Civil Rights and Liberties – What the Constitutional Advisory Panel had to say in its Report

NZ Council for Civil Liberties welcomed the opportunity presented by the Constitutional “Conversation” to consider how civil liberties might be strengthened through changes to New Zealand's constitutional arrangements.

The terms of reference for the Constitutional Advisory Panel established by the Government were to encourage people to become better informed and share their views about New Zealand's constitutional arrangements, and the Panel was asked to look for areas of broad consensus where further work could be done.

The Council met with Deborah Coddington from the Panel, and held a series of meeting for members through which our submission was developed. The focus which emerged was that Parliament and the Executive ought not to be able to derogate from the rights and freedoms of people in New Zealand, with as little constraint as happens now.

To quote from our submission: “Those elected to carry out day-to-day governance should recognise that citizens have already endorsed civil liberties and human rights, and that the regular election process does not include any intention (on the part of electors) to give their regularly-elected persons/groups, the power to abrogate civil liberties and human rights.”

The New Zealand Bill of Rights Act 1990 (the Act) was one area where the Panel felt there was a measure of agreement that further work would be worthwhile; the Panel recommended that the Government set up a process, with public consultation and participation, to explore in more detail the options for amending the Act to improve its effectiveness such as:

• adding economic and cultural rights, property rights and environmental rights
• improving compliance by the Executive and Parliament with the standards in the Act
• giving the Judiciary powers to assess legislation for consistency with the Act
• entrenching all or part of the Act.

The Panel said it heard differing views as to whether human rights are protected, respected and fulfilled appropriately, and concern at Parliament's ability to pass amend the act or pass legislation contrary to the Act with the support of a simple majority. The Panel noted that the Act, and changes to it, was used as a vehicle to address a range of concerns, for example, better protection of the environment, the gap between rich and poor.

Interestingly, there was a range of views on the point made in our submission that rights are inalienable. Others expressed a contrary view; that rights come with responsibilities and may be taken away, for example, from those who commit crimes. The Panel maintained the approach of setting out the range of views rather than commenting on the implications of such an approach.

The key points from the Council's submission are set out below, along with our analysis of what the Panel had to say on the matter –

• Strengthen the New Zealand Bill of Rights Act by raising its constitutional status and improving the reporting process on proposed legislation;

Yes, the Panel agreed that further work is warranted to find ways to improve compliance with the Bill of Rights Act by the Executive and Parliament. The Report mentions entrenching the Bill of Rights Act. i.e. requiring more than a simple majority to amend or repeal the Bill of Rights Act.

• Review the processes for incorporating human rights and civil liberties in international human rights instruments to which New Zealand is a party, into our domestic law;

The Panel did not refer to this idea.

• Add to the Universal Periodic Review an internal process for reporting on progress in implementing measures to protect and enhance civil rights and freedoms in New Zealand;

The Panel did not refer to this idea.

• Add a right to privacy and to property to the rights protected in the Bill of Rights Act;

There was support for adding new rights; economic, cultural and social rights, property rights and environmental rights. The Report mentions support for and against the idea of adding a right to privacy, but did not recommend it.

• Develop a single, coherent codification of New Zealand’s constitution to enable citizens to better appreciate their duties, rights and expectations as to standard of governance.

The Panel supported a continuing conversation about New Zealand's constitutional arrangements. The Panel agreed there is a need for New Zealanders to better understand how our constitutional arrangements function, and suggested thinking about drawing the current constitutional arrangements into a single statute.

A continuing theme from other submissions seemed to be the importance of preserving Parliament's sovereignty; this points to a limited, even if enhanced role for the courts. The Panel commented that while broad support for a supreme constitution was lacking, there is considerable support for entrenching elements of the constitution.

The Panel presented its Report to the Government and the next step is a formal response by the  Government. The Council has asked the Ministry of Justice when we can expect the response and have been told that the Government is currently considering the Panel’s report, but there will not be a response until after this year's election.