This is my personal account of the NZCCL AGM and the talk by Andrew Butler that followed. It is not intended to be official minutes.
The Bill of Not Quite Rights - Andrew Butler
- the constitutional review agreed to by the Maori and National parties.
- Green MP Keith Locke's unballoted private members bill to strengthen the BOR.
- The Regulatory Responsibility Bill.
- Pressure from the UN and other bodies writing reports about treaties/rights that we've signed up for but haven't reflected in the BOR.
Andrew than talked about how the Bill of Rights was largely a postive development that has codified our common understanding of our rights and had an impact on processes in Parliament and the Courts.
- The degree to which one can rely on the Act to protect our rights.
- Does it cover the correct rights? Currently it concentrates on political rights. What about property, social and cultural rights?
- How to provide systems that allow people to access the rights codified in the Act.
The big problem with making changes to the Bill of Rights is that strengthening it weakens Parliament, something that governments tend not to be be very keen on. The current system is explicitly setup to allow Parliament to pass laws that infringe our rights, which is really rather curious when you think about it. Is it possible to make the Act more effective while maintaining Parliament's prerogatives?
This led on to a definition of what a right is, which is a statement of "You cannot do this to me!". Rights are conservative, limiting the power of government to act in certain areas. Andrew thinks this framing of the debate is missing from too many of our discussions around the Bill of Rights.
One option for limiting parliamentary power is to use the system the Canadians use for their Charter. If I understood correctly, the Canadian parliament can pass laws, the courts can then overthrow them on Charter grounds, but then Parliament can trump this by adding a "notwithstanding" clause. Parliament retains sovereignty but it's just that much harder and a bit more obvious when they decide to infringe on the rights of their citizens.
Another option is for expanding the role of tribunals and commissions. In particular he talked about the Human Rights Commission and the way they can declare that an action is inconsistent with the Bill of Rights. This then helps open up a conversation about rights and how they are exercised. Unfortunately the HRC can only hear discrimination claims, and later on in the talk Andrew recommended that its scope should be expanded, especially as it seems braver than the Courts.
This led on to a discussion of how hard it can be for people to defend their rights. In particular, most people just can't afford to take a case to the Supreme Court. Can we really be said to have a right if we can't enforce it through the courts?
Finally Andrew noted that there needed to be a way to regularly review the Bill of Rights, and some jurisdictions (VIC and ACT in Australia) had built such a review into their laws.
Andrew's talk was followed by questions from the floor, and a lively discussion about which rights should be included in the Bill of Rights followed.