Little AndrewNEW ZEALAND BILL OF RIGHTS (DECLARATIONS OF INCONSISTENCY) AMENDMENT BILLFirst ReadingHon ANDREW LITTLE (Minister of Justice): I move That the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill be now read a first time. I nominate the Privileges Committee to consider the bill.This bill is very simple on its face but it is very profound in its effect. This bill deals with the situation responding to successive decisions of our courts particularly our senior courts who have found that they have the right to issue declarations of inconsistency in relation to the New Zealand Bill of Rights Act. And indeed we recognise that and the nature of the relationship comity between this House and the judiciary—we recognise that. This bill effectively recognises that but it does a very important thing because for a citizen who is concerned that a piece of legislation has been passed that traduces their basic civil and human rights—something that is then found not only to cut across their rights but also not to be justified in a free and democratic society—merely getting a declaration is not enough. There must be a response.And indeed when this House is doing its job and members of this House are feeling a sense of responsibility and accountability when our senior courts issue a declaration of inconsistency then we as parliamentarians ought to be concerned enough to say Hey we should give this a rethink." And that's what this bill does. It goes as far as saying that when the courts issue a declaration of inconsistency then the Attorney-General must bring that back to the House and do so within six sitting days of any declaration being final—and that is to say all avenues of appeal have been exhausted—and then it will be a matter for this House to determine what happens.The reason that I've nominated the Privileges Committee to consider the bill is not only because it is appropriate and proper—it's a constitutional issue that affects the relationship between this House and the courts—but also it will be for that committee in determining the appropriate Standing Orders that will accompany this bill to determine the process by which this House will respond to a declaration of inconsistency. There will be three options really. One will be that the House could say "You know what? We passed this law and we got it wrong so we're going to repeal the law." And every citizen in the country will celebrate once we move out of level 1 if that happens. Alternatively the House might say "You know what? We've got it wrong but with a little bit of massaging and a little bit of manoeuvring we can bring the law within the bounds of those fundamental civil and human rights and we can achieve the objective of the bill."And so the House might decide it is going to amend the legislation. Or there might be an occasion where the House thinks "When we passed this bill we did it with our eyes open. We knew we were cutting across these civil and human rights and we knew that it wasn't really justified in a free and democratic society. But we thought the objective was too important and too great and we're going to let it stand. We will not amend or repeal. We are going to affirm the legislation." So those would be the three options. But at the very least when a citizen who is affected by a bill that has passed through this House because it cuts across their rights goes to the trouble of testing that and the courts agree that it not only cuts across their rights but is unjustified in a free and democratic society then that citizen ought to be able to look to Parliament to say "Could you just have another look? Could you just have a look again and make sure you've got it right and maybe you can make some changes?"Now that happened most recently coincidentally or ironically in relation to the legislation passed in 2010 by the then National Government to remove the right of prisoners sentenced to two sentences of less than three years to vote. That was challenged in the courts and the High Court exercising its inherent jurisdiction found not only that they had the right to issue a declaration of inconsistency but that it was inconsistent with the New Zealand Bill of Rights Act. That ought to be no surprise because the Attorney-General of the day held up a certificate saying that this not only breaches the rights in the New Zealand Bill of Rights Act but that it cannot be justified in a free and democratic society. But nevertheless the National Government of the day had the majority and no doubt fuelled by some sort of macho adrenaline about law and order and being tough on crime they puffed out their chest said "We're going to go ahead and do this anyway."And then it went to the court. And it didn't just go to the High Court of course; it went to the Court of Appeal and then it went to the Supreme Court. And the Supreme Court said Parliament got it wrong—Parliament had traduced these rights with no justification. Now responsible members of the House have seen that that was wrong and we have even before the Supreme Court issued its ruling taken steps to rectify that particular anomaly. I know members opposite don't agree with it and they've been stamping their feet and pulling out their chest hairs and we will deal with that issue no doubt in due course.But this bill apart from that very mechanical and technical thing that I've just described actually what it does is this: it gives greater succour and protection of our basic human and civil rights our very fundamental human and civil rights. The New Zealand Bill of Rights Act contains in it rights that appear in the Universal Declaration of Human Rights—that amazing document forged under the chairpersonship of Eleanor Roosevelt with Peter Fraser our Prime Minister playing a role as well as he helped to forge the United Nations and a whole bunch of people pulled together a Universal Declaration of Human Rights. That's reflected in our New Zealand Bill of Rights Act as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights—all there reflected in those very important rights.We are developing in my view in New Zealand a much greater appreciation of and a literacy for those basic and fundamental human and civil rights and this gives sustenance to them. It lifts the status of those rights. And it ought to make this House think very carefully when we're passing laws that cut across those rights when doing so is not justified in a free and democratic society. It ought to make us just think a little more carefully and tread just a little more carefully. That's what it does. That's why this is very important and that is why a committee as important and as powerful as the Privileges Committee ought to give it very close examination.This is good for our New Zealand Bill of Rights Act it's good for every citizen of this country and it'll be good as we develop the law and an appreciation and a celebration of those basic and fundamental human rights.It does one other thing too of course: amongst all of that—the technical and the mechanical and elevating our human rights—it preserves of course the sovereignty of Parliament. We recognise in our system that Parliament can pass whatever law it likes but actually New Zealanders expect our citizens expect something more than that. They do expect this House to observe some basic moral and ethical values. So when we articulate basic and fundamental human and civil rights we expect those to be protected to the greatest possible degree.Simeon Brown: Tell us about the bill you passed two weeks ago.Hon ANDREW LITTLE: Members are bellowing opposite and of course they've got to remember and Mr Brown has to remember that there are two tests that have to be met when we're considering whether or not the rights under the New Zealand Bill of Rights Act have been traduced. One is whether the rights have been breached and then the second is whether that breach can be justified in a free and democratic society.We are constantly weighing those up because they're not absolute. Article 29 of the Universal Declaration of Human Rights is very clear: they are not absolute. There will be occasions there will be times even in the Universal Declaration of Human Rights even in that leading document when it will be appropriate to legislate in a way that cuts across those rights. Very careful weighing up has to happen and this House will be called upon to do that when it considers the legislation in relation to restoring that very basic right of being on the roll to vote. What happened in that case wasn't just about taking away the right to vote; it was taking away the right to be on the roll the register of electors and the very insidious voter suppression mechanism that that turned out to be.Of course we know that the National Party likes that; they like suppressing the right to vote. But that's part of their culture; that's part of their fundamental values. But that's good because this bill will be a chance for a future National Government—whenever that may be when they have a majority and are trying to ram things through the House they will be pulled up short because they have to think "Hold on hold on that law that says the courts can issue declarations of inconsistency means we have to think even more carefully before we unjustifiably traduce those rights."On that basis I commend this bill to the House."