Bill of Rights gets some bite

On Monday, with little fanfare, the Government announced it intended to enact what may be the most profound law change of its term of office.

The Cabinet has agreed, in principle, that courts will be given the power to issue a declaration of inconsistency - a formal judicial statement that a law breaches the New Zealand Bill of Rights Act.

Crucially, that declaration will have an effect: Parliament will automatically have to reconsider the law it has passed, and then either repeal or amend it, or order it be enforced as written.

While not quite the power to strike down a law - as supreme courts can do in the United States, Canada and Australia - this will not be an empty glove.

For a start, it will give the New Zealand Bill of Rights - which as law goes is something of a toothless hound - some actual bite.

Parliament, which at times since the Bill of Rights Act was passed in 1990 has legislated in blithe indifference to its provisions, will have to pay attention to what it says - and attempt to adhere to it.

Under current rules the Attorney-general has to vet each Parliamentary Bill for compliance with the Bill of Rights.

The Attorney-general's findings are often greeted with supreme indifference - a striking example being when the previous government deprived prisoners of the right to vote.

Of that Bill, then attorney-general Chris Finlayson wrote: ``The disenfranchising provisions of this Bill will depend entirely on the date of sentencing, which bears no relationship either to the objective of the Bill or to the conduct of the prisoners whose voting rights are taken away. The irrational effects of the Bill also cause it to be disproportionate to its objective.''

Despite believing it to be ``irrational'' and ''disproportionate'' and an unjustifiable breach of rights, Mr Finlayson actually voted for the Act, still law today.

The courts have since agreed with Mr Finlayson that this law is an ass, to the extent of issuing a declaration of inconsistency of their own - but one which has no power or effect other than a moral one.

This argument has chewed up much court time, and is poised to be relitigated in the Supreme Court.

Future Parliaments will hopefully draft better, more rights-consistent legislation to avoid legal challenges to their Acts via the Bill of Rights - and that the Attorney-general's reports will be given more credence.

With a provision such as the one announced this week, some major legal battles of the past may have turned out differently.

The first challenge to whether two women could marry each other might have seen the Marriage Act found not to comply with the Bill of Rights, and marriage equality possibly arrive much sooner.

Other discrimination issues such as payments for family caregivers for adult disabled dependants, or pay equity, would likely have been challenged more strenuously on Bill of Rights grounds.

There may also be some intriguing future rights-based cases to come, assuming present Acts of Parliament can be reviewed by the courts through this tool.

One possible example are laws where the presumption of innocence is reversed, and the accused must prove they are innocent rather than the Crown prove their guilt - the possession of drugs with intent to supply is one where the rights of the accused may be being breached in some cases.

Morality laws may also be revisited through the legal-rights microscope.

Attorney-general David Parker was quick to note Parliament would remain supreme - in the constitutional house of cards, an Act of Parliament remains top trump.

But the declaration of inconsistency provisions sees the scales tip slightly back in favour of the judiciary, overdue recognition a second set of eyes on Parliament's work is no bad thing.


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