I am not the first academic or commentator to express concern in the blogosphere about the use of urgency to push legislation through the House of Representatives (see for example http://www.laws179.co.nz/2008/ 12/guest-post-andrew-geddis-extraordinary.html and http://www.kiwiblog.co.nz/2008/12/urgency.html). But the indecent haste with which the Parole (Extended Supervision Orders) Amendment Bill passed through the House yesterday in the face of a Bill of Rights report from the Attorney-General brings matters to a new low and has finally lured me into my first personal excursion into the blogging realm. The Bill amends the Parole Act 2002 and in particular, that part of the Act that enables “extended supervision orders” to be imposed on certain offenders convicted of serious sexual offending. These “extended supervision orders” apply once the offender’s sentence has already been served in full – in other words, once the period that the sentencing judge considered to be appropriate for punishment and deterrence has expired. They enable the offender to then be subject to continued parole-like conditions and monitoring. From a civil liberties perspective, this is heady stuff indeed. This new Bill, which passed through the House yesterday, makes some changes to that regime. The government argues that in doing so, the Bill is simply re-instating the status quo that existed prior to 2007. It says that an amendment to the legislation in 2007 inadvertently restricted the reach of the regime, and that this Bill reverses the position. It seems that it is on this basis that the House gave leave for the Bill to be introduced and read on the same day. (Usually, Bills must sit on the order paper for three days following introduction before they can be read.) This avoided the necessity of the government bringing a contentious motion for urgency in order to push the Bill through, though presumably it would have done so had leave of the House been refused. The Greens say they gave their blessing in this case because they had been told the legislation only made a technical change. Problem is, the government’s own senior law officer – the Attorney-General – disagrees. When the Bill was introduced, the AG tabled a report under section 7 of the New Zealand Bill of Rights Act 1990 in which he concludes that the Bill is inconsistent with a number of rights and freedoms contained in the Bill of Rights – the rights against retrospective penalties and double jeopardy; and the right not to be arbitrarily detained. His particular concern is a provision that will enable the Parole Board to impose conditions similar to home detention for up to 10 years following the expiry of the sentence. The AG does not agree that this power existed prior to 2007. He thinks the Bill before the House this week brings in that power for the first time. He also says that the breach of human rights is unjustifiable because there are alternative methods by which the same result could have been achieved. The Greens now say they feel they were tricked into supporting the variation from parliamentary procedure because they weren’t told in advance about the AG’s report. It is a little disorientating to hear the Minister of Justice, Simon Power, saying on the radio this morning that he doesn’t accept the Green’s “bizarre” interpretation of the Bill. (Er, hold on a minute Simon. Wasn’t that your law officer’s interpretation?) But whether the interpretation is right or wrong - and I haven’t had a chance to sort that out for myself yet – is not the point. This is a process question. When the Attorney-General issues a report under section 7 of the Bill of Rights, it is a signal to the House that there is an important issue to be addressed concerning the fundamental rights and freedoms of people within our borders. In New Zealand we haven’t opted for a system of judicial supremacy so our courts can’t strike down legislation that breaches our rights. Instead, we’ve trusted to the good sense and fair mindedness of our elected representatives. Our Bill of Rights asks them to be the custodians of the Bill of Rights, and a section 7 report is one of the triggers for them to take their responsibilities seriously. The AG’s report is not the last word on the human rights implications of legislation – it is the first word. After carefully considering the matter, Parliament may disagree with the AG. It may consider that the AG has misunderstood the law; or that the limits on rights contained in the law are reasonable in light of the extent of the problem it’s designed to address. What is often lost sight of is that the Bill of Rights does not create absolute rights – it merely warns against legislation that breaches rights in a way that is unreasonable or unjustifiable. If the system is working properly, though, what we should not be seeing is legislation being enacted in the face of a section 7 report without MPs and the public having had a proper opportunity to scrutinise it. I have felt for some time that the system isn’t working all that well, and that we would benefit from having a dedicated select committee to build up expertise on human rights issues like they have in the UK. This may be something of a pipe dream. What I am absolutely horrified to see, though, is legislation being enacted following a section 7 report without being sent to a select committee at all, indeed, without even sitting on the order paper for three days so that MPs can read it and digest the AG’s report. If ever there was an argument for a supreme law bill of rights (and I have never been a proponent of such a development), it is to be found in this kind of cavalier parliamentary behaviour. More generally, isn’t it time for the new government’s legislative romp to stop? From a quick squiz at Hansard, it looks to me like the new government has already invoked urgency in relation to a dozen or so separate pieces of legislation. It’s understandable that, after nine years in the wilderness, these guys are keen to roll up their sleeves and get on with things. But rushed legislation is bad legislation. Referral to select committee provides an opportunity for the public to have their say about legislative proposals, and for problems with the legislation to be ironed out. In the pre-MMP era, Sir Geoffrey Palmer once famously described the New Zealand Parliament as the “fastest law-maker in the West”. I doubt anyone wants to return to those bad old days. Time for a cup of tea, guys? Claudia Geiringer Senior Lecturer


1 Response to 'Urgency, Parliament and the Bill of Rights – time for a cup of tea, guys?'

  1. Andrew Geddis
    http://55lambtonquay.blogspot.com/2009/04/urgency-parliament-and-bill-of-rights.html?showComment=1238739840000#c2005538345537106768'> April 2, 2009 at 11:24 PM

    "The AG’s report is not the last word on the human rights implications of legislation – it is the first word. After carefully considering the matter, Parliament may disagree with the AG."

    Or, alternatively, the fact a s.7 notice is attached to a government bill may do nothing at all in a practical sense. Of the 22 government bills that have had s.7 notices attached since 1990, only 2 have not been passed in their original ("apparently inconsistent") form. (Two others are currently before select committee, and one of those not passed was NZ First's ban on pre-election opinion polls, which Labour promised only to take to select committee.) The fact is, once the government has decided to put a measure before the House in spite of any NZBORA issues, the House can't do much to stop it because the government has too much time, effort and political capital tied up in it.

    That's not to say I disagree with Claudia on the basic undesirability of the Government's actions here. As I've said previously, National's approach to Parliament is continuing a rather poor trend.


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