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Our unwritten constitution gets extra bark

Senior courts will soon be able to advise the Government legislation is inconsistent with the Bill of Rights. The coalition hopes that will add another check to governmental power, but Thomas Coughlan reports this may just add bark to our ultimately toothless constitution. 

The Government will amend the Bill of Rights to allow the country's senior courts to recommend to Parliament that it review and reconsider whether a law contravenes the Bill of Rights.

The change comes as Arthur Taylor’s case on the voting rights of prisoners goes to the Supreme Court. The case has caused the courts to assert they already have the jurisdiction to advise the Government where legislation is inconsistent with the Bill of Rights.

“The courts at every level so far have confirmed their view that they have the right to declare laws passed by Parliament inconsistent with the Bill or Rights,” said Justice Minister Andrew Little.

“We think that it is right, as a further check and balance, to make sure that laws passed by Parliament are not inconsistent with the Bill of Rights where that could possibly be avoided,” he said.

The change comes on the back of a five-year-old report undertaken by the Constitutional Review Committee, which recommended making changes to the Bill of Rights to ensure it provided effective safeguards for the human rights of New Zealanders.

Currently, the only way of checking whether a new law is consistent with the Bill of Rights Act is a Section 7 report, which is undertaken by the Attorney-General when a bill is going through the select committee process. However, Parliament routinely passes legislation found inconsistent with the Bill of Rights.

Sir Geoffrey Palmer, who as Prime Minister shepherded the Bill of Rights into law in 1990, told Newsroom the Bill of Rights had been over-ridden by Parliament on 37 occasions in its the first 26 years. His original proposal in 1985 wanted the Bill of Rights to be supreme law, effectively giving the courts the right to strike down legislation. But parliamentarians were reluctant to cede sovereignty to the judiciary.

“The New Zealand Parliament has been somewhat cavalier about its treatment of human rights,” said Palmer.

“This will ensure that Parliament takes human rights more seriously,” he said.

Although Palmer welcomed the change as a positive development in the history of New Zealand’s constitution, he noted the question of whether the courts had the right to make a declaration on legislation’s consistency with the Bill of Rights had been brewing for some time.

“Sir Robin Cooke, when he was president of the Court of Appeal, asked me whether the courts could make these sorts of declarations because there wasn’t a provision in the Bill of Rights Act to do it, and I said that I thought they could and indeed on one or two occasions they have,” he said.

One such declaration, made by the Court of Appeal on the Arthur Taylor case on the voting rights of prisoners late last year, has brought this jurisdiction to the attention of the Government. In that case, the Court of Appeal ruled it already had the ability to notify Parliament legislation was inconsistent with the Bill of Rights.

Former Attorney-General Christopher Finlayson said clarity about what the courts could not do was needed, rather than what they could.

“The courts have asserted it. They have found that they have this jurisdiction,” Finlayson said.

“If we are recognising a jurisdiction that the courts have already asserted they have, to my way of thinking it is not armageddon,” Finlayson said, “but I would want to be very clear that if such a jurisdiction was statutorily recognised, that they shall not take the next step which will be to strike down legislation."

This would mean New Zealand moving to a US-style system where the Supreme Court had the ability to strike down a law passed by Parliament that contradicted the Bill of Rights Act, rather than simply tell Parliament the law was inconsistent.

Finlayson suggested this might have the effect of slowing or stopping that constitutional development.

“It could cauterise it — if the courts continue to pass declarations, albeit rarely, and Parliament does nothing, the courts will say, well, time we look at the next stage. That will become known as the Marbury v. Madison moment, which is when the United States Supreme Court and Chief Justice Marshall recognised the jurisdiction to strike down legislation,” he said.

A ‘moment’ in which the Bill of Rights was recognised as supreme law, and the courts given the jurisdiction to strike down legislation which is inconsistent with it, is where Palmer would like the Bill of Rights to go.

“I still favour that, but it’s still some distance away,” he said.

Palmer thinks this step is simply a development in the country's constitutional history.

“It isn’t the end of the road yet.”

But Finlayson argues the treatment afforded Section 7 reports means entrenching the Bill of Rights as supreme law would be unnecessary.

“The Bill of Rights doesn’t need to be entrenched and it doesn’t need to be part of the constitution because there is increasing recognition of it,” Finlayson said.

New Zealand is almost unique in the world in that alongside the Britain and Israel, we are one of the only countries to have an unwritten constitution. Our constitution, insofar as we have one, exists across several pieces of legislation, legal documents, court decisions and conventions.

The way this constitution works is different too: Parliament is sovereign, meaning our courts cannot strike down legislation that contradicts key pieces of constitutional law, like the Bill of Rights Act. There are strong arguments for and against. Proponents of written constitutions will look at landmark decisions like Brown v Board of Education, a case from 1954 in which the United States Supreme Court found the segregation of schools by race was incompatible with the constitution.

Opponents argue countries with more flexible arrangements are preferable. The United States constitution codifies some of the social conditions of the period from when it was written. For example the “the right of the people to keep and bear Arms," better known as the Second Amendment to the Bill of Rights, which arguably reflects the conditions of a colonial society emerging from the war of independence, better than a 21st century country in which 15,000 people die by fire-arm each year. A sensible government might look to change this, but would find itself hamstrung by the constitution.

A middle way may be more appropriate, allowing flexibility, but acknowledging certain rights are universal. Thomas Jefferson, the author of the Declaration of Independence, himself believed the constitution should be reviewed every couple of decades.

Ministers Parker and Little, and Prime Minister, Jacinda Ardern were clear that the change should not be interpreted as eroding Parliamentary sovereignty.

Former Justice Minister Judith Collins, who was the minister responsible at the time of the 2013 report which recommended the change, said she did not implement the change because she believed in the sovereignty of Parliament.

“Other jurisdictions such as Canada where the courts have been given powers over what parliament does has led to undemocratic lawmaking essentially,” she said.

Palmer, however, argues these fears are unfounded.

“Parliament is the primary lawmaking body,” he said.

"The courts can only act as a check or a balance. It’s not for the courts to make the law, but the courts have a right to interpret that Act."

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