Make Bill of Rights supreme law
New Zealand is moving in a direction where a Bill of Rights with greater legal capacity is required, according to Sir Geoffrey Palmer.
Sir Geoffrey was addressing the New Zealand Bar Association at an event to mark the 25th anniversary of the New Zealand Bill of Rights Act 1990. The event was held on 20 August at Russell McVeagh in Wellington.
It would, Sir Geoffrey said, be safe enough now to make what he described as “the mild version” of the Bill of Rights supreme law.
It can be inferred from the “relatively conservative interpretations” that the courts have given the Bill that the system of government and the body politic will not be unduly disturbed by such a development.
“A Bill of Rights that lacks judicial force over time can easily become whittled away by Parliament by this piece of legislation then that.
“Such a Bill of Rights will, over time, lose its force and effect and became a sort of public relations document rather than an instrument that confers real rights on people and limits the power of government.
“Concentration of power in one body is not constitutionally congenial,” Sir Geoffrey said.
The long-term reasons for making the Bill of Rights supreme law can be briefly stated.
“Despite the introduction of MMP, New Zealand still lacks the necessary checks and balances on the use of public power that it lacked in 1984. A unicameral legislature is capable of breaching human rights and has done so since the Bill of Rights was passed.
“The Parliament does not rigorously analyse human rights issues and lacks the institutional mechanisms for doing so.
Constitutional law too thin
“Our constitutional law is too thin and the flexibility of the public law system knows no limits. This sets up a situation where ‘The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment’1.”
Sir Geoffrey said he was “somewhat critical” of the failure of the courts to develop the Bill of Rights jurisprudence more comprehensively over the past 25 years.
“Nevertheless, the whole idea is not so legally foreign as once it was. There exist many reported cases on the Bill, several significant legal texts and an extensive periodical literature.
“But the Bill has not had as Professor Claudia Geiringer accurately observes, a ‘transformative effect’.”2
The recent decision (July this year) of Justice Heath – making the first judicial declaration of inconsistency under the Bill of Rights – “is both notable and welcome,” Sir Geoffrey said.
“It has taken until 2015, 25 years after the Bill’s enactment before a Judge of the High Court of New Zealand made a formal declaration of inconsistency. Justice Heath issued a declaration of inconsistency with the Bill of Rights concerning an Act of Parliament it passed in 2010 imposing a blanket ban on prisoners voting in parliamentary elections.
“It could not be saved by s 5 of the Bill of Rights Act. The measure was not ‘demonstrably justified in a free and democratic society’.”3
The government made no public response to the decision at the time, although it had argued forcefully in court against such a declaration being made, Sir Geoffrey noted.
“The Attorney-General submitted the court had no jurisdiction to make a declaration of inconsistency in a case where its interpretive function is not engaged. There had been no cases in which a declaration was sought as the sole remedy.
“Furthermore, as Justice Heath points out in his judgment, although the issues had been discussed in a number of appellate judgments no declaration had every been made and only one New Zealand Judge has ever stated, in dissent, that he would have made one.
“It will be interesting to see if the Crown appeals,” Sir Geoffrey said, noting that some days after the judgment, the Minister of Justice Amy Adams said the Government was studying the judgment.4
“I have been impressed over the years with the vigour with which the Crown’s legal advisers have resisted application of the Bill of Rights by the courts.
“They give up territory very reluctantly and it is of concern that they should be so determined in respect to a statute that is designed to curb the power of Government and see that human rights in New Zealand are protected.
“If the Crown does not appeal it will also be interesting to see whether legislation is introduced to remedy the situation and revert to a more liberal regime in respect to prisoner voting.
“A declaration does not change the law. It does not disturb either the executive or parliament. It may influence public opinion but not in a way that is politically significant. It may be different if there were a series of such declarations, although that prospect does not seem likely.
“The relative lack of media attention on the decision raises a further thought. Perhaps the public is not as resistant to judicial power as often is thought in New Zealand.
“How different would the public reaction have been had the court had the power to strike the provision down? Would the sky have fallen in? I doubt it,” Sir Geoffrey said.
He saw Justice Heath’s decision as “desirable progress, but insufficient to deal with the issues I have outlined”.5
As well as making the Bill of Rights supreme law, Sir Geoffrey suggested that “some mechanism for systematic parliamentary examination should also be considered.
“The Parliament does not pay sufficient attention to the reports that are tabled. There are occasions when the reports are not even referred to in debate.
“The conclusion that flows … is that bills that breach the Bill of Rights is no big deal so far as the Parliament is concerned. It is not a matter of great moment and handled in a rather casual way.
“One would have thought that derogation from legal human rights standards should be regarded as a serious step not taken lightly. Such does not appear to be the case.
“The Bill of Rights in New Zealand has made a difference.
“Officials and ministers in the preparation of legislation do strive to avoid provisions that will offend the Bill of Rights. Much effort goes into this process with the executive during the design of legislation.
“How many objectionable proposals have been sunk as a result is impossible to tell. My conclusion is that the section 7 process coupled with the court decisions have not made a sufficient difference to accomplish the vision that propelled the Bill of Rights,” Sir Geoffrey said.
1. Robert Maynard Hutchins Dean of the Yale Law School, then the Chancellor of the University of Chicago said this in 1954: Antony Jay (ed) The Oxford Dictionary of Political Quotations (Oxford University Press, Oxford, 1996)186.
2. Claudia Geiringer “Inaugural Lecture: Mr. Bulwark and the Protection of Human Rights” (2014) 45 VUWLR 367 at 385.
3. Taylor v Attorney-General  NZHC 1706, 24 July 2015, per Heath J.
4. Imran Ali “Lawyer’s bid for prisoners to vote” Northern Advocate, 5 August 2015. An editorial said that the Government should act on the ruling and change the law: The Press, 27 July 2015, p.10.
5. For a wider range of constitutional arguments than can be presented here see Geoffrey Palmer “The Bill of Rights after Twenty-One Years: The New Zealand Constitutional Caravan moves on?” (2013) 11 NZJPL 257.
Last updated on the 9th September 2015