Protection of human rights under the New Zealand Bill of Rights Act 1990 and other constitutional issues.

An address to the Auckland District Law Society, 11 May 2018

I am going to talk today about the protection of human rights in New Zealand’s constitutional system, make some comments about the constitutional system itself – including how much we should value the flexibility it gives us - and discuss the recent Government announcement of our intention to amend the Bill of Rights Act 1990 to give greater protection to those rights.

It is fundamentally important to the New Zealand I want to live in that freedoms and civil liberties be maintained and promoted. Liberties such as the recognition of human rights, freedom from violence, freedom of political expression, freedom of religion, protection under the rule of law, secure property rights, liberties for women, as well as for religious, ethnic, and sexual minorities.

Many of you will be aware of the proposal which Justice Minister Andrew Little and I  announced on 26 February. Government intends to seek to amend the Bill of Rights Act to provide senior courts with the power to make declarations of inconsistency. We hope to have the policy work on that completed this year and an amendment introduced to the House in early 2019.

General comments on constitutional arrangements

Before I talk about the proposed amendments, and the case that brought the discussion about “declarations of inconsistency” to the fore in New Zealand, I want to make some comments on New Zealand’s constitutional framework. I think this is important because the proposed declarations power will sit within this framework and strengthen the fundamental principles that underpin it – respect for fundamental rights, parliamentary sovereignty, and comity and respect between the branches of government.  

On the whole, I think our constitution works well. This is demonstrated by New Zealand’s history as a long-standing democracy with a good record of respecting the rule of law and human rights. Ours is one of the longest unbroken democracies in the world. It has stood the test of time.

The central feature of these arrangements is parliamentary sovereignty, which is typical of the Westminster model of Government.

I don’t believe fundamental changes to those arrangements are desirable. They have evolved and worked well for 160 years to give us one of the best and most successful democracies in the world, and a record of stability and respect for human rights is matched by few other countries.

The peaceful and mostly prosperous society that we and our forebears have created has been achieved through incremental changes to legislation and to our constitutional arrangements. We have achieved a good balance between the powers of the state and individual liberties.

This constitutional architecture results from a mixture of ancient and modern legislation, together with traditions and conventions inherited from the United Kingdom or evolved ourselves. These are collectively described as an “unwritten” constitution, although much of it is in fact in writing.

Over time we have achieved significant constitutional change including the separation from the UK, universal suffrage, the increasing  recognition of the Treaty, the change from First-Past-The-Post to MMP, and access to official information as a right, not a privilege, and important limits to campaign spending and donations.

We did not need a written constitution to achieve these changes and I do not believe the case for substantial constitutional change has been made. Our current arrangements have served us well, and helped deliver stability. It’s worth noting that the median lifespan of the written constitutions in some 200 countries around the world is only 19 years. Nor has the existence of high and mighty written constitutions protected the people of Libya or Zimbabwe, for example, from the actions of despots. 

And if you need an example of the advantages of our flexible arrangements over a written constitution, even in countries with strong and enduring democracies, look no further than two of our closest allies.

The US has been unable to change its gun laws because of the Second Amendment and the Supreme Court’s interpretation of it.

The difficulty of changing the constitution in Australia has hamstrung any attempt to change the rule that forces members to quit even when they unknowingly hold citizenship of another country.

Having said all that, I am not opposed to bringing together the existing constitutional legislation into a single document that would make the law more accessible and easier to understand.

Bill of Rights

The New Zealand Bill of Rights Act passed in 1990 was unique in its time because it sought to preserve our existing model, with parliamentary sovereignty at its core, without creating a supreme law status that would enable courts to strike down inconsistent legislation.

The Bill of Rights for New Zealand initially proposed in 1985 would have been different – it would have allowed judicial review of statutes by the courts and “striking down” as invalid those that were determined to be inconsistent with protected rights and freedoms, as we see in countries with supreme law constitutions like the United States of America. Many expressed concern at the time over the proposed transfer of power over the substance of legislation to judges and away from elected representatives of the people of New Zealand.

The changes to the Bill before it was passed gave it the status of an ordinary statute, with the addition of section 4, which affirms that no court may hold an enactment to be invalid or in any way ineffective on account “only” of its inconsistency with rights and freedoms.

The “only” in s 4 is important. It alludes to the possibility that a court might rule an enactment invalid or ineffective for some reason other than inconsistency with the Bill of Rights Act. In this regard there remains a fundamental yet benign ambiguity about the true scope of Parliamentary power in our constitution. The orthodoxy is that Parliament enjoys “supremacy” – in the sense that no other body has power to declare its laws invalid – but considerable doubts have been expressed as to whether this is true in extreme (and, happily, so far hypothetical) cases.  For example, both Lord Cooke[1] and the Chief Justice[2] have registered these doubts. 

I agree there are limits to the sovereignty of Parliament, some of which goes back to the 1688 Bill of Rights and the division of power between Parliament and the courts. Parliament could not validly legislate away the inherent jurisdiction of the High Court or Habeas Corpus. That would exceed the sovereignty of Parliament and impinge on the powers of the court. Parliament in a modern New Zealand does not have sovereignty to legislate to end elections though it can change some aspects of voting rights.

We are a long way from testing those boundaries and they remain hypothetical, but I take comfort from the role and responsibility of the courts to enforce the limits to the sovereignty of Parliament should a future Parliament seek to exceeded its sovereignty.

History shows, in broad terms, the record of New Zealand in relation to human rights is widely acknowledged to be a very good one.  It is not worse than comparable jurisdictions with supreme law constitutions. Indeed New Zealand’ recognition of the rights of religious, ethnic or sexual minorities occurred ahead of many other countries. Similarly the property rights for women.

Declarations of inconsistency – Taylor v Attorney-General

 Against this backdrop we are considering judicial declarations of inconsistency – which doesn’t go as far as striking down the legislation but expresses the court’s opinion that Parliament’s law is not consistent with the Bill of Rights. This has been described as a significant constitutional moment for New Zealand, and I want to say why I think declarations could be important and what role we see them performing in New Zealand’s constitution.

A declaration of inconsistency is a formal order, granted by the Court, stating that the Court has determined legislation to be inconsistent with a fundamental right or freedom protected by the Bill of Rights Act.. Unlike in countries with a supreme law constitution, a declaration does not affect the validity of the legislation or anything lawfully done under it. So the litigation doesn’t provide the relief that we would typically expect a Court to give – the plaintiff would be in the same position except he or she is now armed with the Court’s opinion.

Indeed that is one of the issues before the court. Does it help or hinder comity?

The question of whether courts have the power to grant such declarations has been the subject of recent litigation against the Crown. In 2015 the High Court issued a declaration of inconsistency for the first time, declaring that the prisoner disqualification provisions of the Electoral Act 1993 were inconsistent with the right to vote. Those provisions were amended in 2010, to extend the disqualification to all sentenced prisoners, when previously it had only applied to those serving a sentence of three years or more.

In the litigation the Crown did not resile from the view expressed by the previous Attorney-General in a section 7 report, that the legislation was inconsistent with the right to vote and could not be justified. But the Crown contested the availability of power to make a declaration - it argued that such a declaration was not part of the inherent judicial function or power of the Court.

The Crown’s position was that the Court would have the power if it had been conferred by Parliament in, for instance, by a section of the Bill of Rights. Indeed, in other countries around the world where Courts make declarations of inconsistency, the power has been granted by the legislature (i.e. the UK, the State of Victoria and the ACT in Australia, and Ireland).

There is currently no explicit power in the New Zealand Bill of Rights Act to issue a declaration.  Courts are directed, by section 6, to interpret legislation consistently with rights “wherever possible”, but where that is not possible, they must apply the law despite any inconsistency. As part of that process the Court would analyse or might even criticise legislation and its impact on rights, and might record as part of its reasoning that a consistent meaning cannot be found, and the Court was requirement to apply the legislation despite its view that it trenched on rights. The Crown has argued that this was permissible and valuable in the process of judicial reasoning, but was different in nature to a formal remedial order which could be given where it did not have any impact on the law or the rights and interests of parties to the litigation.

The Court of Appeal disagreed and held that a declaration of inconsistency was part of the courts’ inherent common law power, and did not need to be expressly authorised by Parliament. The Supreme Court heard the appeal in March and judgment is reserved.

In the interim this Government decided, in principle, that the Bill of Rights should be amended to expressly authorise judges to make declarations of inconsistency. We think Parliament should provide for such a power.

The role for declarations in New Zealand’s constitution

A legislative mandate for the Courts to make declarations of inconsistency and allow formal parliamentary processes to be placed around it to make it meaningful.

Parliament will be careful to preserve its sovereignty. The Privileges Committee, which I chair, will consider what mechanism to use to facilitate a response from Parliament to any judicial declaration of inconsistency. The exact form this will take is still under consideration – but it is likely to involve the court’s declaration being reported to the House, and a procedure for Members and the Government of the day to reappraise the legislation at issue.

At that point Parliament, informed by the opinion of the court, after the politics, can amend, repeal or maintain the law as it was originally passed. It might pass a remedial Bill which achieves the legislation’s policy objectives in a way which is rights-consistent. It might decide to stick to its original view that the Act strikes the appropriate balance between policy objectives and human rights. Such an amendment would reinforce the point that Parliament is responsible for having the final say on what constitutes a justified limitation on fundamental rights and freedoms. And if we get it wrong, voters can replace us.

Giving the courts the power to make a declaration could help facilitate this healthy, democratic dialogue, and become an important part of our constitution working as it should. So long as the courts are restrained in the use of such a power, there is considerable value in the courts alerting Parliament when they consider things have gone awry in the legislative process. To have the branches of Government talking to each other on these issues, bringing issues back onto Parliament’s agenda, is the sort of dialogue which exemplifies our system working as it should - to protect human rights whilst retaining Parliamentary sovereignty.

Which brings me to another constitutional principle that is central to this debate - comity between the branches of Government. Parliament and the Courts have their proper spheres of influence and privileges. The exercise of mutual respect and restraint that is essential to that constitutional relationship. Working hard at maintaining that comity is essential is we are to avoid democracy degrading as it is in some places overseas.

 Conclusion

We have achieved a very special balance of power in New Zealand – between the executive, Parliament and the courts.

Our system is uncomplicated by a supreme constitution, an upper house or state legislatures.

MMP, brought in after the excesses of Robert Muldoon, limits the power of any one party.

Parliamentary sovereignty, albeit within limits, respect for fundamental human rights, and comity between branches of government are the best ways for our system of government to continue to serve the interests of New Zealand.