Parliamentary Scrutiny of Human Rights in New Zealand (Report)
Total Page：16
File Type：pdf, Size：1020Kb
PARLIAMENTARY SCRUTINY OF HUMAN RIGHTS IN NEW ZEALAND: GLASS HALF FULL? Prof. Judy McGregor and Prof. Margaret Wilson AUT UNIVERSITY | UNIVERSITY OF WAIKATO RESEARCH FUNDED BY THE NEW ZEALAND LAW FOUNDATION Table of Contents Introduction ............................................................................................................................... 2 Recent Scholarship ..................................................................................................................... 3 Methodology ............................................................................................................................ 22 Select committee controversy ................................................................................................. 28 Rights-infringing legislation. .................................................................................................... 32 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill. ... 45 Domestic Violence-Victims’ Protection Bill ............................................................................. 60 The Electoral (Integrity) Amendment Bill ................................................................................ 75 Parliamentary scrutiny of human rights in New Zealand: Summary report. .......................... 89 1 Introduction This research is a focused project on one aspect of the parliamentary process. It provides a contextualised account of select committees and their scrutiny of human rights with a particular emphasis on New Zealand’s 52nd Parliament in the 2017-2019 period. Select Committees as scrutiny mechanisms are under-explored in the domestic context despite their critical role in parliamentary democracy. An area of the methodological literature that is “especially sparse” relates to the performance of legislatures in protecting human rights.i Located at a critical point after the first reading of proposed legislation, select committees have a unique function in parliamentary work. Their role as scrutiny and accountability mechanisms is inter-related with other constitutional checks and balances in the law making process such as the use of section 7 Bill of Rights Act (BORA) vets, the use of urgency, the role of parliamentary questions, and parliamentary debate. The report reviews the literature, details the methodology used to gather data and reports on the controversy surrounding Select Committee composition early in the 52nd Parliament. It then looks at a range of case studies of law-making including long-standing problem cases, such as payment for family carers and prisoners’ voting rights that expose the limitations of human rights scrutiny. This analysis is followed by more recent bills that have been considered by Select Committees which demonstrate both strengths and weaknesses of human rights scrutiny. These include the: Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill; the Domestic Violence Victims Protection Bill and the Electoral (Integrity) Amendment Bill. Two other pieces of proposed legislation, the Equal Pay Amendment Bill and the End of Life Choice Bill were also considered. The findings are then outlined in conjunction with the use of interview material gathered during the course of the research. The findings also include a series of recommendations which are presented in this report and will form the basis of a submission to the upcoming Standing Orders Review by the Standing Orders Committee. The research is presented in in two ways, the whole report plus a shorter summary with the findings and recommendations only which will be made available on the internet. We want to ensure public accessibility of the recommended changes and possible solutions to democratic deficits. Human rights in this research refer primarily to the seven human rights treaties to which New Zealand is a party: • International Covenant on Civil and Political Rights (ICCPR) • International Covenant on Economic, Social and Cultural Rights (ICESCR) • International Convention on the Elimination of All Forms of Racial Discrimination (CERD) 2 • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). • Convention on the Rights of the Child (CRC) • Convention on the Rights of Persons with Disabilities (CRPD). Recent Scholarship Parliament’s role in human rights scrutiny In this section the report looks at recent literature referring to Parliament’s role in scrutinising/protecting human rights and how this is undertaken in comparable jurisdictions. New Zealand has a developed range of mechanisms and institutional arrangements in addition to Parliament that have a role in promoting, protecting and fulfilling human rights. These include independent and impartial courts undertaking judicial rights review and upholding the rule of law and a suite of anti-discrimination legislation such as the Human Rights Act (HRA) 1993 and the New Zealand Bill of Rights Act (BORA) 1990, that protect human rights and provide remedies for breaches of rights. New Zealand has well accepted agencies such as the New Zealand Human Rights Commission, the Ombudsman’s Office, the Children’s Commissioner, the Health and Disability Commissioner, the Privacy Commissioner and others with statutory mandates to address human right issues. Most importantly, civil society groups are active in shadow reporting processes and submissions to international human rights treaty bodies, as well as playing a role domestically in the courts, in advocacy, in pre- legislative scrutiny, and in public debate. New Zealand, too, places a high premium on a free press which encompasses the mainstream media and a range of digital, interactive and social media formats such as blogs, which can profoundly influence rights discourse for better or for worse. So what distinguishes Parliament’s role in scrutinising and protecting human rights? Parliaments are “ideally positioned to be leaders in ensuring that the State is not perpetrating human rights violations, that national law is not incompatible with human rights standards and ensuring that human rights protections are in place”ii. Previous research states that the legislature performs several distinct functions including: • as a representative body providing a way for citizens to participate in public affairs and government • as a forum in which governments can be held accountable for their conduct • as a means of debating, amending and enacting legislative proposals that become laws. 3 “In discharging each of these functions they can affect the enjoyment of human rights”.iii Constitutional reformers Sir Geoffrey Palmer and Andrew Butler add the provision of a place for the airing of grievances as one of seven primary functions of Parliament that could impact on the enjoyment of human rights.iv While it is implicit in these broadly defined nominated functions, it is worth specifically identifying Parliament’s role in ensuring promotion of, and compliance with the international human rights treaty body obligations that New Zealand has entered into as a nation state. As Feldman (2015) suggests: These agreements are both an expression of the sovereignty of the state and a limitation on its freedom to exercise it in an unconstrained way. Human rights treaties are of this kind. If the state wishes to be seen as a full member of the community of nations, it must be prepared to honour the treaties it has concluded.v Schwarz (2015) notes that Parliaments are key players in international human rights monitoring processes since they are concerned with approximately 60 to 70 per cent of the recommendations made by United Nations mechanisms, including the Universal Periodic Review (UPR). “Their absence from such processes therefore greatly harms the entire human rights monitoring system”.vi However, while there can be broad agreement about Parliament’s role in protecting human rights there is no internationally agreed set of principles or guidelines on Parliament’s role which has been described as a “striking gap”.vii By contrast national human rights institutions (NHRIs) have since 1991 been guided by the Paris Principles, which were internationally agreed upon and in 2012, the Belgrade Principles, outlining the relationship between NHRIs and Parliaments. This point is picked up later in discussion of the literature relating to improving Parliament’s role in rights protection. Recent international scholarship on Parliament’s role in rights protection explores the notion of a democratic deficit and an accompanying sub-theme- who has the last say? For example, United Kingdom researchers, Webb and Roberts (2014), who designed a framework to evaluate effective parliamentary oversight of human rights state: “Parliaments can and should play a crucial role in human rights protection, yet their effectiveness as human rights actors is not being fully realised”.viii Hunt (2015) in a collected edition on Parliaments and human rights, makes a wider claim stating that “the idea that human rights suffer from a ‘democratic deficit’ is now a commonplace in both popular and public discourse”.ix He says the deficit is linked to political and media voices in several jurisdictions that complain that democratically elected representatives are being overridden by unelected and unaccountable judges. Others claim the case against judicial rights review has been gathering steam for years.x