What makes the case interesting is because it is the first time the Government and Parliament will use new tools to respond to declarations like the one made by the Supreme Court.
The courts now have the power to declare that laws are inconsistent with the Bill of Rights. The courts were not given this power by Parliament, but rather gave it to themselves.
Parliament is sovereign in New Zealand, and it could have chosen to respond to the development of these declarations by legislating them out of existence, or simply ignoring them. Instead, the Government last term proposed a process for ministers to respond to such a declaration.
A response doesn’t mean anything will actually change, but it will mean that a declaration from the courts will put an issue on the Government’s agenda, forcing it to at least consider that there might be a problem in the law worth fixing.
Parliament unanimously passed a law setting out how the Government would respond to a declaration, and Parliament agreed to change its Standing Orders to regulate how Parliament would respond too.
The debate on the change was mildly contentious. A late-night first reading debate is still remembered in Parliament for being one of the few debates in which both sides managed to say nice things about the arguments the other side made. Green co-leader James Shaw described a speech from National’s Chris Bishop as “extremely good” - and it was, raising concerns that in allowing the judiciary to clap back at Parliament and the legislature, New Zealand could slide towards an American-style politicised judiciary.
Bishop made the point that settling these questions should be done in Parliament, because Parliament is the branch of government with democratic legitimacy and mandate to have those debates.
Settling rights-based questions in the courts could undermine those settlements because a court lacks the democratic mandate of Parliament.
The declarations of inconsistency bill found a balance between preserving the primacy of Parliament in what Palmer, the Bill of Rights’ author described as a “Parliamentary bill of rights”, while also allowing the courts to force Parliament to have a second look at calls it might have got wrong.
Recognition that Parliament probably struck the right balance came from the fact the whole House voted in favour of the bill, recognising that despite concerns raised during the debate, the new regime was ultimately worth legislating.
“I think that what’s happening tonight is an extremely positive development, and we should all be very proud to be supporting this,” were some of the last words spoken in the third reading of the bill - the word’s of Act’s David Seymour.
Crucial to bedding-in these reforms will be the way MPs handle declarations when they are made. This week, the Opposition disagreed with the Supreme Court’s view on the voting age, and disagreed with the Government for its decision to respond with legislation when it has other things to do - but crucially they did not critique or undermine the process. Having voted for it, the Opposition’s respect for the declaration of inconsistency process will be crucial for its legitimacy going forward.
This is also a tricky issue for the Government. The Government, remember, has to respond to the declaration. It does not, however, have to legislate a response. It has every right to essentially ignore the courts.
The surprise decision of the Government to legislate a response to the court raises a different question: whether MPs have a mandate to legislate a fairly significant change to New Zealand’s constitutional settings that they have not gone to the public over.
Parliament makes fairly significant changes without an explicit mandate from voters all the time - but changing the voting age would probably be at the more extreme end of the spectrum.
While the issue of Parliament’s democratic mandate in contrast with the different and more limited mandate of the courts, was well canvassed when MPs legislated the regime for responding to declarations, one thing that was not discussed was the fact that if Parliament chose to legislate a response as it has done on the voting age, it would often do so without having gone to the public first.
Lowering the voting age to 16 has strong merits, but with the exception of the Green Party, no party in Parliament has properly campaigned on the issue. A lower voting age polls poorly and if MPs go ahead with lowering the local age, they need to consider how to curry a mandate for the change
The chief merit for declarations of inconsistency is that they allow courts the opportunity to force Parliament to have a second look at something it might have gotten wrong, but they preserve the supremacy of Parliament to make tough political calls about how rights are balanced. This is the right thing to do; only the legislative branch has the regularly renewed democratic mandate to make these kinds of calls.
MPs have to be careful, however, to ensure they manage this fine balancing act and preserve the legitimacy of this constitutional evolution by ensuring they balance the view of the court with the mandate they need to seek from voters.
This doesn’t mean rights questions should be decided by polling or focus group - one of the strongest arguments for allowing courts to strike down legislation is that unelected judges often do a better job of protecting people’s rights than politicians subject to the often bigoted whims of the electorate - but it does mean that MPs responding to declaration of inconsistency should have an ear both to the court, and to the electorate. Upholding the strength of both branches is vital for this evolution to succeed.
