Over the next two weeks I'll post parts of my submission. Feel free to use it as a guide, but please don't copy and paste. The usual rules for good submission writing apply: keep it relevant (irrelevant submissions can be rejected), clear (use the active voice, persuasive language etc), concise (the panel is human - their attention span is limited) and accurate (don't bullshit).
I recommend an introduction (introducing yourself that is) and an executive summary or conclusion. If you have special expertise or a special perspective, do mention it. I number my points and begin with a broad statement and then offer some explanation. You don't have to do it like that, but it's more readable than an essay-like submission.
Today I'm posting my submission on the Bill of Rights Act 1990. I'm probably only going to submit on the Bill of Rights, the Maori seats and the Treaty. Those are the most important to me. If I get time I'll submit on other issues that aren't explicitly in the terms of reference (e.g. republicanism). Next week I'll post my submission on the Maori seats. I hope this helps or at least spurs you to submit. (
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1.
The
Bill of Rights must be entrenched.
1.1.Entrenchment
will afford the Bill of Rights practical sanctity and act as a constitutional
safeguard against unprincipled change or abolition.[1]
1.2.New Zealand
operates under a fusion of powers system. In effect, the executive controls
Parliament. Entrenchment is needed to protect the Bill of Rights against the
executive’s “unbridled power”. [2]
1.3. Entrenchment
will bring New Zealand in line with international consensus including
recommendations from the United Nations Human Rights Committee and practice in
comparator jurisdictions.[3]
2.
The
Bill of Rights must be supreme law.
2.1. The Bill of
Rights was intended to restrain Parliament’s law-making practice. It has not.[4]
2.2. From a legal naturalist
perspective, human rights are inherent and must be afforded the highest
protection.
2.3. Supreme law
powers are a necessary remedy. Interpretive techniques (i.e. section 6) are limited and can
leave plaintiffs without a remedy.
2.4.There are few
procedural or substantive restrictions on Parliament’s (in practice the
executive’s) law-making power. A supreme law Bill of Rights is a necessary
control on unrestrained law-making power (i.e. a constitutional safeguard).
2.5. The ballot box is
an ineffective control.[5]
Rights violations are, for the most part, targeted against minorities. Minorities,
by definition, do not have the electoral power to punish rights violating
governments and legislatures. Minority rights demand the protection of supreme
law powers.
2.6. The
counter-majoritarian difficulty is unfounded. Democracy is nuanced and
textured. There must be a balance between majority power and minority rights.[6]
Supreme law power protects the latter, Parliamentary sovereignty in all
respects (other than human rights) protects the former.
2.7. The New Zealand
legislature has a culture of rights abuse. Representative examples include Māori
Prisoners Act 1880, the Waterfront Strike Emergency Regulations made under the
Public Safety Conservation Act 1932,[7]
and the New Zealand Public Health and Disability Amendment Act 2013 (No 2).
2.8. The threat of
invalidation will impose a positive obligation on the legislature (an
obligation to legislate consistently with the Bill of Rights).
2.9. A supreme law
Bill of Rights will bring New Zealand in line with international consensus
including recommendations from the United Nations Human Rights Committee and
practice in other jurisdictions.
3.
Substantive
rights – including economic, property and social rights - must be included in
the Bill of Rights.
3.1.
Individual
and collective pluralism is better protected with the inclusion of substantive
rights.
3.2. The inclusion
of substantive rights will bring New Zealand in line with international law
(including the International Covenant on Economic, Social and Cultural Rights) and
comparator jurisdictions. In an increasingly globalised world, this is
essential.
3.3. Substantive
rights are essential to “the practical enforcement and delivery of human
rights”.[8]
3.4. Process rights
– i.e. the existing rights in the Bill of Rights – are inseparable from
substantive rights. Process rights are needed to secure substantive rights
through the political process, but process rights are meaningless to those
without substantive rights (e.g. “the hungry and unemployed”).[9]
3.5. The substantive
right relevant to New Zealand is a right or rights to the necessities of life. Like
the rest of the Bill of Rights, a substantive rights clause(s) must be tightly
drafted. Substantive rights impose an obligation to fulfil (positive obligation) rather than a negative obligation (which is, generally speaking, the obligation under the Bill of Rights in its current form).
3.6. A right to
property must be included. Property rights are the foundation of western
mercantile culture and must be awarded constitutional protection.
3.7. A right to
privacy must be included. The right to be free from unreasonable search and
seizure is under inclusive. Although privacy is the touchstone value, it must
be extended to a stand-alone right. The growth of the bureaucratic
and security state demands that privacy is acknowledged as a human right.
4.
Additional
and improved procedural safeguards are needed to better protect the Bill of Rights
including a Human Rights Select Committee and reforms to section 7.
4.1.
Parliamentary
scrutiny of human rights is inadequate.
4.2. The use of
urgency allows the government to bypass select committee scrutiny of rights
violating bills.
4.3. Rights
violating amendments can be introduced by supplementary order paper.
4.4. Section 7
reports are only tabled at the first reading.
4.5. With that in
mind, a human rights select committee must be created. A specialist committee
will increase dialogue between the courts and Parliament (the courts receive better indications of Parliamentary intention) and lead to better institutional balance (i.e. between the executive and Parliament).
4.6. The
Attorney-General must be given the power to flag a rights violating bill or
amendment at any stage of the Parliamentary process.
5.
Existing
rights can and must be better designed including the right to vote and
remedies.
5.1. The right to
vote in local body elections must be included in section 12. The existing
provision is under inclusive.
5.2. An express
remedies clause must be included. The clause can be modelled on the existing
law.
5.3. Section 4 must
be amended to reflect the supreme law status of the Bill of Rights.
5.4. A clause
demanding appropriate deference could be included to deter the unlikely scenario
of unprincipled and unrestrained strike down.
5.5. The Bill of
Rights Amendment Act must be repealed if litigants are to receive the full
measure of rights.
5.6. An express
right to tikanga Māori should be included in section 20.
[1]
Sir Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” (1985)
AJHR A6 at [4.1]
[2]
Sir Geoffrey Palmer Unbridled Power (1st
ed, Oxford University Press, Melbourne, 1979).
[3]
Andrew Butler and Petra Butler “Protecting Rights” in Caroline Morris, Jonathan
Boston and Petra Butler (eds) Reconstituting
the Constitution (Springer, Heidelberg, 2011) at chapter 9.
[4]
Andrew Geddis “The Comparative Irrelevance of the NZBORA to Legislative
Practice” (2009) 23 NZULR 465
[5]
Justice and Law Reform Committee “Interim Report of the Justice and Law Reform
Committee on a White Paper on a Bill of Rights for New Zealand” (1986) AJHR I8A
at 14 per Professor Orr
[6]
Sir Kenneth Keith Cabinet Manual 2008 at
5
[7]
Sir Geoffrey Palmer New Zealand’s
Constitution in Crisis: Reforming our Polictical System (John McIndoe,
Dunedin, 1992) at 65-69
[8] Andrew
Butler and Petra Butler “Protecting Rights” in Caroline Morris, Jonathan Boston
and Petra Butler (eds) Reconstituting the Constitution (Springer, Heidelberg,
2011) at chapter 9.
[9]
Ibid.
