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

Members, we come now to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. I think, just again, it would be helpful if members were to ask multiple questions, if they have them, of the member in charge during their call. Members, we now come to Part 1. This is the debate on clauses 3 and 4, “Amendment to New Zealand Bill of Rights Act 1990”. The question is that Part 1 stand part.

Mr Woodhouse and myself were doing a polite dance, and I appreciate that’s he enabled me to take this first call. I think I’ll just put some brief comments on record for the sake of the committee, and then I’m happy to take questions. This bill responds to the Supreme Court’s decision in Attorney-General v Taylor. In that decision, the senior courts of New Zealand granted the first declaration of inconsistency to the effect that an Act unjustifiably breaches rights protected by the New Zealand Bill of Rights Act. It took more than 30 years for the senior courts to grant the first declaration of inconsistency. The courts do not make such serious findings lightly, and it is hoped that declarations will continue to be a rare occurrence.

This bill answers the question of what should happen after the senior courts issue a declaration of inconsistency under the New Zealand Bill of Rights Act. Currently, there is no mechanism which ensures that the House or the executive will give serious public reconsideration to the legislation in light of the judicial comment. The absence of any response could mean any one of a range of things, including that the House does not know about the court’s declaration, that it disagrees with or is unpersuaded by the court, or that it does not know how to respond. This bill provides a process for a response to occur. By doing so, the bill strengthens the protections of the rights and freedoms affirmed by the New Zealand Bill of Rights Act.

Declarations of inconsistency can enhance the legitimacy of the system by making Parliament more accountable for meeting fundamental human-right norms. If Parliament makes a law that the senior courts considered to be inconsistent with the fundamental human rights affirmed in the New Zealand Bill of Rights Act, it serves a useful public policy function to bring it to the attention of the public. Declarations of inconsistency can also provide a mechanism for bringing unintentional breaches of the New Zealand Bill of Rights Act to the attention of Parliament. For example, legislation enacted in good faith might later be found to be inconsistent with fundamental human rights when it is interpreted and applied in practice. In this way, Parliament can benefit from the expert opinion of the judiciary and reconsider the law accordingly.

At select committee, the bill was introduced on 30 March 2020 and referred to the Privileges Committee. It was reported back on 30 September 2021. Submitters included individuals with significant expertise in constitutional and human-rights law, and I thank them for the graciousness by which they afforded their excellence and analysis to our committee process. I thank also the Privileges Committee for its expert and diligent consideration of the bill, and those members of the public as well.

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

The notification by the Attorney-General to the House would also trigger a parliamentary process to be included in the House’s Standing Orders. The process would include, first, a declaration of inconsistency being referred to a select committee allocated by the Clerk of the House, the select committee considering and reporting on the declaration within four months, and, finally, a debate in the House on the declaration, the select committee report, and the Government’s response to the declaration. The process recommended by the committee provides a clear framework for the dialogue between the branches of Government to consider and respond to the declarations of inconsistency and the issues that they raise.

The aim of the bill is 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 arrangement, that is properly a matter for each branch of Government to determine on its own accord. With those remarks, I am happy to take questions on the Parts that proceed through the House.

Thank you, Mr Chair. There’s a certain poignancy, I think, to the fact that the committee is considering the declarations of inconsistency amendment bill hard on the heels of the Three Strikes Legislation Repeal Bill. If memory serves me correctly, the 2009 Sentencing and Parole Reform Bill—I think it was called then—which gave effect to the three strikes legislation was the subject of a section 7 New Zealand Bill of Rights Act vet by the then Attorney-General, the Hon Christopher Finlayson, who said that the restrictions on the rights of individuals were not consistent with the New Zealand Bill of Rights Act.

And so as we go through this committee, I think while I note the Minister hasn’t tabled any amendments—and it’s not the National Party’s intention to table amendments either—because we are at a very, very important constitutional intersection between the executive and the judiciary, I think it’s important to examine the Minister’s intentions and understandings about the bill that we are considering, in order that the Hansard record can show very clearly what is Parliament’s intention with the passage of this bill. Because there is, I think, a valid argument to be had that the bill itself is unnecessary because of what the New Zealand Bill of Rights Act already says and because of the actions taken by both the courts and Parliament in respect of legislation that may be in breach of sections 4 to 7 of the New Zealand Bill of Rights Act.

So my questions—and, of course, we’re considering a bill that came about not as a consequence of the three-strikes legislation but after the court case of Attorney-General v Taylor, which related to a prisoner’s right to vote. And it’s interesting, because of course we had a democratic process in this House which, by majority, the bill was passed. I note the Supreme Court also had something of a democratic process, because the Justices were three to two in favour of upholding Mr Taylor’s claim that this was an unjustified breach of the New Zealand Bill of Rights Act, and inconsistent with it, which is why we’re here. So even the courts were not able to be unanimous on the way in which this should be interpreted, but I also note that those dissenting judges were worried that simply putting a declaration out may actually undermine the role of the judiciary in that they were worried that a formal declaration could be ignored by this House and would erode the respect for the courts. I don’t think that would have happened even if we weren’t passing this bill, but it’s very important, I think, that we flesh out what we’re actually going to do when the courts make such a declaration.

So my questions to the Minister—really, these are belts and braces questions, but they are fundamentally important to what we are doing. And that is this: can he confirm to the committee that nothing we are passing through this bill will undermine section 4 of the New Zealand Bill of Rights Act, which makes it very clear that no court can, in relation to Acts that we pass, hold a provision of the enactment repealed or revoked and decline to apply any provision of an Act simply because they believe that that is in breach of the New Zealand Bill of Rights Act? That is that fundamental separation that this House has with the judiciary, and that needs to be upheld.

The second question I have, and this is really important in terms of procedural matters, and that is: what are we going to do and how will it differ, because what we’re doing in Part 1 is adding in section 7A, which deals with a process to be followed if the courts do declare that legislation is inconsistent with the New Zealand Bill of Rights Act, but, of course, that has to sit beside section 7, which has been there for 32 years. Section 7 is where the Attorney-General, as he did in the three-strikes Act and in the Prisoner Voting Act, actually said that there is an inconsistency with the New Zealand Bill of Rights Act, and that inconsistency is not justified.

So we actually have two parts now, Mr Chair—I’ll just finish my question, if I may. Thank you, Mr Chair. We have, potentially, two processes: one is a process where we already knew there was an inconsistency, because the Attorney-General under section 7 of the New Zealand Bill of Rights Act had already told this House, and we debated it and we considered it. We may have made amendments to it, but, effectively, we passed the law, and therefore a process that’s triggered by section 7A may not be the same process if a section 7 New Zealand Bill of Rights Act vet had already been lodged by the Attorney-General.

So I’m interested in what the Minister’s view is, and we did hear from the Attorney-General, because, of course, as a member of the Privileges Committee, he was the chair of that committee and it was very helpful to get some kind of insight into what might happen when we pass this bill. But I do think it’s helpful to have that on the record.

So my two questions to kick off with are: can she confirm that section 4 of the New Zealand Bill of Rights Act is unaffected by anything that we are doing today, and can she provide a commentary on how the process of considering a declaration of inconsistency might be different under section 7A if a section 7 New Zealand Bill of Rights Act vet had already been tabled? I hope that’s clear.

Thank you, and I note that I had to take a brief minute, so if I miss anything, please circle back.

So the best that I understand the question—can I confirm that section 4 is not affected? Yes, I can. So the difference between the section 7 notices by the Attorney-General and the declarations of inconsistency issued by the courts—the difference is that the section 7 reports are the advice of the Attorney-General to the House on the bill’s consistency with the New Zealand Bill of Rights Act, whereas a declaration of inconsistency is the courts applying the law to a set of facts. And coming off the back of that last discussion, I think this is a timely follow-through—I’m talking about the three-strikes repeal—so they are applying to a particular set of facts, and then the statement that the law there is inconsistent.

So the section 7 reports are prospective in that they predict that a law will be inconsistent with the New Zealand Bill of Rights Act. A declaration of inconsistency is retrospective in that it is a judgment by the court that a law has been inconsistent, on those factual circumstances, with the New Zealand Bill of Rights Act. So the bill provides a mechanism for the Government and the House, therefore, to consider the declaration by the courts and, therefore, how each branch of Government should respond.

Just a quick follow-up question. I apologise to my colleague, Mr Goldsmith, who is our justice spokesperson, but having been on the committee, I think there are a couple of things I did want to flesh out. This is probably a reasonably complex legal question. Is the Minister saying, therefore, that if a court determines that a part of an Act or an Act itself is inconsistent with the Bill of Rights Act, that is a matter of fact, not in a legal—sort of a judicial opinion, and therefore can’t be further fleshed out by any other court? That it basically ends the process and that this Parliament has to accept unquestioningly—effectively, it’s almost a common-law judgment on a piece of legislation, and that then becomes a fact for all time? Because if the answer to that question is yes, then it probably means that the process that we need to follow isn’t that different whether or not the Attorney-General has provided a Bill of Rights Act vet, as the Minister said, as a kind of a prediction of the future.

So it’s a quite complex piece of jurisprudence, I think. I’m not a lawyer, but it seems to me, then, that the new section 7A process this House would need to follow, and the Attorney-General would need to follow, if such a declaration is made isn’t going to be that different, regardless of what the Attorney-General had already said in respect of the bill when it was being considered.

Yeah, look, I appreciate the member’s line of inquiry, though I do think it’s just important to be clear that, no—so, first things first, in the entire duration of the Bill of Rights Act being enacted, there’s only ever been one declaration of inconsistency. Often courts can, on various factual circumstances, say these things might not align here, here, and here. But to actually bring forth a declaration of inconsistency is a very high threshold. So in those very limited circumstances, where the senior courts, in particular, have determined that they should be required to provide a declaration of inconsistency, all that this does, in a sense, is it just provides some belts and braces—a process by which to bring that to the attention of the House. Of course, it’s for the House to determine and do what it feels is appropriate. There’s no instructive mechanism there by the courts to be able to do anything other than note that there is that declaration of inconsistency.

Thank you, Mr Chair. I just want to make a few comments on the legislation which we on this side of the House support. Our understanding of it, as the Minister has outlined, is that the courts may, and on rare occasions, declare a piece of legislation or whole legislation or part of it be in breach of the New Zealand Bill of Rights Act. What we’re talking about in this legislation is a process to respond to that, and, you know, we’re not in a United States sort of situation where the Supreme Court can strike down legislation and—you know, no system is perfect. I would argue our system is different and it doesn’t give the courts those powers, generally, but it has Parliament as sovereign and accountable to the public for their decision making.

So what we’re talking about here is when the court declares that a piece of legislation is in breach of the New Zealand Bill of Rights Act, then Parliament needs to respond, and the response may very well be, “Yes, OK, all right, we acknowledge that from the court, but we think that that breach is justified for X, Y, and Z reasons, and all these issues are complex and that could be a legitimate response and we’ll stick with it, we’re not going to change, because we think it is justified because of X, Y, Z.” But the point of this process is to make the Government of the day do that, not just ignore it and not just pretend that it doesn’t exist, because I think that would undermine, ultimately, the respect that is due to the senior courts of this country; they are deserving of a considered response, and the House should take the opportunity to say, “Yes”—you know, one option would be to say, “Well, yeah, frankly, we think that’s right and we’re going to change the legislation.” Another response would be: “No, we acknowledge the court’s decision but we think, because of these reasons, we’re going to stick with the legislation as it is, and, ultimately, it’s for Parliament to decide.”

Of course, the system does depend on the quality of the advice of the Ministry of Justice when it develops advice on bills. And if the Chair will indulge me for just one example that is highly relevant today it is in relation to the Canterbury Regional Council bill, for example. So one of the clauses of the New Zealand Bill of Rights Act relates to electoral rights, in clause 12, and it refers to that a New Zealand citizen who is over the age of 18 has the right to vote in general periodic elections of members to the House of Representatives which elections shall be by equal suffrage. That notion of equal suffrage is part of the New Zealand Bill of Rights Act, and we’ve got a piece of legislation, not in relation to the House of Representatives but in relation to local government, which is moving away from equal suffrage, but the Ministry of Justice, in its report paid no attention to that whatsoever—the courts may, who knows?

So it does rely on a consistent approach by officials and via the courts to defend those human rights which we take, sometimes, for granted in this country. There are always competing rights, and, you know, none of this is straightforward. The desire for equal suffrage—there may be arguments that some other right overrides that, and, maybe, I don’t know, I don’t think there does, but the argument could come up that the Government might be able to come up with an argument; so far they haven’t. In that particular case, they haven’t come up with an argument at all; they’ve just kept their head down and hoped for the best. That’s where the system does need some rigour and some points where the Government of the day does need to justify its decision. It may well be, as I said, that the Government of the day can justify a breach for reasons X, Y, Z, but the point of this bill, as I understand it, is that it makes a process clear for that to happen. On that basis, we are supportive of it.

Thank you, Mr Chair. I just want to flesh out the Minister’s response regarding what she described as “a set of facts”. This will be relevant, I think, when we come to Part 2 and the certain powers that we might be giving organisations that don’t currently have jurisdiction or lawmaking powers.

Effectively, what we’re doing here is not so much saying that something is a breach of the New Zealand Bill of Rights Act overall, but the question of whether under section 5 of the New Zealand Bill of Rights Act, the limitation on a person’s human rights is justified in the circumstances. Because essentially we already have a legal framework that means for both the courts and Parliament, a restriction on a person’s rights can be justified under section 5. So any declaration of inconsistency, I would imagine, has to meet two legs.

One is, firstly, it is a restriction on a person’s rights, as set out in the Act; and secondly, that it is not justified. Because if it was justified, we wouldn’t be issuing a declaration. So the question of fact that the Minister raises is a really important one because it goes back to my earlier question about the degree to which the court then changed a law, because it seems to me that is a common-law declaration of a fact about a piece of legislation that we have passed. I accept the points that the Minister made in response to my question about section 4; section 4 is still, I guess, pre-eminent in the sense that nothing the courts say or do can have the effect of revoking legislation that this House makes. I get that. But I do highlight a potential conflict.

If under section 7A a court is then saying, “As a matter of fact, it’s an unjustified limitation and therefore inconsistent with the New Zealand Bill of Rights” that could raise some quite significant legal—a constitutional conundrum even, if indeed then somebody takes further court action to say on the basis of that legislation, the court should strike out the law. Now, they don’t have that constitutional power, as I understand it. But what I’m trying to do is avoid a situation where that’s even possible, because we need to protect fiercely the separation between the judiciary and Parliament. And I, having gone through this at length through the committee, and having heard from a number of experts, I’m still a little uncomfortable that if what we are talking about is a question of fact rather than an opinion that then gets debated in this House, that has a slightly different impact.

Thank you to the member. Look, I think those are good questions to raise in this forum and to, I guess, provide assurances to those that are critically concerned about our constitutional arrangements, about the comity between separation of powers, and in particular the sequence or decision-making hierarchy and the roles of the various branches of Government.

So to allay, I think, the member’s concerns about whether or not the judiciary would be having to, I guess, in factual circumstances, interpret—rather, let me put it this way: the judiciary has the role, of course, of applying the interpretive function. They interpret the law. They interpret the law—they don’t have to go and interpret facts, so to speak. The facts are the facts. They interpret the law. They apply that and make that declaration of whether or not they determine that there is an inconsistency in the law. Of course, section 4 of the New Zealand Bill of Rights Act provides the further clarifications around the fact that a court cannot strike down or do what other courts may be able to do in different jurisdictions.

This bill is relatively simple, therefore. It says that where the courts determine that there is an inconsistency with the New Zealand Bill of Rights Act, it essentially says to us in the legislature and the executive, “There’s a declaration.”—brings it to our attention—“It’s up to you as to how you wish to respond to that.”

So on those grounds about any of the concerns raised—and I appreciate that you’ve been in those discussions with the Privileges Committee and heard from those experts that I hope also helped to allay those fears. But thank you for bringing that to the consideration of the House today.

I suppose I’m not sort of reassured. The point that my colleague Mr Woodhouse is making is if the court decides that there has been an inconsistency with the New Zealand Bill of Rights Act and, by extension, it is not justified, and that is the decision that the court sends through to Parliament—that there’s been no breach and it’s not justified—my understanding of the logic of this bill is that Parliament has to respond to it. An acceptable response, ultimately, is “Well, we don’t agree. We think it is justified.” That, I suppose, creates a tension between the two parts of Government. Is that an acceptable tension? Let’s be clear, my understanding is a legitimate response from the Parliament of the day—if that’s what the court was saying, “This piece of legislation breaches the New Zealand Bill of Rights Act, we don’t think that the breach is justified.”, that Parliament could receive that and say, “Well, sorry, we don’t agree. We’re going to stick with this legislation because we think it is justified.”, or some other grounds. And I just want to get some clarity from the Minister that that is her understanding and the Government’s understanding.

I thank the member for the question, and I’m happy to spend some time to answer that because I think it is a very important distinction that the member raises.

So where these provisions that we’re introducing today will apply is not whether courts find that there is a right within the New Zealand Bill of Rights Act that is “not justifiable”—you know, we see those statements within the courts relatively infrequently—but it’s where it is “unjustifiably inconsistent”. That threshold there is something quite distinct and, indeed, we’ve only seen that in one instance in the duration of the New Zealand Bill of Rights Act since its enactment in 1990. So it’s very limited to those circumstances.

In those very limited circumstances where that declaration of inconsistency is issued by the courts, as I said, that then is where this process kicks in. It’s raised to our attention as legislators and as members of the executive to be able to provide that response.

Thank you, Mr Chair. To the Minister, I just note that the Privileges Committee recommended that new section 7A of the New Zealand Bill of Rights Act, in clause 4 of the bill, and new section 92WA of the Human Rights Act, in clause 7 of the bill, be amended to clarify that the Attorney-General must “notify” rather than “report to” Parliament, and it made this comment that “We see the Attorney-General’s role here as being to bring the declaration into the House’s consideration, rather than reporting substantively on the declaration.” I wonder if you could just clarify for the committee what is intended by the notification that the Attorney-General would make to the House, what would be contained in that, and what would be the substance of it?

I thank the member Mr Mooney, and also just acknowledge his significant legal expertise and the fact that he has practised in the courts for many years. His legal eye is appreciated when it comes to these technical reforms.

Mr Mooney, the change in the new section 7A in clause 4, which is that the Attorney-General must “notify”, rather than “report to” Parliament, is a relatively technical change. The bill as introduced drew the attention of the House to the declaration, but it did not require the Government to table a response, and that was to avoid pre-empting the deliberations of Parliament by requiring the Government to take a position on the declaration before there had been any discussion in the Parliament. This did not mean that the Government could ignore the declaration, but it is up to the Parliament to decide its procedure for responding to that declaration.

So, just to clarify, it’s that notification rather than “report to” or provide a report—notify us in this House—and then it is up to us as parliamentarians and the executive to determine our appropriate response.

The question is that Part 1 be agreed to.

Part 1 agreed to.

Part 2 Amendments to Human Rights Act 1993