Parker DavidHon DAVID PARKER (Attorney-General): I rise in support of this bill. The underlying Cabinet paper which led to this bill being authorised by Cabinet was co-authored by Minister Little and myself and it implements Labour Party policy that was in our manifesto at the last election which actually pre-dated the Supreme Court decision in Taylor v Attorney-General. Just before I get into the detail of this bill the Privileges Committee in the last parliamentary term considered the Parliamentary Privilege Act under the chairmanship of the Hon Chris Finlayson. So it's not unusual for this sort of issue to go there although it doesn't happen all that often. In respect of New Zealand's constitutional arrangements I'm a great believer in them. I think that we are very very lucky at this time in history to live in a country that has strong recognition for human rights civil liberties and the rule of law and that we have a system that has very large power resting with the executive moderated by the effects of MMP and controlled by the public through three-yearly election cycles. I personally think it should be four—but regular elections. I believe that we are fortunate not to have a written constitution. We have lots of written parts of our constitution but we don't have a written constitution in the tradition of the United States which confers powers of striking down primary legislation on the courts. I think that combination of events together with strong conventions which are still adhered to in our constitutional settings by both Parliament and the courts and the executive are underpinned by other strong institutions like not just the courts but the Commerce Commission and the Law Commission and the good councils local councils etc. We've managed to weave a way through controversies that a lot of other countries get stuck on. We've done this for two centuries now and I think that at this point in time where other countries are becoming rule-bound as a consequence of all of the checks and balances that they have with written constitutions we're much better placed to govern our country and maintain a social consensus. If we look at countries that have got a written constitution like the United States they're stuck on things like gun control and campaign financing. We've managed to deal with both of those issues as a Parliament. We actually very often agree across the House but I'm not sure if we would if we had the politicisation of debates outside of this House relating to issues of political difficulty whether it was relating to gun control campaign financing or abortion law. You know about 10 years ago we had Harry Duynhoven who had a problem in New Zealand because he had dual citizenship. We had a citizenship law that arguably—and it was not quite 100 percent clear but perhaps it meant that it was difficult for him to be a Minister in a New Zealand Government. We actually resolved that as a Parliament through legislation. Australia with a written constitution couldn't do it that way and they had all of this turmoil in their Parliament because of the citizenship of members of their Parliament that they didn't know about. So for all of those reasons I'm a great believer in the flexibility of our system. However it is also underpinned by the New Zealand Bill of Rights Act and it does have a weakness and that is that because of the lack of checks and balances and the lack of an upper House and with the power of the executive we can actually ram legislation through this place pretty fast. Now I heard Michael Woodhouse's complaint about the legislation relating to COVID and that bill is now being considered by a committee and I would justify what happened there. But it is none the less true that we were able to pass legislation quickly and sometimes the legislation that is passed quickly in this House has a political overlay. It is done at a time of political heat and sometimes even though we're a very good system we do make mistakes. Sometimes we pass legislation that we ought not to that is in breach of the New Zealand Bill of Rights Act and we've heard examples of that given by prior speakers. Now until recently the courts hadn't taken to themselves the power to issue a declaration of non-compliance and the underlying policy reason why they hadn't was that it doesn't give a remedy. There's no remedy from a declaration of inconsistency with the New Zealand Bill of Rights Act and it was a matter of some controversy as to whether the courts could take that jurisdiction for themselves. I wasn't particularly comfortable with them doing that. I understand the arguments in favour of it but I would have preferred for us to have given them that as we are proposing to do in this bill and indeed that was our policy on this side of the House even before the decision in Taylor v Attorney-General. There are other esteemed scholars who think they're exactly right including one who I think is the greatest civil libertarian ever in the history of New Zealand which is Sir Geoffrey Palmer. He was of that view. Hon Michael Woodhouse: We'll probably hear from him as well. Hon DAVID PARKER: We probably will hear from him at select committee I think—yeah and I look forward to it. I look forward to it because he is very wise in these matters and he is the author of course of the New Zealand Bill of Rights Act 1990. Now there is no remedy for a declaration of inconsistency and this sort of what's called this halfway house under the New Zealand Bill of Rights Act—the new one not the old one—is a way in which we can negotiate these things where things may or may not have gone wrong because these are generally line calls and sometimes you can imagine the different branches of Government being the courts and Parliament disagreeing. Now in that situation I want Parliament to be sovereign. I really do want the sovereignty of Parliament to be—I'm not one of these people who think that the sovereignty of Parliament is absolutely unlimited. I actually do think there are things—you know the recent spat that we've been having over legal professional privilege. I think there are aspects of that that belong to the court rather than to Parliament and there are aspects of parliamentary privilege that belong to Parliament and can't be overridden by the courts which is why the Privileges Committee overrode the decision of the courts in the Erin Leigh decision where the court said it imputed the doctrine of necessity into parliamentary privilege from the law of defamation. We thought that that was breach of the 1688 Bill of Rights which gave absolute privilege to parliamentary proceedings. Now having said all of that how do fix things when you get a declaration of inconsistency? Actually you want this Parliament out of the heat of the political debate that probably led to the legislation that wasn't all that wise and to actually take a breath and have a think about it. So what this is suggesting is that the Attorney-General brings it to this House. The Government of the day and the Opposition don't have to take an instant political position on it. The decision is referred by the Attorney-General and then on to the Privileges Committee. Now we know that the Privileges Committee is peopled by people is staffed if you like—manned and woman-ed—by generally experienced politicians here and the Privileges Committee because of those strong conventions actually generally rises above the pettiness of the day which we sometimes have in politics. The hope is that by taking that course we will actually have a reasoned and somewhat apolitical discussion at the Privileges Committee as to what we think of the court's decision finding a declaration of inconsistency and the Privileges Committee can then report back to Parliament. In the end it's Parliament that will control this. Parliament will be sovereign and—as the Minister of Justice the Hon Andrew Little said—effectively the three choices are either to repeal the legislation where there has been a declaration of inconsistency by the higher courts to amend it or to say Look no. We've reflected on this as a Parliament and as democratically elected representatives of the people actually we disagree with the courts and respectfully we're going to stick with the law because overall we think it's justified." That's what this bill does. It's effectively a halfway house under the New Zealand Bill of Rights Act. It's a very significant constitutional change and if we agree to do this as a Parliament I think this will be an additional protection for civil liberties in New Zealand. I know that there are various academics who have got a list of little things that Parliament has done. None of them is especially egregious. I'm not trying to belittle them but they're things that we've managed to live with as a country; none the less some of them are wrong. There's a list of those things that have been done over the years and maybe this process will create an ability for us to reflect upon those issues and sometimes fix them sometimes slightly change them and sometimes stick with the status quo. We will be preserving the sovereignty of Parliament we will be preserving—or in fact we'll be improving—comity between the courts and Parliament and I think we'll be improving the constitutional settings of our country."