How to have a constitutional conversation

Dr Stephen Winter 126X177                 As New Zealanders are invited to engage in a ‘constitutional conversation’, it seems that, despite the wide variety of opinions bandied about, nearly everyone agrees that not much is going to change.

The proposal I consider here, granting the judiciary the power to nullify legislation, is particularly unlikely to succeed. But I want to make the case anyway, because it is my impression that much of the opposition to granting the Court that power rides upon two mistakes – the first relatively simple, the second more complex.

I begin by briefly saying why the judiciary should have the nullifying power and then offer my diagnosis as to why some people may be mistaken in their opposition to it.

Without the nullification power, New Zealanders are at the mercy of what Geoffrey Palmer’s Unbridled Power once described as ‘The Fastest Law in the West’.

At present, there are no effective checks on the government. With proxy votes and use of urgency becoming a matter of course, MPs rarely have either the opportunity or the time to become familiar with proposed bills, much less develop informed opinions.

Yes, MMP provides some assistance, and the much-vaunted select committee system can work well, but only if the government wants it to.

But governments do not always oblige. The last hope, the Attorney-General’s report on a bill’s inconsistency with the New Zealand  Bill of Rights Act 1990 (NZBORA), has become an empty formality, followed by the peculiar sight of an Attorney-General voting in favour of the bill they declare to be inconsistent.

For those who think things are going along fairly well irrespectively, consider recent legislation on disability rights; the right to protest; prisoner compensation; privacy and the GCSB; the ‘Hobbit’ amendment to labour legislation; and the creation of the independent duchy of Christchurch. All of these questions have (or are likely to) sharply restrict long-held rights of individuals.

The problem is not confined to one political party. The Clark government provided a large share of eyebrow-raising cases of which the Foreshore and Seabed legislation is only the best known. And the problem goes beyond bad legislation.

The deep problem is that when the government decides to infringe rights, those who are injured have no recourse. The fact that a few MPs have such an unbridled power is in itself a problem.

Many other countries remedy the problem of unbridled legislative power by enabling the judiciary to nullify acts that unreasonably infringe fundamental rights. But here in New Zealand many people oppose granting this power to the judiciary for two reasons: one simple, one complex, both mistaken.

I will address the simple mistake first. This is the identification of the nullifying power with ‘entrenching’ NZBORA in the constitution.

Entrenchment means making NZBORA subject to more difficult amendment procedures, as is the case with some provisions of the Electoral Act. It is clearly a mistake to identify the power of judicial nullification with amendment procedures, for one might imagine a court empowered to nullify law by reference to NZBORA while Parliament retained the ability to change NZBORA.

This structure would preserve NZBORA’s flexibility thereby avoiding one of the chief mischiefs identified with entrenched bills of rights: the tendency for their provisions to become out-dated impediments to needed reform.

Now, you might think that such a process would be open to abuse as governments attempted to evade the Court by monkeying with NZBORA. But such legislative misconduct would expose the government to vitriolic criticism, for it is one thing to pick on a small group of protestors or disabled people, and quite another to start ad hoc tinkering with NZBORA.

Moreover, that problem would be unlikely to emerge if governments had a better way to respond to court decisions they did not like.

This brings us to the second mistake. For it is often thought that a court with the power of nullification must have the last word on legislation. If so, then we merely exchange Parliament’s unbridled power for the robed tyranny of a Court. But there is no reason to think that the power of nullification should be the last word.

Over the past decade, a number of constitutional scholars in New Zealand and elsewhere have been developing ideas around Parliamentary bills of rights. This line of scholarship has, at its heart, the idea that Parliament must remain at the centre of rights discourse.

One of the important concepts in that scholarship is the idea that rights should be the subject of a dialogue between the Court and Parliament. Associated with the work of Peter Hogg (born in Lower Hutt, and now a leading authority on Canada’s constitution), the nub of the dialogue concept is the need to create mechanisms to ensure that neither Court nor Parliament has ‘the last word’ on rights.

The possibility of a dialogue is anticipated by the ‘notwithstanding clause’ (§33) of the Canadian Charter of Rights and Freedoms. While the Canadian Supreme Court has the power to nullify legislation, Parliament can respond by legislating ‘notwithstanding’ the Court’s decision. Even if this power is rarely used, the fact it exists means that Parliament is not excluded from rights questions, and moreover must take responsibility for failing to use it.

New Zealand could improve on the Canadian device by ensuring that Parliament cannot pre-empt Court decisions, but also by phrasing the language of the clause to encourage Parliament to respond not by legislating notwithstanding rights but rather to articulate a different interpretation.

Such a clause would keep Parliament at the centre of the rights dialogue, facilitate Court involvement, and provide New Zealanders with an institutional check on the presently unbridled power of Parliament.

Dr Stephen Winter is a Senior Lecturer in Political Theory at the University of Auckland. He is also the Chair of the Auckland branch of the Society for Legal and Social Philosophy. 

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