SpeechHon MICHAEL WOODHOUSE (National): Thank you Mr Chair. There's a certain poignancy I think to the fact that the committee is considering the declarations of inconsistency amendment bill hard on the heels of the Three Strikes Legislation Repeal Bill. If memory serves me correctly the 2009 Sentencing and Parole Reform Bill—I think it was called then—which gave effect to the three strikes legislation was the subject of a section 7 New Zealand Bill of Rights Act vet by the then Attorney-General the Hon Christopher Finlayson who said that the restrictions on the rights of individuals were not consistent with the New Zealand Bill of Rights Act.And so as we go through this committee I think while I note the Minister hasn't tabled any amendments—and it's not the National Party's intention to table amendments either—because we are at a very very important constitutional intersection between the executive and the judiciary I think it's important to examine the Minister's intentions and understandings about the bill that we are considering in order that the Hansard record can show very clearly what is Parliament's intention with the passage of this bill. Because there is I think a valid argument to be had that the bill itself is unnecessary because of what the New Zealand Bill of Rights Act already says and because of the actions taken by both the courts and Parliament in respect of legislation that may be in breach of sections 4 to 7 of the New Zealand Bill of Rights Act.So my questions—and of course we're considering a bill that came about not as a consequence of the three-strikes legislation but after the court case of Attorney-General v Taylor which related to a prisoner's right to vote. And it's interesting because of course we had a democratic process in this House which by majority the bill was passed. I note the Supreme Court also had something of a democratic process because the Justices were three to two in favour of upholding Mr Taylor's claim that this was an unjustified breach of the New Zealand Bill of Rights Act and inconsistent with it which is why we're here. So even the courts were not able to be unanimous on the way in which this should be interpreted but I also note that those dissenting judges were worried that simply putting a declaration out may actually undermine the role of the judiciary in that they were worried that a formal declaration could be ignored by this House and would erode the respect for the courts. I don't think that would have happened even if we weren't passing this bill but it's very important I think that we flesh out what we're actually going to do when the courts make such a declaration.So my questions to the Minister—really these are belts and braces questions but they are fundamentally important to what we are doing. And that is this: can he confirm to the committee that nothing we are passing through this bill will undermine section 4 of the New Zealand Bill of Rights Act which makes it very clear that no court can in relation to Acts that we pass hold a provision of the enactment repealed or revoked and decline to apply any provision of an Act simply because they believe that that is in breach of the New Zealand Bill of Rights Act? That is that fundamental separation that this House has with the judiciary and that needs to be upheld.The second question I have and this is really important in terms of procedural matters and that is: what are we going to do and how will it differ because what we're doing in Part 1 is adding in section 7A which deals with a process to be followed if the courts do declare that legislation is inconsistent with the New Zealand Bill of Rights Act but of course that has to sit beside section 7 which has been there for 32 years. Section 7 is where the Attorney-General as he did in the three-strikes Act and in the Prisoner Voting Act actually said that there is an inconsistency with the New Zealand Bill of Rights Act and that inconsistency is not justified.So we actually have two parts now Mr Chair—I'll just finish my question if I may. Thank you Mr Chair. We have potentially two processes: one is a process where we already knew there was an inconsistency because the Attorney-General under section 7 of the New Zealand Bill of Rights Act had already told this House and we debated it and we considered it. We may have made amendments to it but effectively we passed the law and therefore a process that's triggered by section 7A may not be the same process if a section 7 New Zealand Bill of Rights Act vet had already been lodged by the Attorney-General.So I'm interested in what the Minister's view is and we did hear from the Attorney-General because of course as a member of the Privileges Committee he was the chair of that committee and it was very helpful to get some kind of insight into what might happen when we pass this bill. But I do think it's helpful to have that on the record.So my two questions to kick off with are: can she confirm that section 4 of the New Zealand Bill of Rights Act is unaffected by anything that we are doing today and can she provide a commentary on how the process of considering a declaration of inconsistency might be different under section 7A if a section 7 New Zealand Bill of Rights Act vet had already been tabled? I hope that's clear.Hon KIRITAPU ALLAN (Minister of Justice): Thank you and I note that I had to take a brief minute so if I miss anything please circle back.So the best that I understand the question—can I confirm that section 4 is not affected? Yes I can. So the difference between the section 7 notices by the Attorney-General and the declarations of inconsistency issued by the courts—the difference is that the section 7 reports are the advice of the Attorney-General to the House on the bill's consistency with the New Zealand Bill of Rights Act whereas a declaration of inconsistency is the courts applying the law to a set of facts. And coming off the back of that last discussion I think this is a timely follow-through—I'm talking about the three-strikes repeal—so they are applying to a particular set of facts and then the statement that the law there is inconsistent.So the section 7 reports are prospective in that they predict that a law will be inconsistent with the New Zealand Bill of Rights Act. A declaration of inconsistency is retrospective in that it is a judgment by the court that a law has been inconsistent on those factual circumstances with the New Zealand Bill of Rights Act. So the bill provides a mechanism for the Government and the House therefore to consider the declaration by the courts and therefore how each branch of Government should respond.