Bishop ChrisCHRIS BISHOP (National—Hutt South): Thank you very much Madam Speaker. I just want to echo the comments of Tracey Martin about the respectful nature with which this debate has been conducted so far. I particularly praise the erudite contribution of the Attorney-General David Parker and my good friend the Hon Tim Macindoe.Parliament doesn't consider legislation like this very often. In fact the New Zealand Bill of Rights Act has been amended very infrequently since it was passed in 1990 as a parliamentary bill of rights—and I'll return to that—and that I think is a sign of the respect with which the law is held by the Parliament; it's now been 30 years on the statute book and that is of considerable importance. It's I think frankly a little bit strange that we are considering it late on a Thursday night under urgency. I think as a matter of principle bills that amend statutes like the New Zealand Bill of Rights Act should not just as a matter of principle—I acknowledge the fact it's a first reading only and it's going to a committee but I think it just leaves a slightly sour taste in my mouth that it is being considered under urgency.I concur with others who have expressed the view that our constitution is fundamentally pretty sound. Every now and then you get into debates with people who say to you We don't have a constitution. We don't have one. Why do you say we have a constitution?" And of course we don't have a capital "c" written constitution like the United States for example or like the Australian Constitution but to say that we don't have a constitution with a small "c" is of course completely incorrect. We do have a constitution. It's made up of in some places statute: the Bill of Rights 1688 which I think the Attorney-General referenced. It's made up of the Petition of Right 1628 Magna Carta 1217—1295. It's made up of the conventions that—Dr Deborah Russell: 1215.CHRIS BISHOP: Oh 1215? I'm sorry. Thank you Deborah Russell. I knew of all the people in the Parliament you would know that. It's made up of the conventions that govern this institution the convention against retrospectivity which of course is a convention that can be breached because we do pass retrospective legislation sometimes but only usually if we can find a very good reason. Particularly the presumption against retrospectivity in the criminal law: Parliament shouldn't pass laws that criminalise behaviour that was legal at the time and make it illegal afterwards. It's made up of a variety of different statutes and of course the common law. So of course we have a constitution.The critical question that this bill touches upon is: what is the role of judges within that constitution? In New Zealand it is settled law that Parliament is sovereign. Despite some of the comments in the 1990s by Lord Cooke—or president Cooke of the Court of Appeal as he then was; he later became Lord Cooke of Thorndon—about Parliament's ability to legislate and the famous example I think he used was if Parliament turned around tomorrow and said "On the day after tomorrow all blue-eyed babies will be killed." he expressed the view that the courts may stop that. Despite his views it is settled law in New Zealand that Parliament is supreme and we can legislate for whatever we like.So the question that confronts us is: what is the role of judges within that constitution? Fundamentally I believe that if we were to go to a system where we have a written constitution supreme law constitution there would be the politicisation of judges. Judges in New Zealand are appointed by a slightly peculiar slightly curious process but they are completely apolitical. There is consultation between shadow Attorneys-General and the Attorney-General and the Chief Justice about the appointment of those judges.Of course in the United States as I think the Attorney made mention of that's completely upended. Instead where political issues like abortion like campaign finance and like gun control are mediated not through the battleground of democracy and through political debates and back and forth between elected members of the legislature but where those issues are actually battled out in the judiciary of course the judiciary is politicised. Members will have seen the back and forth to do with Roe v Wade which is the 1973 Supreme Court decision that essentially through the invention of a right to privacy in the United States Constitution allows abortion for women in the United States.Actually there's a very strong argument I believe that if abortion had been legislated on a state basis the political consensus around abortion would be far more enduring and far more settled than a decision of the Supreme Court in 1973 that has been attacked and torn asunder over and over and over again and where abortion is a hugely politicised legal issue in the United States. There's a very strong argument that if that had just been left to legislatures to work out you would see greater access to abortion regardless of your views about whether it's right or wrong you would see that because—and this is the critical point—there would be a democratic legitimacy for that position. The argument of people who oppose abortion in the United States is partly a constitutional one: that there is no right to abortion in the United States Constitution and therefore a judicially activist court has invented one in order to give effect to rights that should actually be the proper conduct of the legislature. And you could go through other examples.I think that example neatly illustrates—perhaps in a little bit of an extreme way because I don't think anyone thinks that would happen to the same extent in New Zealand—the point which is that we have a political constitution and when Sir Geoffrey Palmer introduced the New Zealand Bill of Rights Act in 1989 Parliament made a deliberate decision for what he called a "parliamentary bill of rights" and that's a bill of rights where the limit on rights and exception to rights is worked out and determined by the Parliament rather than the courts. It's worth noting that the original suggestion was of a supreme law constitution and Madam Speaker will remember some of those debates I suspect and it was pretty controversial actually up and down the country. In fact the original proposal—blast from the past—was to enshrine the whole of the Treaty of Waitangi and that didn't pass muster and that idea was rejected.But Parliament made a decision to have a parliamentary bill of rights and we rejected the idea that our judges should adjudicate on rights limitations. We did that for the reasons I just averted to which are that our rights are worked out politically that the appropriate limit on rights is something for Parliament to decide not the judiciary and the reason for that is that judges are unelected. Fundamentally they do not face the same accountability mechanisms that we do in this Parliament and that's appropriate. Of course they should be separate from the Parliament and they should be only able to be removed with extreme situations because they have to have that separation of power but they are fundamentally unaccountable and unelected.And of course they don't reflect—I'll just add a further point to that. They don't fundamentally reflect New Zealand experiences and the shape of modern New Zealand. I'm not saying that to be particularly negative about the judiciary but it is a simple fact of life that they are older they are whiter and they are more male than the rest of New Zealand and we should address that. There are ways to address that but our judiciary is overwhelmingly male overwhelmingly white and overwhelmingly older than the average person in New Zealand. I'm just simply making the point that this Parliament is far more reflective of the make-up of modern New Zealand and therefore I believe—Hon Stuart Nash: Not your front bench.CHRIS BISHOP: Oh well you can object if you like but I'm trying to make a serious point. Let's not get too political. I'm trying to make a serious point.Hon Stuart Nash: Oh come on! You're making a political speech for goodness' sake!CHRIS BISHOP: Well that's disgraceful. I don't think anyone would accuse me of making a political speech Mr Nash. I'm making a serious point about the make-up of our Parliament. And you can take the mick if you like and act the fool but I think it reflects more on you than it does on your party I hope because actually other members of your party have made very serious points about a very serious issue.ASSISTANT SPEAKER (Hon Ruth Dyson): Don't bring the Speaker into the debate please Mr Bishop.CHRIS BISHOP: So I'll just make the point in closing—after that very rude interruption—that I think there is a plausible case for declarations of inconsistency to be issued in New Zealand but I do not believe that case has been made yet. The courts have been inching towards this moment. They started in the Pora and Poumako cases of 2000 and then the Moonen case and of course we had the 20-year abeyance before the Taylor v Attorney-General case. It's a narrow-run thing—as Mr Macindoe pointed out a 3-2 decision. There is some academic support for the proposition. My personal view is that the courts got it wrong in both that decision and in the Baigent case which established the remedy clause in the New Zealand Bill of Rights Act. I think it's a narrow-run thing.I'm looking forward to the consideration at the Privileges Committee. I too share Mr Macindoe's qualms about the legislation. We'll support it in good faith to the Privileges Committee to have a look at it but we're going to need to be convinced it's a good idea before we go any further. Thank you Madam Speaker."