Standing Orders — Sessional

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.

I move, That the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill be now read a third time and, in accordance with a determination of the Business Committee, Government notice of motion No. 1 in the name of the Hon Chris Hipkins relating to a proposed sessional order regarding declarations of inconsistency be agreed to.

DECLARATIONS OF INCONSISTENCY

1 Purpose

The purpose of these rules is to provide for the House’s procedures in association with the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022.

2 Definitions

For the purposes of these rules,—

declaration of inconsistency means a declaration—

made by a court, and in respect of which section 7A(1) of the New Zealand Bill of Rights Act 1990 applies, or

made under section 92J of the Human Rights Act 1993, and in respect of which section 92WA(1) of that Act applies

Government’s response to a declaration of inconsistency means a report advising of the Government’s response to a declaration, which a Minister must present under—

section 7B of the New Zealand Bill of Rights Act 1990, or

section 92WB of the Human Rights Act 1993

notice means a notice that is presented by the Attorney-General in accordance with—

section 7A(2) of the New Zealand Bill of Rights Act 1990, or

section 92WA(2) of the Human Rights Act 1993.

3 Notice of declaration of inconsistency

A notice that is presented by the Attorney-General, bringing a declaration of inconsistency to the attention of the House, is published under the authority of the House.

4 Referral of declaration of inconsistency to select committee

(1) When the Attorney-General presents a notice, the declaration of inconsistency that the notice brings to the attention of the House stands referred to a select committee for consideration.

(2) The declaration of inconsistency is allocated by the Clerk to the most appropriate select committee.

5 Select committee consideration of declaration of inconsistency

(1) A select committee to which a declaration of inconsistency is referred considers the declaration and reports to the House.

(2) In its report on the declaration of inconsistency, the committee may—

make any recommendations to address the declaration, and

include any other recommendations as the committee sees fit.

6 Time for report on declaration of inconsistency

(1) The select committee considering a declaration of inconsistency must finally report to the House on it before the time for report set out in paragraph (2).

(2) The time for report is four months after the date on which the Attorney-General presented the notice relating to the declaration of inconsistency, unless the Business Committee determines a different time for report.

7 Select committee report on declaration of inconsistency

(1) A select committee report on a declaration of inconsistency is set down as a members’ order of the day under Standing Order 254(4), but is taken together with the debate on the declaration of inconsistency that is held under rule 10.

(2) Paragraph (1) applies despite Standing Orders 72 and 74(4).

(3) Standing Order 256(2) applies to a committee’s report on a declaration of inconsistency (no Government response is required under that Standing Order).

8 Variation of deadline for Government’s response to a declaration of inconsistency

The Business Committee may, for any reason, vary the usual six-month deadline for the Government’s response to a declaration of inconsistency by determining a different deadline (see section 7B(2)(b) of the New Zealand Bill of Rights Act 1990 or section 92WB(2)(b) of the Human Rights Act 1993, as applicable).

9 Government’s response to a declaration of inconsistency

(1) The Government’s response to a declaration of inconsistency is published under the authority of the House.

(2) When the Government’s response to a declaration of inconsistency is presented, a debate on that declaration of inconsistency is set down as a Government order of the day under rule 10.

10 Debate on declaration of inconsistency

(1) The debate on a declaration of inconsistency is the debate on—

(a) the declaration of inconsistency itself, and

(b) the select committee’s report on the declaration of inconsistency, and

(c) the Government’s response to the declaration of inconsistency.

(2) During the debate on a declaration of inconsistency,—

(a) a Minister moves a motion to take note of the declaration, and

(b) during their speeches, members may ask questions to the Minister, and the Minister may reply, in the same manner as comments and questions on a ministerial statement.

(3) The debate on a declaration of inconsistency must be held no more than six sitting days after the date on which the Government’s response to the declaration of inconsistency is presented, unless the Business Committee determines otherwise.

(4) Standing Order 74(1)(a) and (b) and (2) does not apply to the order of the day for the debate on a declaration of inconsistency.

Could I begin by saying thanks to a number of people. The responsibility for the protection and enhancement of civil liberties in New Zealand, when in Government, is shared between the Minister of Justice and the Attorney-General, and the Cabinet paper that kicked off this process was authored by both the Hon Andrew Little and myself, as Attorney-General. Now, of course, the Minister of Justice is the Hon Kiritapu Allan, and she kindly allowed me to make the first speech in this third reading and I appreciate that.

Can I also give my thanks to all of the other parties in the House that served on the select committee. We deliberated through that select committee—it was heard at the Privileges Committee—and allowed as much time as it took to reach, essentially, an accord around the committee that we were landing this in the right place. Those select committee deliberations took place over two parliaments. It started in the last Parliament and continued in this Parliament.

The first reading of this bill that we’re considering tonight was in May 2020, and members can see from the effluxion of time that we haven’t tried to push this through with haste. We’ve actually tried to take everyone with us.

This is the most significant change to the New Zealand Bill of Rights Act since the New Zealand Bill of Rights Act was passed in 1990. It’s certainly not as significant as that piece of legislation, but it’s probably the most significant constitutional change that I’ve been at least partially responsible for since I’ve arrived here, and I want to explain a bit of the history and why I believe this is a very important advance at this time.

When the New Zealand Bill of Rights Act 1990 was passed, earlier iterations of it proposed that we would confer on the courts the jurisdiction to strike down primary legislation. The Parliament of the time, in 1990, thought that that was wrong and that the conduct of the executive and other lower-level decision makers within the government apparatus should be able to have their decisions quashed by the courts in respect of decisions that infringed the New Zealand Bill of Rights Act but that primary legislation passed by this House should not be able to struck down by the courts. I think that Parliament was right back then to narrow the New Zealand Bill of Rights Act in that way, and that remains good in principle today.

I look around the world at the moment, and I see a lot of the challenges that are faced by democracies around the world trying to manage current events, and I think that the system of Government that we have in New Zealand is a very good one for us to have at the moment. I like the fact that we have a power that is pretty clearly ensconced within the elected Government of the day, who control, effectively, the votes in Parliament through the majorities that they generally put together through a coalition under MMP. That gives the responsibility of the Government—the Government’s got nowhere to hide if things are going wrong. They really do have the power and responsibility to change things up when they need to be, and then the people of New Zealand can get rid of us every three years. Now, I’m one of those people who think it should be every four years, but we can be cast aside every three years. A new crew can come in to fix up mistakes that we make or make things better according to their view of the world, if they’ve convinced the voters of New Zealand that it’s time for a change.

I also have become increasingly aware that our system is underpinned by very, very strong conventions that still hold sway in New Zealand. The conventions that we adhere to in this House through the Standing Orders, the way in which we relate to the fourth estate and the way in which they relate to us, the way we respect the independent role of the courts, the way in which we have other strong institutions like the Commerce Commission or the Law Commission—all of these ingredients feed into a very sophisticated democracy in New Zealand. The role of councils, regional councils, and district councils—we’ve got a very good system.

I think that if you compare it with other countries, like the United States, they don’t seem to be able to grapple with current challenges like gun control or abortion or controls on campaign financing, where their system is increasingly dominated by the private wealth interests of some very wealthy people who, effectively, spend billions of dollars at election time to distort election results. All of those issues have been worked through over the years in New Zealand by our Parliament under our system.

That said, the protections in the New Zealand Bill of Rights Act are very, very important, and perhaps they’re a bit too easy for us to ignore when Parliament gets it wrong, because there are times when Parliament passes legislation which we might think is consistent with the New Zealand Bill of Rights Act but, actually, on closer reflection, it isn’t, and sometimes it deliberately is passed when it is known to be inconsistent with the protections in the New Zealand Bill of Rights Act.

💬 Hon Paul Goldsmith: It doesn’t mean that’s wrong.

It doesn’t mean that it’s always wrong—I agree. Sometimes it will be wrong, and sometimes we should reconsider that at the Parliament.

At the moment, there is no easy route back for Parliament to reconsider issues when the courts determine that we might have gone a bit far—or they think that we have gone too far—and that’s, essentially, what this bill is about. It’s about creating what is sometimes called a halfway house under the New Zealand Bill of Rights Act, where, although the court hasn’t got the right to overturn primary legislation, they can draw Parliament’s attention to the fact that they think that we’ve gone too far, and through the processes that are enabled by this bill and some related changes to the Standing Orders, it enables us to run a process to give further consideration to that.

At the end of that consideration, the Parliament will have a debate and the executive will have a say as well, and Parliament can, effectively, say, “Well, we think that we’re right and the courts are wrong. We’re elected. We take these decisions, and if people disagree with us, they can get rid of us and get a new Government, but we think the status quo is justified.” Perhaps what might more often happen is that the Parliament might say, “Well, maybe we could modify the arrangements a little in a way that make them rights-compliant.”, or, on other occasions, a new Parliament could say, “With the benefit of hindsight or in the light of the advice that we’ve had from the senior courts, we should repeal the legislation and deal with the issue that way.” So that’s what this bill does. It will change the way in which civil liberties are protected in New Zealand in what, in my opinion, is an important way.

This came to my attention following some of the constitutional reviews that we’ve had. I sat on a select committee chaired by a member whose name I forget. It was chaired some time ago in an earlier Parliament, and then there was the Constitutional Review Committee, which Michael Cullen and others served on, and this was an idea that came forward—that we look at this halfway house under the New Zealand Bill of Rights Act.

I’m going to say something about what I think this implies in respect of how far the New Zealand Bill of Rights Act itself should reach. I know there are some people who would say that we should put social rights like a right to housing, for example, or a right to an income level, or environmental rights like climate change, etc., into a bill of rights framework. I don’t believe we should, and I think we should remember that if we were to do that with this legislative framework in place and the courts were to make a declaration of non-compliance, we would be inviting them into an increasingly political space where there are value judgments to be made, including as to the allocation of resources and the tension between different issues that are perhaps better judged in this House than by the courts. So, for that reason, I’m not someone that wants to extend the New Zealand Bill of Rights Act to those issues. Though there may be other legislative instruments that can protect those issues in better ways than they currently are, I would not favour them being put into the New Zealand Bill of Rights Act, because it would invite the courts too far into our territory.

Can I thank Professor Janet McLean, who was the adviser to the select committee, and the many submitters, legal academics, and civil liberties specialists—the most eminent in the country—who came before us and provided their advice to us.

I won’t go through the detail of the changes that were made by select committee, which have improved the bill. Suffice it to say that the bill allied with the changes to the Standing Orders creates a process that when the courts make a declaration of inconsistency with the New Zealand Bill of Rights Act, the Attorney-General has to present that to the House, the Clerk of the House refers that to a select committee, and the select committee report back to the House is eventually debated, as is the response of the executive. So there is some response required from this place to what will be rare but important declarations of inconsistency by the higher courts. I commend the bill to the House.

The question is that the motion be agreed to.

Thank you, Madam Speaker, and it’s my pleasure to speak on behalf of the National Party on this legislation that we are supporting: the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. First up, I agree with the Minister who has just spoken, David Parker, who said that going back into the history of this, when there was a proposal for the ability for senior courts in New Zealand to strike out legislation, as the US Supreme Court does, which breaches the constitution there and it would have breached the New Zealand Bill of Rights Act here, that would have been a step too far. I agree that no system is perfect. If you look around the world, there are many imperfections with our democracy, as there are with the British democracy and other places all around the world, but the politicisation of the courts, which is an inevitable consequence of that power, I don’t think would be helpful and would fundamentally change the nature of how things work in this country.

I agree with the Minister, it’s far better when you’re trying to balance various rights, because quite often rights can sometimes be conflicting, and to work your way through that—it’s appropriate for elected representatives to do that. As the Minister said, if they get the judgments wrong or the public doesn’t agree with them, they get thrown out and that’s how the system works. I for one think we should do that on a regular basis every three years, rather than four. And only because I just don’t think, in a system that doesn’t have so many checks and balances, doesn’t have an Upper House and other issues—I think there’s a good argument for reasonably regular opportunities for the population to have their say, but that’s another matter for another day.

So the proposal here is—my sense, and why we support it, is it just lifts up a notch the level of gravity and consequence for when Parliament decides that it will press ahead with legislation that may be close to the wind or arguably breach the New Zealand Bill of Rights Act, and Parliament does that on numerous occasions for good reasons. But if the court finds that it has, in its opinion, breached the New Zealand Bill of Rights Act, this sets up a mechanism where we have to take that seriously and actually come back to the House, not in any flippant way, and just say “Well, tough luck. That’s what we’re doing and good luck to you.” Instead, we set up a process and actually have to confront that. The Government of the day has to lay out a clear case as to why they think it is justified. And then if the court says it clearly breaches these rights and asks, “Is that breach justified?”, it may come to the conclusion that it doesn’t think it is justified, and the House might say, “Well, sorry, we do think it is justified.” Ultimately, I think that’s appropriate in the system that we have and if the people don’t agree, like I say, it will be thrown out. So I think that’s important.

I suppose the only point I would make in relation to the broad issue is that this is a contested area and these matters are contested. I can think of three recent examples where these issues have been raised—one has been with the three-strikes legislation, which the National Government passed and many people were not happy with elements of that and, in particular, with the disproportionate sentences that arose from it, and, from my point of view, that was the purpose of the legislation, that they would be disproportionate, but others certainly thought they were grossly disproportionate. So there was an argument where there was a difference of opinion there, and Parliament pressed ahead and now it has been repealed by another Government, and I suppose that’s how the system should work.

The other two examples have been in relation to local bills: the Rotorua bill and the Canterbury bill. The only point I’d make there is I just do hope that we’ll have, I suppose, some consistency in those areas. We’ve had the Ministry of Justice say the Rotorua bill—which moved away from the principle, and the Minister spoke of strong conventions in our democracy, and I think one of the strong conventions in our democracy is that every person should have an equal vote in the system and their vote should carry equal weight. This Government is moving away from that by supporting—it didn’t support the Rotorua bill, because the Ministry of Justice advised the Attorney-General that it did breach the New Zealand Bill of Rights Act and it wasn’t justified. But then, very strangely, when it came to the Canterbury bill, which does a similar thing at the Canterbury Regional Council, breaching the equal voting rights there, we got a very different view from the Ministry of Justice saying, “Well, yes it did breach the Human Rights Act, but it’s justified by the Treaty.”, and there was no strong or clear argument put forward. I have every confidence that the court, if it does start coming and making opinions here, that they’ll do a better job, frankly, than what we’ve seen from the Ministry of Justice in the last few months in relation to those two bills where the advice has been, on the surface, rather contrary.

But that aside, I still think the fundamental point of this bill—which is ensuring that Parliament, having kept for itself the ability to pass laws and not have them struck down by the courts in that relation, which is an assertion of parliamentary supremacy when it comes to lawmaking. Having done that, I don’t think it is unreasonable if the courts were to declare that it was inconsistent with the New Zealand Bill of Rights Act to go through a process, such as outlined in this bill, where the Parliament has to stand up, own it, justify it, or, if they’re of a mind to, change it. But they can’t just shrug it off and ignore it. I think that’s appropriate. On that basis, we support this bill.

Thank you, Madam Speaker. I don’t intend to speak too long after two very good speeches, if I can say that, from Mr Goldsmith and, of course, the Attorney-General, the most reasonable and thoughtful member in the House, to be sure. But can I say what a privilege it is to actually be speaking and be involved in this bill, which is really one of those pieces of legislation about how the limits of the constitution work with each other—and I do see that I have spoken for seven minutes already, according to the clock, but that’s all right. I must have been speaking very slowly indeed.

But, look, can I just say that this is a sophisticated answer to a very difficult problem, because if we look at some other constitutions, we have either the absolute sovereignty of Parliament or the absolute sovereignty of the courts, whereas this ameliorates that and, essentially, it says that through a series of steps, Parliament, the courts, and the executive have to have a conversation with each other. There may be a declaration of inconsistency, as Mr Goldsmith said. A decision of the court which does that will be very thoughtful and carefully worked through, and that is then notified to Parliament, and Parliament, through its select committee process, is expected to examine that and to further put the case, if you like, for whatever solution they respectfully might think of to the executive, who in turn is expected to respond. Now, that’s not going to be a quick process. The court process itself could take several years because it’s triggered by a final decision, which means the conclusion of any appeal rights.

But the fact of the matter is that unlike some of the situations where we’ve seen—and the three-strikes legislation has been discussed already. The kinds of difficulties that the court had with that legislation were because it was so repugnant to some of the rights held so dear, and those decisions are difficult to read on the words of the legislation as it then stood. But this kind of framework enables the courts to put their views in a way which demands a response. It isn’t simply saying, “We’re striking it down.” It’s saying, “We don’t see this the same way that Parliament has, and we want to hear from Parliament and the executive about that.”, and that’s a much more nuanced approach than the kind of approach we’ve seen in some other jurisdictions which are all or nothing.

So I think, as was said earlier, this shows that we are a mature democracy and also a unique democracy—a democracy that looks at different ways of doing things that suit our quite unique committee structure in Parliament—and the fact is that we’re a relatively small nation and we can do things in a very personal and almost intimate way, even though we’re dealing with matters of State. So I think that this is a real model. I hope it will be looked at as perhaps a way that we can have an ongoing conversation around the balance to be struck between rights and Government policy and between parliamentary sovereignty and judicial integrity, and I absolutely commend this bill to the House.

Thank you, Madam Speaker. The Attorney-General and I have a few things in common. We both hail from the most beautiful part of Aotearoa. In fact, I think the member was born in Roxburgh—is that right?—which was actually founded by a Woodhouse and his brother, my great-great-grandfather, who found gold in the Teviot River. We both love this place and have been here a wee while. We also like really complex policy challenges. I have been impressed with Mr Parker’s approach to that over the years. It was my privilege to be a member of the Privileges Committee in both the 52nd and 53rd parliaments, when this issue first arose. I must confess that I was probably a bit glib about it when it first came before the Privileges Committee and at the Attorney-General’s response to it, where he and the Minister of Justice had taken a Cabinet paper that I wondered whether, at that time, was necessary. In the ensuing two years, I became not only satisfied that it was but very pleased with the level of engagement and discussion that the committee embarked on through this bill process. As the Attorney-General has said, we heard from some very, very eminent jurisprudence scholars, and that very much helped our consideration of this bill.

The Attorney-General has talked a little bit about other jurisdictions, and I think it’s worth reflecting on that, because I think we have a very sound constitutional framework in this country, even if we don’t have a constitution, but it has some particular features in it. Other countries have different structures, namely a bicameral system, and I think, if we think of Westminster and the process of passing legislation through both the Commons and the House of Lords, it’s not unusual for various reasons for the Lords to send a bill back to the Commons and say, “We think you should have another look at these aspects of the bill.” That’s kind of a belts and braces approach that we don’t have, because of our unicameral system. The Minister mentioned the United States. He’s probably right about the outcome, but, actually, the process and the constitution that they have is a very important one also.

💬 Hon David Parker: But impossible to change.

Yes, that’s right. And that’s why I don’t support a constitution. I think we have a good framework in place, because, actually, it’s a handbrake on executive power and congressional power, because it, basically, says, “The Government shall pass no laws that could do certain things.” And that’s the difficult discussions they’ve had about the First and Second Amendments, and the 14th Amendment over the last few years. But we have a proportional system that, with the exception of this Parliament, has actually acted as, I think, not the same kind of scrutiny, but I think perhaps a moderator of, in some cases, and perhaps an enabler in others—and I’ll come to the three-strikes stuff in a minute—but it actually enables this Parliament, together with the requirement of the Attorney-General, to provide a vet on the impact of legislation on the New Zealand Bill of Rights Act, for us as a Parliament to actually have those conversations before legislation is passed.

Now, the courts’ role in that after the event, and the Supreme Court ruling that’s, basically, been the catalyst for this legislation, is, I think, important, but it’s also really important that we remind ourselves that this place is sovereign. We have exclusive cognisance. We have the ability to pass laws even if, in the opinion of either the Attorney-General or subsequently the courts, there might be a finding that there is a breach potentially—or an inconsistency rather; not a breach—with the New Zealand Bill of Rights Act. This is really important because, in my experience, passing bills that are a bit edgy in respect of the New Zealand Bill of Rights Act generally carries with it a consideration of those issues as we pass the bill. I think the three-strikes legislation is an example of that. The legislation on prisoner voting rights that precipitated this process is also a good example of that. And, of course, the deprivation of liberty is indeed a prohibited thing under the New Zealand Bill of Rights Act unless it’s justified under section 5, I think it is, incarceration for convictions is the obvious one.

Now, when it comes to the prisoner voting rights issue, of course, previous to the member’s bill that was passed some years ago, and now that that’s been repealed, if someone is facing a sentence of three years and one day, they lose their right to vote, but if they have a sentence of two years and 364 days, they’re now going to retain the right to vote. I mean, that’s a finely balanced thing. I don’t think anybody reasonably could say that one is a deprivation of rights and the other isn’t, but Parliament has made a decision and Parliament should be sovereign.

💬 Hon David Parker: But one’s more arbitrary than the other. That was the court’s point.

Yeah, well it is an arbitrary number, and people will always fall one side or the other on that.

Now, you’ve got to wonder—one wonders—whether the courts might, in their sentencing, obviously restricted by the Sentencing Act, consider some of the impacts of a harsher sentence vis-à-vis a lighter sentence.

I know, as former Minister of Immigration, that the courts wrongly—because Immigration New Zealand can still consider deportation, regardless of whether a conviction is entered—sets aside convictions because it believes that the punishment outside of the court sentence might not fit the crime. So courts do have a little bit of activism they can embark on, and I have no strong opinion on that one way or the other. But the point really is that this place does need to remain sovereign, and I think we’ve landed in a pretty good place both with the third reading of this bill, when it’s passed, and also the next order of the day, which the consideration of a sessional order which will lay out in Standing Orders what should happen when the courts do declare, in their view, an inconsistency with the New Zealand Bill of Rights Act. That was something that the Privileges Committee looked at in some detail with the assistance of the Standing Orders Committee to make sure that a convention that’s almost entirely, I think, being followed that legislation doesn’t set out what this place should do or how it should do it; that is rightly the domain of members of this House through the Standing Orders process. I think we’ve struck the right process for dealing with this.

Some of these things could be very complex, and we’ve set an arbitrary time limit on it for the Government to respond to declarations of inconsistency and report back to the House. I think it’s worth pointing out that for many of those that will be well within an appropriate time frame. But there could be some really complex situations that may require a longer period of time, and the process, the Standing Orders, I think, have allowed future Governments to report at the six-month point but then give the issue more time. I think that’s an entirely appropriate response.

Like the Attorney-General, I don’t think this is something that we’re going to be troubled by too terribly often, but when we do, we now have, I think, a sensible framework for being able to consider the declarations that the courts may make. I continue to aspire to, I suppose, the hope that this Parliament will also take the Attorney-General’s section 6 vets very seriously and consider them in our deliberations of future legislation, as I think we have, by and large, in the past. But I think the court’s intervention in this area has actually reinforced the need to take both, the Attorney-General’s opinion and the court’s judgments on these things, very seriously. I’m confident that we’ll be able to do that.

It’s a privilege to take a call on a piece of legislation that is so well-thought-out and is a rather deep piece of work, and it’s something I’d like to acknowledge the speakers on both sides of the House for really revealing in their speeches tonight.

Parliamentary sovereignty is so important, and it is always something that there will be debate about but I fall firmly on the side of believing that it’s very important that we always protect it, even when we don’t necessarily like the consequences of that and we may see something that we think breaches and offends something fundamental to us, like a human right.

What this bill does is it creates a process where, if those things that are most enshrined as fundamental to us—and they have been brought into legislation like the Human Rights Act and the New Zealand Bill of Rights Act—they are actually things that we take very seriously. Not only do we do that but this is a beautifully crafted piece of legislation because we’re required to talk about it. We’re actually required—the Minister is required to answer questions about it. It’s a situation where there will be some thought given to the matter, perhaps after the heat and the passion of the debate has passed.

This piece of legislation came about partly because of a case about prisoner voting rights. People in that situation had very, very little alternative remedy other than to go to the courts and they gave a declaration. This is what will happen to the declarations now. This is a very good process and I’m thrilled to be part of a Parliament passing it. I commend the bill to the House.

I call on Golriz Ghahraman, who is connecting with us remotely.

Madam Speaker, the sound seems to have cut off, but I feel like you called my name. Is that right?

ASSISTANT SPEAKER (Hon Jenny Salesa): Yes I did. Golriz Ghahraman, go ahead.

Ha, ha! Thank you, Madam Speaker. It’s a pleasure to speak on this bill: one of the significant pieces of constitutional law reform that this Parliament and Government have undertaken. And I do want to congratulate the Attorney-General for his courage and leadership in responding to the Supreme Court’s finding that gave the higher courts, essentially, the jurisdiction to do just this. But without Parliament and Government’s response, and setting out a process, we wouldn’t have been doing right by our responsibility, in terms of branches of Government, to take human rights and the New Zealand Bill of Rights Act seriously.

I want to acknowledge, as well, the work of the Privileges Committee. I think, as we see across the House tonight, there is consensus because we as members did come together and work really, really hard, sought consultation and advice from members of the public, from experts, and came together to agree here. But, of course, the great credit must go to those members of the Parliament, the legal experts, the human rights experts from the Human Rights Commission to the Office of Human Rights Proceedings to the very authors of the New Zealand Bill of Rights Act, Sir Geoffrey Palmer and Sir Kenneth Keith, who came to our committee and told us off. And I don’t think any of us will really forget that, when they urged us to make this bill something that would be effective in terms of enforcement of rights, in term of upholding the work and the significance of the judicial branch of Government, in terms of upholding the significance of New Zealand as having a bill of rights. And as Sir Geoffrey Palmer said, successive Governments and Parliaments had let him down in not taking action on this before now.

So I think the balance—and as others have said—is struck right with this bill, in honouring parliamentary sovereignty, which is significant and paramount in our system, because we are the elected representatives; upholding the responsibility and accountability of the executive branch of Government to respond to us as an elected body, but also to the independent word of the judiciary; and, of course, the work of our judicial system. It’s not a system that’s particularly accessible at the best of times, but when somebody does get there and brings a case, and they do decide that rights have been breached and they do decide that those rights have been breached by a legislature, that we actually do need to come back here, consult, and then actually make our decisions again and debate the issues. So that balance is struck in terms of being both reactive and still upholding democracy.

And I do want to note that the pieces of legislation that have triggered this debate tonight and this bill are about democracy, and the first being the legislation—the blanket ban of the previous National Party Government of prisoner voting, where the Supreme Court said, “Absolutely not. You can’t use the criminal justice system to start to erode fundamental rights.” And then the next one that’s actually potentially the very first issue that will come before this House, pursuant to this piece of legislation, is the right of 16- and 17-year-olds to vote, because the New Zealand Bill of Rights Act does uniquely say that they can’t be discriminated against based on their age in terms of any of their fundamental rights, including voting. That’s gone to the Court of Appeal, who found a breach, and the Supreme Court has, of course, already heard that issue, and we’re waiting with bated breath for that decision to see if we’re going to debate that. And those are issues that sit very close to my heart, being about the extension and the health of our democracy.

So this is a great bill. It’s a great day for human rights lawyers; it’s a great day for my colleagues out in the courts, where I lived in my previous life; and, I think, a great day for the Hon Marama Davidson, who I know is in the House, who used to work for the Human Rights Commission. And so I think we’re doing right by the people that we serve, and I certainly commend the bill to the House.

Well, I rise on behalf of ACT, and as a member of the Privileges Committee that considered this New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill to support the third reading and the passage of this bill and also to support the proposals that this House, which cannot be subject to legislation, should amend its own rules. Both of these courses of action are designed in order that the declarations of inconsistency which are sometimes made by the court have a place to go, have a process to receive them here in Parliament. Those declarations occur when a court decides or the Supreme Court finds that this Parliament in making a law, or this Government, has wandered away, has violated the New Zealand Bill of Rights Act, has done something that is not consistent with a free and democratic society, or at least not a tolerable breach of the New Zealand Bill of Rights Act in a free and democratic society. This all takes place in the context of a very young nation.

It strikes me that our country, if you take its foundation as 1840, is really only a couple of lifetimes old, not much more. It’s also a very small nation; 5 million people could fit into dozens, if not hundreds, of cities around the world. That has led us to have one of the most anaemic constitutional setups of any country on Earth. If you think about it, most countries have some combination of a written constitution, of an Upper House, of states or provinces, sub-national governments. We are alone in the world, almost, having a single Parliament, a unicameral House, just one layer, that if you have a majority, you can theoretically do anything. It’s a winner-takes-all approach to democracy that is an outlier in the world’s democratic systems.

💬 Hon David Parker: Moderated by MMP.

Somebody muffled—can you say that again, David Parker?

💬 Hon David Parker: Somewhat modified by MMP.

He said, “Somewhat modified by MMP.” Well, he’s right about that, but as his former colleague Gaurav Sharma might say, “I’m not sure if that’s working as well as intended tonight.”! I didn’t expect to get heckled on this particular bill, I have to say, but, you know, that’s how the member wants to play.

Look, this constitutional anaemia that we have means that we have some of the most erratic lawmaking. Our policy is generally good, on average, but it also changes more rapidly than we would expect than other parts of the world. That, I think, is a real problem for people who are trying to invest, who are trying to plan their futures, and who are trying to make the most of their lives because they can’t be sure when this Parliament that is so powerful and so unrestrained by any constitution or Upper House or sub-national government can change the rules of the game so rapidly. In that context, I think anything that develops some basic rights of citizens is a very welcome development. Of course, our young small nation is gradually evolving those restraints.

The case of Taylor v Attorney-General just four years ago found that, actually, yes, the Supreme Court can say to Parliament, “Sorry, you got it wrong.” The question is: once that happens, what happens next? That’s a question that needed to be resolved. I think our Attorney-General, David Parker, and before him, actually, Andrew Little, have done a really, really good job. They have shown Parliament how constitutional change and important legal stuff should be done, taking this bill around the House, taking it to select committee, and getting the kind of consensus that allows all people to put aside political differences and say, “Yes, this is how our constitutional arrangements should be in New Zealand.” So I commend the Minister for the way that he has gone about making these changes. I only wish he’d go and talk to Kiritapu Allan about her current electoral law changes and suggest a similar level of comity and consensus might be found around them, rather than put through under a shortened select committee process towards the end of this year.

I think the process that has been arrived at is absolutely the right one because it’s been arrived at with a very delicate navigation of parliamentary sovereignty, but also accepting the reality that the courts have a role to play, that Parliament doesn’t always get it right, and that there does have to be an acknowledgment and a process where Parliament itself can work through what some might view as its own mistakes. That procedure is very straightforward and, on the face of it, it’s not a particularly long bill. Sometimes the best bills are short. It’s the old saying: I was going to write you a short letter, but I didn’t have the time.

This piece of legislation says that if there is a declaration of inconsistency at the court, then the Government has to respond and it has six months to do so. But there’s a parallel process where the Attorney-General has to inform Parliament that the declaration has occurred. Having been informed by the Attorney-General, the set of rule changes that are not in the legislation, but are also being debated tonight, will be introduced to Parliament such that this Parliament must then send the declaration—not the Attorney-General’s report but the declaration from the court—to an appropriate select committee. And the Clerk, who sits just in front of the Speaker, must choose which select committee to go to. That select committee then has four months to consider this declaration. It can, of course, call witnesses. It’s the master of its own destiny. It can get advice, it can consult the public, it can debate amongst its members, but after those four months, it must come back to the House and the rules say that the House should have a debate on the declaration.

The net result of this is that we haven’t undermined in any way the sovereignty of Parliament. Parliament remains supreme. Parliament is quite entitled to ignore the declaration, have the debate and carry on as it was. But what we have done is ensured that when a court issues a declaration that Parliament has breached the New Zealand Bill of Rights Act, then there’s a proper, open democratic forum for that to be debated.

That is a wonderful addition to our constitutional framework. It means that people’s concerns get ventilated in a democratic fashion. But it also solves what could have been a growing constitutional problem of a stand-off between two branches of Government, because without this, we could have ended up with the courts frequently telling Parliament that they got it wrong and Parliament being completely aloof to the courts. I don’t like annoying judges, because you never know when you might end up before one. So I think it’s a very positive thing that we’ve found a way for Parliament to accept what judges and courts say, acknowledge it, give the public an opportunity to be part of ventilating an issue that’s arisen in the courts, and then, ultimately, as the people who are actually elected in a democracy, make a decision about what to do about that in a fulsome, open, and transparent way.

So for all those reasons, and the context of our small, young nation gradually finding its way from anaemic constitutional beginnings to something more sophisticated, more democratic, and that is better at upholding people’s basic rights and freedoms, I think that what’s happening tonight is an extremely positive development, and we should all be very proud to be supporting this. We should all be very thankful for the way that our current and previous Attorneys-General have worked to shepherd this through the House, and other members and those public submitters that came to the Privileges Committee have contributed too. Without any more from me, I commend this bill to the House. Thank you, Madam Speaker.

Members, the House is suspended until 9 a.m. tomorrow morning. Pō mārie.

Sitting suspended from 9.56 p.m. to 9 a.m. (Wednesday)