Parliament and the Protection of Human Rights

07 April 2014
NZ re sized Centre Human Rights Law, Policy and Practice

The New Zealand Centre for Human Rights Law, Policy and Practice hosted a seminar on “Parliament and the Protection of Human Rights and the role of section 7 of the Bill of Rights” on the 13th March at the offices of Russell McVeagh in Wellington. The Attorney-General, the Hon. Christopher Finlayson, Professor Janet Hiebert of Queens University, Canada, and Professor Andrew Geddis, from Otago University, spoke at the seminar which was attended by 120 lawyers and other guests.

The Attorney-General gave a brief history of section 7 from its conception to the present day. He noted that Attorneys-General have brought 62 Bills to the attention of the House under section 7 since 1990. 30 of these were government Bills and 32 were private bills. He mentioned the failure to produce section 7 reports for the Foreshore and Seabed Act 2004 and the Electoral Finance Act 2007, which to this day still “shocked” him. Agreeing with Professor Hiebert, he noted that parliamentary debate fails to engage adequately with Bill of Rights Act issues but that section 7 reports do have a resonance during the development of policy. The Attorney-General placed emphasis on the role that the Ministry of Justice and the Parliamentary Counsel Office play in considering compatibility at the policy development and legislation drafting stage, which is a process that largely goes unseen. While he ultimately concluded that section 7 functions well within New Zealand’s policy development and parliamentary debate framework he did suggest potential improvements relating to the Attorney-General’s reporting capabilities including the ability to report to the House on changes made to a Bill after it is introduced (post-introduction scrutiny), where a bill appears to be consistent with the Bill of Rights Act but nonetheless raises significant human rights issues, and on supplementary order papers.

Professor Hiebert gave a comparative analysis of the position in New Zealand and the United Kingdom. Both jurisdictions have reporting provisions but whereas in New Zealand the Attorney-General has freedom to report as he or she sees fit, in Britain the sponsoring minister must make a report either of consistency or inconsistency. The United Kingdom has only had two inconsistency reports presented to the House of Commons. Hiebert suggested that despite the frequency of section 7 reports, consideration of rights compatibility was lacking in parliamentary deliberations in New Zealand. It was also argued that MMP and the resulting need to form coalitions has diminished the incentives, and possibly the capacity, for parliamentarians to demand that government justify rights inconsistent bills, as political partners will be rivals in future elections. While government does want to know about inconsistency, this is primarily for its own risk assessment purposes rather than for dissemination to parliament and the public for robust debate. Hiebert considers that the absence of a specialised committee makes it less likely that parliamentarians will focus on issues of compatibility. As it stands “Parliament is not a political venue that encourages independent, moral judgements … about how rights-based or compatibility-based considerations should guide or constrain legislation” as primarily informed by the Bill of Rights Act.

Professor Geddis observed that the “down-stream” consequences of section 7 reports are less in New Zealand than in the United Kingdom or Canada, which both have a strong judicial review function. New Zealand like Britain and Canada does not have a strong checking function via parliamentary debates. Section 7 reports, despite their frequency, form only a very minor part of the discussion in the House. This has the effect of having section 7 reports that are public documents but that are not widely reported to the public. Perhaps the Bill of Rights Act has not “captured the imagination” of New Zealanders as much as was first hoped. Geddis concluded that Professor Hiebert’s address serves as an aptly timed warning about the relationship between the rights vetting function of the Attorney-General and the response of Parliament and the Courts. Reform in one area may have undesired results in another. New Zealand needs to be aware of this potential and be prepared to pay the possible costs if reform is adopted.

More detailed summaries of each address can be found on the New Zealand Centre for Human Rights Law, Policy and Practice website.

Meredith Karlsen


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