of Rights Act and it does have a weakness, and that is that because of the lack of checks and balances and the lack of an upper House and with the power of the executive, we can actually ram legislation through this place pretty fast. Now, I heard Michael Woodhouse’s complaint about the legislation relating to COVID, and that bill is now being considered by a committee and I would justify what happened there. But it is none the less true that we were able to pass legislation quickly, and sometimes the legislation that is passed quickly in this House has a political overlay. It is done at a time of political heat, and sometimes, even though we’re a very good system, we do make mistakes. Sometimes, we pass legislation that we ought not to that is in breach of the New Zealand Bill of Rights Act, and we’ve heard examples of that given by prior speakers.

Now, until recently, the courts hadn’t taken to themselves the power to issue a declaration of non-compliance, and the underlying policy reason why they hadn’t was that it doesn’t give a remedy. There’s no remedy from a declaration of inconsistency with the New Zealand Bill of Rights Act, and it was a matter of some controversy as to whether the courts could take that jurisdiction for themselves. I wasn’t particularly comfortable with them doing that. I understand the arguments in favour of it, but I would have preferred for us to have given them that, as we are proposing to do in this bill, and, indeed, that was our policy, on this side of the House, even before the decision in Taylor v Attorney-General.

There are other esteemed scholars who think they’re exactly right, including one who I think is the greatest civil libertarian ever in the history of New Zealand, which is Sir Geoffrey Palmer. He was of that view.

💬 Hon Michael Woodhouse: We’ll probably hear from him, as well.

We probably will hear from him at select committee, I think—yeah, and I look forward to it. I look forward to it, because he is very wise in these matters, and he is the author, of course, of the New Zealand Bill of Rights Act 1990.

Now, there is no remedy for a declaration of inconsistency, and this sort of what’s called this halfway house under the New Zealand Bill of Rights Act—the new one, not the old one—is a way in which we can negotiate these things where things may or may not have gone wrong, because these are generally line calls, and sometimes you can imagine the different branches of Government, being the courts and Parliament, disagreeing. Now, in that situation, I want Parliament to be sovereign. I really do want the sovereignty of Parliament to be—I’m not one of these people who think that the sovereignty of Parliament is absolutely unlimited. I actually do think there are things—you know, the recent spat that we’ve been having over legal professional privilege. I think there are aspects of that that belong to the court rather than to Parliament, and there are aspects of parliamentary privilege that belong to Parliament and can’t be overridden by the courts, which is why the Privileges Committee overrode the decision of the courts in the Erin Leigh decision, where the court said it imputed the doctrine of necessity into parliamentary privilege from the law of defamation. We thought that that was breach of the 1688 Bill of Rights, which gave absolute privilege to parliamentary proceedings.

Now, having said all of that, how do fix things when you get a declaration of inconsistency? Actually, you want this Parliament out of the heat of the political debate that probably led to the legislation that wasn’t all that wise, and to actually take a breath and have a think about it.

So what this is suggesting is that the Attorney-General brings it to this House. The Government of the day and the Opposition don’t have to take an instant political position on it. The decision is referred by the Attorney-General and then on to the Privileges Committee. Now, we know that the Privileges Committee is peopled by people, is staffed, if you like—manned and woman-ed—by, generally, experienced politicians here, and the Privileges Committee, because of those strong conventions, actually, generally, rises above the pettiness of the day which we sometimes have in politics. The hope is that by taking that course, we will actually have a reasoned and somewhat apolitical discussion at the Privileges Committee as to what we think of the court’s decision finding a declaration of inconsistency, and the Privileges Committee can then report back to Parliament. In the end, it’s Parliament that will control this. Parliament will be sovereign, and—as the Minister of Justice, the Hon Andrew Little, said—effectively, the three choices are either to repeal the legislation where there has been a declaration of inconsistency by the higher courts, to amend it, or to say, “Look, no. We’ve reflected on this as a Parliament and, as democratically elected representatives of the people, actually, we disagree with the courts and, respectfully, we’re going to stick with the law because, overall, we think it’s justified.”

That’s what this bill does. It’s, effectively, a halfway house under the New Zealand Bill of Rights Act. It’s a very significant constitutional change, and if we agree to do this as a Parliament, I think this will be an additional protection for civil liberties in New Zealand.

I know that there are various academics who have got a list of little things that Parliament has done. None of them is especially egregious. I’m not trying to belittle them, but they’re things that we’ve managed to live with as a country; none the less, some of them are wrong. There’s a list of those things that have been done over the years, and maybe this process will create an ability for us to reflect upon those issues and sometimes fix them, sometimes slightly change them, and sometimes stick with the status quo. We will be preserving the sovereignty of Parliament, we will be preserving—or, in fact, we’ll be improving—comity between the courts and Parliament, and I think we’ll be improving the constitutional settings of our country.

Thank you, Madam Speaker. Tonight, I am speaking on this particular bill with a fair degree of trepidation. Usually, when I seek a call in this House, I feel very strongly in favour of the position that my caucus has adopted and have no difficulty in arguing it. But, tonight, I confess that I have some significant reservations. So I am signalling my support for this bill at the first reading, but I withhold further judgment and will be following the progress of this bill through select committee with considerable interest.

If ever there was a bill that must go to a select committee, it is this one. So, in rising with some reservations, I have to say that, at this point, my reservations have intensified after listening to the opening speeches of this particular debate. I had assumed, wrongly, as it turns out, that this bill would be referred to the Justice Committee, which has responsibility for scrutinising justice and electoral matters in this Parliament. And, of course, as a subject-specific select committee, it meets—as do most committees, whether it’s the Health Committee, the education committee, the law and order committee, and so forth—regularly with members from different parties, who bring some expertise to the table. And I’m not suggesting for a moment that we don’t have members with expertise on the Privileges Committee, but they meet regularly and one of their main purposes is to hear submissions from New Zealanders on a particular bill. That is not the nature of the Privileges Committee, and I’ll return to that theme in a moment.

I do want to stress at this point that I will oppose vigorously any attempt to truncate the process of consideration of this bill through this Parliament. And I make that point because that has happened regularly as of late. I am deeply concerned that here we are again, tonight, sitting under urgency—and I acknowledge that we’re not considering all stages of the bill under urgency, but under this Government, in recent weeks, urgency has stopped being the exception and it has become the norm. For most of the last three weeks, we have sat under urgency, and in many cases that has meant that the public has not had the opportunity to have their voices heard on a range of matters. There are no members of the public in the public gallery, because, of course, they are locked out of our Parliament, and here we are tonight considering a very significant change to our constitutional arrangements. There may be some public watching on television or listening on the radio, but they are not in the gallery here to watch us, and they probably had no idea that this bill was going to be considered tonight, because it hadn’t been signalled even a couple of days ago that it would be.

The first reason for my reservation is a relatively minor one. And that is, as of four days ago, I am no longer the shadow Attorney-General. That position has moved to the Hon Judith Collins, in the National Party’s reshuffle the other day. She’s a very experienced and knowledgable lawyer. So I absolutely defer to her greater experience in these matters. But it does mean that I wouldn’t have had an opportunity to have worked on this bill, because I’m no longer on the Justice Committee. And now I find it’s not even going to the Justice Committee. But, as I say, that’s a fairly minor one.

My second reservation is a more significant one, and that is my concern, and the Attorney-General has just alluded to it, although he’s obviously reached a different conclusion, over how this bill will alter New Zealand’s constitutional arrangements, especially vis-à-vis the relationship between the legislature and the judiciary. As a young law student, constitutional law was my favourite subject. I guess I always knew that I was destined to seek a political career. It took me a long time to achieve it.

ASSISTANT SPEAKER (Hon Ruth Dyson): It’s sad.

I beg your pardon?

ASSISTANT SPEAKER (Hon Ruth Dyson): It’s sad.

Oh, thank you, Madam Speaker. But it just goes to show it takes all types to make a world. And, of course, we all studied Fitzgerald v Muldoon. We all read Sir Geoffrey Palmer’s Unbridled Power. We were all taught that New Zealand has an unusual constitutional arrangement in that we only have this one Chamber; we don’t have an Upper House for the further consideration of legislation. And we don’t have a written constitution. So, in many ways, we are unusual, but I think we have a very proud and relatively stable constitutional history.

But I want to make the point that declarations of inconsistency are made frequently by the Attorney-General, and I think that is right. In fact, when I became shadow Attorney-General, I went back to check, thinking, “Well, I’ve heard of a few over the years of my time in Parliament.” And I was really surprised when I discovered how often it does happen. Often it doesn’t attract a great deal of attention—media publicity—but it does happen quite frequently, and rightly so. And that, of course, is, ultimately, the prerogative of the Attorney-General, but he or she would make that declaration, I know, on the basis of very carefully considered advice from experts. And I respect that fact.

So, for that reason, I acknowledge that there is an argument to allow this bill to be introduced tonight and to be referred to a select committee, but it must attract submissions. It must be well publicised. It must be given sufficient time to do its work. And I am very, very concerned that, in sending it to the Privileges Committee, which is comprised of senior and very busy members of this Parliament, who do not meet regularly—in fact, we heard earlier from the Hon Michael Woodhouse how infrequently that committee meets—it will not attract the degree of scrutiny and attention that it should do. And that, I think, is a very real concern. And I ask members to reflect on that. In fact, while all members of different parties will have reached their party’s position at this point, I hope they will go back and speak to their caucuses again about whether this recommendation to send it to the Privileges Committee is appropriate, because I don’t believe that it is; although I do acknowledge the fact that they are very experienced members of Parliament and often—probably in most cases—have legal qualifications. And that is a good thing.

As I say, Attorneys-General throughout our history have regularly made declarations of such inconsistency with the New Zealand Bill of Rights Act—or, at least, since the New Zealand Bill of Rights Act was passed. But, ultimately—and this is where I did agree with the Minister before, the Attorney-General—Parliament is sovereign, and we as elected representatives are accountable to the electorate, and every three years we go back to the electorate and we seek a mandate either to validate our positions here, the decisions we have made, and earn a further mandate, or to give the members of the public the right to say, “We do not like what you did. We don’t agree with the positions that you have taken, and we’re going to replace you with someone else.” It’s not a nice experience when that happens, but it’s absolutely fundamental to our democracy and right that it should be so.

Well, of course, the courts are not accountable to the electorate in the way that we are. And I am very concerned that this measure will hand further authority to unelected, very distinguished members of our society to direct the Parliament.

💬 Hon David Parker: It doesn’t.

Well, the Attorney-General is saying that it doesn’t. That will certainly be a matter that the select committee will need to consider. I hope that that is correct, but I have a very grave reservation.

A constituent wrote to me recently taking a slightly different view. He was one of the many New Zealanders who was outraged by the passage of the COVID-19 Public Health Response Bill a fortnight ago. I argued vigorously at every stage against that bill—at that stage, in my capacity as the shadow Attorney-General. I remain deeply concerned by its passage and outraged by the fact that it didn’t go to a select committee. He was just one of many, many New Zealanders who have contacted us to express their concern about it.

💬 Barbara Kuriger: Thousands.

Yes, it literally is thousands of people. And, funnily enough, most of them are probably not supporters of the National Party, and I think members of the parties opposite should reflect on that fact. They are deeply concerned at the way in which their rights have been trammelled by that particular bill.

Now, my third reason for being cautious about supporting this bill is that the courts themselves were cautious about recommending it, and I say that because the decision in Taylor v Attorney-General, out of which this arises, went all the way to the Supreme Court, having been appealed initially from the High Court, through the Court of Appeal, to the Supreme Court. And, in the Supreme Court, the decision was based on a 3-2 split. Now, when it’s that close, we do not have even an indication from the judiciary of overwhelming support for it. So if members haven’t yet read the short but very crisp and helpful Bills Digest on this particular bill, could I encourage them to do so. I think they need to see a little bit of the background of the bill as outlined in that particular Bills Digest. And, as I say, it’s based on the Taylor v Attorney-General case, which was an appeal against the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which, of course, was a member’s bill that is currently the subject of a repeal bill in the name of the Minister of Justice. I don’t want to relitigate that—

The member’s time has expired.

Madam Speaker, thank you. Can I just thank Tim Macindoe for his contribution. This is a House of Representatives, and I am not a constitutional lawyer; I am a stay-at-home mother and a debt collector by trade. So this is not an area of specialty for me, but I don’t feel any less than my colleagues who are lawyers. Sometimes, I think we have too many lawyers here, to be perfectly frank, because this is a House of Representatives, and all of New Zealand should be able to see themselves in one of us here. Tim Macindoe’s contribution I found particularly educational, and I happen to agree with him. I think you can tell the importance of the topic when the debate is so—

💬 Hon Tim Macindoe: Respectful?

—respectful. It’s those moments when this House, you know, really rises to what it needs to be for the people of New Zealand. So I think the contributions have been really, really interesting, but I really particularly enjoyed, or was involved by, Tim Macindoe contribution.

New Zealand First will be supporting this bill—and I’m going to say “at first reading”. I’m going to say “at first reading” because of Mr Macindoe’s contribution, and I will take it back to my caucus and I will actually have a conversation with my caucus as we go forward. I personally will also watch, really carefully, the process of this change to our country’s sort of constitutional framework as it goes through—just as a New Zealander, to be perfectly frank.

There are pros and cons in everything. Mr Macindoe said, “Parliament is sovereign”, and that is true—Parliament is sovereign. We make the laws, but then I can also appreciate that there will be a number of New Zealanders who think, “Well, there have been other Parliaments who have made laws that have subjugated their people, and therefore there needs to be another body that is independent, that is able to wave the flag internationally, and say, ‘This is not right, this breaches the rights of your own citizens, and they don’t have three years or however long to live under those things.’ ”

So, you know, I can see the pros and cons, but I’m personally not qualified to stand and make a contribution similar to the interactions between Mr Woodhouse, Mr Little, and Mr Parker. So, therefore, I will have to rely—like many of us do—on the submissions of other New Zealanders who are qualified, who will and should come forward to the Privileges Committee, at this stage, and who will give us their view on what does this mean for us as a nation and do they support the view of Mr Parker and Mr Little that this is a really good change and it has no major risk but it adds to our country’s democracy, or do they share the concerns of Mr Macindoe that this may be a step too far?

So New Zealand First supports the bill at first reading. We will watch with interest.

Thank you very much, Madam Speaker. I just want to echo the comments of Tracey Martin about the respectful nature with which this debate has been conducted so far. I particularly praise the erudite contribution of the Attorney-General David Parker and my good friend the Hon Tim Macindoe.

Parliament doesn’t consider legislation like this very often. In fact, the New Zealand Bill of Rights Act has been amended very infrequently since it was passed in 1990 as a parliamentary bill of rights—and I’ll return to that—and that, I think, is a sign of the respect with which the law is held by the Parliament; it’s now been 30 years on the statute book, and that is of considerable importance. It’s, I think, frankly, a little bit strange that we are considering it late on a Thursday night under urgency. I think as a matter of principle, bills that amend statutes like the New Zealand Bill of Rights Act should not, just as a matter of principle—I acknowledge the fact it’s a first reading only and it’s going to a committee, but I think it just leaves a slightly sour taste in my mouth that it is being considered under urgency.

I concur with others who have expressed the view that our constitution is fundamentally pretty sound. Every now and then you get into debates with people who say to you, “We don’t have a constitution. We don’t have one. Why do you say we have a constitution?” And, of course, we don’t have a capital “c” written constitution like the United States, for example, or like the Australian Constitution, but to say that we don’t have a constitution with a small “c” is, of course, completely incorrect. We do have a constitution. It’s made up of, in some places, statute: the Bill of Rights 1688, which I think the Attorney-General referenced. It’s made up of the Petition of Right 1628, Magna Carta 1217—1295. It’s made up of the conventions that—

💬 Dr Deborah Russell: 1215.

Oh, 1215? I’m sorry. Thank you, Deborah Russell. I knew of all the people in the Parliament, you would know that. It’s made up of the conventions that govern this institution, the convention against retrospectivity, which, of course, is a convention that can be breached, because we do pass retrospective legislation sometimes, but only, usually, if we can find a very good reason. Particularly the presumption against retrospectivity in the criminal law: Parliament shouldn’t pass laws that criminalise behaviour that was legal at the time and make it illegal afterwards. It’s made up of a variety of different statutes and, of course, the common law. So of course we have a constitution.

The critical question that this bill touches upon is: what is the role of judges within that constitution? In New Zealand, it is settled law that Parliament is sovereign. Despite some of the comments in the 1990s by Lord Cooke—or president Cooke of the Court of Appeal, as he then was; he later became Lord Cooke of Thorndon—about Parliament’s ability to legislate, and the famous example I think he used was if Parliament turned around tomorrow and said, “On the day after tomorrow all blue-eyed babies will be killed.”, he expressed the view that the courts may stop that. Despite his views, it is settled law in New Zealand that Parliament is supreme, and we can legislate for whatever we like.

So the question that confronts us is: what is the role of judges within that constitution? Fundamentally, I believe that if we were to go to a system where we have a written constitution, supreme law constitution, there would be the politicisation of judges. Judges in New Zealand are appointed by a slightly peculiar, slightly curious process, but they are completely apolitical. There is consultation between shadow Attorneys-General and the Attorney-General and the Chief Justice about the appointment of those judges.

Of course, in the United States, as I think the Attorney made mention of, that’s completely upended. Instead, where political issues like abortion, like campaign finance, and like gun control are mediated not through the battleground of democracy and through political debates and back and forth between elected members of the legislature, but where those issues are actually battled out in the judiciary, of course the judiciary is politicised. Members will have seen the back and forth to do with Roe v Wade, which is the 1973 Supreme Court decision that, essentially, through the invention of a right to privacy in the United States Constitution, allows abortion for women in the United States.

Actually, there’s a very strong argument, I believe, that if abortion had been legislated on a state basis, the political consensus around abortion would be far more enduring and far more settled than a decision of the Supreme Court in 1973 that has been attacked and torn asunder over and over and over again, and where abortion is a hugely politicised legal issue in the United States. There’s a very strong argument that if that had just been left to legislatures to work out, you would see greater access to abortion, regardless of your views about whether it’s right or wrong, you would see that, because—and this is the critical point—there would be a democratic legitimacy for that position. The argument of people who oppose abortion in the United States is partly a constitutional one: that there is no right to abortion in the United States Constitution, and therefore a judicially activist court has invented one in order to give effect to rights that should actually be the proper conduct of the legislature. And you could go through other examples.

I think that example neatly illustrates—perhaps in a little bit of an extreme way, because I don’t think anyone thinks that would happen to the same extent in New Zealand—the point, which is that we have a political constitution, and when Sir Geoffrey Palmer introduced the New Zealand Bill of Rights Act in 1989, Parliament made a deliberate decision for what he called a “parliamentary bill of rights”, and that’s a bill of rights where the limit on rights and exception to rights is worked out and determined by the Parliament rather than the courts. It’s worth noting that the original suggestion was of a supreme law constitution, and Madam Speaker will remember some of those debates, I suspect, and it was pretty controversial, actually, up and down the country. In fact, the original proposal—blast from the past—was to enshrine the whole of the Treaty of Waitangi, and that didn’t pass muster, and that idea was rejected.

But Parliament made a decision to have a parliamentary bill of rights, and we rejected the idea that our judges should adjudicate on rights limitations. We did that for the reasons I just averted to, which are that our rights are worked out politically, that the appropriate limit on rights is something for Parliament to decide, not the judiciary, and the reason for that is that judges are unelected. Fundamentally, they do not face the same accountability mechanisms that we do in this Parliament, and that’s appropriate. Of course they should be separate from the Parliament, and they should be only able to be removed with extreme situations, because they have to have that separation of power, but they are, fundamentally, unaccountable and unelected.

And, of course, they don’t reflect—I’ll just add a further point to that. They don’t fundamentally reflect New Zealand experiences and the shape of modern New Zealand. I’m not saying that to be particularly negative about the judiciary, but it is a simple fact of life that they are older, they are whiter, and they are more male than the rest of New Zealand, and we should address that. There are ways to address that, but our judiciary is overwhelmingly male, overwhelmingly white, and overwhelmingly older than the average person in New Zealand. I’m just simply making the point that this Parliament is far more reflective of the make-up of modern New Zealand, and therefore I believe—

💬 Hon Stuart Nash: Not your front bench.

Oh, well, you can object if you like, but I’m trying to make a serious point. Let’s not get too political. I’m trying to make a serious point.

💬 Hon Stuart Nash: Oh, come on! You’re making a political speech, for goodness’ sake!

Well, that’s disgraceful. I don’t think anyone would accuse me of making a political speech, Mr Nash. I’m making a serious point about the make-up of our Parliament. And you can take the mick if you like and act the fool, but I think it reflects more on you than it does on your party, I hope, because, actually, other members of your party have made very serious points about a very serious issue.

ASSISTANT SPEAKER (Hon Ruth Dyson): Don’t bring the Speaker into the debate please, Mr Bishop.

So I’ll just make the point in closing—after that very rude interruption—that I think there is a plausible case for declarations of inconsistency to be issued in New Zealand, but I do not believe that case has been made yet. The courts have been inching towards this moment. They started in the Pora and Poumako cases of 2000, and then the Moonen case, and of course we had the 20-year abeyance before the Taylor v Attorney-General case. It’s a narrow-run thing—as Mr Macindoe pointed out, a 3-2 decision. There is some academic support for the proposition. My personal view is that the courts got it wrong in both that decision and in the Baigent case, which established the remedy clause in the New Zealand Bill of Rights Act. I think it’s a narrow-run thing.

I’m looking forward to the consideration at the Privileges Committee. I too share Mr Macindoe’s qualms about the legislation. We’ll support it in good faith to the Privileges Committee to have a look at it, but we’re going to need to be convinced it’s a good idea before we go any further. Thank you, Madam Speaker.

Thank you, Madam Speaker. I’m rising on behalf of the Green Party to speak to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. I’d like to start by responding to some of the points that I’ve heard, in particular some of the extremely good speech that Chris Bishop just gave, I thought, laying out some of his anxieties around components of the bill. I want to address a few points also that Tim Macindoe raised, because I recognised, of all the speakers so far, he is clearly the most anxious about particular aspects of this—one of which is this point around “Why the Privileges Committee?”, because it is a highly unusual place to send any piece of legislation.

The reason is quite simple: this will have an impact on the Standing Orders because, when a declaration of inconsistency is passed, that piece of legislation will have to come back to the House. So it’s actually entirely appropriate that the select committee who deals with, and has expertise in—to your point, Mr Macindoe—the Standing Orders can work through the detail of that and see how the Act needs to shape, to work with, the Standing Orders and, in fact, what some of the implications might be for the Standing Orders if they need to change to reflect the new Act. So I do understand it’s a very odd move, but that is why it’s being sent to the Privileges Committee.

Mr Bishop asks, “Has the case been made for why we need to pass a law saying that the courts can make these declarations of inconsistency?” I think the case has been made, and the evidence for that is the frequency with which Parliament passes legislation that is inconsistent with the New Zealand Bill of Rights Act. Actually, to Mr Macindoe’s point, we do it a surprising number of times, and actually it raises questions about why you bother with the New Zealand Bill of Rights Act if you just pass laws all the time that ignore it or are inconsistent with components of it. So I think that the New Zealand Bill of Rights Act and the parliamentary nature of it—to Mr Bishop’s point—actually means that we’ve got, frankly, quite a weak New Zealand Bill of Rights Act, because we don’t have to stick with it.

So there are some counterfactuals. If you weren’t to try and uphold the New Zealand Bill of Rights Act through declarations of inconsistency, what are your other options? They’ve been canvassed. One of the options is a written constitution—Sir Geoffrey Palmer’s name has been raised a number of times tonight. Of course, he is a fan of a written constitution, to the point that he has written a written constitution and proposed it to the public for debate. He takes on board all of the criticisms of having a written constitution that Mr Bishop has raised, about what that can then mean when a set of values and ideas gets enshrined in a piece of paper that, 250 years later, somewhat binds your ability to move on. But he proposes—along with his colleague Andrew Butler—in his proposal that, actually, it automatically comes up for review every ten years. I think, frankly, that’s probably too frequent, but the point is that it has an automatic review mechanism in it to say, “Actually, do these provisions still apply?” So I’m actually, I’ll admit, quite a fan of his proposal, though, like anyone, there are certain components in his proposal that I wouldn’t be a fan of.

So a written constitution might be a way of upholding the New Zealand Bill of Rights Act more than we do. The other is an Upper House, and we don’t have one. Also, as a result of all these things, we have an executive—and I say this as a member of the executive at the moment—that is, frankly, too powerful in the parliamentary set-up.

💬 Hon Members: Hear, hear!

It is, and I think that in the absence of an Upper House and/or in the absence of a written constitution—

Chlöe Swarbrick: Codified.

—codified; here we go!—I can tell that, actually, we do need some kind of mechanism, because we override it so frequently. I remember being in Opposition, horrified at the number of times the Government of the day was passing bills that were inconsistent, and we used to stand up and shake the Attorney-General of the day’s advice and say—

💬 Hon Member: You used to object to urgency then, too.

Well, I’ll come to that as well, because that is actually a pertinent point here as well, and I think it actually adds to the reason why we would have this legislation.

There are so few checks and balances of any real provision that merely having the courts send it back and say, “You need to have another look at this” I think is probably the de minimis; it’s the minimum position. This bill, if it becomes law, doesn’t change the constitutional arrangements, because all that a declaration of inconsistency does is send it back to Parliament to say, “You need to have another go.” It maintains the supremacy of Parliament and it maintains the constitutional separation between the legislature and the judiciary. I think that it avoids the risks that Mr Bishop is raising about the potential for the politicisation of the judiciary, precisely because all they are doing is issuing a declaration of inconsistency. They’re not actually saying what Parliament should do, they’re not striking down the law; they’re just saying, “Look, the legislation that you have passed is inconsistent with the New Zealand Bill of Rights Act. Take another look at it.”

Mr Woodhouse raised a question which I think is worth examining, which is “So what?” What if they send it back and then the Attorney-General’s response will say, “Well, I know, because I had this piece of advice from Crown Law that said it was inconsistent.”, and then they went ahead and did it anyway. I do think, however, that it will have an effect, because, when we have institutions that we trust, that are outside of Parliament, who are experts in their field, who say independently of Parliament, “Look, this isn’t good enough, have another crack at it.”, Parliament actually takes that more seriously than we take it ourselves.

My recent experience with this, the design of the Climate Change Commission, a non-executive body with very little authority to execute in its own right, works on the principle of transparency. An august, independent, scientifically, and economically expert body stands up and says, “Hello, Parliament, we think you need to do the following when it comes to your greenhouse gas emissions.” It becomes very difficult then for Parliament to do anything else, because somehow we’ve got to come up with a better answer than the Climate Change Commission has come up with, and we’ve stocked that body with people who are absolutely at the top of the game and experts in their field. If you take that parallel and apply it here to the courts, it’s not actually terribly dissimilar. You know, you would have a situation where—and this is exactly to Mr Bishop’s point about the nature of judges and who’s in the judiciary—these are people who are absolute experts in their field. If they do issue an opinion saying, “Actually, we think Parliament has got it wrong and they need to at least come back again.”—and they can come back with the same answer, you know; you can pass that law again and it still be inconsistent, but you’ve got to think bloody hard about that. You know, it’s that matter of transparency that I think is significant.

So I do think, Mr Bishop, that the case has been made, and, actually, when you’re concerned about sitting under urgency and, frankly—to Mr Smith’s point—yes, the Green Party does object to the use of urgency, but we have just lost 50 parliamentary sitting days due to the national state of emergency and we are, on the other side of it, squeezed up against an election; so you do get a compression of time. But some of the issues that we have dealt with during urgency, which the Opposition has raised valid concerns about—should this go through under urgency, what are the considerations—that is precisely the kind of question that this would help to address. If you were worried about the COVID response bill and its possible—you know, if you thought that it had transgressed human rights and civil liberties, and so on and so forth, then actually this bill would help that. The view of the Government was that it had to pass under a certain period of time in order for it to have effect, in order for the country to legally move to level 2 and for us to deal with the situation. That was the Government’s view, and one I subscribe to. But here you would have recourse to say, “Actually, it was inconsistent. You need to have another go.”

So I think, when you look at all of those things—the fact that we don’t have a written constitution, and there doesn’t seem to be a great deal of appetite for one; we don’t have an Upper House, and there doesn’t seem to be a lot of appetite for one; we do have an over-powerful executive, and there doesn’t seem to be a lot of appetite to change that—I think that this is a good bill that will uphold the—

ASSISTANT SPEAKER (Adrian Rurawhe): Order! The member’s time has expired.

It’s a pleasure to take a call on this interesting and important bill that goes to the core of our institutional arrangements and how we run this democratic country of ours, the powers of the courts vis-à-vis the power of this Parliament. I want to begin by saying that I am a conservative, that I have a great deal of pride in our parliamentary democratic traditions that have grown through the years since the Bill of Rights was signed, which we acknowledge each time that we walk into this Parliament.

But if there is a lesson that I have learnt in my 30 years—about the same age as the New Zealand Bill of Rights Act—it is that there are so few absolutes. I confess that when I looked even younger than Simeon Brown and came to this Parliament, I had a view of absolutes—things like freedom of expression, freedom of movement, freedom of association, right to life. These things were absolutes. I have to say that as a parliamentarian of 30 years, I’ve learnt that life’s a lot more complicated than that. And, actually, the experience of the last six weeks has been one of an extraordinary infringement of basic rights that I thought would never have occurred, but the circumstances, actually, around a pandemic justify rights that we would normally take for granted. If I said that a Parliament of New Zealand was going to agree to ban people being able to peacefully protest, I would have said “Not in God’s own New Zealand”. Yet that’s exactly what’s happened in the last six weeks.

Did I ever think we’d be in a country where we’d actually say that New Zealanders going to the beach or gathering in groups of more than 10 people would be illegal? I’m not criticising some of those measures, that are necessary. I’m simply wanting to emphasise the point that the business of lawmaking is far more complicated than absolutes. Whether it’s complicated issues of the right to life, whether it’s the issue related to that of the pretty difficult debate this Parliament’s had on abortion, whether it’s the right of freedom of speech and the arguments I’ve heard through the courts about when this Parliament bans things like pornography—are we in fact infringing people’s freedoms of expression—or the very vigorous argument that we’re currently having about does the right to vote mean that if you have committed a horrific offence and killed people that you are still able to participate in the democratic process—the point I want to make in the beginning is who should be the final determinant of those rights.

I am an old-fashioned parliamentary democrat. It’s not because I believe that parliamentarians are superior in any way to those that sit on our judicial benches, but there’s a crucial difference. If we get it wrong, the public have the power through the ballot box to get rid of us and to replace us and to change it, and that is not true for the judiciary. That is why I remain a staunch defender of our parliamentary democracy, and of this Parliament being the final arbitrator on those questions.

💬 Hon Andrew Little: It remains under this bill.

Now, the Minister of Justice interjects and says, “Well, this bill doesn’t go this far.” And he’s right. All it does is say that if the courts declare that there’s an inconsistency with the New Zealand Bill of Rights Act, then a statutory process is set up by which the law has to be looked at.

💬 Hon Andrew Little: That’s right.

But here’s the point that I’d like the Minister of Justice to reflect on, and this does go to the heart of our country and how it operates. If members of the public currently object to a law that this Minister’s been responsible for, like abortion, my view is that the proper place to have that discourse is through the process of parliamentary politics and we have a good argument about where that balance is. Now, what you do when you have a bill of this sort is you invite that political debate to be dragged into the judicial system. I’m not saying to the Minister of Justice I’m opposed; I’m saying we need to think about what that means.

If I actually look at a country that has far more of a judicial role in making judgments about the lawmaking process, as in the United States, I don’t come away with a view that it works that well. My personal view is that, as my colleague Chris Bishop has said, on the issue of abortion, of which myself and Mr Little have a different view, I actually have a view that Parliament is the right place to resolve that rather than in a judicial process. We might have a different view about gun rights, but I, equally so, think that the extent to which the courts through the constitution of the United States have inhibited practical law to protect the people in that great country from the great harm from reckless usage of guns actually shows a weakness of an excessive role for constitution and the courts in our lawmaking process.

So I think we need to be honest that while this bill is only a small step in requiring Parliament to review law, it is an invitation for the public that disagree with a particular law that this Parliament has got to pursue it through the courts rather than through our parliamentary system. And I’m not sure that, actually, we’ll end up with a better, more effective democracy.

Can I also say that these arguments about what complies with the New Zealand Bill of Rights Act—as a parliamentarian for 30 years, I have to say I’ve been confused. Can I give you an example? We had a declaration that the euthanasia bill passed by this Parliament, which is off to a referendum, breached the New Zealand Bill of Rights Act because 16- and 17-year-olds were not able to have the choice of euthanasia if they were terminally unwell. Now, you might say, “OK, I understand that.” But I find it even more arbitrary that when this very Parliament considered a law on whether we could prohibit 16- and 17-year-olds from getting married, a very legitimate concern in this Parliament was that we had 16- and 17-year-olds forced into marriage at a young age from things that we think are culturally inappropriate, and we had the opposite view—that that was consistent with the New Zealand Bill of Rights Act. And, hey, look, I don’t come from a legal training, but I do have common sense. It seems kind of odd to me that under the New Zealand Bill of Rights Act someone is allowed to be prevented from marrying but is not allowed to be able to make a life and death choice to end their life. That’s a bit arbitrary. It doesn’t make sense.

Now, I’m not going to be critical of those that make the arbitrary judgments, but I do make this point. Those that have a view that somehow the judicial system and the courts have a greater sense of wisdom about these difficult judgments that we have to make on the boundaries of questions of abortion, euthanasia, who can vote, who can get married, whether people are able to vote—all those things, all those arbitrary judgments. Are they best made in this House of Representatives or are they best made in the courts? I am of a view that the more accountable and democratic way is for them to be resolved by the Parliament.

I want to make one last point of process about this bill that I am concerned with. I do find it horribly ironic that when we’re wanting to talk about the protection of rights and process, this bill is being introduced under urgency. I also think that it’s really strange. Let me put this to the House: at the core of the debate in this bill is the issue of separation of powers, the three key institutions being our executive, the Cabinet; the House of Representatives; and the courts. And ever since I’ve been an MP, there’s been a really important separation, and that is that when a bill comes before the House, the select committee in the parliamentary process is separate to the Minister that introduces it. Well, who’s the chair of the Privileges Committee where this bill’s being sent? The Attorney-General, David Parker, who moved the introduction of this bill.

So is it right that Mr Parker, a member of the executive, is now going to chair the select committee when we are at the very issue of the separation of powers? And I say it is extraordinary that on a bill where we’re trying to improve our constitutional arrangements, we’re breaking a rule that is as simple as a Minister should not be chairing the select committee on a bill for which he is concerned, and that is why we say that process is wrong. My invitation to Mr Little and to Mr Parker is: if the intent is to send this bill to the Privileges Committee, I do not think it’s appropriate for that select committee to be chaired by a member of the executive. That actually cuts into the very protections that we attempt to have in our constitutional arrangements in New Zealand of the separation of this Parliament and this House of Representatives from the executive and from the courts. This bill is a bill that needs to have solid scrutiny, and I look forward to the ongoing debate.

This is a split call. I call Dr Liz Craig—five minutes.

Thank you, Mr Speaker. I’d just like to take a very brief call to say that I’m very happy to stand in support of this incredibly important bill. Thank you.

I stand just surprised and shocked, to be honest, that a member of the Government took such a short call on this piece of legislation. This is an incredibly important piece of legislation which goes to the heart of some substantial constitutional points around how our constitution is arranged, the separation of powers, and parliamentary sovereignty. And to have a 10-second speech from a Government member—

💬 Hon Tim Macindoe: It wasn’t even that.

—is, I think—well, if it was 10 seconds—it shows absolute disregard.

This bill was first announced by the Government on 26 February 2018—2018. That’s over two years ago that the Government said that they had approved that this bill would come to Parliament. It’s now the end of May 2020, a Thursday night, and we’re sitting in urgency and we’ve finally come to the first reading of this piece of legislation. I stand alongside colleagues on this side who are deeply concerned about this piece of legislation but also the process that it is going through in this Parliament. When we discuss constitutional matters in this Parliament, they should be done, as much as possible, in a bipartisan way. Using urgency in the middle of the night on a Thursday evening when Parliament should have risen is not the time to be pushing through pieces of legislation like this.

This is the type of legislation which goes to the heart of our core constitutional arrangements. It goes to the heart of the separation of powers and to the heart of what we have in our Parliament, which is parliamentary sovereignty. What it is is a step along a journey which a number of people would like to take our constitutional arrangements along, to which we have the ability for the courts to, essentially, strike down legislation in New Zealand.

💬 Hon Andrew Little: That’s not what this does.

It’s not what this does, that’s correct, Mr Little, but that is what many people would like to see happen: where the courts are able to interfere with parliamentary sovereignty and with the right of this Parliament to determine legislation.

Section 7 of the New Zealand Bill of Rights Act always provides for the Attorney-General to report to Parliament where a bill appears to be inconsistent with the New Zealand Bill of Rights Act. I do just want to point out that on a recent piece of legislation, only two weeks ago, the COVID-19 Public Health Response Bill, which was pushed through this Parliament—

💬 Hon Tim Macindoe: No select committee.

No select committee, that’s right—there was no select committee. The Parliament did not even have the opportunity for those rights to be looked at.

So this bill, essentially, puts in place what’s already in the legislation. There is already the opportunity: the Attorney-General has the right, has the responsibility, to report to Parliament where a bill appears to be inconsistent with the New Zealand Bill of Rights Act. It looks prospectively at that piece of legislation, it looks at what the impact of that legislation is going to be, and then Parliament has the opportunity to decide whether Parliament believes that is a justified limitation or whether that is something which the Parliament wishes to override the New Zealand Bill of Rights Act on. Parliament makes that decision willingly, knowingly, having listened to submissions and being able to make those decisions.

This bill then allows the public, who’ve had the ability to submit on that piece of legislation, to be able to lobby the Parliament, to be able to be engaged in the political process, to have a second bite of the cherry, to then go and relitigate their issue in the court to try and seek a declaration of inconsistency which will then relitigate, potentially, the entire issue. The Attorney-General will have to provide a report to the House, and Parliament will then have to change its Standing Orders and create new processes in which it will have to then re-engage with that issue.

The point is that the Parliament here is sovereign. The Parliament has the right to make legislation based on the information that it has, based on evidence from the community, based on submissions, and the right to be able to override the New Zealand Bill of Rights Act. I do bring it back to the point I made before: this is a step towards a direction which there are certain people who want to take it, giving the courts the ability to strike down legislation. That is not a path that I want to see New Zealand go down. Thank you, Mr Speaker.

Thank you, Mr Speaker. I’ve been sitting here in the House this evening, and I’ve listened to some really interesting contributions from both sides of the House to this bill. Ministers on this side of the House have laid out how this bill will actually help us in this Parliament to make legislation better. It doesn’t enable the courts to strike down legislation, as the previous speaker has suggested. Instead, it allows us to do what we’ve all come here to do: to make good legislation that actually improves the lives of people and upholds their rights as well. Because of that, I commend this bill to the House.

Thank you, Mr Speaker. I’m pleased to rise to speak to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. It’s been an absolutely fascinating debate tonight. I have to say, we’ve heard from some incredible speakers—clearly some great thinkers—who hold different views in this area. But I have to say, much like Tracey Martin, who contributed earlier, I’m not a constitutional lawyer. I’m not an expert in this area. In fact, I find myself sitting here tonight not having a view either way, because of the strength of the two sides.

I am sitting on the fence, and for possibly the first time in my life, I was hanging off the words of Minister Parker and actually hanging off every word of Minister Little as well—perhaps not his interjections but certainly his contribution—because they were superb. So too, I have to say, were the contributions from Chris Bishop tonight, Dr Nick Smith, and the Hon Tim Macindoe as well. Although I have said my contribution tonight won’t match their contributions, I have to say, I do want to point out some concerns that I think we need to look very closely at in select committee. As was pointed out by Mr Macindoe earlier, we must not truncate this process, because there will be a number of constitutional experts and lawyers that will make some very good contributions to this debate. I might even sit in on some of those, because it’s quite clearly very fascinating.

The concerns that we must consider in this bill are, obviously, as we’ve all pointed out, the question of the ultimate sovereignty of this place and how this bill will alter the relationship between the legislature and the judiciary. On the one hand, as pointed out by Minister Shaw—who has been, I note, in front of me before and in deep conversation with Minister Little, obviously debating the issue, which is good to see—if we get it wrong, how bad is it to have a bare minimum process of a declaration of inconsistency made by a court via a report through the Attorney-General to this House? After all, as Minister Parker and Minister Little pointed out, there is no requirement for us to amend or strike out the law. So, potentially, absolute sovereignty of this place is seemingly upheld.

On the other hand, as Dr Nick Smith pointed out, we make in this place very difficult decisions and arbitrary judgments that may—hopefully, infrequently; very infrequently—be inconsistent with the New Zealand Bill of Rights Act. As he mentioned, we’ve done some extraordinary things over the past few weeks that both he and I and most people in this country would have never thought possible, even though they were, in most cases, required. He made the really good point also that if we get this wrong or if we get anything wrong, the public has the right to vote us out, to turf us out and change the law.

Chris Bishop’s point earlier, which obviously struck a chord with most of us in this place, was that the people in this place represent the people of New Zealand far, far more than the judiciary because of the make-up and different ethnicities, genders, backgrounds, and lived experiences.

But perhaps I shouldn’t be too hard on myself tonight about my on-the-fence position, because, actually, that position, as Mr Macindoe pointed out earlier tonight, was similar in the Attorney-General v Taylor case, which underpins this bill, because there was a 3-2 split there as well. Even they couldn’t agree on this issue. So I’m not going to be too hard on myself, and I’m not going to make a very long contribution like my learned colleagues, because they are far more expert in this area than I am, other than to point out that there are issues and concerns that need to be looked at in the select committee, and I do hope that we have a full and proper process when it comes to select committee. So with that, I commend the bill to the House, with some reservations.

Tēnā koe e Te Mana Whakawā. I don’t want to take long but I do want to just point out that the relationship between the courts and the legislature is not some relationship which is writ in stone. It’s not some holy and immutable law. It’s a matter for negotiation in any modern and progressive democracy. And that’s what this bill is about. It’s about turning our minds to the very difficult question about the advice given to us by the courts that we are infringing on important rights and turning our minds to whether something should be done about it.

Now, I know there’s going to be discussion about where this bill should go for further consideration but it’s absolutely imperative that this be considered by the best minds we have—the most expert minds on these difficult questions of the comity between Parliament and the courts and the privileges that this House holds and how it should exercise them.

It’s a great piece of legislation. It’s a progressive piece of legislation. As always, I think New Zealand’s at the forefront of how constitutions deal with very difficult problems. I commend this bill to the House.

Bill read a first time.