Audrey Young: Power struggle between Parliament and courts bubbling away

OPINION:

One of the biggest changes to the Bill of Rights Act in 30 years are being considered by Parliament’s powerful privileges committee. Audrey Young explains why it matters.

A power struggle that has been quietly bubbling away for centuries between Parliament and the courts is now being played out in Parliament’s privileges committee, the result of legal action by one of New Zealand’s most hardened criminals.

But unlike recent skirmishes in which Parliament firmly asserted its supremacy over the courts, in this move around New Zealand’s Bill of Rights Act 1990, the MPs that make up Parliament are being more acquiescent.

The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill seems like a simple bill on the face of it.

It sets out what should happen in Parliament if the courts issue a judgment saying a particular law is inconsistent with New Zealand’s Bill of Rights Act.

Those options are essentially to make changes to law or policy, or not to make changes. The law can’t dictate that change must be made but it can say a declaration by the courts must trigger a rethink. And that is what the bill does.

Within six days of a declaration of inconsistency by the courts, and the end of all appeals, the Attorney must point out the declaration to Parliament within six days.

In effect, there is nothing stopping that happening now. If the courts make a declaration, the result could be a change in the law or no change in the law.

So why did Attorney-General David Parker describe the bill as “constitutionally significant” and why does it get the juices flowing for constitutional experts? There is a lot of suspicion, disappointment and baggage behind the Bill of rights Act 1990.

In hearings on the bill last week, former Prime Minister Sir Geoffrey Palmer appeared, lamenting the lack of importance accorded the Bill of Rights Act, the lack of expertise on human rights issues in the Parliament, lamenting populism in politics, warning of the fragility of democracy and imploring the MPs to make the bill even stronger by requiring a 75 per cent majority to change it.

“I worry you don’t have the courage,” said an exasperated Palmer, who was the architect of the Bill of Rights Act (BORA)in 1990.

It sets out the basic freedoms that should be enjoyed by every person living in New Zealand, such as freedom of expression, the right to vote, and the right to refuse medical treatment.

It was a codification of rights that largely existed already through statute or common law.
It was viewed with suspicion at the time as being the start of the reform agenda by people who wanted greater constraint on Parliament’s power by the courts and a written constitution.

The Bill of Rights Act that was eventually passed was diluted from Palmer’s proposal.

It was not superior law in any sense. It could be changed with a simple majority, it did not override other laws, the Attorney General would tell Parliament if bills were inconsistent with it but it could still pass them, and unlike some other countries such as the United States and Canada, the courts did not and still do not have the power to invalidate laws they deem inconsistent with their respective constitutions and charters.

Q. So what is so controversial about declarations of inconsistency?

Where to start? First off, there has been disagreement over whether or not the New Zealand courts could even or should make declarations of inconsistency with the Bill of Rights Act, including within the judiciary. It can already done by statute in a quasi-judicial agency, the Human Rights Review Tribunal. In 2018, the Supreme Court asserted that the higher courts could use their inherent powers to do so –with two dissenting judges out of five saying it required explicit powers from a law passed by Parliament.

Q. What brought it do a head?

The issue was brought to a head in the case brought by long-serving prisoner and jailhouse lawyer Arthur Taylor challenging the blanket ban on prisoner voting. As the case wound its way up the courts under National, Crown Law argued that it required an explicit law before any such declaration could be made, as has been the case with the Human Rights Review Tribunal’s power.

Q. Did Labour take the same view?

There was a change in Government in 2017 and shortly before the Taylor case got to the Supreme Court in 2018, new Attorney General David Parker and Justice Minister Andrew Little announced they would confer the power on the courts to make declarations of inconsistency. “It is better that these powers be given by the Parliament rather than taken by the courts,” their Cabinet paper on the in-principle decision said. They had also said a lot earlier that they would repeal the prisoner voting law.

Q. Did they have an ulterior motive?

As well, they thought their press statements about plans to confer new power on the court might dissuade the court from making a declaration of inconsistency. “This could be viewed favourably by the Supreme Court (obviating the need for the courts to confirm they have such an inherent power) and could be relevant to the court’s deliberations.” No chance. The court declared the prisoner voting ban act to be inconsistent with the Bill of Rights Act 1990.

Q. Hadn’t Parliament found the law inconsistent anyway when it passed the voting bill?

Yes. The Bill of Rights Act explicitly allows Parliament to pass laws it has been warned are in breach of the act if, under section 4, it believes it can be demonstrably justified in a free and democratic society.

Q. What difference did the court’s declaration actually make to prisoner voting?

None. There was no “remedy” as a result of the court’s decision. The Government had already decided to change the law well before then. But the court decided to end the debate and flex its muscle. Folklore may suggest the courts played a part but they didn’t.

Q. So does the Declarations of Inconsistency bill now confer the power on courts to make declarations?

That’s the funny thing. No, it doesn’t do that, despite the ministers having said in 2018 they would do that. The bill is silent on that. It just assumes that such declarations will be made. Presumably that is to avoid further conflict with the court over whether the court had a right to assert or should have waited for Parliament to confer power.

Q. Why are the Bill of Rights advocates happy that the court can do something that Parliament already does?

It elevates the importance of the Bill of Rights Act 1990 and a feature of more Bill of Rights cases in the courts. It is seen as an additional restraint on Parliament because it could make MPs less inclined to pass laws that are inconsistent with the Bill of Rights Act, even if they think it is justified.

Q. If the courts asserted their apparent right to make declarations, when the Government thought it was a right that should be given, not taken, else could the courts do?

That is the $64 million question. There are no black and white rules about how far the “Inherent powers” of the courts go, so it is conceivable that down the track, it will assert its “right” to declare “remedies” for future breaches such as financial awards -unless Parliament makes it abundantly clear in legislation what the boundaries should be.

Q. Is there much opposition to the bill?

No. From the select committee hearings, National’s Simon Bridges appears okay with it although Chris Penk had concerns it could lead to a more politicised appointment of judges, such as happens in the United States. The greatest interest by committee members was not whether there should be a response to a declaration but whether they should set time limits for a response by Parliament, what expectations should be put on Government, and what parliamentary committee should deal with declarations. There was no debate from the Opposition as to why it was necessary or what shifts in power it represented.

Q. Did anyone oppose the bill?

There was only one submitter last week against the bill, lawyer Paul Fitzgerald, who argued that the bill was unnecessary. He disputed Andrew Little’s characterisation that the Supreme Court had found Parliament had “got it [the voting bill] wrong,” saying under the act, Parliament “never gets it wrong.” He sees no need to set up a new law. Any Government could react to a court declaration without the need for a legal statutory process. He said Parliament should have better Bill of Rights scrutiny of all parts of bills, including changes made to them at select committees and in the committee of the House. And he said any remodelling of New Zealand’s parliamentary sovereignty “such that Parliament is now formally reactive to an act of the courts in respect of a matter in which Parliament is sovereign” required thought and consideration.

Q. Why is Attorney-General David Parker chairing the privileges committee that is considering the bill developed from his Cabinet paper?

Good question. It would be unheard of for Grant Robertson, for example, to chair a committee examining a bill he had helped to develop. But the relationship between Parliament and the courts and their roles is so important that it needs to be in the hands of the most senior and experienced MPs in Parliament.

Q. Have there been other recent power plays between the courts and Parliament?

There is always a degree of pushing and shoving between the two which is expected. There was a recent case however, in which Parliament decided the courts had gone too far in narrowing the scope of parliamentary proceedings, which, in turn, would have limited the extent of free and frank advice given to ministers. So Parliament unanimously overturned the courts in the Parliamentary Privilege Bill. The tension is not often black and white, as David Parker, then in Opposition said during that debate that there would always be push from the courts and push-back from Parliament as they sort out the grey areas in the middle. “The only way to avoid those areas of grey is to try to codify and define them. Personally I do not think that that is a good idea because codification and the risk that we would give over to the court’s future interpretation of that code in itself poses dangers that are best avoided.”

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