Parker DavidNEW ZEALAND BILL OF RIGHTS (DECLARATIONS OF INCONSISTENCY) AMENDMENT BILLThird ReadingSTANDING ORDERSSessionalHon DAVID PARKER (Attorney-General): I present a legislative statement on the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.Hon DAVID PARKER: I move That the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill be now read a third time and in accordance with a determination of the Business Committee Government notice of motion No. 1 in the name of the Hon Chris Hipkins relating to a proposed sessional order regarding declarations of inconsistency be agreed to. DECLARATIONS OF INCONSISTENCY1PurposeThe purpose of these rules is to provide for the House's procedures in association with the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022.2DefinitionsFor the purposes of these rules—declaration of inconsistency means a declaration—made by a court and in respect of which section 7A(1) of the New Zealand Bill of Rights Act 1990 applies or made under section 92J of the Human Rights Act 1993 and in respect of which section 92WA(1) of that Act appliesGovernment's response to a declaration of inconsistency means a report advising of the Government's response to a declaration which a Minister must present under—section 7B of the New Zealand Bill of Rights Act 1990 or section 92WB of the Human Rights Act 1993notice means a notice that is presented by the Attorney-General in accordance with—section 7A(2) of the New Zealand Bill of Rights Act 1990 orsection 92WA(2) of the Human Rights Act 1993.3Notice of declaration of inconsistency A notice that is presented by the Attorney-General bringing a declaration of inconsistency to the attention of the House is published under the authority of the House. 4Referral of declaration of inconsistency to select committee(1)When the Attorney-General presents a notice the declaration of inconsistency that the notice brings to the attention of the House stands referred to a select committee for consideration. (2)The declaration of inconsistency is allocated by the Clerk to the most appropriate select committee. 5Select committee consideration of declaration of inconsistency (1)A select committee to which a declaration of inconsistency is referred considers the declaration and reports to the House.(2)In its report on the declaration of inconsistency the committee may—make any recommendations to address the declaration andinclude any other recommendations as the committee sees fit.6Time for report on declaration of inconsistency (1)The select committee considering a declaration of inconsistency must finally report to the House on it before the time for report set out in paragraph (2). (2)The time for report is four months after the date on which the Attorney-General presented the notice relating to the declaration of inconsistency unless the Business Committee determines a different time for report.7Select committee report on declaration of inconsistency(1)A select committee report on a declaration of inconsistency is set down as a members' order of the day under Standing Order 254(4) but is taken together with the debate on the declaration of inconsistency that is held under rule 10.(2)Paragraph (1) applies despite Standing Orders 72 and 74(4).(3)Standing Order 256(2) applies to a committee's report on a declaration of inconsistency (no Government response is required under that Standing Order).8Variation of deadline for Government's response to a declaration of inconsistencyThe Business Committee may for any reason vary the usual six-month deadline for the Government's response to a declaration of inconsistency by determining a different deadline (see section 7B(2)(b) of the New Zealand Bill of Rights Act 1990 or section 92WB(2)(b) of the Human Rights Act 1993 as applicable).9Government's response to a declaration of inconsistency(1)The Government's response to a declaration of inconsistency is published under the authority of the House.(2)When the Government's response to a declaration of inconsistency is presented a debate on that declaration of inconsistency is set down as a Government order of the day under rule 10.10Debate on declaration of inconsistency(1)The debate on a declaration of inconsistency is the debate on—(a)the declaration of inconsistency itself and(b)the select committee's report on the declaration of inconsistency and(c)the Government's response to the declaration of inconsistency.(2)During the debate on a declaration of inconsistency—(a)a Minister moves a motion to take note of the declaration and(b)during their speeches members may ask questions to the Minister and the Minister may reply in the same manner as comments and questions on a ministerial statement.(3)The debate on a declaration of inconsistency must be held no more than six sitting days after the date on which the Government's response to the declaration of inconsistency is presented unless the Business Committee determines otherwise.(4)Standing Order 74(1)(a) and (b) and (2) does not apply to the order of the day for the debate on a declaration of inconsistency.Could I begin by saying thanks to a number of people. The responsibility for the protection and enhancement of civil liberties in New Zealand when in Government is shared between the Minister of Justice and the Attorney-General and the Cabinet paper that kicked off this process was authored by both the Hon Andrew Little and myself as Attorney-General. Now of course the Minister of Justice is the Hon Kiritapu Allan and she kindly allowed me to make the first speech in this third reading and I appreciate that. Can I also give my thanks to all of the other parties in the House that served on the select committee. We deliberated through that select committee—it was heard at the Privileges Committee—and allowed as much time as it took to reach essentially an accord around the committee that we were landing this in the right place. Those select committee deliberations took place over two parliaments. It started in the last Parliament and continued in this Parliament.The first reading of this bill that we're considering tonight was in May 2020 and members can see from the effluxion of time that we haven't tried to push this through with haste. We've actually tried to take everyone with us. This is the most significant change to the New Zealand Bill of Rights Act since the New Zealand Bill of Rights Act was passed in 1990. It's certainly not as significant as that piece of legislation but it's probably the most significant constitutional change that I've been at least partially responsible for since I've arrived here and I want to explain a bit of the history and why I believe this is a very important advance at this time.When the New Zealand Bill of Rights Act 1990 was passed earlier iterations of it proposed that we would confer on the courts the jurisdiction to strike down primary legislation. The Parliament of the time in 1990 thought that that was wrong and that the conduct of the executive and other lower-level decision makers within the government apparatus should be able to have their decisions quashed by the courts in respect of decisions that infringed the New Zealand Bill of Rights Act but that primary legislation passed by this House should not be able to struck down by the courts. I think that Parliament was right back then to narrow the New Zealand Bill of Rights Act in that way and that remains good in principle today.I look around the world at the moment and I see a lot of the challenges that are faced by democracies around the world trying to manage current events and I think that the system of Government that we have in New Zealand is a very good one for us to have at the moment. I like the fact that we have a power that is pretty clearly ensconced within the elected Government of the day who control effectively the votes in Parliament through the majorities that they generally put together through a coalition under MMP. That gives the responsibility of the Government—the Government's got nowhere to hide if things are going wrong. They really do have the power and responsibility to change things up when they need to be and then the people of New Zealand can get rid of us every three years. Now I'm one of those people who think it should be every four years but we can be cast aside every three years. A new crew can come in to fix up mistakes that we make or make things better according to their view of the world if they've convinced the voters of New Zealand that it's time for a change.I also have become increasingly aware that our system is underpinned by very very strong conventions that still hold sway in New Zealand. The conventions that we adhere to in this House through the Standing Orders the way in which we relate to the fourth estate and the way in which they relate to us the way we respect the independent role of the courts the way in which we have other strong institutions like the Commerce Commission or the Law Commission—all of these ingredients feed into a very sophisticated democracy in New Zealand. The role of councils regional councils and district councils—we've got a very good system. I think that if you compare it with other countries like the United States they don't seem to be able to grapple with current challenges like gun control or abortion or controls on campaign financing where their system is increasingly dominated by the private wealth interests of some very wealthy people who effectively spend billions of dollars at election time to distort election results. All of those issues have been worked through over the years in New Zealand by our Parliament under our system. That said the protections in the New Zealand Bill of Rights Act are very very important and perhaps they're a bit too easy for us to ignore when Parliament gets it wrong because there are times when Parliament passes legislation which we might think is consistent with the New Zealand Bill of Rights Act but actually on closer reflection it isn't and sometimes it deliberately is passed when it is known to be inconsistent with the protections in the New Zealand Bill of Rights Act. Hon Paul Goldsmith: It doesn't mean that's wrong.Hon DAVID PARKER: It doesn't mean that it's always wrong—I agree. Sometimes it will be wrong and sometimes we should reconsider that at the Parliament.At the moment there is no easy route back for Parliament to reconsider issues when the courts determine that we might have gone a bit far—or they think that we have gone too far—and that's essentially what this bill is about. It's about creating what is sometimes called a halfway house under the New Zealand Bill of Rights Act where although the court hasn't got the right to overturn primary legislation they can draw Parliament's attention to the fact that they think that we've gone too far and through the processes that are enabled by this bill and some related changes to the Standing Orders it enables us to run a process to give further consideration to that. At the end of that consideration the Parliament will have a debate and the executive will have a say as well and Parliament can effectively say Well we think that we're right and the courts are wrong. We're elected. We take these decisions and if people disagree with us they can get rid of us and get a new Government but we think the status quo is justified." Perhaps what might more often happen is that the Parliament might say "Well maybe we could modify the arrangements a little in a way that make them rights-compliant." or on other occasions a new Parliament could say "With the benefit of hindsight or in the light of the advice that we've had from the senior courts we should repeal the legislation and deal with the issue that way." So that's what this bill does. It will change the way in which civil liberties are protected in New Zealand in what in my opinion is an important way.This came to my attention following some of the constitutional reviews that we've had. I sat on a select committee chaired by a member whose name I forget. It was chaired some time ago in an earlier Parliament and then there was the Constitutional Review Committee which Michael Cullen and others served on and this was an idea that came forward—that we look at this halfway house under the New Zealand Bill of Rights Act.I'm going to say something about what I think this implies in respect of how far the New Zealand Bill of Rights Act itself should reach. I know there are some people who would say that we should put social rights like a right to housing for example or a right to an income level or environmental rights like climate change etc. into a bill of rights framework. I don't believe we should and I think we should remember that if we were to do that with this legislative framework in place and the courts were to make a declaration of non-compliance we would be inviting them into an increasingly political space where there are value judgments to be made including as to the allocation of resources and the tension between different issues that are perhaps better judged in this House than by the courts. So for that reason I'm not someone that wants to extend the New Zealand Bill of Rights Act to those issues. Though there may be other legislative instruments that can protect those issues in better ways than they currently are I would not favour them being put into the New Zealand Bill of Rights Act because it would invite the courts too far into our territory.Can I thank Professor Janet McLean who was the adviser to the select committee and the many submitters legal academics and civil liberties specialists—the most eminent in the country—who came before us and provided their advice to us. I won't go through the detail of the changes that were made by select committee which have improved the bill. Suffice it to say that the bill allied with the changes to the Standing Orders creates a process that when the courts make a declaration of inconsistency with the New Zealand Bill of Rights Act the Attorney-General has to present that to the House the Clerk of the House refers that to a select committee and the select committee report back to the House is eventually debated as is the response of the executive. So there is some response required from this place to what will be rare but important declarations of inconsistency by the higher courts. I commend the bill to the House.ASSISTANT SPEAKER (Hon Jenny Salesa): The question is that the motion be agreed to."