Penk ChrisCHRIS PENK (National—Kaipara ki Mahurangi): Thank you very much Madam Speaker. Like others I've enjoyed the opportunity to wrestle with these large questions for our constitution and I acknowledge the contributions made by others including of course starting with the Minister. I did also enjoy and thought very helpful that my colleague the Hon Michael Woodhouse set out some of the background in terms of the different bodies within Parliament that have considered these which Duncan Webb has noted perhaps with an element of tautology as privileged to be on the Privileges Committee. So I think we can take it as read that the House agrees—or certainly at least a majority of the House and speaking certainly on behalf of National—with the principle that the New Zealand Bill of Rights Act (NZBORA) contains important rights and freedoms. These should be protected in any way we reasonably can. So allowing that is a reasonably obvious statement to cap off with. I do want to use my contribution to note the tensions that have been raised again as I say by Mr Woodhouse in relation to those different branches of Government and to explain how my conscience is assuaged to someone who does believe as a starting point in parliamentary sovereignty that the bill is right to go as far as it does but also to explain the reason that it does not go further than it does.So if I can start by setting up a number of principles to which I think all parties in this House probably ascribes to certainly the major two from whom we've heard so far. We have separate branches of Government. There is a good relationship between those whereby they don't tread on each other's toes so to speak—often referred to as comity. We have an avoidance of tyranny by avoiding the concentration of power too great an amount of power in a single branch perhaps to be dominated by the brunt of a few people an absence of checks and balances and so forth. So a major aspect of that is parliamentary sovereignty—which is of course the body that is Parliament the legislature—is able to make laws. And of course the reason that we can justify that is not being tyrannical it is that of course we are subject to the will of the people every three years at general elections and of course in other important ways that do not apply—for example to the courts. So parliamentary sovereignty is important for that reason of democratic accountability. I think it's worth noting at the risk of creating a diplomatic incident that I think New Zealand's constitutional arrangements in this regard are superior to those in many other jurisdictions. For example with all due respect to our American friends I think that we've seen in recent years a number of different instances of difficulties that a system encounters when a court becomes not only a body for adjudicating specific instances in front of it but with a view to those determining policy. And of course where policy goes politics can readily follow; indeed does follow inevitably so. Of course I don't wish to comment in any more detail than that except to say I think it's positive in this country; we don't have that sense of partisanship infecting our court system. We don't concern ourselves with the vagaries of individual judges' life expectancy and so forth. So I do want to note for the record that I think we already have in this country a very good system and I'm determined as I think everyone else in this House is too that we don't undermine that by going too far with such legislation.But I think it's also fair to point out that our system is not perfect which is to say it does have some anomalies in the way that we treat the New Zealand Bill of Rights Act and questions of its inconsistency. So for example New Zealand Bill of Rights Act reports under section 7 of that legislation made to Parliament by the Attorney-General who on the one hand is an officer providing legal advice but he or she—he" currently of course Mr Parker—is also a member of this Chamber and of the executive and therefore the Government of the day. So I don't see a way around that but suggest for example that the Attorney-General should be an Officer of Parliament as opposed to a member. But I do note that it is at least worth recording I suppose that there is not a perfect clear system that we have currently whereby Parliament considers questions of NZBORA consistency such that we could say well therefore we don't need the courts to have a second look on any occasion. My second point under the heading of "anomalies with the New Zealand system currently" is of course that Parliament can legislate contrary to the New Zealand Bill of Rights Act. I regard that as a feature not a bug of the system. As Mr Woodhouse has pointed out it feels as though there is a distinction to be made between the scenario in which Parliament understands through the advice of the Attorney-General that draft legislation is inconsistent with the New Zealand Bill of Rights Act but chooses to do so anyway as compared with Parliament perhaps not having turned its mind to the question or perhaps having received a report from the Attorney-General at the time that suggests that it is in fact consistent. So of course the question of consistency isn't in itself a clear-cut matter. It's a legal fiction to suggest I suppose there's such a thing as a bright line between consistency and inconsistency. So I think it does behove us legislating in this space to bear that in mind. If anything I suppose it might be an argument in favour of such legislation because it says that the Attorney-General shouldn't necessarily have the last word or even the only word I suppose outside of Parliament itself. We will allow the courts to come in and provide an opinion essentially on the matter as well in the way that providing a second opinion or obtaining a second opinion is often beneficial to good decision-making.The other point I suppose I would make and at the risk of making a gratuitous mention of the work of the Regulations Review Committee—far be it from me to do that and I gain support across the House from various others who may do so in similar contributions—but secondary legislation is roughly speaking outside the ambit of New Zealand Bill of Rights Act consideration. That's not completely true I take a bit of a liberty in saying that but I think it is fair at least to say that they are not the subject of section 7 reports under the New Zealand Bill of Rights Act before they are made they're not scrutinised before they are made in that kind of way. So I think certainly there's always a good case for courts to be invited to scrutinise Executive action—that is the making of orders notices and so on which we can call together secondary legislation—in a way that feels as though it might be a bit different from Parliament passing primary legislation where we have always had the benefit of a New Zealand Bill of Rights Act report or at least a so-called BORA vet where the advice is that such rights and freedoms aren't engaged even to the extent that a report would be needed.I think I should note I guess by way of slight nervousness about a scenario in which we invite the courts to provide to Parliament direction about matters of human rights consistency that not all have equal access to the courts. Of course that shouldn't be the case but I think it's fair to note that we do risk establishing a way of agenda-setting political agenda-setting via the courts in a scenario where not all have equal access to the courts. Most obviously that relates to the huge financial cost often incurred in court proceedings but more generally economic cultural institutional advantages enjoyed by some more than others. Of course it should be the work of every diligent parliamentarian to reduce those barriers to justice but the reality is that—at least so far as we are presently concerned and probably always to some extent—there will be more opportunities for some than others to access the courts to promote the idea that the law should be changed on the basis of New Zealand Bill of Rights Act inconsistency.So I think having had a bob each way—or perhaps several in each direction—I think it's fair to summarise my contribution as saying that like others in this House I'm anxious to promote the idea that laws should be consistent with the New Zealand Bill of Rights Act that it's appropriate that we currently have a scenario whereby the Attorney-General provides their advice on that question initially but we don't wish to preclude the courts from making such a declaration. Of course they've already taken it upon themselves to do that on occasion as has been mentioned but to add now as we're doing that the Government and/or Parliament should be required to respond in some way to that. So we think that's appropriate as far as it goes.So parliamentary sovereignty ultimately is maintained but modified. This House retains control of the outcome of legislation but not entirely now it's process. So on that slightly nuanced basis I note we are making a significant move but it is a move that goes only so far and I think that's appropriate. So along with others in the National Party we continue to support the bill as we spoke to at the first reading and we look forward to engaging this important debate further for the remainder of its passage."