When will Parliament strengthen the Bill of Rights Act?

In 2013, many New Zealanders asked an independent constitutional review panel for stronger protection of their human rights, and the panel recommended change. Three years later, the United Nations made similar recommendation. When will New Zealand act?

The Bill of Rights Act protects New Zealanders’ basic civil and political rights. It protects the rights to life, freedom of speech, freedom of movement, freedom of thought, freedom of religion, and freedom from discrimination. It protects the right to vote for everyone aged over 18, and the right to justice and a fair trial. And it protects against arbitrary arrest or detention, cruel treatment, torture, and unreasonable search and seizure.

But the Act is easy to change and even easier to ignore.

In fact, Parliament regularly ignores it, passing laws that breach fundamental rights in ways that – according to its own senior law officer – can’t be justified in a free and democratic society.

Some of those laws are passed under urgency with little or no public consultation.

This isn’t what New Zealanders want. They don’t want their rights changed or curtailed without them even being told, let alone consulted. They want, at the very least, an informed discussion about their rights.

The Constitutional Advisory Panel, set up to consult the public about the basic rules of government power and accountability, heard more than 5200 submissions, and engaged in a broad conversation about New Zealanders’ rights. It recommended changes to New Zealand’s constitutional arrangements only when there was clear public support. And some of its recommended concerned the Bill of Rights Act.

Specifically, it recommended changes to improve protection of New Zealanders’ rights, and public accountability for Parliamentary and government decisions about those rights. The panel said the public should be consulted on:

  • improving Parliament’s compliance with fundamental human rights, and improving the Government’s compliance with those rights.
  • making the Bill of Rights Act superior law, which would mean that other laws had to comply with it. Parliament would then be unable to pass laws that breach your fundamental rights without consulting you and getting a very strong public mandate.
  • giving judges the power to assess whether laws complied with the Act. Many people didn’t want judges to be able to strike down laws that Parliament had passed, but they did Parliament should have to reconsider laws that breached human rights.
  • ‘entrenching’ the basic rights enshrined in the Act, so that future Parliaments could only change them if there was strong public and Parliamentary support.

Most people acknowledged New Zealand’s relatively positive human rights record, the Panel said, ‘but also noted that the current arrangements might be vulnerable’. People were particularly concerned that a simple majority of Parliament (i.e. 50% of MPs plus one more) can take away fundamental rights, and that the Government can effectively control that majority. There was a ‘broad consensus’ for better protection, but differing views on how that might be achieved.

In 2013, the Government acknowledged the Panel’s report. Ministers Bill English and Pita Sharples said the Government would consider the recommendations. Since then, nothing has been done. The Government’s website reveals no further Ministerial comment about the Panel’s recommendations. There’s been no public consultation or conversation about your fundamental rights and how they should be protected.

In 2015, the Government told the United Nations Human Rights Committee that it had made no formal response.

That UN committee responded by commenting on New Zealand’s failure to comply with its international human rights obligations, and on Parliament’s practice of enacting laws that breach fundamental rights. The Committee recommended that such laws be reviewed to ensure that they don’t breach human rights.

It also recommended:

  • that New Zealand consider entrenching the Bill of Rights Act to make it harder for Parliament to ignore basic rights
  • that New Zealand consider giving a stronger role to judges to assess whether laws comply with basic rights
  • that New Zealand enhance Parliament’s scrutiny of proposed laws to ensure they comply with basic rights.

Again, nothing has been done. More than three years have passed since New Zealanders asked for a wider conversation about their human rights. Almost one year has passed since the United Nations recommended change. When will someone take action?

 

 


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