2 November 2007

The Electoral Finance Bill, Parliamentary privilege, and the Bill of Rights

> KiwiBlog: "The battle against the Electoral Finance Bill goes legal" I've posted on comments elsewhere on prospect of a challenging the failure of the Attorney-General not to adversely report the Electoral Finance Bill under the Bill of Rights. In short, it's doomed. This type of challenge has long been rejected. In Mangawhero Enterprises Ltd v Attorney-General [1994] 2 NZLR 451, Gallen J confirmed an alleged failure to report on Bill of Rights inconsistencies could not be challenged in Court:
“In my view, the obligation imposed upon the Attorney-General and his response or lack of it to that obligation, can properly be described as a part of the proceedings in Parliament and therefore encompassed by Article 9 of the Bill of Rights 1688. … In the end it seems to me that the most significant aspect of this case is the fact that the prime safeguard upon which the plaintiffs rely, that of the obligation on the Attorney-General to report, is in my view a procedural consideration designed to ensure that Members of Parliament are fully aware of the consequences of the passing of a particular Bill as proposed. Members of Parliament are there as representatives of the community at large and in the absence of some entrenched Constitutional provision, it seems to me that the Court would be usurping the authority of the legislature if it endeavoured to substitute its own opinion of the legislation proposed.”

That said, I've always been attracted to the reform of the section 7 reporting role. I think it's one of the most important aspects of the Bill of Rights. I think we could semi-entrench the Bill of Rights by, in part, mandating the present constitutional dialogue model.

That is:

1. Legislation which is inconsistent with the Bill of Rights which has previously been reported to Parliament before it was passed is protected by section 4 and cannot be overturned.

2a. Legislation which is inconsistent with the Bill of Rights which has not previously been reported to Parliament can be subject to a declaration of inconsistency.

2b. The declaration is automatically suspended for, say, 6 months for Parliament to consider it.

2c. If Parliament subsequently endorse the inconsistency, then the legislation is protected by section 4 and cannot be overturned.

2c. If Parliament fails to endorse the inconsistency, then the legislation is not protected by section 4 and can be quashed (in the same manner as in jurisdictions with fully entrenched bills of rights).

The underlying principle is that Parliament ought to expressly consider and endorse non-compliance with the Bill of Rights. If it does though, then the legislation should prevail.

2 comments:

Graeme Edgeler said...

Mangawhero is certainly there, but I'd note that as a strike out application, it also succeeded in striking out an application for relief in the form of a declaration that the resulting statute was in breach of BORA.

The inherent suggestion in Managwhero that legislation is protected by privilege seems fraught. Declarations of inconsistency are arguble; indeed, the Supreme Court effectively granted one in Hansen.

For example, the judge observed (the case quoted is Dingle):

" '... it is clear that to impugn the validity of the report of a select committee of the House of Commons, especially one which has been accepted as such by the House of Commons by being printed in the House of COmmons Journal, would be contrary to section 1 of the Bill of Rights [1688]'

Those observations related to the report of a select committee, but they must apply even more strongly to the case of an actual Act of Parliament."

Rich said...

But why do we have a Claytons Bill Of Rights (the modern one) in the first place?

In my view we should have the ability for the Supreme Court to void any legislation that is incompatible with the BoR. If a Parliament really felt the world had changed, then they could hold a referendum and change the BoR to circumscribe the right they wanted to infringe.

(Actually, I'd go beyond that and try and join/instigate a supra-national human rights court like the ECHR).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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