What the New Zealand Bill of Rights Act Aimed to Do, Why It Did Not Succeed and How It Can Be Repaired

169 WHAT THE NEW ZEALAND BILL OF RIGHTS ACT AIMED TO DO, WHY IT DID NOT SUCCEED AND HOW IT CAN BE REPAIRED Sir Geoffrey Palmer* This article, by the person who was the Minister responsible for the introduction and passage of the New Zealand Bill of Rights Act 1990, reviews 25 years of experience New Zealand has had with the legislation. The NZ Bill of Rights Act does not constitute higher law or occupy any preferred position over any other statute. As the article discusses, the status of the NZ Bill of Rights Act has meant that while the Bill of Rights has had positive achievements, it has not resulted in the transformational change that propelled the initial proposal for an entrenched, supreme law bill of rights in the 1980s. In the context of an evolving New Zealand society that is becoming ever more diverse, more reliable anchors are needed to ensure that human rights are protected, the article argues. The article discusses the occasions upon which the NZ Bill of Rights has been overridden and the recent case where for the first time a declaration of inconsistency was made by the High Court in relation to a prisoner’s voting rights. In particular, a softening of the doctrine of parliamentary sovereignty, as it applies in the particular conditions of New Zealand’s small unicameral legislature, is called for. There is no adequate justification for maintaining the unrealistic legal fiction that no limits can be placed on the manner in which the New Zealand Parliament exercises its legislative power. Under the current arrangements, where the executive continues to dominate the House of Representatives, the legal status of the NZ Bill of Rights Act * Barrister; Distinguished Fellow, Faculty of Law and New Zealand Centre for Public Law, Victoria University of Wellington; Global Affiliated Professor of Law, University of Iowa. A version of this article was presented to the Legal Research Foundation Conference marking 25 years of the New Zealand Bill of Rights Act and 800 years of Magna Carta, Auckland, 25 September 2015. I have benefitted from comments by Mai Chen, Associate Professor Joel Colón-Ríos, Professor Claudia Geiringer, Professor Mark Hickford, Sir Kenneth Keith, Dr Matthew Palmer QC as he then was and Professor Margaret Wilson. Research and editorial work was performed by Rachel Opie. This work stimulated the project to prepare and publish a codified written constitution for New Zealand that was supported by the Law Foundation: Geoffrey Palmer and Andrew Butler Constitution Aotearoa New Zealand (Victoria University Press, Wellington, 2016). The book was published on 21 September 2016. 170 (2016) 14 NZJPIL needs to be raised and the rule of law needs to be strengthened. Building on the long tradition of the entrenched provisions of the Electoral Act going back to 1956, the article argues that the NZ Bill of Rights Act should be given greater weight, so that the courts have the power to declare provisions invalid if they infringe the Act, while allowing parliament to override the judicial decision by a special majority of 75 per cent or a referendum of the electors by a simple majority. I INTRODUCTION The purpose of this article is to suggest a course of constitutional action that can be contemplated in New Zealand now after 25 years of experience with the New Zealand Bill of Rights Act 1990 (NZ Bill of Rights Act). The NZ Bill of Rights Act does not constitute higher law or occupy any preferred position over any other statute. As the article discusses, the status of the NZ Bill of Rights Act has meant that it has had positive achievements but it has not resulted in the transformational change that propelled the initial proposal for an entrenched, supreme law bill of rights. In the context of an evolving New Zealand society that is becoming ever more diverse, more reliable anchors are needed to ensure that human rights are protected. I argue for softening the doctrine of parliamentary sovereignty as it applies in the particular conditions of New Zealand's small unicameral legislature. There is no adequate justification for maintaining the unrealistic legal fiction that no limits can be placed on the manner in which the New Zealand Parliament exercises its legislative power. In our current arrangements, where our law-making system is in crisis and the executive continues to dominate the House of Representatives, the legal status of the NZ Bill of Rights Act needs to be raised and the rule of law needs to be strengthened.1 Building on the long tradition of the entrenched provisions of the Electoral Act going back to 1956, I suggest that the NZ Bill of Rights Act should be given greater weight, so that the courts have the power to declare provisions invalid if they infringe the NZ Bill of Rights Act, while allowing Parliament to override the judicial decision by a special majority of 75 per cent or a referendum of the electors by a simple majority. I harbour concerns about the New Zealand constitutional system that echo those of Professor Margaret Wilson, who in a recent and thoughtful book explained the issue in this way:2 There are three fundamental points to note about New Zealand's constitutional legal architecture. The first is that, like the United Kingdom, it has no formal constitutional document. The second point is that all constitutional legislation can be amended or repealed by a simple majority of the Parliament. The third point is that the notion of parliamentary sovereignty constrains the scrutiny of legislation by the courts. 1 Matthew SR Palmer "New Zealand's Constitutional Culture" (2007) 22 NZULR 566 at 580 and 588. 2 Margaret Wilson The Struggle for Sovereignty: New Zealand and Twenty-First Century Statehood (Bridget Williams Books, Wellington, 2015) at 50. REPAIRING THE BILL OF RIGHTS 171 Thus, we are led to the conclusion that the institutions of the State lack the capacity to restrain the abuse of executive power. I am increasingly nervous about the fluid nature of New Zealand's "unwritten" constitution and the time has come, in my view, to adopt a codified written constitution. This article will focus, however, on strengthening the NZ Bill of Rights Act, which is an essential step to rectifying that constitutional condition and producing a democracy that is better balanced. II THE CASE FOR A BILL OF RIGHTS ADVANCED IN 1985 The purpose of promoting the NZ Bill of Rights Act enacted in 1990 was to limit the powers of the executive and Parliament and to ensure that human rights were given greater legal weight. The New Zealand constitution then lacked checks and balances to a dangerous degree. The overweening power of the executive caused that great Australian constitutional lawyer, Professor Leslie Zines, to label New Zealand an "executive paradise".3 Now, as then, New Zealand does not have a written or codified constitution, as do the vast majority of countries around the world. We have few constitutional rules that cannot be altered easily. Our constitution is political, changes to it result from political activity and, consequently, the features of the constitution at any given time tend to reflect the outcome of political battles in Parliament. Our constitution evolves and mutates remorselessly, like a living, breathing organism.4 Subject to one exception, the basic constitutional framework remains the same today as when the NZ Bill of Rights Act was passed in 1990. The exception is important: the adoption of the mixed-member-proportional electoral system (MMP) has bridled the legislative activities of the executive to some degree, although not as much as might have been hoped. Certainly the quality of legislation has not improved. The NZ Bill of Rights Act had its provenance in the Labour Party's Open Government Policy of 1984.5 Almost all of the highly specific policy pledges were fulfilled. They included: reform of Parliament with a comprehensive select committee system; a bill of rights; protection for civil liberties; 3 Leslie Zines Constitutional Change in the Commonwealth (Cambridge University Press, Cambridge, 1991) at 47. A surfeit of executive power was the reason I had written Unbridled Power? – An Interpretation of New Zealand's Constitution and Government (Oxford University Press, Wellington, 1979) that was published the day I was selected as the Labour candidate for the seat of Christchurch Central in 1979. It made the case for wide-ranging constitutional reform in a number of areas most of which found their way into government policy eventually. 4 Matthew SR Palmer "What is New Zealand's Constitution and Who Interprets It? Constitutional Realism and the Importance of Public Office-Holders" (2006) 17 PLR 133. 5 New Zealand Labour Party "Open Government Policy 1984" in 1984 Policy Compendium (Wellington, 1984). 172 (2016) 14 NZJPIL adherence to the rule of law; remedies against regulations and red tape; freedom of information improvements; better law making; and a Royal Commission to examine the electoral system. In addition to the NZ Bill of Rights Act, there were a raft of other important constitutional changes that flowed from the policy that included MMP, the Law Commission and the Regulations (Disallowance) Act 1989. Also included in the package were a presumption against retrospective legislation and an end to government by regulation, including repeal of a number of objectionable statutes that allowed too much executive action without the consent of Parliament.6 The Legislative Department was abolished and the Parliamentary Service Commission created. A comprehensive system of parliamentary select committees was established, and the Regulations Review Committee became a watchdog over subordinate legislation. There occurred also the effective removal of the ministerial veto under the Official Information Act 1982.

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