Monday, February 26, 2018

Important constitutional change

Today the New Zealand Government announced that “Cabinet has approved, in principle, a move to amend the New Zealand Bill of Rights Act 1990 to provide a statutory power for the senior courts to make declarations of inconsistency under the Bill of Rights Act, and to require Parliament to respond.” This is a huge and important change.

Up until now, courts lacked any mechanism to force Parliament to review laws that are in conflict with the Bill of Rights Act (BORA). That law describes, protects, and promotes New Zealanders’ fundamental human rights, as well as committing the country to the International Covenant on Civil and Political Rights. The fact that the government of the day could ignore conflicts between BORA and laws passed by Parliament was an ongoing problem.

What will happen once the law changes are made is that senior courts will be able to make declarations of inconsistency, which will compel Parliament to look at the issue. Parliament could then amend, repeal, or stick with the law as originally passed. The point is that they won’t be able to just ignore the inconsistency, and it may hurry up the process of making laws consistent with the BORA, something that at the moment is entirely dependent on politics and the support of the government of the day.

This new system won’t invalidate any inconsistent law, so it’s not full judicial review like the USA has. However, declarations of inconsistency have never been explicity permitted in New Zealand law, and this is an important change in having some oversight. Basically, it’s judicial review, Kiwi style.

The Constitutional Advisory Panel, which was appointed in 2011 to review constitutional issues, consulted with the public and considered amendments to the Bill of Rights Act. In 2013, it recommended that the Government explore options for improving the effectiveness of the Bill of Rights Act, such as giving the judiciary powers to assess legislation for consistency with the Bill of Rights Act. This bill is a result of that.

This is an important constitutional change for New Zealand, and one that’s long overdue. This doesn’t compel Parliament to fix the inconsistency, but forcing it to at least look at that inconsistency is a big step forward, and that’s what makes it so important.

NZ’s mainstream media has given this scant coverage. And that right there is one of the major problems we have in this country: There’s no one to hold the government to account. Fortunately, this time the government is doing that itself. Even so, I’ll be watching to make sure they follow through.

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