Our constitutional arrangements work on an implicit bargain - the principle of comity - that the Courts and Parliament don't mess with each other's turf. I think that bargain just got broken.

I really don't want to be "that guy" who leaps up at monotonously regular intervals to proclaim that a latest constitutional outrage marks some sort of nadir in governmental practice. But I'm going to have to run that risk by following up a post accusing the National Government generally (and Justice Minister Judith Collins in particular) of manifest bad faith regarding electoral reform with another one claiming that it's just done something that tramples all over a basic foundational principle of our constitutional order.

(But before we get to that, and in the interests of "balance", may I temper any previous criticism of Judith Collins with a bouquet for both her announcement of more money for restorative justice conferences and her recent, somewhat frenetic and sometimes odd activities on twitter. There we go - friends again!)

Back to the latest outrage, however. In the wake of the budget, the Government is pushing through a whole bunch of bills in one great rush of non-stop, orgiastic lawmaking. Most of these measures are to do with the budget. But at least one isn't - tucked away amongst the things apparently requiring Parliament's urgent attention is a proposal to further amend a law that Parliament amended just a mere month ago. Part of this new amendment legislation is intended to extend still further the new offence provisions covering sea-bourne protests against oil exploration and production activities - something I posted on here. Normally this sort of sloppy (and highly questionable) law making would deserve a post of its own, but it's not the real target here.

Because alongside everything else, the Government rushed through - and I mean rushed through ... it got passed right through the House the same day debate on it commenced - a bill intended to sort out the problem of paying family members of severely disabled people to look after them. What is that problem, you ask? Well, it goes back a bit, so some scene setting is necessary.

For the longest time, DHBs would not pay family members who chose to stay home and act as caregivers for their disabled loved ones. They would, however, pay for an outside caregiver to come in and do the job. This rankled at least some family members; why should their labour (lovingly given though it was) be taken for granted and their sacrifices for their family go unrewarded, whilst a stranger coming in to do the job could get paid for it?

So in 2010, some family caregivers went off to the Human Rights Tribunal and challenged the DHB policies on the grounds that these discriminated against them on the basis of their family status; which in turn breaches their rights under the New Zealand Bill of Rights Act, 1990. They won, but the Government appealed the matter to first the High Court, and then the Court of Appeal ... where the family members won again. And so, finally, the Government caved and recognised it was going to have to come up with some policy that would deal with the problem.

As announced in the budget, that policy takes two forms. First, the Government passed legislation that gives a statutory underpinning to the "family care policy" setting out who will (and who won't) be paid. This statutory underpinning is in section 70C, and will say:

[When the law kicks in], neither the Crown nor a DHB may pay a person for any support services that are, whether before, on, or after that commencement, provided to a family member of the person unless the payment ispermitted by an applicable family care policy ...

With this statutory provision in place, the Government will work out with DHBs over time just who will be eligible to be paid (and how much) under the family care policy. At the moment, it looks like only those relatives caring for persons aged 18 or more will be ... and spouses looking after each other won't be. Furthermore, the payment rate looks to be at the level of the minimum wage, which is less than externally contracted carers would get.

So, it's a policy with a lot of gaps in it (caring for your kids or your spouse still is unpaid labour), and even those family members whom it covers don't get the same pay rate as strangers coming in to care for their loved ones. Which has made some of the family caregivers in question a bit angry.

[T]he outlay over four years has been dismissed as "miserly", and will still discriminate against some relatives, according to one of the parents who took the Ministry of Health to court.

"We took a case for all disabled people," Cliff Robinson of Thames said. "It seems like, after all our years and years of fighting to get a decent scheme, we've got a half- baked one. There will be challenges to this."

Well, what form might such challenges take? Remember section 70C above - it specifically prohibits any caregiver being paid anything unless the family care policy allows it. If the policy says you don't get paid, then Parliament says you can't be paid. But getting around that problem is easy enough ... the family caregivers can just challenge the family care policy itself, on the grounds that it discriminates on the basis of family status. After all, the policy isn't a statutory provision - it's something that the Government (that is, the executive branch) has worked out with DHBs. And the Government cannot make policies as to who will/won't get paid that breach the New Zealand Bill of Rights Act 1990 (unless specifically authorised by Parliament to do so). After all, the courts backed this argument last time, so you'd think the family carers would have a better-than-even chance of winning this time around.

Now, this is where things start getting a bit weird. I assume the above is roughly the advice that was given to the Minister as the Bill was being put together. I say "assume" because all the relevant discussion of legal risks produced by the legislation has been redacted from the publicly available information about it. You can see this for yourself in the Regulatory Impact Statement that must be provided to the House when the Bill is introduced (there's a more arresting visual of it here). So not only can't I say for sure what risk there may have been that the legislation would have had the effect of dumping the Government back in court, neither can the MPs who are being asked to debate it and vote on whether it should be law.

Pause and think about that fact for a moment.

Because, things are about to get even weirder. What's a good way, you might ask, to create a policy on paying family caregivers without running the risk of it being overturned? And the answer I assume you'd give is "make sure that the policy isn't unlawfully discriminatory, so there is no reason for this to happen." If so, you are an idiot. Because there's a far, far better way to respond.

You simply tell the Human Rights Review Tribunal and the courts that they are not allowed to look at the policy and decide whether or not it is unlawfully discriminatory. That's just what the Government is seeking to get Parliament to do under section 70E(2):

[When this law kicks in], no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.

You might need a moment to let the implications of this sink in. By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary's primary function - to declare the meaning of law and its application in particular cases - has been nullified. Furthermore, the judiciary's role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land has been removed. While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.

Now, I sort of get why Tony Ryall (the Minister in charge of this bill) wanted to do this. Trying to come up with a policy on who does and doesn't get money here is probably pretty complicated. And health dollars are a finite resource - everything that is paid over to family caregivers means less services somewhere else. So having the threat of the judiciary coming into this mix and upsetting whatever compromises he comes up with over the next few months when he finalises the family care policies would be a real pain in the backside. You can even argue, as does Attorney General Chris Finlayson in his New Zealand Bill of Rights Act assessment (which I'll get to in a moment) that the courts were wrong to intervene in the first place.

But what Tony Ryall's doing here is, as far as I know, unprecedented (at least in recent constitutional history). Here's what the Legislation Advisory Committee has to say about attempts to "oust" the jurisdiction of the courts to examine some matter:

Ouster clauses are objectionable because they interfere with the courts' constitutional role as interpreters and expounders of the law. In general, legal obligations are enforceable by the courts. Where judicial review is ousted, it is often argued that the public body whose decisions cannot be reviewed is not subject to the law and therefore has legally unlimited power. ...

[T]he undoubted normative strength of the presumption against ouster clauses means that Parliament should only seek to oust the courts' review jurisdiction in exceptional cases.

And how "exceptional" is the current situation? Well, it's not exceptional enough to stop Attorney General Chris Finlayson declaring the Bill to be inconsistent with the Bill of Rights Act, s.27(b) right to justice:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

And yet this declaration itself was not enough to stop the National Government using its numbers in the House to rush this Bill through all stages of lawmaking and onto the statute books in a single day.

So there you have it - another day in the life of the Government of the nation and the laws made by the Parliament it commands. I'll simply close with a reminder of what Sir Kenneth Keith says about our Constitution in the foreward to the Cabinet Manual, the "bible" of good practice every Minister is expected to know by heart:

A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of the law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values. The answer cannot always lie with simple majority decision making. Indeed, those with the authority to make majority decisions often themselves recognise that their authority is limited by understandings of what is basic in our society, by convention, by the Treaty of Waitaingi, by international obligations and by ideas of fairness and justice.

Comments (42)

by Morgan Murrah on May 18, 2013
Morgan Murrah

Proffesor,

You’re watching television. Suddenly you realize there’s a wasp crawling on your arm. What do you do?

Also, Where is the left opposition to this? asleep?

Kind regards 


 

by Morgan Murrah on May 18, 2013
Morgan Murrah

Professor*. Ack, no ability to spell check/edit. 

by Ian MacKay on May 18, 2013
Ian MacKay

This Government has put itself beyond the Law with the Paying Families members Act.

Connect that to the ECAN suspension and the rights of Jerry Brownlie and the apparent over-ruling of Council Housing plans as in the Budget, and the Dodging the Rules to set up the Auckland Conference Centre and the Denial of David Bains Review. As an illinformed layman, it does seem to me that the will of this Government to exercise power in any way it likes, is at least sinister. Perhaps the Caregivers of seriously disabled people will soon be classed as Terrorists and placed under the Homeland Rule. What? You don't want Mums and Dads to be safe in their beds at night?

by Dave Kennedy on May 18, 2013
Dave Kennedy

Morgan, the opposition fought hard against this bill http://inthehouse.co.nz/node/18741 but surely you realise that it comes down to a vote and we are in the minority. 

The Government spent $1.6 million fighting the legal battle against the caregivers, they control the purse, they have the numbers and they have no conscience! 

Also how many petitions, marches and protests have you got the energy for? Nothing will change until the Government does. 

by stuart munro on May 18, 2013
stuart munro

I'd really quite like to see an automatic review mechanism for urgency legislation. These fixes made on the fly are often rather poorly designed and cause trouble further down the track. The Fisheries Industry Union Coverage Act was a prime example. Also, what's the point of having 140 (mostly drunk) yahoos assembled in Wellington for much of the year if they're not going to bring the full weight of their intellect (such as it is) to bear on the country's problems.

by Steve F on May 18, 2013
Steve F

Andrew

Is there any way someone can tap the Governer General's shoulder. Would Royal assent have been granted by now? The separation of powers has taken a tumble here and this is a serious matter. The mainstream media should be grasping this and translating the stuff into everyday language for the masses, something they appear to be good at with references to tyranical states and Nazi Germany.......I hope they at least skip through this bog.....

by Andrew Geddis on May 19, 2013
Andrew Geddis

@Steve F,

It may not yet have been signed - it still shows up as a "bill" on the legislation website. But I suspect the Governor General is going to sign it ... unless he wants to escalate this into a full-on constitutional crisis. Which would be interesting, but unlikely.

by Chris Trotter on May 19, 2013
Chris Trotter

Thank you, Andrew.

It's postings like this that make up for the shameful silence of the so-called "Mainstream Media".

Human-beings are most likely to behave badly when they are confident they will not be held accountable for their actions.

Your posting will have given the Government pause. I hope your colleagues in the legal profession and academia will join you in acting as "the critic and conscience" of our society.

God knows, we have need of you.

by Rich on May 19, 2013
Rich

You don't think that "royal" assent is something the Governor-General gives on the advice of ministers? Even if the G-G did break with 300 years of precedent and veto the bill, he could be sacked and the bill signed the next day by whoever John Key wanted to put in as a replacement cipher (Aaron Gilmour?).

Labour aren't to blame for failing to oppose the bill, but they share the blame for not providing NZ with a proper, entrenched Bill Of Rights.

 

by Deborah Coddington on May 19, 2013
Deborah Coddington

Andrew, do you agree that The Cabinet Manual is part of our Constitutional framework?

by Andrew Geddis on May 19, 2013
Andrew Geddis

@Deborah,

It's often referred to as having a "quasi-constitutional status" ... it's a widely accepted statement of expected constitutional practice. Which is why acting in breach of it is enough to get a Minister sacked.

by Deborah Coddington on May 19, 2013
Deborah Coddington

Thanks Andrew. So if a Prime Minister acts "presidentially", ie, acts without briefing cabinet, and without "collective cabinet" whatever it's called, is that unconstitutional? And if so, are there any consequences down the track? I guess not.

by Andrew Geddis on May 19, 2013
Andrew Geddis

@Deborah,

The consequences, such as they may be, would be that the PM's fellow Ministers might start to get very peeved with being sidelined. But there would be no legal way to challenge/undo the PM's action ... remember that Cabinet itself has no formal legal status (it isn't in any statute/there's no legal rules governing how it must act). 

by HIlary Stace on May 20, 2013
HIlary Stace

This current constitutional outrage against disabled people and families highlights once again why why we need to include disability expertise in any discussions about public policy. As a historian of disability policy it is a very lonely place, and very hard to get any mainstream academic or media interest. This latest situation is nothing new when you look back over about 140 years from the Immigration acts which excluded disabled people (and still do), to forced institutionalisation of children and young people, and ongoing lack of access to education, employment and other aspects of citizenship. The fact that we are just going to have another review about more abuse in residential care after a 2008 select committee report made several recommendations about how and why this should never happen again, is symptomatic. So is the appointment to lead this inquiry of a person with no background in disability or disability policy. Just as there has been no obvious input (or any mention) if disability input into the Constitutional Review. Yet, about 20% of the population identifies as disabled and Carers NZ suggests that everyone is likely to either require care or be a carer in their adult life.

 

by Tim Watkin on May 20, 2013
Tim Watkin

Morgan, the spellecheck's the wee ABC thingamy at the top of the comment box.

Great post, Andrew.

by Dennis Horne on May 20, 2013
Dennis Horne

Too many laws, too many lawyers, no inderstanding of our place in the Universe. 

Homo sapiens is just another species on Earth, with no rights. The rights are entirely derived from ourselves, society, parliament.

 

by Andrew Geddis on May 20, 2013
Andrew Geddis

@Dennis,

That's a remarkably vacuous statement. If rights simply are "derived from ourselves", what is your basis for claiming that there are "too many laws, too many lawyers"? The latter is an evaluative statement that rests on ... what?

by Dennis Horne on May 20, 2013
Dennis Horne

People don't have "rights" in the Universe, they make "demands" on society, that is, other people.

My basis for claiming there are too many many laws and too many lawyers? That's a remarkably vacuous question. Observation. Numbers. More and more law nulliying our personal freedom, and too much wealth transferred to a self-serving legal system; parasites who generate their own need to exist.

by Andrew Geddis on May 20, 2013
Andrew Geddis

@Dennis,

"Too many" is an evaluative statement, comparing to some "correct" or "proper" number. Observation and numbers cannot provide this - only some general theory of what a "properly operating" society looks like. So, from whence do you derive this?

As for "[m]ore and more law nulliying our personal freedom...", what "personal freedom" would that be (given that "rights are entirely derived from ourselves,  society, parliament.")? How can you have "freedom", when the extent of that freedom is designated by the social institutions in place at any given time?

by Morgan Murrah on May 20, 2013
Morgan Murrah

@ Tim - thank you!

@ Andrew - My apologies for the jovial Voight-Kampff test in the midst of a serious topic, you seem to have passed it though and are indeed not a replicant. 

This behaviour ties in greatly to the findings of the book "What's the Hurry" regarding Urgency in the New Zealand Legislative Process. There need to be effective discentives to against urgency being used too frequently. I think an empirical look at its use will show this year of "the fastest lawmaker in the west" with undesirable consequences. Time to continue writing on this topic and I hope to attempt to publish soon. 

by Morgan Murrah on May 20, 2013
Morgan Murrah

Ack! the accidental double post from two clicks things needs to be ironed out. My apologies. Also " There needs* to be effective discentives to against urgency being used too frequently "

by Steven Price on May 20, 2013
Steven Price

Okay. So: instead of challenging the new policy before the Human Rights Review Tribunal, can we challenge this law?

by Dennis Horne on May 20, 2013
Dennis Horne

Semantics. If I offered you $500,000 to establish yet another chair in Law, would you say that was "not enough"? Or would you make a judgement? If a fishing mate said he wasn't "getting enough" would you understand him? Or would you ask him if he knew what the bag limit was?

If there were no parliament we would have total freedom. You are insinuating passing more laws increases our freedom. I don't think so. 

What we need--in my opinion--is Parliament to pass more laws that formalise the obligations of individuals to the state in return for their demands, not give them more "rights", or worse, allow lawyers to determine what Parliament meant or intends the taxpayers to pay for.

But to answer your question in a word, how many lawyers would be enough in a properly operating or perfect society: None.

by Andrew Geddis on May 20, 2013
Andrew Geddis

Dennis,

OK. You've made a point, whatever it is. Time to move on.

by Ben Wilson on May 20, 2013
Ben Wilson

Excellent article, Andrew. I'm currently a bit freaked out by it.

by Searching on May 20, 2013
Searching

I wonder why we have not had Bernard Robertsons view on this?

(Editor NZ Law Journal for the unwashed)

Or is he in Court?

by Dennis Horne on May 21, 2013
Dennis Horne

The reason this exclusion is incorporated into the law is to stop lawyers feeding on legal aid to give people “rights” the government does not intend to give them, that is allow them to make demands the government does not intend the taxpayer meeting. No doubt lessons learned from the ACC about creation of need. (Including the need for even more lawyers.)

by Jane Beezle on May 22, 2013
Jane Beezle

Extremely disturbing.

The misuse of urgency was a feature of the previous Labour led administration that the current government learned from.  It is becoming a real misuse of Parliamentary power that requires reform.

Remember "the first 100 days"?  It was a bull's rush of legislation under urgency at the beginning of National's first term that received little comment, because the government claimed a "mandate".  It has set the scene for Parliamentary urgency whenever something controversial has required speedy passage to minimise media fallout.

The wholesale redaction of a regulatory impact statement under "legal privilege" is also unprecedented as far as I am aware.  The point of the statement is a public exposition of the regulatory options.  Why should it have been used to give wholesale legal advice to government, presumably about the likelihood of future proceedings?  There are other options for doing so.

But the crowning glory, legislation that excludes govt policy from the Bill of Rights Act as part of Budget legislation ... it really does take your breath away.

 

by Nandor on May 22, 2013
Nandor

Thank you Andrew for this excellent post.

@Jane - Governments have used urgency since long before the last Labour one. In general Labour used urgency to extend the sitting hours of Parliament and allow 2nd reading, house committee stage and 3rd reading to happen on the same day, which is not necessarily a bad thing to do. The real abuse of urgency is when governments use it to avoid the select committee process, by introducing a bill under urgency and then running it through to 3rd reading in one go. The last Labour Govt rarely did this, mostly because their support parties largely refused to give them the numbers for it. Certainly the Greens never supported it, I think maybe UF and/or NZF did once or twice.

Which brings me to make the point that those parties that voted for the urgency motion also deserve some heat for allowing such an unconstitutional bill to pass without scrutiny. In the past ACT saw itself as a protector of Parliamentary process to some degree and would not, I think, have supported the urgency. Under John Banks, of course, any pretension to other than naked self interest is gone.

by Jono Rowe on May 22, 2013
Jono Rowe
It seems that the issue is that to be the "government" a party must have a majority (I use this term loosely in the context of mmp) in our  unicameral parliament-this situation also necessarily gives them the power to kick the house into urgency. In other words (nuances of confidence and supply agreements aside) by dint of being the government they can determine which legislation is debated according to the normal "constitutional" process and which is rammed through in breach of it. 
Surely an upper chamber (in which the govt did not have to hold the "confidence of the house" like in the UK and Australia) could be a potential answer to this. See the example on the guardian for this in action:
http://m.guardian.co.uk/politics/2008/oct/13/terrorism-uksecurity1

I am surprised this option still remains outside the debate. 
by Ross on May 22, 2013
Ross

Surely an upper chamber (in which the govt did not have to hold the "confidence of the house" like in the UK and Australia) could be a potential answer to this.

An upper chamber could be problematic. Would an upper chamber, consisting of unelected officials, be able to veto laws passed by Parliament? If so, I suspect there'd be a fair bit of opposition to such a body.

by Jono Rowe on May 22, 2013
Jono Rowe

An upper chamber wouldn't necessarily have to be appointed-the House of Lords is, but the Australian Seante is elected. An elected chamber on a different basis to the House of Representatives (so the governing party didnt have a majority in both) could work. The House of Lords also doesn't have a true veto. It can reject a bill for one session (one year). If it is reintroduced the bill bypasses the lords. In the example I posted from the Guardian, Brown chose to drop the Bill after the negative publicity that arose from such a resounding defeat in the upper chamber-an example of soft power. A strength of the lords is that roughly a third of members are cross-benchers so no government ever has a majority. 

by Frenchy on May 23, 2013
Frenchy

I agree that an upper house would be a check on power Jono, but the public would never support the idea of more politicians!
As NZ lacks the constitutional checks of many of our friends: an upper house (like the UK, USA, Canada & Australia) and a judiciary with the power to strike down legislation (Australia, USA), I think either the Governor General or the Supreme Court need to step up and take a more involved role. 
If the Executive is going to break constitutional conventions and limit access to the Courts, then the other branches need to step in to protect the people.
Perhaps we need another Cooke, or better yet, a Coke, to stand up to parliamentary supremacy. 

by Jono Rowe on May 23, 2013
Jono Rowe

It wouldnt necessarily result in more politicians Frenchy - an upper chamber could have say 40 members and be accompanied by a reduction in numbers in the House of Representatives (although I personally wouldn't support this reduction). 

I think the other two options you propose are less palatable - the Supreme Court is not elected and the idea of them striking down legislation would require a written constitution and a conceptualisation of the relationship between the legislature and the judiciary that is foreign to our tradition of parliamentary sovereignty (at least we can vote out those that break our constitution). 

The Governor-General is also problematic and should not be expected to act except in the most egregious of cases. Sir John Kerr intervened in Australia in 1975 dismissing Whitlam and the result was that Australia nearly became a republic. The Governor-General also became a divisive figure and the subject of vitriolic hatred in many quarters. 

 

I think we are back to the upper house as a solution - perhaps the least un-palatable to the general public. 

by Graeme Edgeler on May 23, 2013
Graeme Edgeler

The real abuse of urgency is when governments use it to avoid the select committee process, by introducing a bill under urgency and then running it through to 3rd reading in one go. The last Labour Govt rarely did this, mostly because their support parties largely refused to give them the numbers for it. Certainly the Greens never supported it...

Never? What about on August 6 2003?

You were present in the House that day, but perhaps not at the time of the vote on the urgency motion. Allow me to refresh your memory with the following quote from Hansard:

URGENCY

Hon Dr MICHAEL CULLEN (Leader of the House) : I move, That urgency be accorded the introduction and passing of the Electoral (Vacancies) Amendment Bill. Urgency is sought because, for the bill to be effective, it has to be passed before the next sitting day.

A party vote was called for on the question, That urgency be accorded.

Ayes 69Labour 50; Green Party 9; United Future 8; Progressive 2.
Noes 48New Zealand National 27; New Zealand First 13; ACT New Zealand 8.
Abstentions 1Hunt.
Motion agreed to.

Reference: http://www.parliament.nz/en-NZ/PB/Debates/Debates/Daily/7/7/5/47HansD_20...

by Jane Beezle on May 23, 2013
Jane Beezle

Tag.

The problem with abuse of urgency in this way is that it holds the entire Parliamentary process, with all of its checks and balances, to ransom.

The Electoral (Vacancies) Amendment Act, so we are told from the tea leaves, saved Harry Duynhoven from having his seat vacated for breach of the dual citizenship provisions in the Electoral Act.  

Apparently, there were legion other MPs who were in the same position.  We never got much of a chance to question that, of course, because the legislation whipped through at lightning speed.

But it also saved the Labour government from considerable and extended public embarrassment, and sidestepped longstanding provisions in the Electoral Act that are central to the constitution.

So are the principles any different to a bill that suspends application of the Bill of Rights Act for economic reasons?

It is executive power run rampant, plain and simple.

 

 

by Nicol MacArthur on May 23, 2013
Nicol MacArthur

Kathryn Ryan said on Nine to Noon today (Thursday) that the New Zealand Public Health and Disability Amendment Bill (No 2) was made part the Budget package in order to make it a matter of Confidence and Supply, which meant that the support parties had to vote for it.  The urgency was then part of the package, though the redacted RIS was an additional abomination should never have been part of any package.

 Nasty stuff. 

I would go for an entrenched Bill of Rights. I think that voters would be antagonistic to any additional structure that remotely resembles the present dysfunctional Parliament, which is turning totalitarian in front of our eyes.

by Darel Hall on May 24, 2013
Darel Hall

The public generally favour fewer politicians which is the main practical problem with Jono's thoughts about an Upper House.  Presumably Jono doesn't favour reducing numbers in the House because he likes the diversity that 120-odd members gets us compared to the likely lesser diversity if the base number dropped to 80 and 40 politicians were elected to a new Upper House. 

One way to both get an Upper House and reduce the total number of politicians is to reduce the number of local authorities including regional councils.  I have observed the Canterbury situation over a few years it seems the local authorities can collaborate where they have a clear interest, and some of the smaller Councils (like Banks Peninsula) can be absorbed into larger entities reasonably well.

New Zealand has 108 regional councillors, 716 territorial authority councillors, even more local and community board members and 67 mayors. 

We can afford to lose 40 (or more) of them in exchange for a competent Upper House for a net gain to good governance in New Zealand.

by Jane Beezle on May 24, 2013
Jane Beezle

A more realistic reform alternative than either an upper house or entrenched bill of rights (look at history - neither will happen) is to consider amendment of the standing orders on urgency.

by Stephen Parkes on May 25, 2013
Stephen Parkes

Kathryn Ryan said on Nine to Noon today (Thursday) that the New Zealand Public Health and Disability Amendment Bill (No 2) was made part the Budget package in order to make it a matter of Confidence and Supply, which meant that the support parties had to vote for it.

What if they just didn't? Say, the Maori Party said: No, either take the bill out of the Budget package, or at least take the ouster clause out the bill. Otherwise, we won't support it. What then?

A more realistic reform alternative than either an upper house or entrenched bill of rights (look at history - neither will happen) is to consider amendment of the standing orders on urgency.

Yeah, I agree. I don't understand how in a parliamentary democracy such as ours, we could entrench a Bill of Rights. (I mean really entrench, not 'entrench' with an Act that itself can be overturned by a simply majority.)

But the urgency provisions are seriously abused and really need reviewing.

by Nicol MacArthur on May 28, 2013
Nicol MacArthur

From Hansard 15 May 2013:

“A   party vote was called for on the question, That the New Zealand Public   Health and Disability Amendment Bill (No 2) be now read a third time.

Ayes 63

New Zealand National 59; Māori   Party 2; ACT New Zealand 1; United Future 1.

Noes 55

New Zealand Labour 33; Green   Party 13; New Zealand First 7; Mana 1; Independent: Horan.

Bill read a third time.”

 

One Maori Party member was absent, (also one Green member), but throughout the entire debate, with first, second, and third readings, a   committee stage, and many motions of closure, the Maori Party voted with the government,   as did ACT and United Future  .

As far as I know, entrenchment can be achieved either by a simple majority in a binding referendum or by a vote in Parliament in which 75% of all MPs agree.  I believe that the resulting legislation cannot be overturned by a simple majority in parliament.   

 

Anyway, in spite of the present Constitutional Review, the reality is that the present government sees significant constitutional and parliamentary reform as a zero sum game and nothing will change while they are in power.

by Los Comunistas on November 16, 2013
Los Comunistas

there are no substantive human rights in new zealand whatsoever. The present New Zealand Bill of Rights Act is not entrenched (neither single or double)neither is it's status one of supreme law. Furthermore, theNZBORA does not confer jurisdiction of the courts to review primary legislation and strike it down (compare doctrine of  Marbury v. Madison, 5 U.S. 137 (1803)). Section 4 NZBORA states:

 

'4 Other enactments not affected
  • No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

    • (a)hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

    • (b)decline to apply any provision of the enactment—

    by reason only that the provision is inconsistent with any provision of this Bill of Rights.'

 

Section 5 NZBORA (compare s.1, Canadian Charter of Rights and Freedoms) is "subject to" section 4 above. Section 6 is a liberty -maximising section (compare US Constituion, 9th Amendment).

NZ has no separation of powers between the legislative and executive branches (see s.6, Constitution Act 1986). On this point it has been stated:

 

 'As with most democratic governments, but even more so in New Zealand, the Executive wields extraordinary power, including the power to take away fundamental rights and freedoms, which are protected only by goodwill and trust, and not by the courts. This enormous and almost unchecked power of government, alone and through Parliament, has been likened by a former Prime Minister to that of the Stuart Kings before the Glorious Revolution of 1668. It was characterized by other commentators as an almost perfect example of a strict majoritarian model, an “elective dictatorship”, and an “overpowerful parliament dominated by what is a result and overpowerful executive”. This is clearly a very “thin” and vulnerable democracy’.

G.W.G. Leane H.R.Q. 26 (2004) 152, at p.167 :cf. J.S. Mill, On Liberty, 1859 at pp. 62 & 63; James Madison et al, The Federalist Papers (1788); Alexis de Tocqueville Democracy in America (1835).


Am I surprised the Executive Dictatorship enacted this legislation that effects me personally and others? No.

Regards, NW Thomas

Enrolled Barrister


 

Post new comment

You must be logged in to post a comment.