The Bill of Rights should be included in a written constitution to ensure Parliament cannot legislate away human rights, argue Sir Geoffrey Palmer and Dr Andrew Butler.
Should Parliament be able to legislate away your human rights?
New Zealand has a strong human rights culture and a history of protecting human rights. For example, New Zealand was the first country in the world to extend the vote to women in 1893, one of the first countries to formally abolish capital punishment and to ban discrimination on the grounds of sexual orientation.
However, our human rights record is not perfect and the laws that protect our human rights are a hodgepodge.
The NZ Bill of Rights Act 1990 was intended to protect New Zealanders’ fundamental rights and freedoms, and to prevent abuse of state power.
It introduced a range of legally enforceable rights including (among others) rights to life, freedom from torture and cruel treatment, freedom of expression, assembly, and movement; freedom from discrimination; freedom from arbitrary arrest and detention; freedom from unreasonable search and seizure; voting rights; and rights to justice and a fair trial. And it allows Parliament to limit these rights where it can show that it is reasonable to do so (section 5 of the Bill of Rights Act).
The rights in the Bill of Rights Act are widely supported in democratic societies. And the Act has done a reasonable job at protecting them. But it has not been able to do enough.
Parliament has been unwilling so far to make the Bill of Rights Act a superior law. Why does this matter? Well, it means that Parliament remains free to enact laws that are inconsistent with fundamental rights. Sixty-one MPs can decide to override any of our fundamental rights. We don’t think that’s right.
In the 26 years since the NZ Bill of Rights Act passed, Parliament has enacted more than 30 laws that, in the Attorney-General’s view (the Attorney-General is the minister responsible for providing legal advice to the government), breached New Zealanders’ fundamental rights in a manner that cannot be justified in a free and democratic society.
Laws have been passed, for example, that discriminate against some sectors of society without reasonable justification, that subject people to unreasonable search or seizure, or that prevent them from having their day in court.
In recent years, laws that erode fundamental rights have been enacted under urgency, with no public input, no consideration by Parliamentary select committees, and very little Parliamentary scrutiny. The number of laws that erode human rights has been growing. And more are on the way.
This is possible because of New Zealand’s relatively weak constitutional constraints on executive and parliamentary power. Under New Zealand’s constitution, Parliament can pass whatever laws it wants, and – even under MMP – it is relatively easy for the Government to control Parliament.
A bare majority of MPs could, if they chose, legislate away the right to life or to freedom of expression in a single day, under urgency, without consulting anyone.
The NZ Bill of Rights Act does at least require some degree of transparency. The Attorney-General must consider whether proposed laws breach fundamental rights, and must report to Parliament on any laws that breach fundamental rights in a way that cannot be justified.
But this does not prevent such laws from being enacted, or even delay them so they can get proper consideration. It merely informs New Zealanders that their rights are going. And sometimes Ministers will trumpet the fact that the proposed legislation is inconsistent with fundamental rights as a sign that they are tough.
And come election time, how many of us truly use our vote to send messages to MPs for what they have done on human rights, as opposed to on the more immediate issues of the economy, health and education?
There are no truly independent safeguards to discourage Parliament from legislating away basic rights and freedoms. There should be, and the courts are best placed to provide them. The 1985 policy paper on the NZ Bill of Rights Act proposed that it be superior law – that is, the courts should have power to declare other laws inconsistent with fundamental human rights, and therefore make them invalid.
Making the NZ Bill of Rights Act superior law would, however, increase protection for New Zealanders’ rights and liberties, and encourage Parliament to use its legislative power with greater care.
That was politically unpalatable at the time. Now, the NZ Bill of Rights Act has been in force for 27 years. We can be reasonably certain about how courts will interpret its provisions, and there is no reason to fear that making the Act superior law would create uncertainty or unleash a new tide of judicial activism. It is has worked well in Canada since 1982; there is no reason why it wouldn’t work well for us.
We do not advocate a United States-style constitution, in which courts have the last word. But we do believe that courts should have the power to say when a law breaches fundamental human rights, and to declare it invalid. If Parliament truly wants to breach human rights, it would then have to pass another Act, with a 75 percent majority, to validate the original one.
And of course under our proposals, the constitution can be amended at any time by either a 75 percent majority of Parliament, or a simple majority of the people voting at a binding referendum.
Such a law would not unreasonably constrain the business of either government or Parliament. It would prevent Parliament from taking a casual approach to human rights as it sometimes does now.