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

I present a legislative statement on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Mālō e lelei, Madam Speaker. I move, That the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill be now read a second time.

This bill responds to a Supreme Court decision in the matter of Attorney-General v Taylor and in that decision the Supreme Court determined that the senior courts have the power to issue declarations of inconsistency under the New Zealand Bill of Rights Act. The Human Rights Review Tribunal has been able to issue declarations of inconsistency since 2001, but only in respect of the right to be free from discrimination. The effect of the declaration by the Supreme Court is not to invalidate the legislation in question or render ineffective, but to indicate to the executive branch of Government and, importantly, to the House that there is a substantive issue. And given that the Bill of Rights Act requires courts to give legislation a rights-consistent interpretation, if one was available, such declarations will not be made lightly.

The Supreme Court’s decision raised a question of what should happen after the senior courts issued a declaration of inconsistency under the New Zealand Bill of Rights Act. Currently, there is no mechanism which ensures that the executive or the House will give serious reconsideration to the legislation in light of the judicial comment. This bill provides a process for that reconsideration to occur. By doing so, the bill strengthens the protections of the rights and freedoms affirmed by the New Zealand Bill of Rights Act.

I want to thank the Privileges Committee for its expert and diligent consideration of the bill and those members of the public who made submissions. Submitters included individuals with significant expertise in constitutional and human rights law, and the changes made to the bill will create a stronger framework for the executive and this House to consider and respond to declarations of inconsistency and the issues that they raise.

As introduced, the bill required the Attorney-General to notify Parliament about the declaration of inconsistency six sitting days after the declaration becomes final. The bill amended both the New Zealand Bill of Rights Act and the Human Rights Act so that declarations about the consistency of legislation with those Acts are treated in the same way. The bill, as reported back from the Privileges Committee, now requires the Government to also respond to the declaration of inconsistency within six months of a declaration being brought to the attention of the House. This deadline can be varied by the resolution of this House. It may be desirable to extend the deadline if, for instance, a longer period is required to respond to a particularly complex policy issue. The Government response must be presented to the House by the Minister responsible for the legislation to which the declaration of inconsistency relates.

The notification by the Attorney-General to the House would also trigger a parliamentary process which would be included in the House’s Standing Orders. This process would include a declaration of inconsistency being referred to a select committee allocated by the Clerk of the House, select committee consideration of the declaration and reporting on the declaration within four months—unless the Business Committee determines a different deadline—and a debate in the House on the declaration, the select committee report, and the Government’s response to the declaration upon the presentation of the latter.

The Privileges Committee consulted the Standing Orders Committee on the recommended parliamentary process, which will be adopted permanently in the House’s rules when the next review of the Standing Orders takes place. The Privileges Committee also agreed that a consistent approach to declarations of inconsistency should apply between the Human Rights Act and the New Zealand Bill of Rights Act.

The process recommended by the committee provides a clear framework for dialogue between the branches of Government to consider and respond to declarations of inconsistency and the issues that they raise. And this is the aim of the bill: to facilitate consideration of the judiciary’s declaration of inconsistency by the legislative and executive branches of Government. It is important to note that the bill does not propose that either the legislative or executive branches be required to respond to a declaration of inconsistency in a particular way. Under our constitutional arrangements, that is properly a matter for each branch of Government to determine on its own.

This is an important constitutional development. It responds to the Supreme Court decision in Taylor in a manner that preserves the sovereignty of Parliament, but also creates a means for Parliament to review whether any limits on rights in an Act are justified under the New Zealand Bill of Rights Act and the Human Rights Act. On that note, I commend this bill to the House.

The question is that the motion be agreed to.

Well, thank you, Madam Speaker. It’s my pleasure to take a call on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. I want to join with the Minister in thanking officials and those submitters who were very, very supportive of the Privileges Committee in its consideration of the bill. I’m no lawyer, but I’ve been around for nearly 13 years, so I’ve passed a few bills as Minister and considered lots of bills in select committee, and I think this one has been quite intellectually and cerebrally challenging—not so much because the bill itself is that complex but because its impact on our constitutional legal framework is significant.

As we were considering this bill, I was thinking about two things: one, was this a constitutional red herring; is this something that’s very rare and is unlikely to have effect very often? Secondly, is there a risk that Parliament might pay lip service to the declarations by the courts, which would be, I think, a real shame? I think, as far as the second point is concerned, and I’m confident that—certainly as it’s come out of the Privileges Committee, but probably in the shape that it was going in—there is a determination to make sure that we do listen very carefully to the courts, while maintaining that very important constitutional separation of the legislature and the courts. The second one was, “Well, is this going to be a bit of a red herring, one that we don’t see so very often?” And when we first got the bill, I thought that would be the case. I’m not so sure now, because of some of the legislation that’s been passed in the last couple of years—particularly in respect of COVID regulations and laws. And there have been a number of those laws passed where the Attorney-General has said that, “Yes, they may be inconsistent with the New Zealand Bill of Rights Act (NZBORA), but that restriction on New Zealanders’ freedoms is justified in the circumstances.” And I think there will be a situation where that might be challenged in the future. Indeed, it’s not only COVID legislation that has had that. We have had a number of laws passed in the last couple of years which many say restrict people’s freedom of expression, freedom of association, and freedom of worship. Where the Attorney-General has said, “Yip, that’s reasonable in the circumstances.” The courts may in the future disagree with that, which will behove the Parliament to come back and have a look at that.

Now, the case that gave rise to this bill is known as the Attorney-General v Arthur Taylor. It came out of a challenge to a piece of legislation, passed in 2010, which restricted the rights of sentenced offenders who were serving a period of incarceration of no more than three years and removed their rights to vote. What’s interesting about that, of course, is that the Attorney-General did issue an NZBORA vet, which said that the bill that had passed was inconsistent with the New Zealand Bill of Rights Act and such a restriction could not be justified. So Parliament already had a good look at this. The select committee really thrashed it out. It was quite a controversial piece of legislation, although I would point out two things actually: Arthur Taylor would not have benefitted from this had the law not been passed, because his period of incarceration was longer than three years and anybody serving a sentence of four years or more at the time of an election would not have been eligible to vote. So this was a contentious point, the fact that somehow this egregious restriction affected the rights of New Zealanders serving prison sentences of less than three years but not for longer than that. And so it’s equally possible that, although the Attorney-General wasn’t asked to consider that, he or she in the future might consider the current law as it relates to serving prisoner sentences of longer than three years to also be an unreasonable restriction.

In any event, the senior courts have decided that they do have the right to declare an inconsistency, and the question, then, before the Privileges Committee and the Government was: what do we do about that? The Minister has just outlined the changes to the bill as recommended by the Privileges Committee, which I support. I think they’re a pragmatic response to a situation that does behove Parliament to take the courts’ declarations seriously. In fact, I was also a member of the Standing Orders Committee. The previous Minister of Justice, in introducing the bill, thought that—looking at Hansard—the Privileges Committee would also look at the Standing Orders, but we had this slightly interesting exchange between the Privileges Committee and the Standing Orders Committee, of which many of us were members of both, to ensure that what we were actually doing was understood. The Standing Orders Committee has come up with, I think, a very sound process for considering matters that are referred back to the House.

Here’s where I think there’s going to be a distinction, and I think the Taylor case is an important one to have a look at in that regard. There will be two scenarios in the future: one where Parliament has already been advised by the Attorney-General that, in his or her view, a restriction on the New Zealand Bill of Rights Act freedoms is not justified under section 5 of that Act and, therefore, there has already been a serious consideration of that issue by the Parliament and, arguably, by the Government if it’s a Government bill. If, in its collective wisdom, Parliament decided that that bill should be passed anyway, then I think that’s going to trigger a slightly different response to the second scenario, which is where the Attorney-General did not issue such a New Zealand Bill of Rights Act vet, it was believed that those restrictions didn’t exist—whether or not they were reasonable—and the courts come along and say, “Actually, no, they are an unreasonable restriction.” So, in fact, there are two scenarios within that: one is there is a clear New Zealand Bill of Rights vet; the other one is that the Attorney-General does see a restriction in human rights but that is justified and the courts disagree.

Now, I think Parliament would have to take a different approach to those situations where, effectively—this is a poor way to describe it—the Attorney-General and the courts have a different view. If the Attorney-General had the same view as the courts, as in the Taylor case, and Parliament already thrashed that out and decided to pass the legislation anyway, I think going deeply back into that is probably not necessary—that’s not to undermine the view of the courts or to diminish their role in our constitution. But it’s going to be a quite different process, I think, if the Attorney-General and Parliament did not think that there was an unreasonable restriction and the courts did. I think that’s a reconciliation that would need much more thought and, therefore, more time.

So when the committee was considering this in putting a six-month limit on the report back to the House, it gave Parliament or the Business Committee the ability to extend that, because I can foresee a time in the future, if that scenario does come up, where these could be quite complicated issues that will take longer than six months. We struck a six-month time frame to say, “OK, there is an expectation of a timely and expedient response.”, but, actually, for complicated cases, that could be unrealistically restrictive.

So, in summary, this has been a very interesting journey. I think it’s important to make sure that we get it right and that—the committee was very clear about this—we really protect the constitutional separation between Parliament and the judiciary. I think we’ve done that. National will continue to support that, and I look forward to the bill’s passage. Thank you, Madam Speaker.

Thank you, Madam Speaker. A real pleasure to speak on this bill. As I think Mr Woodhouse and others have noted, it’s a really fascinating bill that gets the brain cells working about the relationship between the judiciary and Parliament, and that we have to be very, very careful indeed as to how we tinker with that relationship, particularly through legislation.

The thrust of this bill is that when the courts say that there is an inconsistency in legislation with the New Zealand Bill of Rights Act, it’s appropriate for it to be taken very seriously indeed, not only by Parliament but also by Government. The Attorney-General has a role to bring it to the attention of Parliament, but most importantly, what the Privileges Committee—and I was very privileged to sit on that committee—said is, “No, we need more. We actually need a substantive response from Government.” So the committee suggested to this House that it adopt certain rules so that a select committee consider these questions.

I just note, as an aside, that these questions are very important, and I know that there’s litigation in train in respect of the voting age to make it 16, and that is going on, I think, to the Supreme Court. Look, if that is a declaration, in that respect, that is absolutely something we need to look at very closely. A select committee is a great vehicle to do that. The Government can then respond on the select committee advice to this House in the last statement, which are all in the Standing Orders—because legislation isn’t really the appropriate place, but proposed Standing Orders to have a debate in this House to explain and expand on why the position has been taken and whether it should be adjusted by some part of the Government’s programme, whatever Government that might be.

So I think real improvements on a very well-advised select committee, but another part of the kind of constitutional jostling that goes on between Parliament and the judiciary. But I do think the constitution, the flexible constitution that we have here in New Zealand, is much the better for it. Kia ora, Madam Speaker.

Thank you very much, Madam Speaker. Like others, I’ve enjoyed the opportunity to wrestle with these large questions for our constitution, and I acknowledge the contributions made by others, including, of course, starting with the Minister. I did also enjoy, and thought very helpful, that my colleague the Hon Michael Woodhouse set out some of the background in terms of the different bodies within Parliament that have considered these, which Duncan Webb has noted, perhaps with an element of tautology, as privileged to be on the Privileges Committee.

So I think we can take it as read that the House agrees—or certainly at least a majority of the House, and speaking certainly on behalf of National—with the principle that the New Zealand Bill of Rights Act (NZBORA) contains important rights and freedoms. These should be protected in any way we reasonably can. So allowing that is a reasonably obvious statement to cap off with.

I do want to use my contribution to note the tensions that have been raised again, as I say, by Mr Woodhouse, in relation to those different branches of Government, and to explain how my conscience is assuaged to someone who does believe, as a starting point, in parliamentary sovereignty that the bill is right to go as far as it does, but also to explain the reason that it does not go further than it does.

So if I can start by setting up a number of principles to which I think all parties in this House probably ascribes to, certainly the major two from whom we’ve heard so far. We have separate branches of Government. There is a good relationship between those whereby they don’t tread on each other’s toes, so to speak—often referred to as comity. We have an avoidance of tyranny by avoiding the concentration of power, too great an amount of power in a single branch, perhaps to be dominated by the brunt of a few people, an absence of checks and balances and so forth. So a major aspect of that is parliamentary sovereignty—which is of course the body that is Parliament, the legislature—is able to make laws. And, of course, the reason that we can justify that is not being tyrannical, it is that, of course, we are subject to the will of the people every three years at general elections, and, of course, in other important ways that do not apply—for example, to the courts.

So parliamentary sovereignty is important for that reason of democratic accountability. I think it’s worth noting, at the risk of creating a diplomatic incident, that I think New Zealand’s constitutional arrangements in this regard are superior to those in many other jurisdictions. For example, with all due respect to our American friends, I think that we’ve seen in recent years a number of different instances of difficulties that a system encounters when a court becomes not only a body for adjudicating specific instances in front of it but with a view to those determining policy. And, of course, where policy goes, politics can readily follow; indeed does follow, inevitably so. Of course, I don’t wish to comment in any more detail than that except to say I think it’s positive in this country; we don’t have that sense of partisanship infecting our court system. We don’t concern ourselves with the vagaries of individual judges’ life expectancy and so forth. So I do want to note for the record that I think we already have in this country a very good system and I’m determined, as I think everyone else in this House is too, that we don’t undermine that by going too far with such legislation.

But I think it’s also fair to point out that our system is not perfect, which is to say it does have some anomalies in the way that we treat the New Zealand Bill of Rights Act and questions of its inconsistency. So, for example, New Zealand Bill of Rights Act reports under section 7 of that legislation, made to Parliament by the Attorney-General, who, on the one hand, is an officer providing legal advice, but he or she—“he” currently, of course, Mr Parker—is also a member of this Chamber and of the executive and therefore the Government of the day. So I don’t see a way around that, but suggest, for example, that the Attorney-General should be an Officer of Parliament as opposed to a member. But I do note that it is at least worth recording, I suppose, that there is not a perfect, clear system that we have currently whereby Parliament considers questions of NZBORA consistency, such that we could say, well, therefore we don’t need the courts to have a second look on any occasion.

My second point under the heading of “anomalies with the New Zealand system currently” is of course that Parliament can legislate contrary to the New Zealand Bill of Rights Act. I regard that as a feature, not a bug, of the system. As Mr Woodhouse has pointed out, it feels as though there is a distinction to be made between the scenario in which Parliament understands, through the advice of the Attorney-General, that draft legislation is inconsistent with the New Zealand Bill of Rights Act, but chooses to do so anyway, as compared with Parliament perhaps not having turned its mind to the question, or perhaps having received a report from the Attorney-General at the time that suggests that it is in fact consistent.

So, of course, the question of consistency isn’t in itself a clear-cut matter. It’s a legal fiction to suggest, I suppose, there’s such a thing as a bright line between consistency and inconsistency. So I think it does behove us legislating in this space to bear that in mind. If anything, I suppose it might be an argument in favour of such legislation, because it says that the Attorney-General shouldn’t necessarily have the last word, or even the only word, I suppose, outside of Parliament itself. We will allow the courts to come in and provide an opinion, essentially, on the matter as well, in the way that providing a second opinion, or obtaining a second opinion, is often beneficial to good decision-making.

The other point I suppose I would make and, at the risk of making a gratuitous mention of the work of the Regulations Review Committee—far be it from me to do that and I gain support across the House from various others who may do so in similar contributions—but secondary legislation is, roughly speaking, outside the ambit of New Zealand Bill of Rights Act consideration. That’s not completely true, I take a bit of a liberty in saying that, but I think it is fair at least to say that they are not the subject of section 7 reports under the New Zealand Bill of Rights Act before they are made, they’re not scrutinised before they are made in that kind of way. So I think, certainly, there’s always a good case for courts to be invited to scrutinise Executive action—that is, the making of orders, notices, and so on, which we can call together secondary legislation—in a way that feels as though it might be a bit different from Parliament passing primary legislation where we have always had the benefit of a New Zealand Bill of Rights Act report or, at least, a so-called BORA vet, where the advice is that such rights and freedoms aren’t engaged even to the extent that a report would be needed.

I think I should note, I guess by way of slight nervousness about a scenario in which we invite the courts to provide to Parliament direction about matters of human rights consistency, that not all have equal access to the courts. Of course, that shouldn’t be the case but I think it’s fair to note that we do risk establishing a way of agenda-setting, political agenda-setting via the courts in a scenario where not all have equal access to the courts. Most obviously, that relates to the huge financial cost often incurred in court proceedings, but, more generally, economic, cultural, institutional advantages enjoyed by some more than others. Of course, it should be the work of every diligent parliamentarian to reduce those barriers to justice, but the reality is that—at least so far as we are presently concerned, and probably always to some extent—there will be more opportunities for some than others to access the courts to promote the idea that the law should be changed on the basis of New Zealand Bill of Rights Act inconsistency.

So I think, having had a bob each way—or perhaps several in each direction—I think it’s fair to summarise my contribution as saying that, like others in this House, I’m anxious to promote the idea that laws should be consistent with the New Zealand Bill of Rights Act, that it’s appropriate that we currently have a scenario whereby the Attorney-General provides their advice on that question initially, but we don’t wish to preclude the courts from making such a declaration. Of course, they’ve already taken it upon themselves to do that on occasion, as has been mentioned, but to add now, as we’re doing, that the Government and/or Parliament should be required to respond in some way to that. So we think that’s appropriate as far as it goes.

So parliamentary sovereignty ultimately is maintained but modified. This House retains control of the outcome of legislation but not entirely now it’s process. So on that slightly nuanced basis, I note we are making a significant move but it is a move that goes only so far, and I think that’s appropriate. So, along with others in the National Party, we continue to support the bill as we spoke to at the first reading, and we look forward to engaging this important debate further for the remainder of its passage.

Thank you, Madam Speaker. Well, as my colleague Chris Penk from the Regulations Review Committee spoke about, he mentioned what other democracies are doing in this space, and he mentioned the United States. I think, last week, a few of us felt a shiver down our spines as we received texts about a leaked document suggesting that a 40-year-old precedent of Roe v Wade was soon to be overturned. Democracy shares strong common values of representation, accountable leadership, and rights-based architectures, but each is forged in its own crucible. It’s often only where these balance of fundamental rights are tested that the unique aspects of each distinct democratic architecture—with all its nuances and all its history—are questioned, and then we find those echoed through front-page news stories.

And really fundamental to the alchemy that happens in the constitutional crucible for each distinct democracy are two questions. Firstly, where our collective imagination will agree the lines of decision making between the three limbs of Government that colleagues have spoken to—so the executive, the legislature, and the judiciary. Secondly, the process that should govern tensions between those lines. I think that in the bustle of the legislative agenda, it would be easy to see this bill as routine, but it’s not. It holds really earthy democratic significance. It concerns the second of the two questions—how to manage the tensions between our limbs of Government.

Paul Rishworth talks in an article that he wrote for Britomart Chambers about the idea of a declaration of inconsistency essentially being a bridge between judicial authority and parliamentary supremacy. And he says, “With declarations, Courts can express their conclusions in a formal way, with the gravitas that a considered judicial opinion implies, but it lies with Parliament to choose whether and how to respond.” So this bill essentially acts as that bridge to close the gap, creating a pathway between a declaration itself and active consideration by Parliament of that declaration, while still maintaining Parliament’s ultimate supremacy in terms of lawmaking. It does that, as colleagues have spoken to, by requiring the Attorney-General to notify Parliament when these declarations are made, but also requiring a Government response within six months.

As much as this increases the presence within our conversations of key judicial reflections, to my mind it’s also confirmation of the principle of parliamentary sovereignty as essentially the locus of power within our system. This is a significant step in our story of democracy, and I commend this bill to the House.

Thank you, Madam Speaker. It’s with great pleasure that I speak in support of this bill as a member of the Privileges Committee. I do want to thank my colleagues on that committee and congratulate the Attorney-General, the Hon David Parker, who is our chair, for their courage to bring a bill like this to the House in response to the Supreme Court’s decision in Taylor.

I do want to hold that decision engaged: the fundamental right of New Zealanders to vote and whether or not there was discrimination in that regard. So these are the types of fundamental issues that engage the New Zealand Bill of Rights Act. It is the case that every Parliament can explicitly breach those rights, but to say that citizens who’ve gone all the way up to the Supreme Court of our country to find that their rights have been breached could have no response at all by Government, or respective Houses of Representatives as we come through, is—I think—something that would shock most New Zealanders. I think that the expectation of the public is that a bill like this would exist; that there would be a requirement for Parliament and for the Government of the day to respond appropriately—not that an unelected court would overrule the other elected branches of our Government, but that if we are to say that access to justice is important and that the New Zealand Bill of Rights Act and the Human Rights Act both respectively hold our fundamental rights, that there would be a response.

We worked really, really hard on this in committee, and we did hear from some incredible constitutional law experts. We heard from the Human Rights Commission, the Office of Human Rights Proceedings, and we heard, importantly, from the architects of the New Zealand Bill of Rights Act, from Sir Geoffrey Palmer and Sir Ken Keith, who came along with handwritten notes from back in the day when the New Zealand Bill of Rights Act was being drafted. They told us their intentions and their understanding of how that piece of legislation would operate to secure fundamental rights in New Zealand. They told us that the expectation was always that the Standing Orders would be amended to require a reaction to inconsistencies, to section 7 reports; that that was never done; that the New Zealand Bill of Rights Act was relegated to this position of relative impotence; and there was palpable and justifiable anger at that.

They did lay at our feet the responsibility to give effect to this piece of legislation now that the Supreme Court has told us what is needed. So when the legislation came to us, it was already exciting that we were going to as a Parliament—and it began last term, but then renewed this term—and say, “Yes, the New Zealand Bill of Rights Act can go up to the higher courts and there can be these declarations.”

But it was also, at least for my part, anxiety that we wouldn’t necessarily prescribe a process in the bill that would give effect to the type of reaction and the type of response that the Supreme Court had intended for us to do. And so those submitters really crystallised what was needed. So I do want to acknowledge that, and I do want to thank both the committee and the submitters for actually looking at this closely enough and saying, “What is the balance?”

So we have a democracy and we have the elected members responsible for lawmaking who are supreme and can presumably breach rights, but that the judicial branch of our Government, who’s responsible for ruling in individual cases and interpreting the law, is also part of this equation, and that members of the public have a right to have their rights made effective if they have had recourse to the courts. We worked hard on that.

And so I think the balance is struck here, and I think this is an incredible and exciting constitutional development for New Zealand. I think we’re going to see some interesting cases come before us and some important ways that we as lawmakers and Government—and Governments and parliaments after us—are going to be engaged with questions about the way that we make law and the way that we respond to popular sentiments, like taking away the right to vote from prisoners, which is what that case engaged. But that means something in terms of weakening or strengthening human rights across the board in New Zealand, and that slippery slope won’t be so easy for Governments and parliaments to fall down. So I do commend the bill to the House and congratulate the Attorney-General and the Minister for bringing it.

Thank you, Madam Speaker. I’m rising today in support of the second reading of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill on behalf of the ACT Party.

We are a democratic country and we should be very proud of that, and we should be proud of the rights and liberties we’re afforded under being a democratic nation. All New Zealanders elect representatives on their behalf to come to this House to create laws for them. The Government passes new laws all the time for the people of New Zealand and, in turn, the Government and elected representatives here have a duty to New Zealanders to act in their interests with the laws that are written. It’s also true that we have long-established rules and rights under the law about the New Zealand Bill of Rights Act and what are our duties and freedoms under the law.

The New Zealand Bill of Rights Act says that there are a number of categories of rights that all New Zealanders have and that those fall into having life and security of a person, democratic and civil rights, the rights to non-discrimination, the rights against search, arrest, and detention, and the rights to justice. These are very important, fundamental rights that we are lucky to have, because we are a democratic nation.

All laws that come into Parliament must be seen by the Attorney-General to see whether they are consistent with the New Zealand Bill of Rights Act before they are introduced and passed into statute, and the Attorney-General informs Parliament of any inconsistencies he sees in the law. Some of these can be justified. If you take a small example of the right not to be discriminated against on the basis of your age, we say that people under a certain age shouldn’t have a driver’s licence or they shouldn’t be able to drive an automobile. I think that’s the right thing to do, because does anybody want a toddler getting in a car and driving down the street? So there are justifiable limitations to rights.

However, sometimes the Attorney-General also states that some of the rights that have been changed under law or are inconsistent are not justifiable under law, and that the limitation on somebody’s right under the New Zealand Bill of Rights Act is not justifiable. The most recent example that we’ve seen of this was when the Attorney-General stated that the Rotorua District Council (Representation Arrangements) Bill was not consistent. He said that it was not consistent because it discriminated and it was a discrimination based on race. He said that it limits the freedom from discrimination and that it cannot be justified.

So there are times when this Parliament creates laws that do restrict people’s rights and they can be seen as a justified limitation, and there are times when they are not a justified limitation, and so the scrutiny of those laws is extremely important. We all have rights, and the limits should be scrutinised very, very strongly.

Under our current arrangements, New Zealanders can take a matter to the court and seek to have a declaration. So they can seek for the courts to scrutinise the law and the limitations that those laws have on their rights—the declaration of inconsistency—but that’s where the matter stops. Nobody even needs to know about it. Nobody needs to know that the declaration has been issued, and that’s where this law comes in. This law would give more accountability. It would give more scrutiny and transparency to the laws that this Parliament passes, and that sounds like a good thing, because this means that the law that the courts have determined is inconsistent with people’s rights and freedoms and cannot be justified will be known to Parliament, and that will give all New Zealanders greater protection of our basic human rights.

I think this law change would make the Government and members of Parliament think differently and carefully about the laws that they are trying to pass. I think the Government would put more due diligence into the drafting of their legal documents. I think the select committees would do more work in a select committee, not to just rubber-stamp what the Government of the day wants to put through without looking at any analysis, but to actually go and deep dive into legislation to see whether these rights are being trampled on.

Now, the ACT Party believes that our laws should be more democratic and that they should be more accountable to the people. We have a different way of looking at our laws. We’re supporting this law at the second reading, but we believe that they could be better in general, not by seeking these declarations, but by making sure that we have regulatory standards in place so the laws never end up getting to that point in the first place. If you take, for example, David Seymour’s Regulatory Standards Bill, that went in some way to addressing the same issue that the Government wishes to address in this law by making sure that the laws are justified in the first place so that people don’t need to seek a declaration, and that’s because, quite often, what happens is the Government and elected officials are creating laws where regulatory impact analysis has not met the standards that we would actually require of a law.

We need better-quality laws, because if we are limiting people’s rights, it’s very important that we’re not doing it unnecessarily. We need to make sure that we are getting the laws right, that they are consistent with the rule of law, and that we’re not unnecessarily diminishing the rights and liberties of New Zealanders unless it is absolutely necessary.

So we would say that we should have codified in law basic standards of what all laws must pass before they can pass this House. They have to answer a basic test of: what is the problem that the Minister is trying to solve, do other laws already solve the problem, can this problem be solved without a law, what are the costs, who pays the costs, what are the benefits, and do the costs outweigh the benefits or do the benefits outweigh the costs? That is how we would raise the standard of laws being made by the Government and being passed through this House. People should be able to then go to court and seek a declaration that those basic standards have not been met, because if we’re making sure that those basic standards have been met in the first place, there would be less laws being found inconsistent with the New Zealand Bill of Rights Act.

So, yes, we need more democratic accountability for people in New Zealand to know that their basic rights and freedoms won’t be trampled on by Parliament unnecessarily, so that we can have faith in our legal institutions and we can have faith in the Government to act with good intention, because those are the rights and duties that all New Zealanders have. We all elect representatives to come to Parliament to act on our behalf and to pass good laws that will keep us peaceful and secure and will provide stability, but we don’t want to see it being unnecessarily burdensome.

So the ACT Party will be supporting this bill because we do think it goes some way to addressing the issue of accountability and transparency, but we think there’s more that could be done in the first place. Let’s put in place regulatory standards so that bad laws don’t get passed in the first place. Thank you, Madam Speaker.

Tēnā koe e te Māngai o te Whare. I really enjoy these debates. It’s quite good to have these robust discussions on how those healthy tensions between executive, judiciary, and legislature work in practice. I think this bill, which responds to the Supreme Court’s decision in Attorney-General v Taylor, is a great example of how we can improve that transparency which is so vital within our democracy.

In that decision I mentioned, the Supreme Court determined that senior courts have the power to issue declarations of inconsistency under the New Zealand Bill of Rights Act. The Supreme Court’s decision raised the question of what should happen after senior courts issue a declaration of inconsistency under the New Zealand Bill of Rights Act. Currently, there is no mechanism which gives that surety that ensures the executive—or the House, for that matter—will give serious public reconsideration to the legislation in light of that judicial comment.

So this bill provides a pathway forward. It provides a process for that reconsideration to occur. By doing so, the bill strengthens the protections that already exist in the New Zealand Bill of Rights Act, and also those freedoms within there.

I think that it’s important to note that there is already a process in place for declarations of inconsistency made by the Human Rights Review Tribunal, and this bill also amends the Human Rights Act to align this process with the process for responding to senior courts’ declarations. I think it’s important to note that when we see senior courts making a declaration of inconsistency, there is just no process for bringing that declaration to the attention of the House of Representatives to have debates such as the one we’re having now. This means that lawmakers might not have the ability to fully consider and give attention to the declaration, and the breaches of rights may potentially not be addressed. So clearing up that inconsistency and providing a clear pathway forward is important.

The very purpose of this bill is to provide a process for Government and the House of Representatives to consider, and, if we think fit, to respond to a declaration of inconsistency made by the senior courts or even the Human Rights Review Tribunal. The Human Rights Review Tribunal has been able to issue these declarations since 2001, but only in respect of the right to be free from discrimination. When the Human Rights Review Tribunal makes a declaration of inconsistency in this space, the Government is required to respond to that within a 120-day period.

Look, I’ll leave it there, but I’d just like to note that there are some changes in there. One, I think, of interest, worth pointing out is that changes have also been recommended to the Standing Orders to provide for a parliamentary process that follows once the Attorney-General has been notified of a declaration of inconsistency, which includes a select committee referral.

To conclude, today, ensuring declarations of inconsistency are brought to the attention of this House will promote greater transparency and it will also encourage more active consideration of potential inconsistencies, therefore strengthening the democracy we have here in New Zealand. I commend it to the House.

Before I call the next member, can I just remind members that when we have a hybrid House, when there are loud conversations, it actually interferes with those who are trying to hear on the Zoom.

Thank you, Madam Speaker. I take a five-minute call for the National Party on the second reading of the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. When I rise to speak I’m conscious to bring any member of the public who may be viewing or listening in, on the journey with us. This is the second reading. The first reading was on 27 May 2020. Almost two years later now, we’re here for the second reading after the bill has been submitted to the select committee for scrutiny.

The debates have been interesting this morning, and important, because this is about the constitutional framework of Aotearoa New Zealand. By way of background, what is a declaration of inconsistency? It is a formal statement granted by a court as a remedy as legislation is inconsistent with fundamental human rights protected by the New Zealand Bill of Rights Act. The declaration informs the public and Parliament that, in the court’s view, an Act or legislation is inconsistent with fundamental human rights.

It’s important also to clarify that a declaration of inconsistency does not affect the validity of the Act or the law or anything done lawfully under the Act. However, currently there is no explicit power in the New Zealand Bill of Rights Act to issue declarations of inconsistency. There’s been much discussion around that and I’m just going to come back to the process.

The Privileges Committee considered 43 submissions from the public and heard oral evidence from 10 submitters. The key messages that arise out of the consideration of this bill before it passes to the third reading are that currently the New Zealand Bill of Rights Act provides no procedural mechanism by which declarations of inconsistency can be reported back to the House. So when the bill was before the Privileges Committee, the select committee that examined the bill, the committee examined the bill and recommended that it be passed but with amendments that have been agreed to unanimously.

In summary, those proposed amendments are that the Attorney-General is to notify Parliament of a declaration of inconsistency, and that with that, the Attorney-General must present a report to Parliament—the select committee has proposed instead that the Attorney-General notify Parliament. Another recommendation from the select committee is the requirement for the Government to respond, and it’s recommending that the bill be amended to require such a response. A further recommendation is that there be a six-month deadline—that the Government’s response is to be presented to the House within six months of the declaration and that it’s important that the statutory requirement to respond contains the default deadline, which leads on to the next recommendation, and that is that the House is empowered to alter the Government’s deadline. The select committee proposes that the House be empowered to do so by making a resolution specifying a new deadline.

So in the one minute I have left, I note that it’s significant that this is an issue addressing the constitutional framework and there’s been debate and the sharing of views in the House about that separation of the powers between the executive, the judicial, and the status of Parliament as a sovereign body. This bill will come to the House for the third reading, and in doing so it’s interesting to note, as one of the speakers has addressed, that there is an issue before the Māori Affairs Committee, which I sit on, where we’ve received a report back from the Attorney-General with a view that, in particular to the Rotorua District Council (Representation Arrangements) Bill, the assessment at that time, based on the information available to the Attorney-General, is that it was viewed that there was an unjustifiable limitation to the rights outlined under the New Zealand Bill of Rights Act. It will be interesting to see how that unfolds in time. On that note, the National Party commends this bill to the House.

Talofa lava, Madam Speaker, and thank you for the call. It is a real privilege to be able to take a short call on this particular bill. It’s also a privilege for me to actually sub into the Privileges Committee for the hearing of evidence and consideration of this bill, so I’d like to actually, at this point, acknowledge all the submitters. I can comfortably say, I think, in the room at the time that we were hearing the evidence, we had the who’s who of constitutional and public law here in New Zealand to submit on this bill, including, as the previous member Golriz Ghahraman has said, the architects of the first New Zealand Bill of Rights Act: Sir Geoffrey Palmer and Sir Ken Keith. We also had renowned academics Claudia Geiringer, Andrew Geddis, and Dr Dean Knight from Victoria University. So there were plenty of fans, both sitting with the public and also with some of us who were around the select committee table.

So, as already covered by previous members, this bill does respond to the Supreme Court’s decision in Attorney-General v Taylor. Basically, the Supreme Court determined that the senior courts have the power to issue declarations of inconsistency under the New Zealand Bill of Rights Act, but actually there was no mechanism which ensured that executive or the House gives serious public reconsideration to the legislation in light of that judicial comment. This bill is really important because it now provides a process for that reconsideration to occur, and the committee of the whole House stage of this bill will be really important for all members of the House to be able to take part to both ask those questions of the Minister but also we need to think ahead for what the process will be. Because one of the key considerations that the Privileges Committee considered was whether any of the parliamentary process should be specified in statute. The Privileges Committee concluded that it shouldn’t be. We concluded that the House has exclusive cognisance over how its proceedings are conducted, and this exclusive right to control its own operations is one of the House’s privileges.

So I’d like to conclude my short contribution by just encouraging members at the committee of the whole House stage of this bill to be active in participation. This bill is really important, it also gives us an opportunity to really set the process for future declarations of inconsistency. So I’d like to commend this bill to the House.

Thank you, Madam Speaker. As a Wellingtonian, proud of this great city’s heritage, I was reminded, as people were speaking, of those once spoken words by the late Alan Martin of L V Martin, an appliance store here, who said, “It’s the putting right that counts.”, and so that’s what we’re doing with this bill. We’re making sure now that it is possible to put things right in our New Zealand Bill of Rights Act.

We’ve heard today from my colleagues, but I did want to acknowledge Ministers Parker and Faafoi for their work, the Privileges Committee, and, of course, those submitters who have come in. It sounds like from the previous speaker that there was certainly a high calibre of thought and input into this bill.

I wanted to reinforce a few things, and that is what we haven’t had up until this point, a mechanism that allows the executive to properly and publicly consider the existing legislation in light of the court’s finding. This bill seeks to put that right.

In terms of what else the bill can do, and as the Minister noted when he opened, the Privileges Committee has done an excellent job in considering the bill and hearing submissions and changes that have been coming out and provided us with an even better piece of legislation, including those aforementioned time frames for the Government’s response. I’m not going to repeat that, but I do want to just finish by talking about some practical effects of this, and that is that there will be a clear process and mechanism for this House and the Government to respond in terms of a declaration of inconsistency, and what that leads to, and really, a transparent right and proper opportunity for consideration to be given to the issues raised by the New Zealand public so they can be confident that this House is taking those issues seriously. I commend the bill to the House.

Thank you, Madam Speaker. It’s a pleasure to rise to speak on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. This bill is to help provide a mechanism for the executive and the House of Representatives to consider and, if they think fit, respond to a declaration of inconsistency made by the senior courts under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993.

A declaration of inconsistency is a formal statement granted by a court as a remedy that some legislation is inconsistent with fundamental human rights guaranteed by the New Zealand Bill of Rights Act. The declaration informs the public and Parliament that in the court’s view, an Act is inconsistent with fundamental human rights. A declaration of inconsistency does not affect the validity of the Act or anything done lawfully under that Act. However, currently there is no explicit power in the New Zealand Bill of Rights Act to issue declarations of inconsistency.

I’m just going to touch very briefly on branches of Government for those watching. So the Constitution Act 1986 recognises that the three branches of Government are the legislature, which is the Parliament; the executive, which is the Cabinet, Ministers outside Cabinet, plus Government departments; and then the judiciary. Each operates independently of the others, and this is important for our constitutional framework. This is known as the separation of powers. There is, of course, what is often called the fourth estate, which is the media, whose job is to apply sunlight, effectively, and hold the three other branches of Government to account for the public to make their decisions on their effectiveness or otherwise.

The independence of the judiciary in these arrangements exists to ensure impartiality in judicial decision-making and is fundamental to constitutional balance under the Constitution Act 1986 and to the principle of legality that underlines it. Judges, when judging, should be subject only to the law. Independence of the judges is secured by ancient guarantees of security of tenure and salary, and by constitutional conventions which prevent the executive directing the judiciary. An important constitutional convention in this context is also that the Attorney-General acts independently of political considerations in recommending judicial appointments.

The New Zealand Bill of Rights Act is a very important part of New Zealand’s framework, having been in force now for many years. The bill that’s before the House this afternoon formally recognises the jurisdiction of the senior courts to make declarations of inconsistency. The bill follows international jurisprudence that the affirmation of rights may require substantive protection but also procedural protection. The bill does not alter the law substantially with regards to the jurisdiction of the senior courts but brings New Zealand into line with many overseas jurisdictions having a formal reporting mechanism.

The bill will effectively give the senior courts a louder voice when dealing with New Zealand Bill of Rights Act matters and will make it harder for Parliament to ignore these declarations of inconsistencies. An important point here is that in terms of the separation of powers, the legislature—Parliament—has an important role to play in considering issues such as these that the Supreme Court will bring to it, which is different from the executive, which is the Cabinet and Ministers outside Cabinet, although they will make their own determination. This will not, however, change parliamentary supremacy.

That is an important issue here, because the judiciary has an independent role to play in assessing laws, in this case against the New Zealand Bill of Rights Act, and it may provide declarations of inconsistency, but they don’t have to report to the public in terms of their position. They are independently appointed—that is, independent of political considerations—which is an important part of our constitutional framework.

The executive and the legislature—Parliament—however, do have to report to the public, and the public can, ultimately, effectively, kick us out of power or out of our political positions if they don’t think we’re doing a good job, and that’s a very important separation of power in that sense. So parliamentary supremacy will still be upheld in respect of this, but they will have to pay closer attention to any declarations of inconsistency made by the senior courts.

The Privileges Committee examined the bill and it recommended that it be passed. They recommended all amendments unanimously. The Attorney-General must notify Parliament. The bill, as introduced, states that the Attorney-General must present a report to Parliament, bringing the declaration to the attention of the House. The select committee has proposed that—sorry, I’ll move on from that, Madam Speaker.

The New Zealand Bill of Rights Act 1990 is one of the most important pieces of legislation in New Zealand for the promotion and protection of human rights. That’s certainly something that’s been at the forefront over the last couple of years where there have been some limitations on human rights in New Zealand, and it has certainly raised some deep concerns in parts of our communities. And it’s important that there is an outlet within our legal and political frameworks for those concerns. This is an important aspect of providing a ventilation of those concerns, in that cases can be brought before the senior courts and in respect of any legislation that is currently in existence, including historical legislation but also more recent legislation. And if the Supreme Court decides that it is inconsistent, then it can be reported to the House. So a declaration of inconsistency is a formal statement granted by the court as a remedy, if legislation is inconsistent with fundamental human rights protected by the Bill of Rights Act.

I would just take this opportunity to also reference what the dissenting judges put in Taylor v Attorney-General, the Supreme Court’s 2018 judgment that confirmed that senior courts have the power to issue declarations if legislation is inconsistent with the New Zealand Bill of Rights Act 1990. Those dissenting judges said that a declaration of inconsistency simply hangs in the air. There is no formal mechanism to prompt a political response. Being a lawyer myself, I agree that if it hangs in the air, so to speak, there is a risk, in the public mind, that a formal order of the court may simply be ignored with a consequential danger of erosion for respect for the integrity of law and the institutional standing of the judiciary. This bill remedies that problem and enhances confidence in the public that a decision of the Supreme Court will be taken into account in a formal way by Parliament, which is a very important remedy.

It took the senior New Zealand courts almost 30 years to grant the first declaration of inconsistency to the effect that an Act unjustifiably breaches rights protected by the New Zealand Bill of Rights Act 1990. The courts do not make such findings lightly, and it is hoped that these declarations will be a rare occurrence.

In summary, this is a very good piece of law and it is one that I am pleased to see before the House. It enhances the public’s confidence in both the judiciary and maintains that separation of powers between the judiciary, the legislature, and the executive, but ensures that there is a very transparent process in terms of the declaration of inconsistency being reported to the House and being taken into account while maintaining the fundamental separation of powers between those bodies. So with that, I recommend this bill to the House.

Thank you, Madam Speaker. Can I thank the very considered contributions from other members of the House, from every party that has spoken and every party who—and they all have. Sir Geoffrey Palmer, when he submitted to the select committee on this bill, said that this is the most important change to our constitutional settings in a very long time, perhaps since the passage of the New Zealand Bill of Rights Act 1990 in the first place.

I had the privilege of chairing the Privileges Committee, and although other members have referred to the length of that select committee process, that was deliberate on the part of select committee members and me in that this consideration went over two parliamentary terms. It arrived at the select committee shortly before or in the months before the 2020 election. We didn’t just want to force it through. We wanted this to have full and due consideration of all parties and civil society so that we could form a consensus around it as a Parliament, so that this would endure and that people understood the importance of what it is that we are doing by this bill.

Members have said that this is in response to the decision of the Supreme Court in the Taylor decision; that’s not quite correct. The genesis of this legislation goes a lot longer. It’s been an issue that’s been important to me and colleagues, I’m sure, on other sides of the House for a long time. The constitutional review committee some years ago recommended what was called the halfway house under the New Zealand Bill of Rights Act, which this is. In order to stop breaches of the New Zealand Bill of Rights Act, effectively being able to be ignored by either the executive or the Parliament without much notice, I then got it into the Labour Party policy before the 2017 election, and it was in our policy to introduce this legislation.

Now, we all share responsibilities in this House for upholding civil liberties. As the Government part of that, those responsibilities are essentially shared between the Minister of Justice and the Attorney-General, and I’m the Attorney-General. So Andrew Little, the then Minister of Justice, and I brought a Cabinet paper to Cabinet to seek Cabinet authority for the proposition that we introduce this legislation, and that legislation has now come back in the form that it is.

I want to endorse comments that were made by Chris Penk and Vanushi Walters, who both made reference to the fact that we’ve got to be very careful that we don’t give up the settings in New Zealand which we think in this House are superior to a lot of other liberal democracies, who we none the less respect but we don’t think their constitutional settings are quite as good as ours. I think at this point in the history of the world, we’re very, very well served with our settings in New Zealand, where we have a parliamentary democracy with real power invested in the executive controlled by the Parliament, which is controlled by the people through an MMP system that has a lot of checks and balances and can throw us out after three years if they’re sick of us. And within that three-year term the executive, working through Parliament, does actually have the power to effect change.

Now, that system has stood us in good stead in New Zealand. We’re one of the longest, unbroken democracies in the world. Nowhere in South America, virtually nowhere in Asia or Europe—there’s a couple of exceptions there being Great Britain and Switzerland—virtually nowhere in Africa has an unbroken democracy as long as we have had in New Zealand. During that period we’ve been able to sort through some really difficult, controversial issues. Whether it’s the criminal code, whether it’s abortion laws, whether it’s the rights of minorities, be they sexual or racial, or whether it’s Treaty issues, we’ve been very flexible as a country as we approach contentious issues, and we can duck and weave and we can go back where we make a mistake and we can revisit things where we don’t quite get it right and we can get things across the line that require a conversation. We’re not constrained by a written constitution, such as they have in the United States, although we have many written parts of our constitutional framework.

I think at this point of time in the world, when we see some of the more constrained arrangements, where they’ve got so many checks and balances under their arrangements that they can’t effect any change or they can’t effect a lot of significant change that is necessary, or at least it appears so from the outside, we can be thankful for our settings. Now, in those written parts of our constitution sits, most importantly, the New Zealand Bill of Rights Act, which enshrines certain civil liberties, freedom from torture, right to vote—a lot of very important human rights that are incredibly important, but they don’t extend to social rights or environmental rights. This is an issue that I’m going to come back to, because I think we should take great care as a Parliament not to extend the New Zealand Bill of Rights Act to those sorts of rights, because the decisions that would then become the courts’ become increasingly political in their focus, rather than the protection of core human rights that are protected by the Human Rights Act.

The problem that we’ve had to date is that until the Taylor decision, there was uncertainty as to whether the courts could make a declaration of inconsistency. As Joseph Mooney has outlined, one of the reasons why that was a controversial proposition was that although a declaration is made that Parliament has done something wrong, there is no remedy. The declaration is made, but there is no substantive remedy other than words. Therefore, the concern was expressed in earlier court judgments that that sort of expression of discontent with what Parliament has done, without a way for reconsideration, would somehow lead to friction between the courts and the Parliament. Now, the Supreme Court in the Taylor decision said, “No, they did have jurisdiction.” And to a certain extent that, in time, overcame the bill that was in gestation for granting expressly the right of making declarations of inconsistency.

But the more important part of this bill is what happens when a declaration of inconsistency is made. Because until this bill passes and becomes law, the answer is sometimes nothing, and that’s wrong. Where a senior court makes a declaration of inconsistency, the executive and the Parliament ought to consider it. The courts, as other speakers have said, don’t make these declarations quickly. Indeed they’re going to have to be a bit careful that they reserve them for the important rather than overused declarations of inconsistency, because that would undermine comity between the branches of Government. But I’m trusting that they won’t, and that has been the experience of New Zealand previously. But when they do, we do need mechanisms to ensure that what the courts have said is considered by both the executive and Parliament.

Sometimes the mistakes of Parliament are made in the heat of a political moment, which by the time these things have gone up through the courts, is long past. The people who were invested in those particular issues have sometimes left Parliament and the political moment has moved on. And I think in those sorts of situations, where the courts then opine that we have gone too far as a Parliament, sometimes we can sit back, we can de-personalise these issues, and we can try, and where appropriate, fix our mistake.

But that doesn’t mean to say the courts will always be right in a declaration of inconsistency. On occasions, I can see that this Parliament will say, “Well, look, we’re seriously considering the declaration of inconsistency.” We in Parliament have a choice as to whether we amend that legislation, whether we repeal that legislation, or we leave it as it is. Those are the decisions for Parliament, and we retain sovereignty to make those decisions under this bill if it passes. But there should be a process that enables us or forces us to give that due consideration, and that’s what this bill does.

The amendments at the select committee stage leave some of the mechanisms to ensure that that’s done to the Standing Orders. But in essence, as others have described, the Attorney-General has to bring to the attention of the House the declaration of inconsistency. The House then will, through the Standing Orders, refer that to a select committee. I would quite like that often to be the Privileges Committee because I think it would be quite good to depoliticise some of these things. There were mixed views on that amongst submitters and amongst committee members, and we in the end agreed that that should be up to the House to decide, and that sometimes it will be appropriate to go to the Justice Committee or maybe the Regulations Review Committee, or maybe sometimes the Privileges Committee. I commend this important bill to the House.

Motion agreed to.

Bill read a second time.