16 September 2009

Vetting of Bills - whose responsibility?

I was disappointed to read the follow passage in the Transport and Industrial Relations Committee's report on the Land Transport (Enforcement Powers) Amendment Bill:
New Zealand Bill of Rights issues Standing Order 261 (1) requires that whenever a bill contains any provision which appears to the Attorney-General to be inconsistent with any of the rights and freedoms contained in the New Zealand Bill of Rights Act 1990, the Attorney-General must indicate to the House what that provision is and how it appears to be inconsistent with the New Zealand Bill of Rights Act. We are aware of concern regarding property issues about vehicle impoundment; the reverse onus of proof in clause 6; and freedom of association, peaceful assembly,and movement. However, Crown Counsel advised the Attorney-General that there were no inconsistencies with the Act.

It's is regrettable that the member of the Select Committee have eschewed their own responsibility to vet the bill for Bill of Rights compliance. The summary adoption of Crown Counsel / Attorney advice is, in my view, inappropriate. It is for the Committee to deliberate on the potential rights breaches and the justification of any limitations on rights. It is notable that in the legal advice to the Attorney-General, Crown Counsel noted that particular aspects of their advice was "not wholly beyond dispute" and "not beyond argument". Especially in these cases, one might expect that the Committee to address the point and to provide reasoned analysis of their position - rather than simply adopting a lawyer's view as being determinative. Human rights judgement calls are as much a responsibility of politicians as they are for lawyers.

I am reminded of the remarks of the Court of Appeal in Boscawen v Attorney-General [2009] NZCA 12 about the contestability of the vetting process and the importance of transparent debate on Bill of Rights consistency:

Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill. This allows further contribution to and participation in the NZBORA debate during the legislative process. Where there are differing views on possible inconsistency with NZBORA rights and as to whether any limitations on any NZBORA right is justified in a free and democratic society, it is appropriate that those issues should be debated in Parliament. ... [O]pinions can legitimately vary on human rights issues, particularly on the issue of whether any limitations on rights are justified in a free and democratic society and on assessing the appropriate balance between rights and between rights and other values (such as privacy) where these may be apparently in conflict. We refer to one well known case, discussed in Rishworth and others The New Zealand Bill of Rights (2003) at 200 – 201, where Parliament effectively rejected the Attorney-General’s view. The Attorney-General reported to the House that a Bill providing for random breath-testing of motorists conflicted with the NZBORA. However Parliament took a different view, based on independent legal advice the select committee received from the President of the Legislation Advisory Committee, and passed the Bill on the basis that Attorney-General’s view was incorrect.

Perhaps it is time for New Zealand to consider adopting a specialist Bill of Rights vetting Select Committee, like the United Kingdom (see their Joint Committee on Human Rights). This would empower MPs to form their own judgements on Bill of Rights consistency, develop greater expertise in Bill of Rights matters generally, and better encourage MPs to challenge the singular view of the Executive about Bill of Rights consistency.

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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