Smith Nick; Rurawhe AdrianHon Dr NICK SMITH (National—Nelson): It's a pleasure to take a call on this interesting and important bill that goes to the core of our institutional arrangements and how we run this democratic country of ours the powers of the courts vis-à-vis the power of this Parliament. I want to begin by saying that I am a conservative that I have a great deal of pride in our parliamentary democratic traditions that have grown through the years since the Bill of Rights was signed which we acknowledge each time that we walk into this Parliament.But if there is a lesson that I have learnt in my 30 years—about the same age as the New Zealand Bill of Rights Act—it is that there are so few absolutes. I confess that when I looked even younger than Simeon Brown and came to this Parliament I had a view of absolutes—things like freedom of expression freedom of movement freedom of association right to life. These things were absolutes. I have to say that as a parliamentarian of 30 years I've learnt that life's a lot more complicated than that. And actually the experience of the last six weeks has been one of an extraordinary infringement of basic rights that I thought would never have occurred but the circumstances actually around a pandemic justify rights that we would normally take for granted. If I said that a Parliament of New Zealand was going to agree to ban people being able to peacefully protest I would have said Not in God's own New Zealand". Yet that's exactly what's happened in the last six weeks.Did I ever think we'd be in a country where we'd actually say that New Zealanders going to the beach or gathering in groups of more than 10 people would be illegal? I'm not criticising some of those measures that are necessary. I'm simply wanting to emphasise the point that the business of lawmaking is far more complicated than absolutes. Whether it's complicated issues of the right to life whether it's the issue related to that of the pretty difficult debate this Parliament's had on abortion whether it's the right of freedom of speech and the arguments I've heard through the courts about when this Parliament bans things like pornography—are we in fact infringing people's freedoms of expression—or the very vigorous argument that we're currently having about does the right to vote mean that if you have committed a horrific offence and killed people that you are still able to participate in the democratic process—the point I want to make in the beginning is who should be the final determinant of those rights. I am an old-fashioned parliamentary democrat. It's not because I believe that parliamentarians are superior in any way to those that sit on our judicial benches but there's a crucial difference. If we get it wrong the public have the power through the ballot box to get rid of us and to replace us and to change it and that is not true for the judiciary. That is why I remain a staunch defender of our parliamentary democracy and of this Parliament being the final arbitrator on those questions.Hon Andrew Little: It remains under this bill.Hon Dr NICK SMITH: Now the Minister of Justice interjects and says "Well this bill doesn't go this far." And he's right. All it does is say that if the courts declare that there's an inconsistency with the New Zealand Bill of Rights Act then a statutory process is set up by which the law has to be looked at.Hon Andrew Little: That's right.Hon Dr NICK SMITH: But here's the point that I'd like the Minister of Justice to reflect on and this does go to the heart of our country and how it operates. If members of the public currently object to a law that this Minister's been responsible for like abortion my view is that the proper place to have that discourse is through the process of parliamentary politics and we have a good argument about where that balance is. Now what you do when you have a bill of this sort is you invite that political debate to be dragged into the judicial system. I'm not saying to the Minister of Justice I'm opposed; I'm saying we need to think about what that means. If I actually look at a country that has far more of a judicial role in making judgments about the lawmaking process as in the United States I don't come away with a view that it works that well. My personal view is that as my colleague Chris Bishop has said on the issue of abortion of which myself and Mr Little have a different view I actually have a view that Parliament is the right place to resolve that rather than in a judicial process. We might have a different view about gun rights but I equally so think that the extent to which the courts through the constitution of the United States have inhibited practical law to protect the people in that great country from the great harm from reckless usage of guns actually shows a weakness of an excessive role for constitution and the courts in our lawmaking process.So I think we need to be honest that while this bill is only a small step in requiring Parliament to review law it is an invitation for the public that disagree with a particular law that this Parliament has got to pursue it through the courts rather than through our parliamentary system. And I'm not sure that actually we'll end up with a better more effective democracy.Can I also say that these arguments about what complies with the New Zealand Bill of Rights Act—as a parliamentarian for 30 years I have to say I've been confused. Can I give you an example? We had a declaration that the euthanasia bill passed by this Parliament which is off to a referendum breached the New Zealand Bill of Rights Act because 16- and 17-year-olds were not able to have the choice of euthanasia if they were terminally unwell. Now you might say "OK I understand that." But I find it even more arbitrary that when this very Parliament considered a law on whether we could prohibit 16- and 17-year-olds from getting married a very legitimate concern in this Parliament was that we had 16- and 17-year-olds forced into marriage at a young age from things that we think are culturally inappropriate and we had the opposite view—that that was consistent with the New Zealand Bill of Rights Act. And hey look I don't come from a legal training but I do have common sense. It seems kind of odd to me that under the New Zealand Bill of Rights Act someone is allowed to be prevented from marrying but is not allowed to be able to make a life and death choice to end their life. That's a bit arbitrary. It doesn't make sense.Now I'm not going to be critical of those that make the arbitrary judgments but I do make this point. Those that have a view that somehow the judicial system and the courts have a greater sense of wisdom about these difficult judgments that we have to make on the boundaries of questions of abortion euthanasia who can vote who can get married whether people are able to vote—all those things all those arbitrary judgments. Are they best made in this House of Representatives or are they best made in the courts? I am of a view that the more accountable and democratic way is for them to be resolved by the Parliament.I want to make one last point of process about this bill that I am concerned with. I do find it horribly ironic that when we're wanting to talk about the protection of rights and process this bill is being introduced under urgency. I also think that it's really strange. Let me put this to the House: at the core of the debate in this bill is the issue of separation of powers the three key institutions being our executive the Cabinet; the House of Representatives; and the courts. And ever since I've been an MP there's been a really important separation and that is that when a bill comes before the House the select committee in the parliamentary process is separate to the Minister that introduces it. Well who's the chair of the Privileges Committee where this bill's being sent? The Attorney-General David Parker who moved the introduction of this bill.So is it right that Mr Parker a member of the executive is now going to chair the select committee when we are at the very issue of the separation of powers? And I say it is extraordinary that on a bill where we're trying to improve our constitutional arrangements we're breaking a rule that is as simple as a Minister should not be chairing the select committee on a bill for which he is concerned and that is why we say that process is wrong. My invitation to Mr Little and to Mr Parker is: if the intent is to send this bill to the Privileges Committee I do not think it's appropriate for that select committee to be chaired by a member of the executive. That actually cuts into the very protections that we attempt to have in our constitutional arrangements in New Zealand of the separation of this Parliament and this House of Representatives from the executive and from the courts. This bill is a bill that needs to have solid scrutiny and I look forward to the ongoing debate.ASSISTANT SPEAKER (Adrian Rurawhe): This is a split call. I call Dr Liz Craig—five minutes."