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

Members, we now come to Part 2. This is the debate on clauses 5 to 7, “Amendments to Human Rights Act 1993”. The question is that Part 2 stand part.

Thank you, Mr Chair. Part 2 is a bit of a mirror of Part 1, but I think one of the significant differences is that while the human rights tribunal—or the Human Rights Review Tribunal, I think it’s known as—is a judicial body, it’s not a court as such. It’s certainly not a senior court. It seems to me that Part 2 of this bill is giving kind of an equivalency between the tribunal and the senior courts to make a declaration of inconsistency. So my questions are around the appropriateness of that. Is there a precedent for a tribunal issuing, effectively, a court judgment in that regard? Does this extend the tribunal’s powers? Was thought given to having tribunal decisions referred to this House only on appeal or referral to senior courts so that we can maintain the very high threshold? I’m not aware that the committee actually looked at the degree to which the threshold for a declaration might be lower or different from the courts if it was made by the tribunals. I certainly wouldn’t want to indicate that that might be the case—but that might be the case, quite frankly.

I go back to the Minister’s comments about a question of fact, which she, I think, very helpfully clarified. She said, “Well, it’s not really judge-made law in that sense, because it would be inconsistent with section 4 of the New Zealand Bill of Rights Act.” But we’re now talking about the Human Rights Act. So are we extending the tribunal’s powers, and is that extension appropriate in the circumstances, or should we as a committee consider amending this part to say, “OK, if the tribunal finds a problem of an inconsistency with the Human Rights Act, it’s only the courts that can make such a formal declaration back to the House?”

Thank you to the member, and, again, an important question, I think, for the House to hear the deliberations and discussions that were had in the Privileges Committee. The House should be aware that the Human Rights Review Tribunal already currently can make declarations of inconsistency under the Human Rights Act. I think it’s important just to respond to that question, though, about whether or not there is kind of any parity between the Human Rights Review Tribunal and the senior courts. No is the short answer there, obviously. There is a clear delineation and distinction.

However, this is, I guess you could say, a procedural fix to a potential anomaly, so that the House doesn’t have to respond to two different types of declarations of inconsistencies in two separate ways. Currently, under the process for when a Human Rights Review Tribunal makes a declaration of inconsistency, there is a positive requirement on the Government to present the declaration to the House of Representatives, along with a Government response, within a period of 120 days. What this amendment here does is it just aligns the two processes for, I guess, procedural ease. It has no positive or negative impact on the weight of these declarations. It really is just a procedural fix to ensure that there’s one process for both.

Thank you, Mr Chair. I appreciate the clarification from the Minister. I beg the committee’s indulgence because I think it’s important to set out in the committee of the whole House what’s going to happen, and that’s actually not part of the bill. So we’re going to talk about something that isn’t in the bill but I think is really important in our understanding of what we’re doing here, because one of the things the Privileges Committee had to consider was whether the procedures for this House should be set out in primary legislation, and it fell very strongly on the side of, “No, that’s not appropriate.” We are the architects of our own destiny in that regard, and so the committee has determined that that be left to us.

The Standing Orders Committee has already, on a request from the Privileges Committee, considered and recommended a draft—I don’t know that it was in the select committee report, but it will probably be found on the public record somewhere, because it hasn’t been passed yet; it will be after this bill is passed. It has set out in the appendix to advice from the Clerk, a draft set of steps to be taken if there is a court or a Human Rights Review Tribunal declaration of inconsistency. And I think it’s really important that we at least have a look at this as a committee so that we can understand what we’re doing here.

So firstly it is our prerogative—what we do and how we do it. I think that maintains that constitutional separation that’s really important. It lays out the definition of an inconsistency, which is pretty much what we’re debating here and what the report of the Attorney-General means. Then we think it’s material enough to be referred to a select committee for consideration. We do that with things like petitions, inquiries, briefings, and the like. Reports of the Auditor-General and so on can be given a reasonably decent going over by a select committee, and we think that’s appropriate in these circumstances as well. We can set out policy options in the committee and recommend to the Government—because it’s Parliament, remember, that’s having a look at this, not the Government—the committee’s preferred policy option or options in that regard. We’re not going to be able to take the politics out of that, but I do have a great deal of faith in committees to be able to be the engine room of these considerations. And we’re going to include the recommendations in respect of declarations.

Now, the executive is perfectly free not to follow that, and I think we’re going to be seeing in time, as we did with the three strikes legislation and the prisoner sentencing legislation, that a future Government decides that it doesn’t want to do that. Equally, a future Government might say it’s a bit of an irritant but it’s not a high legislative priority, or the mood of the nation might change and say that actually three strikes legislation is the right thing to do. So any number of scenarios could exist for future Governments, but it is this Parliament’s responsibility to point these things out to the executive.

The final thing is in respect of the six-month deadline. I think it’s important to understand what the Privileges Committee considered in that regard. We can see a scenario where some of these things are going to be very straightforward and a committee can deal with it in reasonably good order, but, equally, there may be very complex constitutional legal issues that are raised by the courts that will require more time and more input. An interim report, I think, was recommended, and that may not be the end of it if it’s in six months’ time. I think it’s appropriate that there is at least an interim report in that period. But I think the really important issue was that the committee considered that it was a prerogative of the House to determine how we deal with this, not primary legislation, and in that regard I’ve given the committee a long commentary on something that we’re not actually debating the substance of. But I think it’s really important to put on the record what that thinking was when we deliberated on the bill.

Can I thank the member for providing that commentary. I think it’s really important that the House does understand the deliberations that went into how this legislation got here today. So I do really want to thank him. I want to note the contribution from Professor Janet McLean, Queen’s Counsel, who did make the recommendation to include reference to the House, and as a consequence of the committee’s process I absolutely concur with what the member has stated in this Chamber about the role, the functions, the separations, and where those deliberations landed. So I just acknowledge him for that contribution.

Part 2 agreed to.

Clauses 1 and 2