This was an informative seminar hosted on the 3rd June 2014 by the Attorney-General, Hon Chris Finlayson QC; a very welcome continuation to the Conversation on New Zealand's constitutional arrangements. The three speakers had very different bill of rights experience.
Professor Stephen Gardbaum from the University of California Law School's focus was on the relationships of the branches of government in the constitution. Gardbaum thought that looking at how the judicial, executive and legislative branches respond to each other's decisions on human rights issues provides a useful lense. He used as an example, the responses to some well-known, though not recent, court decisions, to say that the other branches of government had responded positively to these decisions by the courts on Bill of Rights issues.
Gardbaum noted that the high number of section 7 inconsistency reports in New Zealand, and the failure to have the issues addressed in the legislative process, is not good. Gardbaum favoured incremental change and expressed the view that New Zealand is not ready for constitutional supremacy.
Joanna Davidson spoke about her experience in the State of Victoria with its Charter of Rights. A difference between Victoria and the NZ model is that in Victoria the reporting function is with the agency promoting the new legislation. Davidson said that this decentralised approach has the advantage of ensuring awareness of rights issues across the State government agencies. The risk to consistency is met by having a special team in the Justice Ministry take a second look at reports. Other features were statements of consistency that were less legalistic and encouraged debate on how the policy measured up to human rights standards. Davidson said it appeared that provided the agency had given proper consideration to human rights, the legislation would be upheld by the courts.
Davidson noted that the focus of the Charter was on the widely applicable rights to privacy and autonomy, in the context of home and family, rather than on the rights of unpopular groups such as prisoners, sex offenders and over-stayers.
Dr Tom Hickman suggested it was time for New Zealand to exhibit more of the bold reforming action of 25 years ago, and enhance judicial powers in relation to the Bill of Rights Act. Hickman argued that clarifying that the courts may issue a declaration of inconsistency is weak and a waste of time. Specifically he was concerned that going to court with the prospect of getting, at most, a declaration of inconsistency was a disincentive; effectively a successful plaintiff is denied a remedy and there is no accountability effect.
Hickman appeared to be recommending giving the courts power to suspend legislation or set an expiry date, with the legislature having the option to expressly confirm the inconsistency of what it had enacted.
One of the questions to the Panel was whether the lack of public interest groups in New Zealand prepared to take court action or be involved in supporting litigation on human rights issues was a problem. The panel agreed that it could be, especially with access to legal aid now very curtailed.
Thanks to the Law Foundation for the opportunity to hear three informed speakers present their thoughtful and relevant perspectives on how the New Zealand Bill of Rights Act might be strengthened.