Otago connections in Bill of Rights debate

On Wednesday afternoon, while MPs were upstairs making law, downstairs in committee room 3, some of their colleagues were contemplating a profound change to how those laws are made.

The Privileges Committee is now hearing submissions on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill, a piece of legislation with an unwieldy title but considerable potential effect.

Although New Zealanders seldom give it much thought, the country has a Bill of Rights, and the laws Parliament passes are supposed to reflect it.

Section 7 provides that the Attorney-general, the Crown’s chief law officer, has to alert Parliament if a law it is considering potentially breaches the NZ Bill of Rights Act.

In his four years as Attorney-general, former Otago MP David Parker has lodged 13 such reports, to varying degrees of effect.

That is because Parliament, should it so wish, has absolutely nothing to stop it from passing laws which breach the Bill of Rights, and it has frequently done so.

Indeed the Attorney-general, who is also a government MP, almost always votes in favour of the law change they have just branded as an unjustifiable intrusion on personal liberty.

David Parker has been instrumental in debate about the Bill of Rights. PHOTOS: ODT FILES
David Parker has been instrumental in debate about the Bill of Rights. PHOTOS: ODT FILES

In other countries with bills of rights, a balance is usually put in place to check Parliament from going too far — in most cases that is the justice system, with the land’s highest court having the power to strike down an unconstitutional law.

No such luck in New Zealand, though, where since 1990 generations of judges have had to write paragraphs along the lines of ‘‘Yes, I know this is a clear breach of the Bill of Rights but Parliament made it the law, so Parliament must have meant it to be the law’’.

To a layperson this might look like a case of the law being an ass, and many lawyers are of the same mind.

Ironically, it was one of New Zealand’s most notorious criminals, sometime Dunedin resident Arthur Taylor, who nudged the ball along to where MPs found themselves this week.

Among the many cases the jailhouse lawyer took during his time behind bars was one challenging a law change to prevent prisoners voting.

Back in 2010, the National-led government, despite a scorching section 7 report from then Attorney-general Chris Finlayson and thanks to his own ‘‘aye’’ vote, passed the Electoral (Disqualification of Convicted Prisoners) Amendment Act.

Arthur Taylor has been instrumental in debate about the Bill of Rights.
Arthur Taylor has been instrumental in debate about the Bill of Rights.

Mr Taylor promptly challenged the law change on various reasons, including on Bill of Rights grounds, and promptly lost ... but not without Justice Ellis echoing Mr Taylor’s constitutional qualms.

Emboldened, Mr Taylor appealed, and in 2015 Justice Heath broke fresh judicial ground by issuing a declaration that the prisoner voting ban was inconsistent with the Bill of Rights.

While that had all the impact of being struck by a wet bus ticket, it was a freshly moistened one and galvanised legal scholars who thought Parliament should pay more attention to a blunt statement from the judiciary that it had not done its job in a constitutionally appropriate manner.

The past few years have been spent trying to devise a mechanism where the courts can chastise Parliament in some meaningful way for unfair play, but without permitting judges to confiscate the law in question and not give it back.

Hence the Bill being considered this week, which intends to formalise the declaration of inconsistency process.

If passed as written, the Attorney-general would be obliged to tell Parliament within six sitting days that the court had issued a declaration of inconsistency, and that the House could then consider further action, or not — a judicial equivalent of being asked to redo your assignment.

The collection box for the Summer Time appreciation fund. PHOTO: SUPPLIED
The collection box for the Summer Time appreciation fund. PHOTO: SUPPLIED

Either due to his enthusiasm for the subject or through coincidence, the joint submission by Otago law professor Andrew Geddis and Victoria University constitutional law professor Claudia Geiringer was the first considered by the privileges select committee ... the chairman of which, coincidentally, enough, is David Parker.

Prof Geddis could not appear in person but the essence of the joint submission was that while the intent of the Bill got a pass mark, the impact it would make should be greater.

The professors suggested that the Attorney-general should be obliged to make a written response to the declaration, and that a select committee should be asked to further consider the declaration.

In New Zealand Parliament is sovereign and MPs dislike anything which challenges that primacy, hence the academics’ carefully nuanced argument that while Parliament is not required to remedy constitutional anomalies in the laws it passes, it should take closer heed when they arise.

It’s summer time

Parliament has a fascinating collection of artefacts which are periodically put on display, and a curious collection box with a Dunedin connection has just gone on show.

In 1927, after 18 years of trying, Dunedin South MP Thomas Sidey finally got the Summer Time Act passed, creating what we know today as daylight saving.

A grateful public started a collection to thank Mr Sidey, which eventually raised about £500.

Mr Sidey did not accept the money as a personal gift, and instead used it to set up the T K Sidey Medal, which along with a sum of money would be awarded to recognise contributions to the knowledge of light.

The Royal Society of New Zealand administers the award today; its first recipient, in 1933, was Sir Ernest Rutherford.

Kia kaha Kiri

There was shock and sympathy all around Parliament this week after Conservation Minister Kiri Allan was diagnosed with cervical cancer.

Arguably, if not for a Dunedin connection, Ms Allan would not have become an MP at all.

She was working in the Grand Central bar in Ponsonby in Auckland, a venue frequented by former University of Otago dean of law Mark Henaghan, when he came to town.

Prof Henaghan saw something in the woman behind the counter and started sending her books and enrolment packs to study law at Otago.

Ms Allan eventually opted for Victoria, but it was an Otago academic who ignited that passion.

mike.houlahan@odt.co.nz

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