ADLS breakfast with the A-G – balancing declarations of inconsistency and parliamentary sovereignty

Auckland lawyers made the most of the recent chance to hear directly from Attorney-General, the Hon David Parker, at a recent ADLS breakfast at the Northern Club.

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The breakfast is the latest in a series of similar events over the past few years, which form part of ADLS’ ongoing commitment to engage with government and foster links between it and the legal profession.

ADLS President Joanna Pidgeon opened the breakfast by thanking the Attorney-General for making the time to come and speak to the profession in Auckland as to what’s on the Government’s agenda in the law and justice space.

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The Attorney-General began his address with some comments on the value of having a flexible and incrementally evolving constitution, and considers that, “on the whole”, New Zealand’s current constitutional framework is “working well”.

“I don’t believe fundamental changes to those arrangements [such as creating a single, written constitution] are desirable. They have evolved and worked well for 160 years to give us one of the best and most successful democracies in the world.”

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He noted that the median lifespan of written constitutions around the world is only 19 years, and pointed to recent examples of the inflexibility of supreme law constitutions – such as the US’ inability to amend gun laws under the Second Amendment, or the difficulties Australia’s constitution has caused for MPs with dual citizenship.

“I do not believe the case for substantial constitutional change has been made. Our current arrangements have served us well, and helped deliver stability,” he said.

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Against that backdrop, the Attorney-General went on to discuss a proposed change to the New Zealand Bill of Rights Act 1990 to enable judicial declarations of inconsistencies with fundamental human rights.

Despite initial proposals to give it supreme law status and enable courts to strike down legislation, our Bill of Rights was ultimately passed with the status of an ordinary statute. Nevertheless, the inclusion of section 4 – which affirms that no court may hold an enactment to be invalid on account only of its inconsistency with rights and freedoms – is important, said Mr Parker.

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“[The use of the word ‘only’] alludes to the possibility that a court might rule an enactment invalid or ineffective for some reason other than inconsistency with the Bill of Rights Act. In this regard, there remains a fundamental yet benign ambiguity about the true scope of Parliamentary power in our constitution.”

The 2015 case of Taylor v Attorney-General saw the High Court issue a declaration of inconsistency for the first time, declaring that the prisoner disqualification provisions of the Electoral Act 1993 were inconsistent with the right to vote. While the Crown contended that making declarations of inconsistency was not part of the court’s inherent judicial function, the Court of Appeal held that the power to make such declarations did not need to be expressly authorised by Parliament. The Supreme Court heard the appeal in March and judgment is reserved.

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While careful not to express an opinion on matters still before the court, Mr Parker confirmed that the Government proposes to amend the Bill of Rights Act providing senior courts with the power to make declarations of inconsistency, regardless of the outcome of the case.

Such a declaration would be a formal order, granted by the court, that legislation is inconsistent with a fundamental right or freedom protected by the Bill of Rights Act. While it would express the court’s view that there is inconsistency, it would not go as far as affecting the validity of the legislation in question, thus leaving the plaintiff “in the same position, except [that] he or she is now armed with the court’s opinion”.

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Mr Parker said that the proposed amendment was likely to be introduced in early 2019, the exact form of what would happen in the wake of such a declaration being made is “still under consideration”. Formal parliamentary processes would need to be put in place to make sure such declarations are “meaningful” but still consistent with parliamentary sovereignty.

“It is likely to involve the court’s declaration being reported to the House, and a procedure for Members and the Government of the day to reappraise the legislation at issue. At that point, Parliament, informed by the opinion of the court, can amend, repeal or maintain the law. And if we get it wrong, voters can replace us.”

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“So long as the courts are restrained in the use of such a power, there is considerable value in the courts alerting Parliament when they consider things have gone awry in the legislative process.”

ADLS Vice-President Marie Dyhrberg QC thanked the Attorney-General for his time and noted the profession’s desire to continue to engage with Government as to key challenges in the areas of law and justice, the courts, and the allocation of judicial resources.

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