Jun 27, 2013

The Bill of Rights: submit!

The Constitutional Advisory Panel has extended the deadline for submissions to the "constitutional conversation". The new deadline is July 31st.

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. (Every responsible Maori should submit in favour of the Maori seats and the Treaty - just saying).


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.


  1. Sorry Morgan, I stupidly tried to do this on Twitter.

    How do you reconcile 3.4 and 3.5 with 3.6 and 3.7. I agree wholly with the latter two, but contend that a right to 'necessities of life' involve the coercive destruction of my property rights, and certainly my privacy.

    My proof (my blog in other words) is the current tax surveillance state that 3.4 and 3.5 require for redistribution.

  2. There's an interesting debate over whether redistribution (mainly in the form of an inefficient tax) constitutes a destruction of property rights. From a political perspective, it's arguable, but from a legal perspective the answer appears to be no (see Chye-Ching Huang “The Constitution and Takings of Private Property” 24 NZULR 621).

    The "tax surveillance state" is more interesting. Privacy, even as a human right, is always framed as a "reasonable expectation". That reasonable expectation would (I imagine) not include the right to be free from tax surveillance. A right to privacy would cover situations like the GCSB spying on New Zealanders or, like in the Hamed case, the Police trespassing on private property to spy on suspects.

    I think it's too strong an assumption to say that substantive rights destroy property/privacy rights. That does not appear to be the case in Europe under the European Convention or other instruments and Constitutions include both property and/or privacy rights alongside substantive rights. Though often it comes down to a person's definition of the terms.

    1. This gets complicated, and you'd need to read my blog - set up on the contention Western taxing states are the new surveillance states - to understand my point of view.

      Re above, we don't have a right to privacy, per se, for example it's not illegal, even in libertarian schema, to photograph someone in a public park; however, in a free society, we must have right to be left alone so long as we harm no one - you get to this point through 3.6 and 3.7. Redistribution, however, by definition, means I cannot be left alone by the state, and if you look at the powers of the IR's - IRS are soon to begin running algorithms on social media to search out thought crimes - I'm most certainly not.

      I suspect (from reading her blog) Carrie's position may be semi-anarchist, I'm a libertarian cross over into anarcho-capitaliam, according to which your 3.4 and 3.5 are an attempt to eat your cake and have it also. I go with 3.6 and 3.7, and then hold with the provision of private charity.

      Good on you for making a submission, Morgan. I've got a guilty conscience not doing so, but there's only so much time and work is busy at the moment. I should probably just submit the classical liberal drafting of the Constitution of New Freeland ... haven't got the link but you can find easily enough by Googling.

      Look forward to keeping up with your blog (when I can :) )

    2. Thanks for that, Mark. That gives me something to chew over and an avenue to develop my thinking a little further.

  3. Kia ora Morgan, thanks for posting this. I'm about to start writing my own submission and this has given me heaps of ideas. Really looking forward to your submission on the Treaty, as I'm not too sure how I'll articulate my thoughts on that yet. Nga mihi.



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