Here’s a thought experiment: think of every constitutional document, convention and principle you know of and design a situation that will do as much violence towards those documents, conventions and principles as you can. The chances are you’ll do no better than the New Zealand Public Health and Disability Amendment Bill (No 2).
The bill (soon to be Act) legislates against the Atkinson decision. The Courts held that the distinction between family carers and non-family carers for the purposes of remuneration amounted to discrimination under s19 of the Bill of Rights Act. The bill (soon to be Act) legalises that distinction and goes further still: the Courts are not permitted to review the bill (soon to be Act).
Professor Andrew Geddis thinks that “National just broke our constitution”. He’s right, but it isn’t the first time a government has pissed on the constitution – i.e foreshore and seabed. Enough said.
The great tenet of Westminster constitutionalism is that the best check on “representative and responsible government” is the ballot box. The scholars and the democratic romantics cling to it, but it isn’t always true.
Too often constitutional violence is committed against minorities. Be it Maori, workers or family of the disabled. But minorities, by definition, can’t punish a “representative and responsible government” at the ballot box. Minorities must find recourse in Treaties, Bills of Rights, upper houses, head of state vetoes and so on. Majority rules, after all.
In the Cabinet Manual 2008 – the document that sets out how Ministers should do their job – Sir Kenneth Keith wrote that:
“A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values”.
We don’t have a balance well struck. There is only one check on Parliamentary sovereignty: the ballot box. However, that check is never exercised where “minority rights” are subject to unjust exercise of “majority power”. How many voters are going to punish the government for assaulting one of the most vulnerable groups in society? History answers not enough. The balance between minority rights and majority power is better struck with a supreme law bill of rights.
Westminster democracy – even with all its flaws – works well when the balance between minority rights and majority power is well struck. In New Zealand, the balance is weighted towards the tyranny of the majority. Maybe the scholars should rewrite the constitutional textbooks and insert the only principle that matters: governments do what they can, when they can get away with it.
