Who is in charge? Soon, the courts may be able to force Parliament to rethink legislation that breaches the Bill of Rights. Photo / Mark Mitchell
Our MPs are poised to make what was described in Parliament as the most important change to our constitution in some time - possibly since the Bill of Rights came into law in 1990.
The change is an amendment to that very legislation: the Bill of Rights (Declarations of Inconsistency) Amendment Bill.
The bill makes a tweak to the way the courts and Parliament talk to each other about the rights that New Zealanders enjoy, and what to do if courts declare those rights have been breached by other legislation. The bill has been amended in its passage through Parliament, significantly strengthening the original bill.
At second reading in the last sitting block, the bill got the backing of the entire House - a slight change from its first reading two years ago, when National made arguments against the bill, but supported that it proceed to select committee for further scrutiny.
Then, some MPs cited fears the legislation could be the top of a slippery slope that could see New Zealand end up with the kind of politicised judiciary that, in the United States, seems poised to overturn Roe v. Wade, and lead to abortion bans across large parts of the US.
New Zealand's Bill of Rights does not work like its more famous American namesake.
New Zealand's courts cannot strike down legislation that is passed by Parliament if they decide it breaches parts of the Bill of Rights. Parliament is supreme in New Zealand, and it can more or less pass any law it wants. The only real check on this has been a 'section 7 report' in which the Attorney-General reports to Parliament when a bill is inconsistent with the Bill of Rights and whether the breach could be "demonstrably justified in a free and democratic society".
But even if a bill is found to be in breach by the Attorney-General, there's nothing to stop Parliament from passing it anyway - in fact, this is not uncommon. Research published in 2016 found that up to that point there had been 70 section 7 reports up to that time. Of them, 23 Bills with an adverse report were not enacted, but 37 were.
Politicians, lawyers, and academics have long pondered whether this should change. In the end, the courts forced the issue in 2018 by confirming that they had the power to say a law was in breach of the Bill of Rights. The Supreme Court's judgement in Attorney-General v. Taylor confirmed that senior courts have the power to issue declarations that legislation is inconsistent with the New Zealand Bill of Rights.
This posed a question to both the executive branch of government, and Parliament, which was: What to do when the courts make such a declaration? Would a declaration be ignored - or would politicians decide to take up the courts' declaration and have another look?
In 2018, Attorney-General David Parker and then-Justice Minister Andrew Little announced Cabinet would legislate a process for responding to declarations of inconsistency.
The idea was to set up a process that would allow politicians to have another look at legislation that was inconsistent with the Bill of Rights. The supremacy of Parliament would not be touched; Parliament would not be forced to change or repeal the legislation in question, but it would be required to have the fact that it breached the Bill of Rights brought to its attention.
Introducing legislation in 2020, Little said Parliament could thumb its nose at the courts and proceed without altering the legislation, but Parliament could also either repeal or amend the legislation to bring it into alignment with the Bill of Rights if it believed the courts had a point.
Progress has been slow. Little introduced a bill setting out the process in 2020, two years after he and Parker announced the Government would legislate a scheme. The bill passed its first reading. A select committee reported back to Parliament with unanimous recommendations in September last year.
The bill had a positive second reading in the last sitting block, with speeches in support from Labour, National, Act and the Greens. It's now in the hands of the current Justice Minister, Kris Faafoi.
At first reading, National's Chris Bishop said the legislation raised the question of the role of judges in the New Zealand constitution.
He argued declarations of inconsistency could be the top of a slippery slope that would end with the New Zealand judiciary becoming politicised, like that of the United States, where Democrats and Republicans fight bitterly to appoint their preferred candidates to the Supreme Court.
Bishop said that in the United States "issues like abortion, like campaign finance, and like gun control" were discussed "not through the battleground of democracy and through political debates and back and forth between elected members of the legislature" but through the courts.
He said that when these issues were settled through the courts, rather than by elected politicians, the judiciary became politicised.
"Members will have seen the back and forth to do with Roe v Wade, which is the 1973 Supreme Court decision that, essentially, through the invention of a right to privacy in the United States Constitution, allows abortion for women in the United States.
"Actually, there's a very strong argument, I believe, that if abortion had been legislated on a state basis, the political consensus around abortion would be far more enduring and far more settled than a decision of the Supreme Court in 1973 that has been attacked and torn asunder over and over and over again, and where abortion is a hugely politicised legal issue in the United States," he said.
The speech received acclimation from some unlikely places. Green co-leader James Shaw described it as an "extremely good speech", though he was ultimately unpersuaded by the argument.
In a sense, that issue of declarations politicising the judiciary was not what was explicitly in question.
The Supreme Court had already confirmed that it had the right to issue declarations - Parliament did not explicitly legislate that power for the courts. The Government could either decide to do nothing, to legislate a process to respond to the declarations, or to legislate them out of existence. The question was what would having a Parliamentary and executive process for receiving those declarations do to the fragile tension between the three limbs of government.
Ironically, two years after Bishop made those remarks, a leaked US Supreme Court decision said Roe v. Wade would be overturned - a highly political decision, made by a court that had been, in the 50 years since Roe v. Wade, reshaped by partisan forces.
Shaw was asked on his way into Parliament, after the Roe v. Wade leak, whether he was concerned declarations of inconsistency might be the beginning of a slippery slope towards a politicised judiciary.
Shaw said the non-political appointment of judges in New Zealand was a check against this. Judges to senior courts are selected by a politician, the Attorney-General, who, by convention, receives advice from the Chief Justice and the Solicitor-General.
There is often a consultation between shadow Attorneys-General and the Attorney-General, which acts as a guard against politicisation - although this is not codified in any statute.
The Privileges Committee examined the bill, and reported back in September 2021.
Sir Geoffrey Palmer, the former Prime Minister who was the architect of the Bill of Rights when it was drawn up by the Fourth Labour Government, submitted on the legislation saying the "solution" to a better Bill of Rights framework lay in "abandoning the discredited notion of Parliamentary sovereignty of which New Zealand is one of the only proponents left on the planet".
He said the Bill of Rights should be entrenched so it cannot be amended by a simple majority, and that a "supremacy provision" be inserted - giving the judiciary the ability to strike down legislation.
Associate Professor of Law at Victoria University, Dr. Dean Knight also submitted, saying the bill would strengthen "the legal infrastructure for a response" to a declaration. His submission argued both Parliament and the executive government should be required to respond when the courts make a declaration.
The committee reported back on the bill last year, and recommended strengthening the proposals along two lines, similar to what Knight and other submitters suggested.
The bill as originally introduced would only require the Attorney-General to report to Parliament that a declaration had been made. Changes made by the committee, and adopted by Parliament, would force the government of the day to respond to a declaration, rather than just notify Parliament the courts had made a declaration.
The committee also recommended changes to Parliament's standing orders, the rules that govern Parliament, which will require the Clerk of the House to send a declaration to a relevant select committee which will then investigate and report back on the declaration.
Once the report and the Government's response have been returned, Parliament would then debate the two responses, along with the original declaration.
This means that each declaration would guarantee a months-long discussion between the three limbs of government, the courts, the executive, and the legislature, about whether rights have been breached.
MPs from across the House spoke warmly on the bill at its second reading.
Parker took the last speech and said it was significant that, following the passage of the bill, Parliament and the executive would have a process for considering declarations.
"Sometimes the mistakes of Parliament are made in the heat of a political moment, which by the time these things have gone up through the courts, is long past.
"The people who were invested in those particular issues have sometimes left Parliament and the political moment has moved on," Parker said.
"And I think in those sorts of situations, where the courts then opine that we have gone too far as a Parliament, sometimes we can sit back, we can de-personalise these issues, and we can try, and where appropriate fix our mistake," he said.
One question left dangling by the bill is to what extent referring rights issues back to Parliament will mean re-politicising them - and whether this is desirable, or whether MPs should try to handle declarations in a less political fashion. Parliament can, often in the course of a single day, provide both in-depth legislative scrutiny and petty political point-scoring.
While early debate on declarations of inconsistency looked at the question of whether declarations politicised the judiciary, Parker's speech at second reading considered what might happen when declarations were dealt with by actual politicians.
He said he would like declarations to be reviewed mostly by Parliament's least political committees, like the Privileges and Standing Orders Committees.
"I would quite like that often to be the Privileges Committee because I think it would be quite good to depoliticise some of these things," Parker said.
"There were mixed views on that amongst submitters and amongst committee members, and we in the end agreed that that should be up to the House to decide, and that sometimes it will be appropriate to go to the Justice Committee or maybe the Regulations Review Committee, or maybe sometimes the Privileges Committee," he said.
In a forthcoming article on declarations of inconsistency, Palmer suggests going further and creating a specialist committee to consider such declarations of inconsistency.
Palmer argues the reason Parliament had not set up further committees was because there are not enough MPs to staff them. Unfortunately, expanding the size of Parliament, beyond minor proportional adjustments, was explicitly excluded from the terms of reference of review into electoral laws announced this week.
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