The Bill of Rights: entrench it, give it supreme law effect and add to it

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voltaire quote

We need a better Bill of Rights. Entrench it, give it supreme law effect and add social and economic rights. Even include privacy and property rights.

New Zealand has a culture of rights abuse.  From the Maori Prisoners Act 1880 and Chinese Immigration Act 1881 to the Waterfront Strike Emergency Regulations (made under the Public Safety Conservation Act 1932) and (more recently) the Foreshore and Seabed Act 2004, the Electoral Finance Act 2007 and the New Zealand Public Health and Disability Amendment Act 2013.

There are few procedural or substantive restrictions on Parliament’s (in practice the executive’s) law-making power. New Zealand retains a convention against head of state veto and enjoys neither an upper house nor a judiciary with the power to strike down legislation. An entrenched and supreme law Bill of Rights is a necessary control on Parliament’s (in practice the executive’s) unrestrained law-making (and rights-violating) power.

The Bill of Right Act 1990 is an interpretive bill of rights. The court can’t strike down or invalidate legislation or parts of legislation; instead the court is directed to interpret the alleged rights-violating acts consistently with the Bill of Rights. An interpretive bill of rights overprotects rights-violating Parliaments (in practice executives) and under protects New Zealanders who have had their rights violated. With clear intention and wording, Parliament can bludgeon rights.

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Unrestrained Parliamentary sovereignty is a pretty stupid idea. Most democracies reject it. Parliamentary sovereignty was inherited from the United Kingdom, but the cultural and institutional checks that the British enjoy didn’t make their way to the antipodes (think an upper house and so on). New Zealand has the purest form of Parliamentary sovereignty – more pure than its mother in Westminster.

Democracy is more nuanced than majority-rules-all-of-the-time-no-matter-what. In the Cabinet Manual 2008 Sir Kenneth Keith writes that democracy is a balance between “minority rights” and “majority power”. Judicial supremacy in human rights and Parliamentary sovereignty in all other respects is a step towards better balance.

New Zealand must bring itself in line with international consensus. Entrench the Bill of Rights and give it supreme law effect. Also include social and economic rights – which are included in international human rights instruments and are inherent rights – and add privacy and property rights. The explosive growth of the bureaucratic and security state demands added protection for privacy rights. The tort of privacy is in its infancy (in New Zealand at least) and the Privacy Act is falling further and further behind.  Property rights – both private and collective – need the protection of the Bill of Rights. Property rights form one of the pillars of western civilization and are an important part of Te Ao Maori.

We need a better Bill of Rights. Entrench it, give it supreme law effect, add social and economic rights and include privacy and property rights.

4 COMMENTS

  1. We need a better Bill of Rights. Entrench it, give it supreme law effect and add social and economic rights. Even include privacy and property rights.

    As I understand it, it’s already entrenched law but that just doesn’t mean anything in NZ as a government can just remove the entrenchment with a simple majority. It’s what happened to Auckland’s right to a referendum on the SuperCity. The actual act of entrenchment needs to be changed.

    Property rights and economic rights are a problem as if you go too far with them we’ll find ourselves in a feudal society. I’m sure National and Act would love that but the people in abject poverty caused by the accompanying oppression won’t.

    Parliamentary sovereignty was inherited from the United Kingdom, but the cultural and institutional checks that the British enjoy didn’t make their way to the antipodes (think an upper house and so on).

    An upper house provides no such protection. Just have to look to the US and UK to see that. The Patriot Act passed in the US and I’m sure similar rights breaking legislation passed in the UK as well.

    No, if you want such protection then it needs to come from the people being able to vote down laws that the government is trying to pass. I’d suggest something like having people not just making submissions to select committees but also being able to vote on the actual wording of the clauses and to be able to vote for/against the policy itself.

    • It isn’t entrenched. Standing Orders require an entrenched provision or act to be passed by the majority that the provision or act claims to insulate itself against. In other words, entrenchment requires a supermajority (usually 75%). The Bill of Rights Act was passed with an ordinary majority (National opposed the act, of course) so not entrenched.

      A good point re an upper house. In theory, an upper house is meant to act as a check. In reality, they’re an extension of the lower house rather than a check.

  2. Good article. I disagree with protection of bourgeois property rights (see New Zealand Bill of Rights (Private Property Rights) Amendment Bill).

    Yes, the NZBORA is not entrenched can be amended or entirely repealed by a simple majority vote by Parliament, or more accurately the Executive (see s.6, Constitution Act). Section 4 NZBORA is a direction to the courts:

    ‘4 Other enactments not affected

    No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
    (a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
    (b)decline to apply any provision of the enactment—
    by reason only that the provision is inconsistent with any provision of this Bill of Rights.’

    Section 5 (compare section 1, Canadian Charter of Rights and Freedoms) is “[s]ubject to section 4”. Section 6 reads:

    ‘6 Interpretation consistent with Bill of Rights to be preferred

    Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.’

    However, should fundamental human rights, based upon submissions, turn on (judicial) interpretation?

    The NZBORA should have been double-entrenched, a 75% threshold to amend or repeal any right within it OR a majority public referendum to do the same. Also, any such superior law should confer jurisdiction on the courts to review primary legislation and strike it down if it contravened the NZBORA. (doctrine of Marbury v. Madison, 5 U.S. 137 (1803)).

    The judiciary would have the final say. Some may then ask: why should un-elected Judges decide fundamental questions regarding human rights? BUT the judiciary would only be able to do this up until the point whereby Parliament could reach the 75% threshold. Thus ultimately Parliament (the Executive) would still retain its supremacy, but now would be fettered by a 75% threshold.

    Enrolled Barrister

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