Shaw JamesHon JAMES SHAW (Co-Leader—Green): Thank you Madam Speaker. I'm rising on behalf of the Green Party to speak to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill. I'd like to start by responding to some of the points that I've heard in particular some of the extremely good speech that Chris Bishop just gave I thought laying out some of his anxieties around components of the bill. I want to address a few points also that Tim Macindoe raised because I recognised of all the speakers so far he is clearly the most anxious about particular aspects of this—one of which is this point around Why the Privileges Committee?" because it is a highly unusual place to send any piece of legislation.The reason is quite simple: this will have an impact on the Standing Orders because when a declaration of inconsistency is passed that piece of legislation will have to come back to the House. So it's actually entirely appropriate that the select committee who deals with and has expertise in—to your point Mr Macindoe—the Standing Orders can work through the detail of that and see how the Act needs to shape to work with the Standing Orders and in fact what some of the implications might be for the Standing Orders if they need to change to reflect the new Act. So I do understand it's a very odd move but that is why it's being sent to the Privileges Committee.Mr Bishop asks "Has the case been made for why we need to pass a law saying that the courts can make these declarations of inconsistency?" I think the case has been made and the evidence for that is the frequency with which Parliament passes legislation that is inconsistent with the New Zealand Bill of Rights Act. Actually to Mr Macindoe's point we do it a surprising number of times and actually it raises questions about why you bother with the New Zealand Bill of Rights Act if you just pass laws all the time that ignore it or are inconsistent with components of it. So I think that the New Zealand Bill of Rights Act and the parliamentary nature of it—to Mr Bishop's point—actually means that we've got frankly quite a weak New Zealand Bill of Rights Act because we don't have to stick with it.So there are some counterfactuals. If you weren't to try and uphold the New Zealand Bill of Rights Act through declarations of inconsistency what are your other options? They've been canvassed. One of the options is a written constitution—Sir Geoffrey Palmer's name has been raised a number of times tonight. Of course he is a fan of a written constitution to the point that he has written a written constitution and proposed it to the public for debate. He takes on board all of the criticisms of having a written constitution that Mr Bishop has raised about what that can then mean when a set of values and ideas gets enshrined in a piece of paper that 250 years later somewhat binds your ability to move on. But he proposes—along with his colleague Andrew Butler—in his proposal that actually it automatically comes up for review every ten years. I think frankly that's probably too frequent but the point is that it has an automatic review mechanism in it to say "Actually do these provisions still apply?" So I'm actually I'll admit quite a fan of his proposal though like anyone there are certain components in his proposal that I wouldn't be a fan of.So a written constitution might be a way of upholding the New Zealand Bill of Rights Act more than we do. The other is an Upper House and we don't have one. Also as a result of all these things we have an executive—and I say this as a member of the executive at the moment—that is frankly too powerful in the parliamentary set-up.Hon Members: Hear hear!Hon JAMES SHAW: It is and I think that in the absence of an Upper House and/or in the absence of a written constitution—Chlöe Swarbrick: Codified.Hon JAMES SHAW: —codified; here we go!—I can tell that actually we do need some kind of mechanism because we override it so frequently. I remember being in Opposition horrified at the number of times the Government of the day was passing bills that were inconsistent and we used to stand up and shake the Attorney-General of the day's advice and say—Hon Member: You used to object to urgency then too.Hon JAMES SHAW: Well I'll come to that as well because that is actually a pertinent point here as well and I think it actually adds to the reason why we would have this legislation.There are so few checks and balances of any real provision that merely having the courts send it back and say "You need to have another look at this" I think is probably the de minimis; it's the minimum position. This bill if it becomes law doesn't change the constitutional arrangements because all that a declaration of inconsistency does is send it back to Parliament to say "You need to have another go." It maintains the supremacy of Parliament and it maintains the constitutional separation between the legislature and the judiciary. I think that it avoids the risks that Mr Bishop is raising about the potential for the politicisation of the judiciary precisely because all they are doing is issuing a declaration of inconsistency. They're not actually saying what Parliament should do they're not striking down the law; they're just saying "Look the legislation that you have passed is inconsistent with the New Zealand Bill of Rights Act. Take another look at it."Mr Woodhouse raised a question which I think is worth examining which is "So what?" What if they send it back and then the Attorney-General's response will say "Well I know because I had this piece of advice from Crown Law that said it was inconsistent." and then they went ahead and did it anyway. I do think however that it will have an effect because when we have institutions that we trust that are outside of Parliament who are experts in their field who say independently of Parliament "Look this isn't good enough have another crack at it." Parliament actually takes that more seriously than we take it ourselves.My recent experience with this the design of the Climate Change Commission a non-executive body with very little authority to execute in its own right works on the principle of transparency. An august independent scientifically and economically expert body stands up and says "Hello Parliament we think you need to do the following when it comes to your greenhouse gas emissions." It becomes very difficult then for Parliament to do anything else because somehow we've got to come up with a better answer than the Climate Change Commission has come up with and we've stocked that body with people who are absolutely at the top of the game and experts in their field. If you take that parallel and apply it here to the courts it's not actually terribly dissimilar. You know you would have a situation where—and this is exactly to Mr Bishop's point about the nature of judges and who's in the judiciary—these are people who are absolute experts in their field. If they do issue an opinion saying "Actually we think Parliament has got it wrong and they need to at least come back again."—and they can come back with the same answer you know; you can pass that law again and it still be inconsistent but you've got to think bloody hard about that. You know it's that matter of transparency that I think is significant.So I do think Mr Bishop that the case has been made and actually when you're concerned about sitting under urgency and frankly—to Mr Smith's point—yes the Green Party does object to the use of urgency but we have just lost 50 parliamentary sitting days due to the national state of emergency and we are on the other side of it squeezed up against an election; so you do get a compression of time. But some of the issues that we have dealt with during urgency which the Opposition has raised valid concerns about—should this go through under urgency what are the considerations—that is precisely the kind of question that this would help to address. If you were worried about the COVID response bill and its possible—you know if you thought that it had transgressed human rights and civil liberties and so on and so forth then actually this bill would help that. The view of the Government was that it had to pass under a certain period of time in order for it to have effect in order for the country to legally move to level 2 and for us to deal with the situation. That was the Government's view and one I subscribe to. But here you would have recourse to say "Actually it was inconsistent. You need to have another go."So I think when you look at all of those things—the fact that we don't have a written constitution and there doesn't seem to be a great deal of appetite for one; we don't have an Upper House and there doesn't seem to be a lot of appetite for one; we do have an over-powerful executive and there doesn't seem to be a lot of appetite to change that—I think that this is a good bill that will uphold the—ASSISTANT SPEAKER (Adrian Rurawhe): Order! The member's time has expired."