Standing Orders — Sessional

Thank you, Madam Speaker. It’s a pleasure to take a call on this bill, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. It’s an unusual bill in the sense that it has support from across the House, but I want to reflect on how significant that is. We as legislators don’t often agree on things, but one thing we do agree on in relation to this bill is the fact that the fundamental human rights, as outlined in the New Zealand Bill of Rights Act and in the Human Rights Act, are something that need to be held in great importance. Also, when we fail to get the balance right between two different rights or when we make a mistake, we need to be held to account for that, and this entire Parliament is standing here today and saying to New Zealanders that when we get it wrong, we not only want to be told that we got it wrong but we want to be given the opportunity to do something about it, and I think that reflects really well on our democracy.

As we’ve heard from other speakers, this came about through legal action that was taken in Taylor v Attorney-General. But what we’re doing here today is not only recognising the fact that the judiciary have seen it as appropriate to make declarations of inconsistencies when there is an inconsistency between the New Zealand Bill of Rights Act and the Human Rights Act but, actually, that we accept that decision and we want to do something about it. The process has been outlined by a few speakers previous to me, but, essentially, it will be that the Attorney-General will make a statement in the House within six days and then it will go to a select committee and then Parliament will need to respond within six months.

Now, it doesn’t stipulate, as others have said, how we should respond, but it’s really important that we do have to respond as part of this legislation. I want to also reflect, just as I finish, on how significant this is in relation to our human rights framework, which forms part of our constitutional arrangements. We’ve heard the Attorney-General say it’s one of the most significant changes since these Acts came into effect, and I want to congratulate the House and also send a message to New Zealanders that we take your human rights seriously and when we get it wrong, we want to be held to account.

The next call is a split call. I call on Chris Penk—five minutes.

Thank you very much, Madam Speaker. As others have said, we regard this piece of legislation as helpful for our overall constitutional arrangements—the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill.

I was actually very taken with the debate last night. I think that on all sides of the House, thoughtful comments were made about the way that the legislation had been advanced through this House. The Attorney-General spoke about bringing other parties along in that journey, and I think that’s highly appropriate. In the Opposition, we do let the Government know very clearly when we think they haven’t done a good job of being consultative, and so on, but I think it’s fair to give credit where it’s due and say that, actually, that process—which has not been unduly rushed, which has gone through the Privileges Committee in relation to how the House then responds to any such declarations—has been admirable. So we acknowledge and thank the Government for that.

Others have mentioned the point about the institutions involved in the different branches of Government, and obviously it’s important that this place remains supreme in the sense of lawmaking, but in the response to lawmaking, where it is felt by the courts that there have been laws passed that are not consistent with the New Zealand Bill of Rights Act, it’s appropriate to have an opportunity for that dialogue to happen—or that conversation, as it was characterised by Dr Duncan Webb—and I think that’s a helpful way of looking at it, considering that there is a view that can be expressed, in the first instance, actually, by the Ministry of Justice giving advice to the Attorney-General and the Attorney-General advising Parliament, and Parliament is responding in the way that it sees fit, which might actually be, of course, to pass legislation notwithstanding that there’s inconsistency. And then, per this bill, we’re confirming that the courts have the ability to make such declarations and committing, as an institution, that we will respond in some way.

I did just want to offer some thoughts, in my brief time available, about the situation where Parliament decides that a law will be passed, notwithstanding that the Attorney-General, who is a legal officer advising that Government—so his or her own party, let us remember, who would have a Government-led majority, maybe with other parties, and any individual situation. I think it’s worth reflecting on the fact that a Government that decides to pass a law, notwithstanding that the Attorney-General has said that it is inconsistent with the New Zealand Bill of Rights Act, is, effectively, deciding that the matter isn’t inconsistent with the New Zealand Bill of Rights Act, because the Government in that situation is saying, “Well, notwithstanding the possible inconsistency, we think this matter is important enough that it should pass into law anyway.”, which is not dissimilar to making an argument about justified limitations, whereby we say, “Well, yes, the right is being abrogated in some way, but the policy justification is strong enough, the threat that we’re responding to”—whether it’s a pandemic or earthquake, to use a couple of examples—“is such that there is a proportional response, and we’re determined to do it anyway.”

So I feel less happy with the idea that this House should have to respond to a declaration of inconsistency by the courts, when this House acknowledged in the first place that the Attorney-General had said that there was an inconsistency. On the other hand, if it hasn’t been picked up by anyone in this place that there is a potential inconsistency and the court brings it to the attention of Parliament and the executive, then that seems to me a really clear case that there should be a second look. In any case, we’ve decided and agreed—and, I think, with good faith on all sides—and acknowledged that starting point that Parliament is, ultimately, the lawmaker in the statutory way, as opposed to a common law way, and so I think that’s helpful.

One note of caution, I suppose, that I should offer in terms of our system of justice, and, therefore, the rule of law generally, is that because access to justice is so threatened at the moment—and this has been, you know, a longstanding issues and I don’t mean to imply that it’s been merely in the realm of the current Government; it’s been a longstanding issue, to be clear—if we’re going to have access to lawmaking and agenda setting through the courts, acknowledging that that’s a highly expensive, involved process that privileges those who have access to those resources and are articulate, and so on, that should give us pause for thought. Nevertheless, the intent is good, I think we’ve landed in the right place in terms of that conversation, and so, like others on this side of the House, I commend the bill to the House.

Madam Speaker, it’s a pleasure to rise and take this call, which was a Māori Party call, on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. Just to make the point that I want to thank all of the members in this House who have been responsible for having these conversations around how we introduce and have the discussion, as Mr Penk said, about rights in this House. Whenever we go through these processes as a House of updating and of considering carefully in each Parliament the way that we have these rights-based conversations, we firm up our posture on the process of considering rights in our law. It’s good to have these conversations regularly. It’s good to be able to have these debates in the House, and I want to thank all of the members, particularly on the other side of the House, for being involved here.

Thank you, Madam Speaker, for the opportunity to take this brief call on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. I want to recognise the Privileges Committee. I am not a member of that committee, but I have been following the debate both last night and this morning. As I understand it, this issue came out of the Supreme Court’s decision in 2018 and, through the great work of the Privileges Committee, they put forward several recommendations to improve the initial proposed legislation. The bill seeks to create a statutory mechanism for bringing declarations to the attention of the House of Representatives, with the aim of facilitating consideration of the judiciary’s declarations by the legislative and executive branches of Government. I do really want to commend the committee for the work that they did and their ability to come to a unanimous decision on those recommendations, and so I commend this bill to the House.

Thank you very much, Madam Speaker. I rise to speak on behalf of the National Party on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill at its third reading. I’m pleased to be able to support this bill. This bill provides a mechanism for the executive and the House of Representatives to consider and, if deemed necessary, respond to a declaration of inconsistency made under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993.

This bill is a positive development for New Zealand democracy as it will increase the scrutiny of legislation enacted by Government, which affects fundamental human rights. It’s essential that we highlight any of the laws, and consider them, that may not be consistent with the New Zealand Bill of Rights Act and ensure that they are justified over the medium to long term. There have been a number of examples where bills have been passed into law where they have been identified as being inconsistent with the New Zealand Bill of Rights Act but the Attorney-General or the Government of the day has determined if they can fall under section 5 of the New Zealand Bill of Rights Act, which allows for justified limitations—i.e., it allows for reasonable limits to be justified by law—as are demonstrably justified in a free and democratic society. That is obviously a judgment call and one that can differ, and reasonable minds can differ, as to the inclusion of what is demonstrably justified in a free and democratic society, and certainly there have been examples over the last couple of years where there has been significant consternation and debate about what limitations are appropriate and what are not.

It is important that this House does have the right to make supreme law. When I say “supreme law”, it is with some checks and balances. The fundamental checks and balances that any Government is subject to, every three years, is the popular vote. That is the chance for all New Zealanders to vote on whether they think the Government has got it right or not. And, if they don’t, they have the option to vote for a different configuration of political parties to form the Government, to make that law. So there is always that constitutional safeguard, in that the Parliament is subject to the will of the people via the mechanism of voting. However, it is important that the other branch of Government, effectively—which is, in our constitutional framework, the courts—is able to examine any laws that Parliament passes, and that they do it against the framework of the New Zealand Bill of Rights Act.

I should just go very briefly into the background of the New Zealand Bill of Rights Act, which goes back to 1948. After the Second World War, the conscience of the world was somewhat shocked and horrified by things that had happened during the course of that war, and the impact on people—human rights—had certainly not been considered at all in many cases, let alone observed. The atrocities that were seen and discovered at the end of that war truly shocked the conscience of the world. It was deemed necessary to create a universal declaration that specified the rights of individuals so as to give effect to the Charter of the United Nations provisions on human rights, which led to the Universal Declaration of Human Rights, ratified in 1948. That has been a very significant piece of, effectively, international law of sorts, which has informed the development of human rights around the world, including in New Zealand, which in 1990, after significant debate and discussion in this country as to the constitutional nature of parliamentary supremacy, enacted the New Zealand Bill of Rights Act. That has formed the development of a jurisprudence by our courts in this country, and trying to get that balance right between the courts being able to observe and interpret the New Zealand Bill of Rights Act and any limitations on the rights of individuals and their rights and freedoms against laws passed by this Parliament.

There have been some cases where the courts have made some decisions which have led us to where we are today—for example, in 2015, I think it was, the High Court found, in the case brought by Arthur Taylor, who had been fighting to give prisoners the right to vote since the 2010 law took it away from all inmates, that this law was inconsistent with the New Zealand Bill of Rights Act and would lead to arbitrary outcomes. It is important that the courts can make those determinations. It is also important that Parliament is able to maintain sovereignty to make law, as it is ultimately responsible to the will of the people via voting in general elections, but it is important that Parliament considers seriously any decisions made by the courts. There is an issue that has become apparent: the senior courts of New Zealand could make rulings, and can make rulings, that any piece of law is inconsistent with the New Zealand Bill of Rights Act, but Parliament could ignore it. This bill that we’re considering here today for its third reading remedies that situation. It requires that any such decision by the senior courts when they make a declaration of inconsistency is referred to this Parliament and it must be considered. This bill also formally recognises the jurisdiction of the senior courts to make declarations of inconsistency with the New Zealand Bill of Rights Act. This new bill brings the reporting mechanism, also in the Human Rights Act, in line with amendments to the New Zealand Bill of Rights Act.

This bill follows international jurisprudence that the affirmation of rights may require substantive protection but also procedural protection, and this bill is particularly focused on procedural protection. The bill does not alter the law substantially with regard to the jurisdiction of the senior courts but brings New Zealand into line with many overseas jurisdictions of having a formal reporting mechanism to this House.

The bill will also, 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 any such declarations of inconsistency made by the senior courts. The bill will also increase scrutiny of legislation that the Government enacts that affects fundamental human rights, which is a positive development for New Zealand’s democracy and continues the work that, in effect, started back in 1990 with the enactment of the New Zealand Bill of Rights Act. The bill will also encourage the senior courts to consider older policy that may not be serving New Zealand’s current needs, and that is a positive development because New Zealand’s Parliament has been known as the fastest gun in the West, in terms of legislative development, having a unicameral system of Parliament—i.e., one legislative chamber without further checks and balances. So it can make law very, very rapidly.

I’ll just touch on briefly that New Zealand did become quite frustrated as a country with laws being made by Governments who had been elected with a first-past-the-post system and then proceeded to carry out a rapid change to the legal structure in the country, which they hadn’t necessarily gone to the population on at the election, which led to the development of the mixed-member proportional system, or “MMP”, and that was designed to try to balance those different competing interests in society and ensure that there wasn’t such rapid change of law, because people need consistency to be able to plan ahead to make decisions on how they develop their businesses, how they develop their lives, what they can rely on. There needs to be some confidence that they can rely on particularly the trajectory of where policy formulation is going into the future. Sometimes, however, that does not work out particularly well, and certainly it’s important that the senior courts are able to go back and look at older legislation that may not necessarily be fit for purpose and consistent with the New Zealand Bill of Rights Act. So it is good that this bill will encourage the senior courts to do that.

In New Zealand’s constitutional framework Parliament is sovereign, but it’s important to shine a light on laws that are not consistent with the New Zealand Bill of Rights Act 1990 and ensure that any such laws are justified in a free and democratic society. We support the rule of law, we support the rights and freedoms of New Zealanders, and we support the Government being held to account on laws that will impact on the rights of New Zealanders. This is a positive development, and I’m very pleased to recommend it to the House.

It’s a pleasure to take a short call, and the final call, on what is a very important and a very good piece of legislation that we are passing in the House today. As many previous speakers have already traversed, this bill responds to the Supreme Court decision in 2018 that found inconsistencies with the New Zealand Bill of Rights Act regarding prisoner voting. What this bill does is introduce a mechanism for the House and the executive to consider those inconsistencies when the Supreme Court finds that there has been an inconsistency. As previous speakers have noted, there are times when Parliament does make law that does have an inconsistency with the New Zealand Bill of Rights Act, and that is that, ultimately, Parliament is sovereign. But all speakers throughout the debate have noted that it’s important for us to have a mechanism to make that consideration when the courts do observe those inconsistencies.

So I want to congratulate the Privileges Committee, who have taken a good couple of years to consider this bill. I think we’ve seen a significant amount of analysis and robust debate in order to get to this point. It’s an excellent piece of legalisation. I congratulate the Minister and the committee, and I commend this bill to the House.

Motion agreed to.

Bill read a third time.

Sessional order agreed to.