Mooney JosephJOSEPH MOONEY (National—Southland): Thank you Madam Speaker. It's a pleasure to rise to speak on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. This bill is to help provide a mechanism for the executive and the House of Representatives to consider and if they think fit respond to a declaration of inconsistency made by the senior courts under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993. A declaration of inconsistency is a formal statement granted by a court as a remedy that some legislation is inconsistent with fundamental human rights guaranteed by the New Zealand Bill of Rights Act. The declaration informs the public and Parliament that in the court's view an Act is inconsistent with fundamental human rights. A declaration of inconsistency does not affect the validity of the Act or anything done lawfully under that Act. However currently there is no explicit power in the New Zealand Bill of Rights Act to issue declarations of inconsistency. I'm just going to touch very briefly on branches of Government for those watching. So the Constitution Act 1986 recognises that the three branches of Government are the legislature which is the Parliament; the executive which is the Cabinet Ministers outside Cabinet plus Government departments; and then the judiciary. Each operates independently of the others and this is important for our constitutional framework. This is known as the separation of powers. There is of course what is often called the fourth estate which is the media whose job is to apply sunlight effectively and hold the three other branches of Government to account for the public to make their decisions on their effectiveness or otherwise. The independence of the judiciary in these arrangements exists to ensure impartiality in judicial decision-making and is fundamental to constitutional balance under the Constitution Act 1986 and to the principle of legality that underlines it. Judges when judging should be subject only to the law. Independence of the judges is secured by ancient guarantees of security of tenure and salary and by constitutional conventions which prevent the executive directing the judiciary. An important constitutional convention in this context is also that the Attorney-General acts independently of political considerations in recommending judicial appointments.The New Zealand Bill of Rights Act is a very important part of New Zealand's framework having been in force now for many years. The bill that's before the House this afternoon formally recognises the jurisdiction of the senior courts to make declarations of inconsistency. The bill follows international jurisprudence that the affirmation of rights may require substantive protection but also procedural protection. The bill does not alter the law substantially with regards to the jurisdiction of the senior courts but brings New Zealand into line with many overseas jurisdictions having a formal reporting mechanism. The bill will effectively give the senior courts a louder voice when dealing with New Zealand Bill of Rights Act matters and will make it harder for Parliament to ignore these declarations of inconsistencies. An important point here is that in terms of the separation of powers the legislature—Parliament—has an important role to play in considering issues such as these that the Supreme Court will bring to it which is different from the executive which is the Cabinet and Ministers outside Cabinet although they will make their own determination. This will not however change parliamentary supremacy. That is an important issue here because the judiciary has an independent role to play in assessing laws in this case against the New Zealand Bill of Rights Act and it may provide declarations of inconsistency but they don't have to report to the public in terms of their position. They are independently appointed—that is independent of political considerations—which is an important part of our constitutional framework. The executive and the legislature—Parliament—however do have to report to the public and the public can ultimately effectively kick us out of power or out of our political positions if they don't think we're doing a good job and that's a very important separation of power in that sense. So parliamentary supremacy will still be upheld in respect of this but they will have to pay closer attention to any declarations of inconsistency made by the senior courts.The Privileges Committee examined the bill and it recommended that it be passed. They recommended all amendments unanimously. The Attorney-General must notify Parliament. The bill as introduced states that the Attorney-General must present a report to Parliament bringing the declaration to the attention of the House. The select committee has proposed that—sorry I'll move on from that Madam Speaker.The New Zealand Bill of Rights Act 1990 is one of the most important pieces of legislation in New Zealand for the promotion and protection of human rights. That's certainly something that's been at the forefront over the last couple of years where there have been some limitations on human rights in New Zealand and it has certainly raised some deep concerns in parts of our communities. And it's important that there is an outlet within our legal and political frameworks for those concerns. This is an important aspect of providing a ventilation of those concerns in that cases can be brought before the senior courts and in respect of any legislation that is currently in existence including historical legislation but also more recent legislation. And if the Supreme Court decides that it is inconsistent then it can be reported to the House. So a declaration of inconsistency is a formal statement granted by the court as a remedy if legislation is inconsistent with fundamental human rights protected by the Bill of Rights Act. I would just take this opportunity to also reference what the dissenting judges put in Taylor v Attorney-General the Supreme Court's 2018 judgment that confirmed that senior courts have the power to issue declarations if legislation is inconsistent with the New Zealand Bill of Rights Act 1990. Those dissenting judges said that a declaration of inconsistency simply hangs in the air. There is no formal mechanism to prompt a political response. Being a lawyer myself I agree that if it hangs in the air so to speak there is a risk in the public mind that a formal order of the court may simply be ignored with a consequential danger of erosion for respect for the integrity of law and the institutional standing of the judiciary. This bill remedies that problem and enhances confidence in the public that a decision of the Supreme Court will be taken into account in a formal way by Parliament which is a very important remedy. It took the senior New Zealand courts almost 30 years to grant the first declaration of inconsistency to the effect that an Act unjustifiably breaches rights protected by the New Zealand Bill of Rights Act 1990. The courts do not make such findings lightly and it is hoped that these declarations will be a rare occurrence. In summary this is a very good piece of law and it is one that I am pleased to see before the House. It enhances the public's confidence in both the judiciary and maintains that separation of powers between the judiciary the legislature and the executive but ensures that there is a very transparent process in terms of the declaration of inconsistency being reported to the House and being taken into account while maintaining the fundamental separation of powers between those bodies. So with that I recommend this bill to the House.