Today MPs debated the second reading of the Bill of Rights (Declarations of Inconsistency) Amendment Bill, the sort of legislation that constitutional law experts absolutely love but that may put the rest of us to sleep, until we realise it’s important.
This bill seeks to provide a way forward for parliament in situations when legislation is declared by the court system to be inconsistent with the Bill of Rights Act 1990, following the Supreme Court’s 2018 judgement in Attorney-General v Taylor confirmed that senior courts have the power to issue such declarations.
Kris Faafoi Photo: VNP / Daniela Maoate-Cox
“Currently, there is no mechanism which ensures that the executive or the House will give serious reconsideration to the legislation in light of their judicial comment,” theJ ustice Minister Chris Faafoi explained.
“This bill provides a process for that reconsideration to occur. And by doing so, the bill strengthens the protections of the rights and freedoms affirmed by the New Zealand Bill of Rights Act.”
Government would be required to respond to the declaration of inconsistency within six months.
“The Government response must be presented to the House by the Minister responsible for the legislation to which the declaration of inconsistency relates,” Faafoi said.
“The notification by the Attorney-General to the House would also trigger a parliamentary process which would be included in the House's Standing Orders. This process would include a declaration of inconsistency being referred to a select committee allocated by the Clerk of the House, select committee consideration of the declaration and reporting on the declaration within four months, unless the Business Committee determines a different deadline, and a debate in the House on the declaration, the select committee report, and the Government's response to the declaration upon the presentation of the latter.”
Labour MP Duncan Webb in Parliament's powerful Privileges Committee Photo: ©VNP / Phil Smith
Caution urged
The Bill probes the very nature of the relationship between the courts and parliament, two of the fundamental pillars of our democratic system. As such, Labour MP Duncan Webb said this required caution.
“We have to be very, very careful indeed as to how we tinker with that relationship, particularly through legislation.
“The thrust of this bill is that when the courts say that there is an inconsistency in legislation with the New Zealand Bill of Rights Act, it's appropriate for it to be taken very seriously indeed, not only by Parliament but also by Government.
“The Attorney-General has a role to bring it to the attention of Parliament,” Webb said said, adding that most importantly, a substantive response would be needed from Government.
Constitutional law nerd heaven
The parliament committee which has been looking into this Bill is the high powered Privileges Committee chaired by the Attorney-General, David Parker.
Labour’s Barbara Edmonds, who sat in with the committee for the submissions, attested to the high quality of input from a series of constitutional and other experts.
“I can comfortably say, I think, in the room at the time that we were hearing the evidence, we had the who's who of constitutional and public law here in New Zealand to submit on this bill, including—as the previous member, Harete Hipango, had said—the architects of the first Bill of Rights Act: Sir Geoffrey Palmer, Sir Ken Keith. We also had renowned academics Claudia Geiringer, Andrew Geddis, and Dr Dean Knight from Victoria University. So there were plenty of fans, both sitting with the public and also with some of us who were around the select committee table
Labour MP and Associate Whip Barbara Edmonds Photo: ©VNP / Phil Smith
She said the next stage of this Bill’s progress would be an important one as MPs deliberate on what the process following the declaration of an inconsistency should be.
“Because one of the key considerations that the Privileges Committee considered was whether any of the parliamentary process should be specified in statute. The Privileges Committee concluded that it shouldn't be. We concluded that the House has exclusive cognisance over how its proceedings are conducted, and this exclusive right to control its own operations is one of the House's privileges.”
For a backgrounder on the Bill of Rights, as well as Parliament's relationship with the courts, check this out.
