Will do a live-tweet. The cynic in me would say it’s business development: taking court action to force both the Parliament and the Government to respond is likely to be a lucrative pastime for public lawyers!
First up is @GeiringerC. Supports formal mechanism. Space for Exec/Leg to respond but doesn’t prescribe what. Critiques: (1) should require AG to table a response; (2) update the House on intentions for historic declarations; (3) disagree that Parl shouldn’t specify response:
In legislation; (4) if declarations referred, should be referred to Privileges or Regs committee not subject specific committee.
Favours benefits in specific human rights committee but appreciates small parliament & limited resources. @DavidParkerMP asks how do you facilitate legislative response in depoliticised way eg when there is a mistake. Tricky Q - allows answer for another day!
@golrizghahraman asks whether Parl should be re-visiting Court decision on whether a breach ‘has happened’. @GeiringerC reminds that our system gives Parl sovereignty and not strong judicial review (so yes Parl can decide whether breach can be justified?).
@simonjbridges refers to UK equivalent where substantive response has always accepted breach. @GeiringerC says UK precedent is a poor one due to interplay with European courts & possible binding determination. Bridges: but we (Parl) don’t need to always accept court ruling?
Response: if you think you should always respect court decision, why not just have strong JR? Other view is ultimately it is for political branches. Model is consistent with retention of Parl sovereignty. Next up: @drdeanknight
Nervous about other proposals to give courts power to strike down - hear! hear! But this bill doesn’t go far enough: should explicitly require response from Parl by confirm, repeal or amend. And Exec response. Need more than mere notification if we are to build rights respect.
How do we increase competence & expertise of members on rights issues and legislation? Wants Parl to be stronger on justification it gives when impinging on rights.
@simonjbridges: isn’t the guts of it this: we need a response from Exec and response from Parl. Details are neither here nor there? @drdeanknight: the responses need to talk to each other.
Poto Williams: what is the Parl mechanism you can see that would fit? @drdeanknight not sure don’t have the expertise (I think this is because Vic Law pols is inferior compared to @OtagoPolitics).
@DavidParkerMP: process which enables Parl and Exec to grapple with rights issue supplemented with judicial analysis? Don’t want it off the front page straight away? @simonjbridges: if process isn’t set, Govt just gets away with doing nothing if they want.
Now up is Wellington Community Justice Project: @JackRob79002518 & Jori-Whitfield Topp. (1) Parl should be required to respond. (2) Require longer response by AG mentioning justifications and intentions on reform. (3) Good for access to justice. (4) Keep Parl supremacy BUT:
Mandatory response will increase awareness, access to justice & strengthen respect of rights. Exec should also communicate whether and how it will address inconsistency.
Topp urging increased transparency and Parl being seen to do justice: rights determinations not hidden away in the common law. Courts can communicate concerns on rights in constructive manner.
@Duncan_Webb_: do we need to make it clear what the trigger is eg decisions by court which are close to but not specific declaration? @golrizghahraman correctly points out declarations/findings are rare and specific - obiter isn’t it.
NB should be an easy answer: a declaration of inconsistency is specific relief granted by the courts now, and my guess is once law is passed the consequential responses from Parl and Exec will be signalled by the court in their relief. Trigger is easy and already there.
Interesting question though if the trigger is now clear: will a Parl non-response be justiciable? It could be a proceeding of Parliament protected under the Parl Privilege Act. Now up @nzlawsociety so I better be careful in my tweets ...
Paul Rishworth & Debra Angus. Starts by saying leg designers take BORA seriously, and there will always be debates over consistency. @nzlawsociety supports a process being in place. Appropriate no confirmation of declaration power exists: courts have said they have it impliedly:
SC seemed the endorse it as an inherent power of the court. @DavidParkerMP why have toothless declarations, is it better to link to a remedy here (reconsideration of the law)? PR agrees. @DavidParkerMP but not clear yet what the source of the power is. PR: implied BORA.
PR: in fact, @simonjbridges (saying appellate courts are creatures of statute) is correct and SC confirmed HC inherent jurisdiction or implied power from BORA.
(As an aside, because I’m a diehard Parl sovereignty and democratic majoritarian I don’t actually think the HC can invent powers simply because it always thought it had them - Parl should empower the HC to exist BUT that’s for another day)
@nzlawsociety has suggestions on how process could work: declaration and notification by AG should be referred to committee which must report on notification. No view on which committee but should hear from departmental advisors, call for submissions, appoint independent:
Advisors. Once reported it should be debated in the House (like debates of reports of Privileges Committee) then a vote on accepting report. But what happens then? AG should provide Govt response to report recommendations. A true dialogue.
@BarbEdmondsMana: could there be room in a Ministerial statement? Is that debatable? @DavidParkerMP: submitter suggests debate on report rather than Exec statement.
@golrizghahraman: no need for process to be outlined in legislation? DA: legislate a response, but process a matter for Parliament not the bill. @simonjbridges: should be two responses required by law. What should we do in primary legislation? I think SOs are problematic.
DA: notification by AG; SOs should deal with how House will deal with notification; law should require AG response if Parl passes resolution on notification. @DavidParkerMP: aren’t you effectively legislating process at that point? PR: declaration must be reported which respects:
The court. Then House works out process. Extra step is Exec should respond to whatever the House comes up with. Not necessary to legislate what Parl needs to do. @DavidParkerMP: Canadian SC can strike down but tempered by time for Govt to remedy. Not suggesting remove Parl:
Sovereignty but is there room for encouraging dialogue to get to right answer than an instant response? PR: ‘suspended invalidity’ in Canada because striking out is chaotic, and if nothing happens in 12 months judgment takes effect. This proposal IS the halfway already.
(Small point on this: I don’t buy the chaos point because other jurisdictions strike down laws all the time and deal with the chaos that causes. It is though a good reason never to have strong JR!)
Now up is Eric Vossen: has read widely and deeply, reflecting on dismay at our single chamber system and rapid law making. Rights existed before BORA. AG reports appear an attempt to extinguish rights. Officials prepare advice aligned with Govt of the day.
(It would be fair to say Eric is ‘skeptical’ about politician’s intentions) Qs arise about public service accommodating Govt of the day: will judiciary submit to the Govt and elevate the power of the Executive? Big fan of Geoffrey Palmer. No Qs from the Committee.
Now up is @NZHumanRights John Hancock & Elanor Vermunt. Key points: support bill. Commission was intervenor supporting powers of courts to make declarations: provide formal remedy on breach; rights vindication compensating wrong; meets international obligations to provide remedy:
And provides some recourse in costs. Critical feature is parl sovereignty is conserved. But declarations currently have no force so this bill is good. Two recs: (1) support process being in the Act similar to UK process; (2) if SOs then specific committee established.
Elanor outlining international examples of process being codified: Aus & Queensland supported, especially requirement Parl debate any report and held accountable for inconsistent legislation. UK and Aus have Joint Committee on Human Rights; Canada has Senate Standing Committees.
@DavidParkerMP: advice from officials on UK is context of committee is European influence so unsure the precedent is valid. But if Minister required to remediate law, able to be voted down, would that be Justice Minister? AG has no policy function. JH: Our concern is process.
That’s why highlighting other jurisdictions. @golrizghahraman: select committee with debate, but not mandatory amendment with debate? JH: referral to committee, report with recs, then debate. Our goal is robust transparent mechanism where the Parl must assess a declaration.
*INTERMISSION*
Back with Michael Timmons from Office of Human Rights Proceedings (independent office within @NZHumanRights). Discussing their role in taking cases for free to Human Rights Review Tribunal under HRA and @NZPrivacy. Excellent access to justice model.
They bring cases seeking declarations. Currently litigating three. Support the bill (implying there is now a clear legislative empowerment contrary to previous @simonjbridges discussion). Concerned about dilution of Exec response under 92K HRA.
Think NZ human rights protections are comparatively weak (despite somehow NZ being consistently ranked as the freest country in the world so 🤷‍♂️). Remedies are weakened when you don’t know Exec response; propose public aspect to any response.
Suggests 6 month date for Exec to respond to declaration (after expiry of appeals). @golrizghahraman: how should we engage the legislature? Should we legislate the process? Would that meet requirement for right to remedy? MT: plaintiffs want Govt response. Concern if House:
Takes over entire process. Preference is Exec public response. Select committee review would add to effective remedy. @DavidParkerMP: Canada declaration sets period to remediate breach. Can take more than 6 months. MT: should be ability for an extension.
@Duncan_Webb_: what are the instances of Exec response not public? MT: Heads and Hennessy. Now Prof Ken Keith, former judge on International Court of Justice in The Hague.
(Makes a good point that views change over time - this is why value decisions should ultimately be for the regularly elected Parliament, not the unaccountable courts! I digress)
Believes the bill enhances the role of the House and Exec in preparing rights-consistent legislation. Suggests a human rights committee in Parl with reference to UK parallel.
@simonjbridges: how substantive should we make the Exec’s obligations in response? UK always make change - a thicc response to the declaration. KK: procedure is critical so not necessarily considered ‘lesser’ than substantive. UK learned from us, and no obligation on them to:
Change, UK retains full power to pass laws that breaches European Human Rights convention. @golrizghahraman: issue is how much we prescribe - a special committee in legislation? Legislative response in addition? KK: SOs are careful creations amended by consensus. Parl process:
Are their own, creature of the House not legislation. That seems to work well and sensibly. Don’t write too much into substantive legislation. @golrizghahraman: support more prescriptive bill as we can’t trust political will, learning lessons from NZBORA. KK: Exec needs to take:
Rights seriously, sometimes that hasn’t happened. @DavidParkerMP: the @nzlawsociety submitted it is taken seriously and anyone doing poorly earns a rebuke. Now Sir Geoffrey Palmer.
Palmer key points (I will hold my tongue): (1) supports bill; (2) doesn’t go far enough; (3) NZBORA has not achieved enough and is strangled by Parl and Exec processes, never gets priority it deserves; (4) democracies are in decay and increasing authoritarian regimes eg Trump:
And Brexit. NZ system works well but our democracy could decay quickly and easily. (I’d say to Sir G: written constitutions and justiciable bills of rights won’t fix that, otherwise the US would be fine) We are living in a time of democratic rot.
Sir G says for US, a determined coup d’état failed because the Constitution prevailed. Bill should be strengthened. Palmer threatening the fates of other jurisdictions on NZ. He is not happy.
@DavidParkerMP rightly points out entrenched constitutions, Libya etc have not protected rights. Goes to entrenching BORA question. Palmer refers to white paper “nothing to fear” about undermining Parl.
@DavidParkerMP: would it be improper to put specificity on Parl the Act compared to SOs? GP: I used to teach SOs. Nobody knows anything about them. If you’re serious about it, put it in legislation it’s the only thing that counts. But don’t put too much in.
@simonjbridges: what practically should we amend here? GP: recommend a committee be established eg Regs Review has been successful with its expertise compared to other committees. Vital to have knowledge in House over time. Adverse reports not even debated.
@simonjbridges: how are the state of rights in NZ? GP: there are deleterious tendencies at work; popularism; you need proper protections. Suggestions from @GeiringerC was mostly right. Our rights performance not credible.
@dbseymour: what is causing decline in democracy? GP: people don’t trust the Govt and so they undermine it; inequality is so large it is unjustifiable; ethnic tensions. US is not a democracy. @DavidParkerMP: new media lack of responsibility? GP: no monitoring or control now:
Lies and “fake news” is rife now and democracy is fragile. An active democracy in good working order will stop it: strong rule of law, voting, engagement, ability to do something about it.
Finally up is Paul Fitzgerald, staffer in Parliament when BORA was passed. Remembers it being referred to as a “joke”, unpleasant politics. Only submitter opposing the bill. Enhanced Parl scrutiny has been wanted for a long time. Have previously pointed out deficiencies in s7:
Reports which are still unaddressed. Declarations are new though. What is the principle saying Parl needs to respond? S4 BORA gives Parl the right to pass inconsistent legislation. All Govts have done it. It will continue. What is different now?
Questions the role in court determining something to be unjustified. Taylor case is good example: inconsistent provision, adverse s7 report; passed. Court says it is inconsistent, we already knew that, Parl enacted anyway. Any AG can review inconsistent provisions already.
Suggestion that incoming Govt needs to review inconsistent legislation is good, but Parl has and always has had the solution. Concerned about the politics. If Govt can take inconsistent provision from other side and have fun with it, that’s just politics. Can’t find the legal:
Principle which says why should a sovereign Parliament, having chosen to pass a law, now have to respond to the courts. Principle of comity says this is Parl domain. @Duncan_Webb_: haven’t we moved on from pretending courts aren’t political? PF: McGrath in Hansen:
Enough that we say it. Why is the court involved in political campaigns? @ChrisPenknz: agree that giving courts more powers gives a rationale for democratising court appointments? As a logical end point? PF: aware of debate over this. I think the current system works.
@ChrisPenknz: risk of politicising appointments if courts become more powerful and political? PF: could follow Canadian model without flawed US model. We are energised about post-enactment, when we should be thinking about drafting-enactment stage.
That’s a wrap. Feel free to @ me with your reckons, the the written submissions here: parliament.nz/en/pb/bills-an…

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