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New Zealand Law Foundation Research Reports |
Last Updated: 3 April 2021
PARLIAMENTARY SCRUTINY OF HUMAN RIGHTS IN NEW ZEALAND: GLASS HALF FULL?
Prof. Judy McGregor and Prof. Margaret Wilson AUT UNIVERSITY | UNIVERSITY OF WAIKATO
RESEARCH FUNDED BY THE NEW ZEALAND LAW FOUNDATION
Table of Contents
Introduction
This research is a focused project on one aspect of the parliamentary process. It provides a contextualised account of select committees and their scrutiny of human rights with a particular emphasis on New Zealand’s 52nd Parliament in the 2017-2019 period.
Select Committees as scrutiny mechanisms are under-explored in the domestic context despite their critical role in parliamentary democracy. An area of the methodological literature that is “especially sparse” relates to the performance of legislatures in protecting human rights.i Located at a critical point after the first reading of proposed legislation, select committees have a unique function in parliamentary work. Their role as scrutiny and accountability mechanisms is inter-related with other constitutional checks and balances in the law making process such as the use of section 7 Bill of Rights Act (BORA) vets, the use of urgency, the role of parliamentary questions, and parliamentary debate.
The report reviews the literature, details the methodology used to gather data and reports on the controversy surrounding Select Committee composition early in the 52nd Parliament. It then looks at a range of case studies of law-making including long-standing problem cases, such as payment for family carers and prisoners’ voting rights that expose the limitations of human rights scrutiny. This analysis is followed by more recent bills that have been considered by Select Committees which demonstrate both strengths and weaknesses of human rights scrutiny. These include the: Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill; the Domestic Violence Victims Protection Bill and the Electoral (Integrity) Amendment Bill. Two other pieces of proposed legislation, the Equal Pay Amendment Bill and the End of Life Choice Bill were also considered.
The findings are then outlined in conjunction with the use of interview material gathered during the course of the research. The findings also include a series of recommendations which are presented in this report and will form the basis of a submission to the upcoming Standing Orders Review by the Standing Orders Committee.
The research is presented in in two ways, the whole report plus a shorter summary with the findings and recommendations only which will be made available on the internet. We want to ensure public accessibility of the recommended changes and possible solutions to democratic deficits.
Human rights in this research refer primarily to the seven human rights treaties to which New Zealand is a party:
Recent Scholarship
Parliament’s role in human rights scrutiny
In this section the report looks at recent literature referring to Parliament’s role in
scrutinising/protecting human rights and how this is undertaken in comparable jurisdictions.
New Zealand has a developed range of mechanisms and institutional arrangements in addition to Parliament that have a role in promoting, protecting and fulfilling human rights. These include independent and impartial courts undertaking judicial rights review and upholding the rule of law and a suite of anti-discrimination legislation such as the Human Rights Act (HRA) 1993 and the New Zealand Bill of Rights Act (BORA) 1990, that protect human rights and provide remedies for breaches of rights. New Zealand has well accepted agencies such as the New Zealand Human Rights Commission, the Ombudsman’s Office, the Children’s Commissioner, the Health and Disability Commissioner, the Privacy Commissioner and others with statutory mandates to address human right issues. Most importantly, civil society groups are active in shadow reporting processes and submissions to international human rights treaty bodies, as well as playing a role domestically in the courts, in advocacy, in pre- legislative scrutiny, and in public debate. New Zealand, too, places a high premium on a free press which encompasses the mainstream media and a range of digital, interactive and social media formats such as blogs, which can profoundly influence rights discourse for better or for worse.
So what distinguishes Parliament’s role in scrutinising and protecting human rights? Parliaments are “ideally positioned to be leaders in ensuring that the State is not perpetrating human rights violations, that national law is not incompatible with human rights standards and ensuring that human rights protections are in place”ii. Previous research states that the legislature performs several distinct functions including:
“In discharging each of these functions they can affect the enjoyment of human rights”.iii Constitutional reformers Sir Geoffrey Palmer and Andrew Butler add the provision of a place for the airing of grievances as one of seven primary functions of Parliament that could impact on the enjoyment of human rights.iv
While it is implicit in these broadly defined nominated functions, it is worth specifically identifying Parliament’s role in ensuring promotion of, and compliance with the international human rights treaty body obligations that New Zealand has entered into as a nation state. As Feldman (2015) suggests:
These agreements are both an expression of the sovereignty of the state and a limitation on its freedom to exercise it in an unconstrained way. Human rights treaties are of this kind. If the state wishes to be seen as a full member of the community of nations, it must be prepared to honour the treaties it has concluded.v
Schwarz (2015) notes that Parliaments are key players in international human rights monitoring processes since they are concerned with approximately 60 to 70 per cent of the recommendations made by United Nations mechanisms, including the Universal Periodic Review (UPR). “Their absence from such processes therefore greatly harms the entire human rights monitoring system”.vi
However, while there can be broad agreement about Parliament’s role in protecting human rights there is no internationally agreed set of principles or guidelines on Parliament’s role which has been described as a “striking gap”.vii By contrast national human rights institutions (NHRIs) have since 1991 been guided by the Paris Principles, which were internationally agreed upon and in 2012, the Belgrade Principles, outlining the relationship between NHRIs and Parliaments. This point is picked up later in discussion of the literature relating to improving Parliament’s role in rights protection.
Recent international scholarship on Parliament’s role in rights protection explores the notion of a democratic deficit and an accompanying sub-theme- who has the last say? For example, United Kingdom researchers, Webb and Roberts (2014), who designed a framework to evaluate effective parliamentary oversight of human rights state: “Parliaments can and should play a crucial role in human rights protection, yet their effectiveness as human rights actors is not being fully realised”.viii Hunt (2015) in a collected edition on Parliaments and human rights, makes a wider claim stating that “the idea that human rights suffer from a ‘democratic deficit’ is now a commonplace in both popular and public discourse”.ix He says the deficit is linked to political and media voices in several jurisdictions that complain that democratically elected representatives are being overridden by unelected and unaccountable judges. Others claim the case against judicial rights review has been gathering steam for years.x In the New Zealand context Matthew Palmer states: “suspicion of judges’ ability to frustrate the will of a democratically elected government taps into a deep root in the New Zealand national constitutional culture”.xi
Political constitutionalist Jeremy Waldron (1999; 2006) espouses the “dignity of legislation” and contends that because rights are subject of disagreement they ought to be defined in the public space rather than the courtroom.xii He questions the mandate of courts to engage in moral reasoning because the role of judges “require them to address questions about rights in a particular legalistic way-indeed, in a way that, sometimes makes it harder rather than easier for essential moral questions to be identified and addressed”xiii. Evans and Evans (2007) in the Australian context state that another reason to focus on legislatures when considering human rights is their inherently controversial nature.
Everyone has a stake in that controversy and an equal right to participate in it. Human Rights should therefore be the subject of democratic deliberation in legislatures rather than legal-technocratic assessment by courts.xiv
Hunt (2015) suggests an emerging paradox: While there is a resurgence of a democratic critique of courts, there is a clear consensus that both courts and Parliament have a legitimate role in rights protection. He also urges a ‘democratic culture of justification’ in which every exercise of power is expected to be justified.
A democratic culture of justification is a political and legal order based on a shared responsibility for protecting and promoting human rights, in which all action or inaction affecting human rights must be justified by publicly available reasons which are scrutinised in both Parliament and the courts for compatibility with society’s most fundamental commitments, and in which each of those institutions devises ways of respecting the legitimate role of the other.xv
At a broad level, New Zealand scholarship on the role of Parliament in rights protection has recently included the limitations of a unicameral systemxvi; analysis of the doctrine of parliamentary sovereignty which demonstrates that what New Zealand has is executive sovereigntyxvii; and recent calls for constitutional reform.xviii
In a much quoted Maxim Institute speech on parliamentary recklessness and why we need to legislate more carefully, Waldron suggests that because New Zealand has only one chamber there is more reason to take care that unicameralism provides adequate opportunities for elected representatives to give careful and multi-dimensional consideration to potential law- making.
There is all the more reason to take care that the public’s opportunity for input and comment is safeguarded in respect of a process that is going to be swifter and more ruthless in its operation than the legal processes of most countries. And I am worried that New Zealand has not only abandoned its second chamber, but abandoned also many other safeguards in its legislative processes that might substitute for bicameralism.xix
He suggests that other unicameral systems such as Scandinavian countries have layer after layer of safeguards but that New Zealand has stripped these away. Palmer and Butler’s
proposal for a written codified Constitution rests on their belief that New Zealand’s present
constitution is “dangerously incomplete, obscure, fragmentary and far too flexible”.
It remorselessly evolves with political developments and is subject to few limits. It evolves in obscure and unpredictable ways that are not transparent. That is the trouble with such a political constitution. Our constitution is not fully fit for purpose in the political and social realities of modern New Zealand. That needs to change....xx.
The role and effectiveness of BORA in constitutional protection is subject of considerable legal scholarshipxxi and New Zealand is also subject of domestic and international comparative research.xxii
Weak and strong accounts of the role of BORA in the legislative process are analysed. The weak account suggests the Bill of Rights outlines many human rights that are important in New Zealand society and that the Attorney-General’s (AG) section 7 functions under BORA promote standard setting. The weak account acknowledges that Parliament has retained its sovereign right to legislate even if this involves disregarding the BORA. Geiringer states that this account forms the bulk of academic scholarship and matches actual Parliamentary behaviour since the 1990s.xxiii The guide to Parliamentary practice in New Zealand states that: “The Attorney-General’s view as to whether a bill is consistent with the Bill of Rights Act is not conclusive and the House and a Select Committee are both free to come to a different view”.xxiv While acknowledging the weak account, Bill of Rights architect Sir Geoffrey Palmer, in early writing pointed to the potential power of the Bill of Rights to constrain unconstitutional behaviour.xxv It was a “considerable hurdle to those within government who wish to promote legislation that has, tucked away within it, objectionable provisions” and that the AG’s power “can be a potent weapon”.xxvi As time has gone on he has become less optimistic and states that the New Zealand Parliament does not take human rights particularly seriously and is prepared to pass measures that are incompatible with the BORA and to do so knowingly.
New Zealand has traditionally had difficulty explaining its constitutional framework to international human rights treaty bodies who are concerned that the BORA can be easily amended and overridden by Parliament. The strong account is based on the view that by virtue of section 3(a) of the BORA, Parliament has “bound itself” to refrain from enacting legislation that is contrary to the BORA and that, if it nevertheless does so, it is in breach of a statutory declaration. Geiringer notes that scholars who clearly espouse the strong account do so by hinting at the constitutional implications and practical ramifications of the BORA. If the strong account is correct “a sizable gulf has opened up between legal obligation and actual practice.” She concludes that:
...not matter how attractive the strong account may seem as a means of energising New Zealand’s somewhat fragile parliamentary bill of rights, it is questionable whether it can be sustained. xxvii
In an examination of Commonwealth models it is suggested that BORA as a new model treats legislatures and courts as complementary rather than alternative exclusive promoters and protectors of rights.xxviii This research is relatively positive about its application. However, more recently Janet Hiebert and James Kelly, comparing New Zealand and the United Kingdom, state that BORA “has not advanced the principal goal of parliamentary oversight of the political executive and its legislative agenda”.xxix They blame party coalitions under the Mixed Member Proportional (MMP) system that stifle smaller party autonomy, and the executive domination of the legislature.
Domestic legal researcher Andrew Geddis agrees and states that the “history of parliamentary rights scrutiny of legislation in New Zealand over the past quarter century is not inspiring”. xxx But he is cautiously optimistic about amendments to scrutiny following the 2014 Standing Orders Review to require section 7 notices to be referred to Select Committees along with the bill to which it relates. Such a referral requires the Select Committee to report back to the House on its consideration of the report, (Standing Orders, 2014: SO 265(5). Geddis (2016) states that:
...most legislation is subject to select committee scrutiny and this is the point of parliamentary deliberation where a bill’s underlying policy and precise wording receives its most intensive study. If elected representatives are going to take NZBORA issues seriously at any point on the legislative process, it is here.xxxi
After examining bills affected by the new scrutiny process he says the limited evidence to date gives “cautious reason for hope that the new requirement that Select Committees directly consider the Attorney-General’s reasoning will at least sometimes result in parliamentary revisions of the government’s legislative proposals”xxxii.
He links the effectiveness of Parliamentary scrutiny of rights to the perceived nature of public support for the rights in questions.
In particular, legislative proposals that impose unjustified limits on the guaranteed rights of unpopular groups in society simply do not generate the negative public reaction necessary to encourage elected representatives to overcome the bounds of party loyalty and obedience.xxxiii
Hiebert and Kelly (2015) nominate those unpopular rights-bearers as “the accused, the imprisoned or those groups disadvantaged by electoral politics” and also examine penal populism in New Zealand.xxxiv
An academic divide between strong and weak accounts of rights scrutiny is echoed by division among officials. An optimistic and instrumental view of section 7 reports under BORA is promoted by Tim Workman, the Principal Clerk (legislation) in the Office of the Clerk of the House of Representatives. He acknowledges the general perception that parliamentary Bill of Rights scrutiny in New Zealand is “underperforming” (Workman, 2016) but states that while
improvements can be made “section 7 reports are playing a significant role in initiating and informing parliamentary scrutiny of bills”.xxxv
However, Legislative Counsel in the New Zealand Parliament, Catherine Rodgers (2012) examined two key mechanisms for rights scrutiny of bills in four Parliaments NZ, the Australian Senate, the Victorian State Parliament and the United Kingdom.xxxvi The mechanisms were vetting of bills by the executive and examination of bills by parliamentary committees. She stated that New Zealand did not have a rights scrutiny of bills process operating independently of the executive as seen in the other Parliaments she considered. She concluded that, “an executive-controlled vetting process cannot also provide adequate human rights scrutiny for the legislative process”.xxxvii She said limited information to Parliament was one issue. A second was the Parliamentary process whereby even when the AG found an encroachment on rights was not justified under section 5 of the BORA there was no provision for on-going dialogue with the executive as part of the legislative process.
Where a section 7 report is presented to the House both the Attorney and the responsible minister are free to not address any human rights issues raised in the report further. As well, Select Committees have no obligation to consider rights issues, even when a section 7 report has been done.xxxviii
Rodgers concludes her analysis by suggesting there is good reason to consider that New Zealand are lagging behind our peers in rights scrutiny of bills, while Geddis (2016) suggests that “none of the various jurisdictions attempting to invest Parliament with a joint and supplementary role of rights protector appear to have fully achieved their intended aim”.xxxix
Hiebert and Kelly (2015) note that there is scholarly disagreement on whether BORA vetting has cultivated a rights culture “that disciplines a government’s legislative agenda to its domestic rights commitments...”xl They suggest that despite a “robust rights culture within the bureaucracy”, the Cabinet’s retention of discretion to proceed or not with legislation despite the presence of rights incompatibilities is in fact the issue. They state:
Instead of demonstrating the absence of a rights culture within New Zealand, the decisions of successive governments to proceed with potentially incompatible legislation demonstrate the continued dominance of the Cabinet in the New Zealand parliamentary setting, despite the introduction of a statutory bill of rights and the MMP electoral system’s adoption in 1996”.xli
Despite this assertion, government decisions to proceed with rights incompatible law making demonstrate both a weak rights culture within Parliament and Cabinet dominance. This is underlined by the fact that the Attorney-General in whose name the vets are undertaken sometimes votes in favour of rights-incompatible legislation.
The Legislation Advisory Committee (LAC) established in 1986 regularly publishes guidelines on the process and content of legislation and provides some support for the claim of a “robust rights culture within the bureaucracy”, at least at the pre-legislative phase. The LAC
Guidelines describe high-quality legislation as “easy to use, understandable, and accessible to those who are required to use it. Quality legislation will achieve its underlying policy objective, but still have proper respect for important legal principles (including human rights) and smoothly integrate with the existing body of law”.xlii The guidelines cover the need for new legislation to respect basic constitutional principles and values of New Zealand including the spirit and principles of the Treaty of Waitangi. They also assist in identifying when new legislation limits BORA rights and when proposed legislation might result in discrimination and how that might be addressed. The guidelines refer to section 19(1) of BORA that affirms that everyone is entitled to be free from discrimination on the grounds set out in s.21 of the Human Rights Act 1993 and states that a provision is likely to limit the right to freedom from discrimination where it draws a distinction on one of the prohibited grounds of discrimination; and the distinction involves a material disadvantage to one or more classes of individuals. The guidelines additionally cover privacy, the need for new legislation to be consistent with international treaty obligations and pay specific attention to legislation creating powers of search, surveillance and seizure.
The Ministry of Justice which holds policy responsibility for matters relating to the Human Rights Act also provides detailed guidance for the public sector on its website. Additionally the Cabinet Manual requires Ministers, when submitting bills for the legislative programme, to identify bills that have implications for human rights legislation.xliiiThese are forms of pre- legislative guidance that should foster greater human rights consciousness in law making. How they work in practice requires more detailed inquiry.
Legal researchers with a human rights focus have scrutinised other aspects of checks and balances in the legislative process. Research into the use of urgency answered in the negative the question of whether institutional constraints on its use in the New Zealand Parliament were sufficient to control its abuse (Geiringer, Highbee and McLeay, 2011). They state that urgency motions have been a prevalent feature of New Zealand parliamentary practice for more than a hundred years, employed by Governments on both sides of the House to exert control over the legislative timetable. “Governments put the House into urgency because urgency enables them to pass more legislation, more quickly”.xliv Ten principles of good law- making were outlined, based partly on previous work by the House of Lords Select Committee on the Constitution (2009). These included:
While these are normative standards they impact on any evaluation of Select Committee effectiveness, as they did on the use of urgency. The urgency project (1987-2010) resulted in change and led to the House being able to decide to use extended time to pass a bill through single stage, rather than the Government having to resort to the use of urgency to do so. This led in the 51st Parliament, for example, to a greater use of extended hours and a reduction in the use of urgency. In a Point of Order on parliamentary statistics, the Leader of the House, Simon Bridges, thanked the Business Committee for the:
...constructive way it has worked to allow extended hours to be used more often. This term has seen the continued reduction of the use of urgency. Over the whole term, there have been about 116 hours of urgency, in comparison with 127 in the Parliament before, and, as importantly, extended hours have been used 23 times for treaty legislation and other bills, which saw agreement, in a large number of cases, from most sides of the House (Hansard, 2017).xlv
Other themes in research on the role of Parliaments relate to how they contribute to the pronounced implementation gap between human rights treaty obligations and human rights “on the ground”. The distinction between rhetoric and reality relating to implementation is a familiar theme in current human rights discourse, specifically in relation to international human rights law. It is particularly pronounced internationally in non-governmental initiatives relating to state implementation. A four year project analysing New Zealand’s progress in implementing seven major international human rights treaties showed faultlines were apparent and that in the area of economic, social and cultural rights implementation had plateaued and regression was apparent (McGregor, Bell and Wilson, 2016).xlvi The study which also examined the United Nation’s (UN) harmonised treaty process, the Universal Periodic Review, found that state parties used a variety of defensive strategies which delayed progress on human rights obligations. One of these, “rights ritualism”, is an element in slow implementation and the UN Economic and Social Council’s expert group states:
Rights ritualism can act as a mask to conceal member States’ resistance to norms. This means that Member States acceded to treaties and optional protocols, yet, beyond signing, demonstrate very little commitment to implementing obligations.xlvii
While Parliaments have a critical scrutiny role in making governments accountable, researchers note this is highly dependent on the capability and interest of parliamentarians. Parliamentarians are critical to the strength of a rights culture in Parliament. Feldman (2015) states that the first condition for Parliamentary scrutiny of human rights is that “Parliaments should take human rights seriously”. xlviii There are links between the invisibility of international human rights treaty bodies in day to day Parliamentary activity and the lack of political knowledge of Members of Parliament (MPs). Past surveys by civil society groups about awareness of women’s human rights, for example, demonstrated dismal results (McGregor, Bell and Wilson, 2016). This prompted a women’s advocate to describe the level
of ignorance by Parliamentarians as “outrageous”xlix. This is not unique to New Zealand. Schwarz (2015) examining the work of the Inter-Parliamentary Union notes the work of the Committee on the Human Rights of Parliamentarians which began work in 1979.
The Committee’s experience has revealed that Parliamentarians, including Parliamentary authorities, very often possess only a vague idea of what human rights are and therefore fail to use their specific powers to promote and protect human rights. .... all too often, Parliamentarians are unaware of the human rights treaties their Parliaments have ratified and still less of the obligations that their states have accepted as party to those treaties. As a result, they cannot monitor their governments .....l
Sir Geoffrey Palmer, a trenchant critic of political ignorance suggests that political point- scoring and laziness prevent members of Parliament from understanding New Zealand’s obligations and undertaking analysis. Feldman (2015) notes that Parliaments must equip themselves to deal seriously with human rights and that responsibility lies with the whole of a Parliament while Kunnath and Patrick (2015) observe that “in many Parliaments there has been little historical investment in the practical tools and technical support which are necessary for the conduct of effective and informed Parliamentary oversight”.li
Successive committees reviewing Standing Orders have rejected the idea of a human rights select committee preferring “mainstreaming” which may further dilute any ownership of human rights values and norms. The absence of formal mechanisms for the receipt of international treaty body reports and the New Zealand Government’s response to concluding observation and recommendations limits Parliamentary debate about human rights compliance. The lack of opportunity for elected politicians to undertake meaningful debate and develop human rights consciousness is an institutional failing.
What is evident in the New Zealand context is that commitment to human rights progress is indexed to leadership by individuals, whether they be politicians, judges, diplomats or civil society activists. McGregor, Bell and Wilson (2016) state:
...what is striking... is how often one person has driven or influenced legislative change, pushed for policy reform, been responsible for pursuing a legal case with wider ramifications or acted as a catalyst for reform.lii
Legislative reforms such as the repeal of corporal punishment, the inclusion of sexual orientation in human rights legislation, same-sex marriage, and reform of laws relating to homosexual activity and prostitution were largely driven by committed individuals. Equally the work to push ahead on the development of a disability convention was led by a diplomat and disability advocates and the historic pay equity settlement for care workers was led by individual human rights advocates, trade unionists, lawyers and a carer, Kristine Bartlett.
Raising human rights consciousness is possible within the New Zealand Parliament. New Zealand understands well the symbolic importance of ministerial leadership at the United
Nations. Ministerial leadership and presence at treaty body reporting can relate to policy commitment on the spot, rather than non-commitment or neutrality most often expressed by reticent officials. There is evidence, too, of a ministerial ‘conversion’ to human rights issues, an epiphany that arises once ministers have to engage with the treaty bodies and understand New Zealand’s obligations, and undergo first hand country examination at the United Nations. The role of the news media both in its knowledge of and interest in human rights generally and in the non-coverage of human rights issues and rights scrutiny in Parliament more specifically, is also relevant to an informed human rights culture (McGregor, Bell and Wilson, 2016).liii
Overall, there is a sense in the scholarship that Parliaments are largely failing to exercise their powers and responsibilities for human rights in many of the laws they make. As a consequence they do not hold governments sufficiently accountable. Feldman (2015) introduces a note of realism, though. He suggests that it is unreasonable to expect politicians to have human rights as their primary focus because for most politicians they operate as constraints. He identified conditions necessary for Parliamentary scrutiny on human rights to work and stated that Parliaments needed to recognise their own limitations.
....human rights can never be the sole or even dominant engine of policy-making and legislation. They will usually take the form of side-constraints.liv
Different jurisdictional approaches to parliamentary oversight
A variety of approaches have been taken in different jurisdictions to Parliamentary oversight and protection of human rights. Hunt (2015) states there has been progress made with the introduction and gradual spread of legislative human rights review, despite the fact that human rights are frequently experienced by democratically elected politicians as a disempowering discourse.lv
Since 2001 the United Kingdom Parliament’s Joint Committee on Human Rights (JCHR) has had a remit to consider matters relating to human rights, excluding consideration of individual cases and to consider proposals for remedial orders and draft remedial orders under the Human Rights Act 1998. Comprised of 12 members, six from the House of Lords and six from the House of Commons, the composition broadly matches the party-political composition of Parliament, but the Chair does not have to be a Government member.
Kavanagh (2015) states that the JCHR has become a familiar and settled element of the UK human rights landscape and “has earned an excellent reputation for the quality of its reports within the legal community and beyond”.lvi She argues that it has strengthened the parliamentary machinery for protecting human rights in two main ways: improving the quality of legislative scrutiny for human rights compliance and strengthening accountability for the Government within Parliament on human rights issues. Other commentators such as Janet Hiebert (2015) are less positive.
Despite the optimistic assumption that legislative rights review will alter the norms of legislative decision-making, this concept is unlikely to significantly change the norms of legislative decision-making in the UK- at least any time soon.lvii
The driving force for assessing legislation in the Westminster system is not based on the ideal of improvement from a rights-based perspective but on the exercise of party politics: rival parties demonstrating superiority; highly disciplined political parties organising the vote and where the government generally dominates the House of Commons.
How effective has the JCHR been in building and propagating a human rights culture? Participant observation of three sessions of the JCHR in 2016 following the United Kingdom’s vote to leave the European Union, showed that while members of the JCHR demonstrated a sophisticated understanding of issues such as the plight of children in Calais camps wanting residence in the United Kingdom, and business and human rights in Africa, wider political and parliamentary discourse about human rights such as whether or not to leave the European Court of Human Rights, was primitive and dispiriting, a “disempowering discourse”. So the question remains open- can a dedicated human rights select committee mechanism drive a wider parliamentary human rights consciousness?
A key component of Australia’s federal human rights framework is the Human Rights (Parliamentary Scrutiny) Act (HRPS) 2011 which enacts a two-part scheme of legislative rights review. First, legislators who introduce Bills into Parliament are required to prepare a statement of compatibility explaining the Bill’s compatibility with human rights, and secondly the act requires the Parliamentary Joint Committee on Human Rights (PJCHR) to examine proposed legislation for human rights compatibility. The functions of the PJCHR are set out in section 7:
(a) To examine Bills for Acts, and legislative instruments, that come before either House of Parliament for compatibility with human rights, and to report to both Houses of the Parliament on that issue;
(b) To examine Acts for compatibility with human rights, and to report to both Houses of the Parliament on that issue.
(c) To inquire into any matter relating to human rights referred to it by the Attorney general.
Human rights are defined in the Act as those contained in the seven major human rights treaties to which Australia is a party: the ICCPR, ICESCR, CERD, CEDAW, CAT, CRC and the CRPD. The Committee has ten members chaired by a Government member from the House of Representatives or from the Senate. The Deputy Chair comes from non-governmental members of the committee. In 2015-16 five members came from the House of Representatives (three from Government and two drawn from the Opposition or any other non-aligned member) and five members from the Senate (two Senators drawn from the Government; two from the Opposition, and one Senator from a minority party or an
independent) (Parliamentary Joint Committee on Human Rights (PJCHR) 2017). The Joint Committee has a secretariat with research officers and an external legal adviser.
Australia’s constitutional framework has been described as “unique among democratic nations” (Williams and Reynolds, 2015) because the role of assessing laws against human rights standards and protecting against infringements is vested exclusively in Parliament.
No role is provided to the courts, nor does Australia possess, at the federal level, a national Bill of Rights, Human Rights Act or other like instruments that might separately empower the courts to strike down laws that contravene human rights, or to otherwise interpret laws where possible to be consistent with such rights.lviii
The framework “denies the judiciary a role in the enforcement of human rights”
(Rajanayagam, 2015)lix.
The functions of the PJCHR imply that its scrutiny function will help ensure that legislation coming before the Australian Parliament will comply with human rights norms. However, significant concerns have been raised both by Committee members themselves and by researchers about aspects of the process. The PJCHR states:
...the responsiveness of legislation proponents to the committee’s requests for information regarding human rights concerns is critical to the effectiveness of the scrutiny process (PJCHR, 2017).lx
While the Committee stipulates a deadline there is no procedural requirement for the committee to have finally reported on a bill prior to its Parliamentary passage, even when the Minister is responsible for the failure. Consequently,
...timeliness continued to be a significant issue during the reporting period, with responses from legislation proponents often not being received until well after the committee’s deadline and, on occasion, not until after the bill had passed (even when the passage of the bill was not expedited) or the timeframe for disallowance had expired.lxi
The Committee’s own figures for the period showed a startling 81% or 21 bills were late of the 26 bill examined in the 2015-6 period, with only two provided by the requested date and a remaining three outstanding at the time of the report.
Williams and Reynolds (2015) in their analysis of the PJHRC said the blame cannot be solely laid at the feet of intransigent ministers.
The Committee needs to develop a procedure for processing to a conclusion when a response is not forthcoming. If it does not, ministers may be encouraged to delay their response to queries from the Committee because this will enable contentious Bills to proceed without the Committee having brought human rights concerns to the attention of Parliament.lxii
They make three suggestions to overcome the impact of delay: alter Committee procedures and proceed to incompatibility findings without responses, thereby shifting the burden of proof onto the bill’s proponent; amend the legislation so that statements of compatibility comply with the Committee’s expectations; or introduce new legislation setting guaranteed minimum time frames.
Three potential design flaws have been noted relating to Australia’s Human Rights (Parliamentary Scrutiny) Act 2011 (Rajanayagam, 2015).lxiii These are the broad definition of human rights in s 3(1) of the Act, the lack of consequences for failing to produce a SOC, and the exemption from its operation of some delegated legislation. Earlier commentary by Rosalind Dixon (2012)lxiv on the question of definition noted that the legislation did not explain whether it was intended to foster compliance with human rights norms, or whether it should be seen as entrenching a culture of human rights based on justification and contest. The act also does not reveal what is meant by legislation being ‘compatible with human rights’ (Rajanayagam, 2015).lxv Another concern raised by the Committee in its annual report was the variability in the standard of SOCs and the need for improvement in their quality to ensure that they provided considered and evidence-based assessments of how any potential limitations of human rights were justified.
There is evidence in the Committee’s last annual report that its inquiry function may have limited impact on building human rights consciousness in the Australian Parliament. A final report in 2016 on controversial legislation regulating aspects of the lives of indigenous peoples in the Northern Territories contained seven recommendations aimed at improving the human rights compatibility of the legislation. The committee had not received a formal government response to the report, according to its latest annual report.lxvi Academic scholarship has, too, identified that political partisanship has become evident on the committee and the nature of recording dissent among members about incompatibility is unsatisfactory (Williams and Reynolds, 2015)lxvii. However, there is some support for the idea that statements of compatibility have through their formal production resulted in a more regular consideration of human rights issues by proponents of legislation. This indicates that SOCs have a deliberative impact on parliamentary deliberation. The Committee’s former legal adviser Andrew Byrnes (2014) noted that the:
PJHRC has engaged in consistent, principled analysis that has led to an overall improvement in government articulation of the reasons for the adoption of many policieslxviii.
The legislative impact can be measured by the extent to which new legislation protecting human rights is introduced or where legislation that intrudes on human rights is amended, retracted or voted down. While acknowledging the notorious difficulties of such measurement, research findings to date are not especially encouraging.
Yet despite the possibility that good work is going on behind closed doors and in Parliamentary corridors, our overall finding remains undisturbed; on 73 per cent of
the instances where the Committee has made an adverse finding about a Bill or legislative instrument, that conclusion has had no impact on the fate of the legislation in question, while in the remaining 27 per cent of cases in which an impact might have occurred, evidence of this is hard to find (Williams and Reynolds 2015).lxix
Adopting case study methodology and looking at migration and health care legislation led Rajanayagam (2015) to conclude: “One of the flaws that stands out in both instances is a failure to engage rigorously with the economic and social rights issues raised by the legislation”lxx. The HRPS ACT:
.....ought to have sounded a clarion call for the protection of human rights at the federal level. So far, however, the legislators who are subjects to its obligations have not lived up to that promise.lxxi
But it is also suggested there is not enough evidence of the deliberative processes and human rights outcomes of the HRPS Act to make any firm conclusions about whether the scheme is capable of providing adequate protection of human rights. More research and evaluation is recommended.
Improving the scrutiny of legislation is a current priority for the Canadian government. In a mandate letter to the Leader of the Government in the House of Common, Canadian Prime Minister Justin Trudeau, asked for a strengthening of Parliamentary committees so that they can better scrutinise legislation. This includes: ensuring that Parliamentary committees are properly resourced to bring in expert witnesses and are sufficiently staffed to continue to provide reliable, non-partisan research; strengthening the role of Parliamentary committee chairs, including elections by secret ballot; and, changing the rules so that ministers and Parliamentary secretaries no longer have a vote on committees (Trudeau, 2016).lxxii
James Kelly (2016) in a blog commented that the intention to strengthen the scrutiny capacity of Parliamentary committees was an excellent objective. lxxiiiBut he warned that on their own statements of incompatibility would not solve the practical and constitutional difficulties of the current Charter certification process that required the Justice Minister to report against government bills by establishing a statement of incompatibility.
He wants changes to Parliament’s committee structure in tandem with changes to the Minister of Justice’s reporting duty as a statement of compatibility. Kelly urges the establishment of a stand-alone Parliamentary select committee with a threefold function; the receipt of statements of incompatibility, scrutiny of the statements, and finally an independent assessment to Parliament on whether or not the committee agrees with the report issues by the Minister of Justice that a bill is compliant with the Charter of Rights and Freedoms, or any statutory document such as the Canadian Bill of Rights (CBOR)
He states that it is incorrect to say Canada does not have a parliamentary committee tasked with consideration of human rights issues. The Standing Joint Committee of Regulations is required to determine whether any regulation or statutory instrument is not in conformity
with the Canadian Charter of Rights and Freedoms or the 1960 Canadian Bill of Rights. However, it is limited to the review of regulations and does not assess whether government bills are consistent.
Stephen Gardbaum (2013) promotes a new Commonwealth model of constitutionalism that combines two techniques for the protection of rights, mandatory pre-enactment of political rights review and weak form judicial review. He promotes Canada as a pioneer in institutionalising the model. In discussing mandatory provisions for pre-enactment political rights he says that while the Charter itself does not contain an obligation to examine proposed bills and report on any inconsistencies, unlike section 3 of the CBOR, parliament had amended the Department of Justice Act in 1985 to create similar duties. Section 4(1) of the Act required the Minister of Justice to examine all government bills introduced in Parliament to determine whether any provisions are inconsistent with the Charter, certify that the bills had been examined and report to the House of Commons any such inconsistency in the event that any provision in a government bills is inconsistent with the purposes and provisions of the Charter. He notes that:
The number of reports of inconsistency by the Minister of Justice/Attorney General to Parliament on the introduction of a government bill since the Charter came into effect is precisely zero. This is so even though...on at least two occasions federal legislation was introduced with the objective of reversing or overruling prior Supreme Court of Canada (SCC) decisions. Although no official explanation is given for not finding an inconsistency and the review process remains secretive and opaque, the practice suggests there is a strong political presumption against reports.lxxiv
He goes on to suggest that Parliament has provided relatively little additional check on government bills and attributes this to the strength of the Government in the House of Commons and the strong party/whip system. Standing committees in the House considering Charter and human rights consistency of bills are generally regarded as weak mechanisms.
Select committee scrutiny of human rights.
The last Review of Standing Orders (SOR) undertaken in New Zealand in 2017 discussed the effectiveness of Select Committees in relation to what was seen as creeping executive influence. On the one hand Select Committees are seen in the ideal as scrutiny mechanisms unique in terms of public access and participation. For example. McGee (2017) states that It is in Select Committees that most of the intensive work of the House is carried on-whether of a legislative, financial or investigatory nature, or a scrutiny function..
On the other hand increasing executive influence over Parliament, especially at Select Committees, which reduces the relevance of Parliament, was an issue raised in the annual party workshops of members and staff for the SOR. In addition these party workshops identified that executive influence could be exacerbated when there are many new Government MPs who have not been in Opposition, and that some members have a “ poor
grasp of their Select Committee business and do not want to meet outside House sitting
weeks” (Office of the Clerk of the House of Representatives, 2017).lxxv
The Green Party provided examples of the Executive’s “increasing influence” and stated that Standing Orders should re-inforce the role of Select Committees as providing robust and independent consideration of bills. In addition Standing Orders should regulate Ministers’ interactions with committees, by requiring them to attend meetings or provide written advice if they wished to participate in the committee’s work.
Another review submitter, ECO NZ, said the Executive or Government Whips “have increasingly seemed to govern Government MPs at Select Committees” and expressed concern at the perceived lack of engagement from Government MPs and the associated impact on good law-making. It wanted the Standing Orders to require “open minded and robust and engaged scrutiny and discussion of submissions”, provide more “genuine independence” and “disallow party whip control of what MPs do and say” at Select Committee meetings.
But the Clerk’s analysis reflected political pragmatism. While the “importance of Select Committees’ proper functioning cannot be overstated, and genuine scrutiny of legislative proposals is a fundamental part of this”, Select Committees operated in an inherently political environment and could not be independent of political considerations. A committee’s dynamics could be influenced by a chairperson’s exercise of the role and tensions within the committee itself. Strengthening the role of chairpersons was recommended.
The Standing Orders Committee (SOC) (2017) canvassed the effective chairing of Select Committees and suggested a “job description” for such positions. It acknowledged that the role could be difficult.
It requires balancing the needs and expectations of all participants in committee business: members, submitters and witnesses, advisers, journalists and the public in general. Chairpersons can be subject to strong demands from Ministers, especially if they are from the same party. All chairpersons must balance their legitimate party loyalties with the need to be fair and effective when arranging committee meetings and presiding over proceedingslxxvi.
Reviews of Standing Orders have addressed the issue of a specialist human rights Select Committee in 2017, 2014 and 2011. In 2017 the SOC said: “We do not favour the establishment of a separate Select Committee to look at rights matters”. lxxvii The Office of the Clerk of the House of Representatives (2017) said that calls for a dedicated committee to consider rights, variously BORA rights, human rights and civil and political rights- had been long standing. The Justice and Law Reform Committee had raised the idea in 1988 in its consideration of the White Paper on the Bill of Rights. The JLR Committee suggested that such a body could examine all bills and regulations for consistency with BORA and additionally, have a complaints function (Justice and Law Reform Committee, 1988). In 2011 and 2014, the
Human Rights Commission, Amnesty International, the CEDAW Coalition of NGOs, and the Human Rights Foundation, all advocated for a human rights committee noting that comparable committees exist in the United Kingdom, Australia and Canada.
The 2017 SOC repeated the mainstreaming argument of the previous standing orders reviews, that consideration of BORA matters was the responsibility of all subject Select Committees. “Consistency with the NZBORA is an important element of legislative quality and it is for all committees to be mindful of legislative quality when considering bills” lxxviii (p.26). The Clerk summarised the 2011 and 2014 positions that the size and membership of existing committees meant that it could be difficult to maintain membership of a permanent specialist committee and that it was counter intuitive to recommended streamlining and restructuring committees (p.66). In 2017 the new Justice Committee included the addition of constitutional matters and included human rights in a span of justice and law and order areas.
Standing Orders were amended following the 2014 review to provide that reports of the Attorney-General under section 7 of the NZBORA were referred to a Select Committee for consideration. In 2017 the SOC said they were satisfied that the change had been effective and it had encouraged Select Committees to substantively consider each section 7 report referred and comment on their findings when reporting back to the House. The Committee outlined what the general process for Select Committee consideration of a section 7 report should include: a briefing provided by the A-G; a section 7 report is noted when the bill is advertised for submissions so that submitters can read it; departmental advisers address the points raised in the section 7 reports; and the committee’s report to the House on the bill deals with the issues raised. However, the long standing concerns raised by the New Zealand Law Society, the Green Party and others about amendments made by Select Committees and Supplementary Order Papers that may also be inconsistent with BORA remain as they were.
i Evans, S and Evans, C (July 2007) “Australian Parliaments and the Protection of Human Rights.” Papers on
Parliament No 47. www.aph.gov.au.
ii Webb, P. and Roberts ,K (2014) “Effective Parliamentary Oversight of Human Rights”. Kings College London:
University of London.
iii Ibid at footnote I at page 5.
iv Palmer, G and Butler, A (2016) A Constitution for Aotearoa New Zealand. Victoria University Press: Wellington.
v Feldman, D (2015) “Democracy, Law and Human Rights: Politics as Challenge and Opportunity.” In M. Hunt,
H. J. Hooper and P. Yowell (Eds) Parliament and Human Rights: Redressing the Democratic Deficit. Bloomsbury Publishing PLC. Proquest: Ebook Central http://ebookcentral.propquest.comlib/aut/detail action?docID=2006170. Pp.95-115 and 101.
vi Schwarz,I (2015) “The Work of the Inter-Parliamentary Union”. .” In M. Hunt, H. J. Hooper and P. Yowell (Eds) Parliament and Human Rights: Redressing the Democratic Deficit. Bloomsbury Publishing PLC. Proquest: Ebook Central http://ebookcentral.propquest.comlib/aut/detail action?docID=2006170. Pp 333-334.
vii Hunt, M (2015) “Introduction”. In M. Hunt, H. J. Hooper and P. Yowell (Eds) Parliament and Human Rights: Redressing the Democratic Deficit. Bloomsbury Publishing PLC. Proquest: Ebook Central http://ebookcentral.propquest.comlib/aut/detail action?docID=2006170. Pp.1-25.
viii Ibid at footnote ii at page.1.
ix Ibid at footnote vii, at page.1.
x Rajanayagam.S (2015) “Does Parliament Do Enough? Evaluating Statements of Compatibility under the Human Rights (Parliamentary Scrutiny) Act.” UNSW Law Journal. 38 (3) pp 1046-1077.
xi Palmer, M (2007) “New Zealand’s Constitutional Culture” New Zealand Universities Law Review, 586 p.159. xii Waldron, J (1999) Law and Disagreement. Oxford University Press: Oxford, UK and Waldron, J (2006) “The Core of the Case Against Judicial Review “Yale Law Review, 115 pp.1346-1359.
xiii Waldron, J (2009) “Judges as Moral Reasoners” International Journal of Constitutional Studies, 7 p.2.
xiv Evans, S and Evans, C (July, 2007). “Australian Parliaments and the Protection of Human Rights”. Papers on
Parliament. No 47. https://www.aph.gov.au.
xv Ibid at footnote vii at page.2.
xvi Ibid
xvii Wilson, M (2015) The Struggle for Sovereignty. New Zealand Twenty First Century Statehood. BWB texts, Bridget Williams Books: Wellington.
xviii Ibid at footnote iv.
xix Waldron,J. (2018) “Parliamentary Recklessness. Why We Need to Legislate More Carefully”. Maxim Institute:
Annual John Graham Lecture.
xx Ibid at footnote iv at page 13.
xxi The scholarship includes: Rishworth, P. Huscroft, G. Optican, S. and Mahoney, R (2003). The New Zealand Bill of Rights.Oxford:Oxford University Press; Geiringer,C (2014) “The Dead Hand of the Bill of Rights? Is the New Zealand Bill of Rights Act 1990 a Substantive Legal Constraint on Parliament’s Power to legislate?” Victoria University Legal Research Papers. 4 VUWLRP 102/2014; Butler,A. and Butler,P (2015) The New Zealand Bill of Rights Act: A Commentary. Second edition, Wellington: Lexis Nexis; and Geddis,A (2016) “Rights scrutiny in New Zealand’s Legislative Process”. The Theory and Practice of Legislation. 4:3 pp355-379.
xxii Notably scholarship such as: Rodgers,C (2012) “A Comparative Analysis of Rights Scrutiny of Bills in New Zealand, Australia and the United Kingdom: is New Zealand Lagging behind its Peers?” Australasian Parliamentary Review, Autumn 2012, 27 (1) 4-7; Gardbaum,S (2013). The New Commonwealth Model of Constitutionalism: Theory and Practice. Cambridge University Press, Cambridge: New York.; Hiebert,J.L. and Kelly, J.B.(2015) Parliamentary Bills of Rights. Cambridge University Press: Cambridge,UK.
xxiii Ibid at footnote xx, Geiringer.
xxiv McGee,D (2017) Parliamentary Practice in NZ 4th edition. Mary Harris and David Wilson (Eds). Oratia Books: Auckland. P.413.
xxv Palmer, G. and Palmer, M (1997) Bridled Power. 3rd edition. Oxford University Press: New Zealand
xxvi Ibid at page 272.
xxvii Ibid at footnote xx,Geirnger at page 415.
xxviii Ibid at footnote xxi, Gardbaum.
xxix Ibid at footnote xxi Hiebert and Kelly at page.74
xxx Ibid at footnote xx, Geddis at page 375.
xxxi Ibid at page 374. xxxii Ibid at page 375. xxxiii Ibid at page 377.
xxxiv Ibid at xxi, Hiebert and Kelly at page 37.
xxxv Workman,T (2016) “Parliamentary Bill of Rights Scrutiny in New Zealand- a 2016 update.” Australia-New Zealand Scrutiny of Legislation Conference. Perth, Western Australia, 11-14 July. p.3.
xxxvi Rodgers,C (2012). “A Comparative Analysis of Rights Scrutiny of Bills in New Zealand, Australia and the
United Kingdom: is New Zealand lagging behind its peers?” Australasian Parliamentary Review, Autumn, 21(1) pp 4-17
xxxvii Ibid at page 13.
xxxviii Ibid.
xxxix Ibid at footnote xx, Geddis at page. 377 xl Ibid at xxi, Hiebert and Kelly at page 60. xli Ibid at page 61.
xlii Legislation Advisory Committee Guidelines: Guidelines on Process and Content of Legislation 2014 edition. Legislation Advisory Committee, October. http://www.lac.org.nz/guidelines/
xliii Cabinet Manual (2017) Cabinet Office, Department of Prime Minister and Cabinet, Wellington. Para 7.60(b). xliv Geiringer,C. Highbee,P and McLeay, E (2011) What’s the Hurry? Urgency in the New Zealand Legislative Process 1987-2010.Victoria University Press with the assistance of the New Zealand Law Foundation: Wellington.
xlv New Zealand Parliament (10 August 2017) Hansard Debates, Volume 724, p.22.
xlvi McGregor, J. Bell, S. and Wilson, M (2016) Human Rights in New Zealand:Emerging Faultlines.New Zealand Law Foundation and Bridget Williams Books: Wellington.
xlvii United Nations Economic and Social Council (2015) Dialogue on an Optional Protocol to the United Nations Declaration on the Rights of Indigenous Peoples, 17 February. E/C.19/2015/8, p.5 para [20].
xlviii Ibid at v page 111.
xlix Ibid at footnote xiv page 193.
l Ibid at footnote vi at page 331.
li Kunnath,G and Patrick, A (2015).”The Work of the Westminster Foundation for Democracy”. In M. Hunt, H. J. Hooper and P. Yowell (Eds) Parliament and Human Rights: Redressing the Democratic Deficit. Bloomsbury Publishing PLC. Proquest: Ebook Central http://ebookcentral.propquest.comlib/aut/detail action?docID=2006170. Chapter17.
lii Ibid at footnote xiv at page 205.
liii Ibid at footnote xiv.
liv Ibid at footnote v at page 111.
lv Ibid at footnote vii at page 11.
lvi Kavanagh, A (2015) “The Joint Committee on Human Rights: A Hybrid Breed of Constitutional watchdog”. In
M. Hunt, H. J. Hooper and P. Yowell (Eds) Parliament and Human Rights: Redressing the Democratic Deficit. Bloomsbury Publishing PLC. Proquest: Ebook Central http://ebookcentral.propquest.comlib/aut/detail action?docID=2006170. p.117
lvii Ibid at footnote xxi, Hiebert and Kelly, at page 58.
lviii Williams, G and Reynolds, D (2015) “the Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights”. Monash University Law Review. 41(2) pp 469-507, p.469.
lix Ibid at footnote x, at page 1046.
lx Parliamentary Joint Committee on Human Rights (5 December, 2017) Annual Report 2015-6. Commonwealth of Australia.p.20, par 3.34.
lxi Ibid at page 20, par 3.35.
lxii Ibid at footnote lvii at page 479.
lxiii Ibid at footnote x at page 1070.
lxiv Dixon, R (2012) “A New (Inter)National Human Rights Experiment for Australia” 23 Public Law Review. 75.
lxv Ibid at footnote x at page 1056.
lxvi Ibid at footnote Iix at page 25, par 3.51.
lxvii Ibid at footnote ivii
lxviii Byrnes,A. (2014) “Human Rights Under the Microscope: Reflections on Parliamentary Scrutiny.” Speech
delivered at the Law Society of South Australia, Adelaide, 11 December, 2014.
lxix Ibid at footnote Ivii at page 494. lxx Ibid at footnote x at page 1071. lxxi Ibid at page 1076.
lxxii Trudeau, J. (August 19, 2016) Leader of the Government in the House of Commons Mandate letter. https://pm,gc.ca/eng/leader-government-house-commons-mandate-letter. Accessed 21/3/2018.
lxxiii Kelly, James (2016) “The Parliament of Canada and the Charter of Rights: The Need to Establish a Joint Scrutiny Committee on Human Rights” .blog. https:jamesbkelly.org/2016/01/06/the-parliament-of-canada- and-the-charter-of-rights-the-need-to-estanblish-a-joint-scrutiny-committee-on-human-rights.
lxxiv Ibid at footnote xxi, Gardbaum, at page 103.
lxxv Office of the Clerk of the House of Representatives, 2017 at p.41).
lxxvi NZ House of Representatives (2017) Review of Standing Orders, report of the Standing Orders Committee. p.20.
lxxviii Ibid at page 26.
Methodology
If Parliaments are crucial to the promotion and protection of human rights how do they select, consider and evaluate human rights issues? This research has noted that during the controversial passage of the Public Health and Disability Amendment Act and the enactment of various pieces of legislation relating to the voting rights of prisoners, human rights checks and balances were widely acknowledged in academic, political and media commentary to have been ignored and/or suborned.
However, despite this criticism little attention has been paid to the role played by the legislature in the domestic protection of human rights. So how should researchers analyse the passage of legislation that impacts on rights? What are the best ways of evaluating parliamentary performance of fights scrutiny both in terms of the processes of law making as well as its outcomes?
Evans and Evans (2007) in their research on Australian Parliaments and the protection of human rights list several considerations in the legislative process. They state that it would be desirable if:
These ideals presume, of course, that there is a human rights culture or at least a rights consciousness in the legislature to begin with.
In this research conducted in 2018-2019 we have examined the passage of three bills, two pieces of problem legislation, and refer to two other proposed bills that were before the House but not passed, as this research project ended. The aim of the research was to address the absence of published, detailed analysis of the performance of the New Zealand Parliament in the protection and promotion of human rights domestically (Evan and Evans, 2006).ii
The case studies describe and evaluate the law-making function to identify the strengths and weaknesses of the select committee process in particular and other existing legislative processes and mechanisms more generally. The bills chosen for analysis were before the house in the 2018-2019 parliamentary sessions and were characterised by strong human rights considerations. They were selected in a legislative audit process because they affected
human rights set out in the two major treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They may also be affected by the other major human rights treaties, supplemented by United Nations Human Rights committee commentary, or other relevant and published material relating to international human rights law such as the Yogyakarta Principles, general comments, or United Nations special procedure reports.
The researchers accept the contestability of human rights, which is pronounced in the area of politics. They also acknowledge that a divergence of perspectives can affect what standards are established to check human rights compliance.
However, New Zealand has a “strong heritage of protecting human rights” which is said to be part of our DNA.iii There is a degree of consensus politically, judicially and in the public mind that certain core human rights expressed in the ICCPR and the ICESCR underscore democratic processes and have a special legal and social status. Human rights are also used as a standard by New Zealanders in a myriad of ways to judge whether their freedoms are being realised or curtailed by the application of laws, policies and practices in everyday life. To that extent they are a “democratising ethos.”iv
Disagreement is more likely on the appropriate balance of rights, concepts like proportionality, and who ultimately decides. However, this research focuses specifically on the legislative processes used, with a particular emphasis on Select Committees as scrutiny mechanisms, as well as whether laws as passed have achieved the outcome of being rights- based and rights-compliant. The analysis of each of the bills was undertaken from the public record such as Parliament’s website, record of the First, Second and Third readings of the bill, submissions to the Justice Select Committee or other relevant select committees, the Justice Select Committee report or reports of relevant select committees, and the Committee of the Whole House report.
This material was supplemented by a series of interviews with stakeholders such as current and former parliamentarians including ministers, legislative drafters, committee staff and other experts, and submitters to the bills’ select committees. A unique feature of the research methodology is the emphasis it places on the agency and voices of those who make submissions on proposed bills as participants in parliamentary democracy.
This research has employed the evaluative methodology of Australian legal researchers looking at the human rights performance of legislatures who have stressed the need for positive as well as negative examples. They state that:
A good range of case-studies will include examples of legislation that is particularly protective of human rights, and legislation that is particularly inconsistent with human rights while ensuring that the data from the comprehensive analysis of legislation is used to clearly identify how typical particular case-studies are of the legislature in question.v
The researchers said that it is important that legislative proposals that protect human rights are included because to “focus solely on the ways in which Parliament can act to limit human rights is to give an incomplete picture of its relationship with human rights”.vi
Adapting the Australian methods, the following impact analysis was utilised by researchers in relation to the case studies of prospective legislation. Not all factors were relevant to each case.
General’s report, accompanying the Bill identify/ and or justify limits on human rights and how
The analysis allowed for an evaluation of parliamentary rights scrutiny that was contextual, contingent and nuanced as urged by recent research that has suggested that focusing only on legislative outputs may be a too narrow approach.vii
The legislation analysed included rights-infringing legislation, the Public Health and Disability Amendment Act 2012 and the Electoral (Disqualification of sentenced prisoners) Amendment Bill 2010. It also examined the: Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill; the Domestic Violence Victims Protection Bill and the Electoral (Integrity) Amendment Bill. Two other pieces of proposed legislation, the Equal Pay Amendment Bill and the End of Life Choice Bill were also referred to in the research. The bills chosen included Members’ bills that do not undergo the scrutiny attached to Government bills, as well as a bill that followed a petition to Parliament. This is in line with the suggestion that case studies should be selected to reflect the range of types of legislation.
In addition to the case studies and archival research a range of interviews were conducted against both structured questions and as unstructured conversations. Interview transcripts were sent back to participants. A summary report of the findings which contain interview comments was also referred back to interviewees for comment. Questions asked of Select Committee chairs included perceptions of effectiveness of parliamentary and legislative processes in rights scrutiny; of their own levels of understandings and motivations and what changes they felt could improve Parliament’s performance. Officials were asked about processes and the strengths and weaknesses of current scrutiny mechanism and the use of guidance and guidelines. Questions about human rights education and human rights culture were also asked. The researchers supplemented the data collected with participant observation after submitting on the Equal Pay Amendment Bill and appearing before the committee during the research period. Ethics approval for the project was provided by the Auckland University of Technology’s Ethics Committee.
The research followed the parliamentary process relating to legislation detailed below.
Parliamentary Process of Legislation - Points of Intervention for Potential
Human Rights Scrutiny
Policy Formation Undertaken by Officials and PCO
Limited external intervention by LADC but policy to comply with Cabinet Manual and Legislation Guidelines.
Ministerial Consideration of Legislation
Cabinet Manual requires Ministers to draw attention to implications of Bill for compliance with Human Rights Act – paragraph 7.60(b).
Introduction of Bill into Parliament
Public may lobby MPs for changes once provisions known.
First Reading in House of Representatives
Provides opportunity for objectives of Bill to be formally known and if Bill achieves a majority of votes in Parliament after the debate, then referred to Select Committee – Minister determines appropriate Select Committee (check) There is no Committee responsible for consideration of NZBORA and Human Rights issues.
Select Committee Hearing
Consideration by Select Committee normally over 6 months and public usually can make submissions to affirm or change the provisions of Bill. The Committee reports back to Parliament any recommended changes. There may be a majority and minority Report to Parliament. Although section 7 NZBORA Reports referred to Select Committee, there is no requirement for consideration of human rights issues.
Second Reading In House of Representatives
MPs debate the Select Committee Report and votes on Bill and if Bill successful it goes to committee of the whole House.
Committee of the Whole House
The Bill is debated in detail and voted on together with any amendments. If successful it proceeds to Third Reading.
Third Reading in House of Representatives
Final debate and vote and if successful Bill is passed but requires Royal Assent to become law.
Royal Assent
i Evans, S and Evans, C (July, 2007) “Australian Parliaments and the Protection of Human Rights”, Papers on Parliament, No.47. Parliament of Australia. https://www.aph.gov.au/About_Parliament/Senate/research_and_Education/pops/pop47/~/~/link.aspx?_id= 8B6C280930C4453C92CA6&-Z--Z.
ii Evans, C. and Evans, S. (2006). ‘Evaluating the Human Rights Performance of Legislatures”. Human Rights Law Review. 6-3, pp 545-569.
iii Palmer, G. and Butler, A. (2016) A Constitution for Aotearoa New Zealand. Victoria University Press, Victoria University of Wellington. Wellington, p.160.
iv Hoover, J. (2016) “Reconstructing Human Rights: A Pragmatist and Pluralist Inquiry into Global Ethics.”
Oxford Scholarship Online. DOI:10.1093/acrof:oso/978198782803.001.0001.
v Ibid at footnote ii at page 568.
vi Ibid.
vii Hutchinson, Z (2018). “”The Role, Operation and Effectiveness of the Commonwealth Parliamentary Joint
Committee on Human Rights After Five Years”. Australasian Parliamentary Review.33(1).p.80.
Select committee controversy
Select Committee composition ignited one of the first clashes between the Government and the Opposition in the 52nd Parliament, 2017. The clash graphically demonstrated the pursuit of party advantage by both government and opposition parties in practice, despite cross- party, rhetorical support for improvement to parliamentary practices in principle.
The Standing Orders Committee (SOC) in its 2017 triennial review of Parliament’s rules recommended that the 13 existing subject Select Committees be re-organised into 12 subject Select Committees “to improve the alignment of subject areas with the current organisation of the public service and Votes, and the Government sector approach to defining objectives and measuring achievements”i. The re-organisation saw five committees remain largely or entirely untouched including Finance and Expenditure, Foreign Affairs, Defence and Trade, Health, Māori Affairs and Primary Production. Three significant changes included the Justice Committee absorbing not only electoral matters but also the Law and Order Committee in addition to constitutional matters. The Economic Development, Science and Innovation Committee replaced the Commerce Committee and added broadcasting to its list of subjects. The Government and Administration Committee that previously bundled a large number of disparate areas such as women’s affairs and statistics and civil defence together was modified to take on local government while a number of subjects, such as women’s affairs went to the new Social Services and Community Committee.
An accompanying change was the reduction in size of Select Committees down from 120 seats to 96 seats overall, allocated on a proportional basis. In its discussion about decreasing overall membership of Select Committees the SOC noted that the number of seats was not specified in the Standing Orders (SO) although under SO 185, the overall number of seats must be proportionally allocated among the parties, as far as practicable. Committees were generally too large to be effective and some MPs had too many committee commitments.
A decrease in committee seats would provide more flexibility for parties to manage committee attendance and absences. This flexibility would also allow members to attend committee meetings according to their interests, expertise and availability. Government backbench members would not be expected to be on more than two committees each, allowing them to be more focused in their committee work. There could also be greater scope to arrange extended sittings at the same time as committee meetings, as fewer members would be required to attend those meetings.ii
The SOC recommended that at the start of each Parliament the Clerk of the House calculate each party’s proportional allocation of the 96 seats based on its seats in the House and using the Saint-Lague method of proportionality, utilised in New Zealand’s electoral system. The Business Committee could then negotiate and agree on changes to the overall number of seats and proportionality. Proportional allocation of 96 seats would leave some members without permanent seats on Select Committees but the Business Committee could appoint
permanent non-voting members to committees and this could be done more frequently to give every member regular involvement in committee work. Parties could also split membership of a seat between two members.iii
Labour’s decision to have 96 Select Committee places only caused National to accuse the new Government of an unprecedented and alarming erosion of democratic rights (Jones, 2017).iv National MP and shadow leader of the House, Simon Bridges, said it was normal for places on Select Committees to be roughly equivalent to the size of Parliament, or around 120 MPs. Labour’s plans meant 11 National MPs would miss out on Select Committee seats.
“There are 11 MPs-more than the NZ First and Green caucuses- who have been sent to Parliament by their communities and aren’t going to be able to scrutinise or hold the Government to account”, Bridges said.
“It is a really alarming erosion of the Opposition’s democratic rights in our Parliament like we’ve never seen before. It is an unprecedented situation.” Bridges was a member of the SOC that recommended cutting the Select Committee places to 96, but he said that no one had envisioned the current situation whereby the biggest party was in Opposition. When the SOC made the recommendation National was in Government “trying to accommodate the Opposition who wanted that. Now the Opposition doesn’t want it....”.v
Labour’s Leader of the House Chris Hipkins responded that 96 was settled on as the
recommendation from the SO Committee.
And ultimately Bill English was out there on Friday saying the National Opposition was going to use the Select Committee process to grind the Government’s legislation to a halt. It would be fair to say we are not of a mind to increase the numbers on Select Committee in order to make it easier for them to do that.
The media quoted Opposition Leader Bill English as saying; “we have no obligation to smooth (the Government’s) path” and it was not the Opposition’s job to “make the Government run” (Bracewell-Worrall, 2017)vi
Hipkins, also a member of the SO Committee that recommended 96 seats prior to the election, said National had been offered a much better deal than Labour received in opposition, including five chairs and deputy-chairs.
If they increased the number of seats on each Select Committee that makes it harder for us to ensure we have a full attendance at each Select Committee, because it is much more difficult for ministers to find the time in their schedules to attend that it is for backbench opposition MPs. And ultimately this is just about making sure the Parliament can continue to function and the Government can continue to govern (Jones, 2017).vii
However, Labour’s Trevor Mallard, also an SO Committee member before the 2017 election,
had a different perspective. Commenting in August, 2017, when Simon Bridges, as the former
Leader of the House moved the amendments to the Standing Orders be adopted following the 2017 review, Mallard criticised the SO Review as the “worst and least ambitious review of the Standing Orders I have ever seen” (Hansard, 2017). viii
Under Labour, Select Committees will go back to being creatures of the Parliament and not rubber stamps for the executive. There will be many more Opposition majorities and Opposition chairs of committees so that they can work through the legislation and give a proper parliamentary opinion rather than being a place for people who are greasing up to the executive in order to try to be Ministers going forward. We have had too much of a history of that recently- people who do not do their jobs as chairs of Select Committees because they want to become Ministers- (Hansard, 10 August 2017).
He went on to criticise the poor pre-legislative scrutiny of recent Parliaments and indicated that Governments should undertake better consultation and introduce green papers and white papers, and have draft bills available in a reasonable time frame.
In the same debate Green MP Gareth Hughes said it made sense to amalgamate the Law and Order Select Committee and the Justice and Electoral Select Committee. He also said:
A key change, and this flows on from the Standing Orders Review of last Parliament, was the new expectation that Select Committees will comment and report on the New Zealand Bill of Rights Act section 7 reports. We get this information, and it is important that it is actually included in the report and, I think, debated by members, because it is crucially important that parliamentarians discuss issues of human rights as we consider legislation (Hansard, 10 August 2017). ix
The reduction in, and allocation of, Select Committee seats was then subject of party politicking on the first day of the 52nd Parliament with the National Opposition securing concessions from the new Government with an increase to 109 seats from the 96 proposed.x The media reported that National realised that the Government had five MPs missing from the swearing-in of MPs which meant it was short with only 63 votes (Trevett, 2017).xi National then raised the possibility of MP Anne Tolley from its own ranks as Speaker rather than supporting Labour’s choice of Trevor Mallard, reversing its original position.
Labour had incorrectly believed it could cast proxy votes for the five missing MPs who included Foreign Affairs Minister Winston Peters and Trade Minister David Parker who were at APEC. National claimed a political victory. Shadow Leader of the House, Simon Bridges said:” It was a disorganised Government that we saw today that didn’t know its numbers, which meant we were able to get what we thought was important and what is important for New Zealanders” (Moir, 2017).xiiThe Prime Minister Jacinda Ardern described the concession as a “minor irritation” and “sadly, a bit of politics”. Chris Hipkins, Leader of the House, described the Opposition tactics as “silly games” and that it would have been a courtesy for
Bridges to have told him prior that national planned to oppose the Speaker’s nomination
(ibid,2017.)
All of the major movers (Bridges, Hipkins and Mallard) were members of the Standing Orders Committee that decided on reduced Select Committee seats. However, in the end partisan politics prevailed with 109 select committee members for the 52nd Parliament. As Palmer (1992) notes the activity to which Parliament devotes the most time and energy is party political context.xiii Virtually every activity in Parliament can be turned into this.
i NZ House of Representatives (2017) Review of the Standing orders Committee. P.17. 1.18A
ii Ibid, p.19
iii Ibid, p.20
iv Jones, N (2017). “National clashes with Labour: ‘erosion of democratic rights’ “. NZ Herald, 6t November. http://www.nzherald.co.nz/nz/news/article.cfm?c-id=1&objectid=11940762. Accessed on 6/11/2017.
v Ibid
vi Bracewell-Worrall, A (2017). “Labour already a ‘brutal’ Govt- Bill English “. Newshub. 6 November.
vii Ibid at footnote iv
viii New Zealand Parliament (10 August, 2017) Hansard Debates. Vol 724, p.22.
ix Ibid, p.24.
xiiiPalmer, G (1992), New Zealand’s Constitution in Crisis. McIndoe: Dunedin.
Rights-infringing legislation
Discrimination against family carers
Two examples of controversial legislation passed by the New Zealand Government in the past few years demonstrate the limitations of parliamentary scrutiny of human rights issues. The first is the Public Health and Disability Amendment Bill (No 2) which passed into law by the NZ Parliament on 16 May 2013. Its passage prompted a legal academic to blog that, “I think National just broke our constitution”i.
The Bill amended the New Zealand Public Health and Disability Act 2000 to provide that individuals caring for family members can be paid only in accordance with family care policies developed under the Bill. It responded to the decision of the Court of Appeal in Ministry of Health v Atkinson (the Family Carers case).ii In the Atkinson case, the family carers complained under Part 1A of the Human Rights Act 1993 about a Ministry of Health policy of not paying parents for providing disability support services to their adult children in circumstances where a non-family member would be paid. The Court of Appeal upheld decisions of the High Court and the Human Rights Review Tribunal that the policy amounted to unlawful discrimination on the basis of family status.
The general policy statement to the Bill stated that:
Responding to the Family Carers case by paying all groups of family carers would undermine the fundamental tenet that the Government’s primary role is to support families in their role and would result in unmanageable fiscal costs to the Government. In the absence of legislation, the Government’s policy would be unlawful and the Government could face a very large number of claims. The only feasible way of managing these risks is through legislation.
The Bill inserted a new section 70C into the Act, which prevents the Crown or a District Health Board (DHB) from paying a person for any services provided to a family member unless the payment was permitted by an applicable family care policy and a new section 70D(1) stated that the Crown and any DHB are, and always have been, authorised to adopt, change, cancel and replace a family care policy. A family care policy stated conditions and rates of payment for support services.
In the report of the Attorney-General under section 7 of the New Zealand Bill of Rights Act (BORA), Chris Finlayson said the bill protected the rights of the Crown to set funding policy and that in the Family Carers case he did not consider the courts sufficiently deferred to the Crown’s view of the most appropriate way to manage the limited funds it had available for disability support services. He said that “were the Bill merely to override the family carers case, I would consider any limits on section 19(1) reasonably necessary and in due proportion to the importance of the Bill’s objectives to be justified under section 5 of the Bill of Rights Act”.iii
However, while I do not agree the prohibition at issue in the family carers case was discriminatory, I recognise that the Bill prohibits payment to a wider range of family members beyond those considered in that case. It also authorises the Crown or a DHB to adopt new policies which permit paid family caring in some circumstances, including policies that make distinctions on prohibited grounds of discrimination, whether or not these distinctions can be justified. To the extent the legislation authorises such policies, the legislation could be potentially in breach on the non- discrimination right guaranteed by s 19(1) of the Bill of Rights Act.iv
The Bill also inserted a new section 70 E into the Act, contrary to the BORA section 27(2) which affirms the right of any person affected by a determination made by a public authority to apply for a judicial review of that determination in accordance with law. The Bill prevented a person from making a complaint to the Human Rights Review Tribunal or in any court, on the basis that a family care policy breaches that person’s right to be free from discrimination affirmed in section 19(1) of the BORA. This was limited to the prohibited grounds of marital status, family status, disability and age.
Ousting the jurisdiction of the courts to examine a matter is rare in recent New Zealand constitutional history. The section 7 BORA vet by the Attorney-General stated that the “new s.70E appears to limit the right to judicial review because it would prevent a person from challenging the lawfulness of a decision on the basis that it was inconsistent with s 19 (1) of the Bill of Rights Act.” That section affirms the right to freedom from discrimination. The Attorney-General said that on balance he concluded that limitation could not be justified under section 5 of the BORA. Despite the negative BORA report, the Attorney-General voted for the Government bill. The Legislation Advisory Committee (LAC) Guidelines (2014, 25.1)) state that: “legislation should not restrict the right to apply for judicial review.”v
Ouster clauses (sometimes called privative clauses) remove the ability of the courts to judicially review the decision. Ouster clauses interfere with the courts’ constitutional role as interpreters of the law, and as such the courts will interpret such clauses strictly and not give them their intended effect. vi
The legislation was rushed through the House under urgency and passed on the same day that debate on it commenced. In a major study on the use of urgency between 1987 and 2010 it was stated that urgency attached to the first and second readings of a bill was a “relatively uncommon use of urgency”.vii
On the other hand, it is also the use of urgency that is of most concern in terms of its impact on the legislative process. Where legislation is not sent to select committee, the opportunities for policy deliberation, legislative scrutiny and public participation are significantly reduced.viii
In moving the Bill be read for the first time, the Minister of Health Tony Ryall said; “It is the Government’s intention that this legislation should pass through all stages today”.ix
He said:
For over 20 years, under Governments of all hues, the Ministry of Health has operated a blanket policy of not paying family members for the support they provide to disabled family members receiving disability support services. Support by Governments has consistently been based on the principle that families have primary responsibility for the wellbeing of each other within the family. Care and support provided by family members to their loved ones are part of that responsibility, and are provided out of love and affection and not for money. The Government’s primary role in this regard is to support families in their role. That is why public funding for care and support is targeted to meet the needs that families are unable to meet.
However, the Minister said that the court in the Atkinson case found that the policy of Ministry of Health, under all Governments, unjustifiably discriminated against parents caring for adult disabled children and the bill took account of the court’s decisions and clarified the Government’s position on paying family carers.
Because the bill was considered under urgency there was no Select Committee scrutiny. In a Cabinet paper seeking approval for its introduction the Minister noted, “it is not proposed to refer the Bill to Select Committee”.x
Relevant debate about of legal risks posed by legislation was redacted from the publicly available information. The redacted version of the Regulatory Impact Statement tweeted from the House by an Opposition Labour MP showed page after page of blacked out and illegible type. This graphically illustrated that none of the Members of Parliament who debated the bill and voted on it becoming law had knowledge of the regulatory risks.
The amendment contravened the Convention on the Rights of Persons with Disabilities (CRPD) in two ways.xi First, it infringed the right of disabled persons to be treated equally before the law (Art.5) and the right to live independently and choose their living arrangements (Art.19). Second, it ousted the jurisdiction of the New Zealand Human Rights Commission in relation to a societal group considered to be most disadvantaged. The legislation was described as a “significant regression” of human rights.xii
The passage of the bill raises serious concerns about the legislative process. Legislatures perform the function of being representative bodies that provide a mechanism by which citizens participate in government. They also provide a forum in which governments can be held accountable for their conduct and they debate, amend and enact legislative proposals that become laws. In this case there was no opportunity for the public to participate through Select Committee participation. Government accountability for human rights protection was undermined when government members pushed ahead with non-rights compliant legislation and the Attorney General ignored his own advice and voted in favour of the bill.
However, an analysis of the parliamentary debate on the Bill’s passage shows that opposition Green, NZ First and Labour MPs expressed strong concerns about human rights in relation to
the substance of the bill including the ousted jurisdiction of the New Zealand Human Rights Commission, the urgency process, the redacted Regulatory Impact Statement, and the absence of a Select Committee process.
Green MP Catherine Delahunty identified three areas of substantive discrimination in the proposed bill, the fact that family carers would be paid only the minimum wage and less than other non-family carers doing the same work which she said “entrenches the fact that they can be paid less for doing the same work as other people. That is a new discrimination”. xiii She also raised discrimination against carers of family members eligible for disability support with mild to moderate needs only and discrimination against spouses. Of the ousted jurisdiction she said that it was ironic that the bill which “supposedly addresses historic discrimination turns out to be a breach of the New Zealand Bill of Rights Act”. xiv
Labour’s Ruth Dyson said the reason why the Minister wanted the bill to go through all stages
under urgency, without any member of the public having an opportunity to have a say is that:
....this bill extinguishes the rights of family members who will not be allowed to be paid under this family caregiver policy and who will not meet the criteria to go to the Human Rights Commission and have a case heard against the Government. I think extinguishing rights is not something that this parliament should do at any stage, let alone by ramming legislation through all stages under urgency.xv
Her concern about the bill’s passage also encompassed the quality of legislation passed at
speed.
It is a puzzle to me why we are ramming the New Zealand Public Health and Disability Amendment Bill (no 2) through all stages under urgency, because the payments do not come into effect until October of this year.....I am concerned that in the rush for this legislation, some of those “devil in the detail” points may well cause unintended consequences that mean some families will be worse off than they currently are....xvi
Poor parliamentary processes including the absence of Select Committee scrutiny were commented on by various Opposition members of Parliament. Labour’s Chris Hipkins complained that “Parliament is not following its own rules” and suggested that the Head of State should refuse to give Royal assent.
There is not one piece of legislation that has gone to a Select Committee that I have been a member of that has not in some way been improved by going through that process. That is one of the reasons why we have a Select Committee process, so that we can adequately examine legislation and so that we can make sure the Government is doing its job. How can we do that adequately, and how can we discharge our functions as a Parliament, when we have things like the regulatory impact statement being mostly blacked out.xvii
Green MP Catherine Delahunty was concerned about the public’s right to have a say in the
absence of Select Committee hearings.
So where is the expertise going to come from? Where is knowledge going to come from for us to make an assessment? We are going to go into the third reading without hearing from families and without hearing from the people with disabilities, who have many ways of speaking about their experience and would like to speak to us. Our job is to listen to those people about how we can fairly meet their needs.
An amendment from Ruth Dyson MP was lost proposing that the Bill could only be submitted for Royal Assent if it had been submitted to the Health Select Committee for public consultation and comment prior to the Third Reading.
Labour’s Annette King and Iain Lees Galloway were particularly critical of the redacted regulatory impact statement. The Rongotai MP said the lateness of the regulatory impact statement, being available to parliamentarians on the morning of the debate was a “dreadful process”.
I have never seen a regulatory impact statement like this one...It is full of blanks where we are not allowed to know much about what this bill does..... The have cut out nearly all the information that would be meaningful....This is page 27 of the regulatory impact statement and what does it say? It says: Blank blankety-blank-blank blank-blank blank blankety-blank blank-blank. That is the regulatory impact statement on this really important bill. Hang your heads in shame, National members. That is what we are supposed to make decisions on in this Parliament.xviii
Iain Lees-Galloway identified how much of the 28 page regulatory impact statement had “absolutely disappeared. That is not transparency. That is not democracy”.xix Ruth Dyson stated that “it is Parliament that makes the law of our land, not some bureaucrat based in a department down the road blanking out information that we should be entitled to have”.xx
A feature of the debate was the relative silence from Government members identified by the Opposition as a tactic to ensure swift passage. In the second reading Labour’s Maryan Street said that:
The Minister can sit there knowing that he has to just endure this period of time in the House. He has to just get through it. And if he sits there quietly and if none of the National members get up to defend the bill, he knows that the time will pass- because all of this is time limited- and he will get his way in the end We are getting no
response from the Minister but it does require some response.xxi
Referring to the Attorney General’s conclusion that the right to limit judicial review was unjustified limitation of the Bill of Rights Act, she asked: “why do we not hear from the Minister, justifying why we should proceed with this legislation?”xxii
While the Minister may have spoken comparatively briefly during parliamentary debate, the paper he had previously presented to the Cabinet Legislation Committee seeking approval for the bill had explicitly detailed a range of significant compliance concerns. The Minister, Tony Ryall, said that the Ministry of Justice was expected to advise the Attorney General that the bill was inconsistent with the BORA.
The Bill does not appear to fully comply with certain sections of the Legislative Advisory Committee Guidelines on Process and Content of Legislation. The Bill is inconsistent with the right to freedom from discrimination on the basis of family status, marital status, age and disability in section 19(1) of NZBORA because it will allow the Ministry of Health and District Health Boards (DHBs) not to pay some people for provision of health and disability support services, or pay a different rate on the basis of that person’s family or marital status, age or disability.
Crown Law Office and the Parliamentary Counsel office have advised that the Bill may not sufficiently reduce the risk of further litigation regarding discrimination on other grounds such as sex, ethnicity or religion. This is because family carers are predominately women, and also because some ethic and religious groups have higher expectations concerning the extent of care that family members are expected to provide.
The Bill is inconsistent with section 27(2) of the NZBORA because it will restrict the right of applicants to seek judicial review and restrict remedies for claims that have already been made (other than claimants in the Atkinson litigation and the Spencer litigation) to declarations of inconsistency. The Bill will also preclude people from taking any new claims in the Human Rights Commission or any court that a family care policy, or any action taken in reliance on a family care policy, is discriminatory.xxiii
Prior to the bill’s introduction into the House then the Government was aware of concerns from at least the Ministry of Justice, Crown Law Office, Parliamentary Counsel Office and Te Puni Kokiri.
The Bill was passed by 63 votes (National 59; Māori Party 2; ACT New Zealand 1; United Future, 1) to 54 (Labour 33; Green Party 12; New Zealand First 7; Mana 1; Independent: Horan). Prior to the legislation being passed, the bill was made part of the 2013 Budget package in order to make it a matter of Confidence and Supply, which meant that support parties such as the Māori Party, Act NZ and United Future were obliged to vote for it.
During its second reading Ruth Dyson MP queried the Māori Party’s support of the proposed
legislation.
I am beside myself with surprise that the Māori Party, with the Minister of Disability Issues as one of its members, with the Minister of Māori Affairs as one of its members, is supporting this legislation. We know very well that many, many Māori families are particularly impacted by this legislation because many Māori families refuse to have
anyone else support their family members because of their cultural priority that they look after their own members. So for the Minister for Disability Issues and the Minister of Māori Affairs to be supporting this legislation beggars belief. It is the price of the baubles of office, I guess...
However, Te Puni Kokiri had in fact advised the Minister of Health that the proposed bill did not comply with the principles of the Treaty of Waitangi. The Cabinet paper asking for approval to introduce the legislation outlined the concerns of the Māori ministry:
Te Puni Kokiri has expressed some concerns that the Bill does not comply fully with the principles of the Treaty of Waitangi. The Bill will allow family care policies to be introduced that restrict payment to some family members. There may be disproportionate effects on Maori given that whānua care, by a wide range of whānau members, is an expectation within whānau relationships.xxiv (Office of the Ministry of Health, 2013, p.2, par16).
The LAC Guidelines state that Māori interests that will be affected by the proposed legislation should be identified and that when legislation has the potential to conflict with the rights or interests of Māori under the treaty, additional measures should be considered to ensure recognition of the principles of the treaty or the particular rights concerned.xxv
While there was robust parliamentary debate from Opposition MPs during the condensed readings of the bill, this debate was more performative than substantive. As Palmer noted “the debates have little impact on the content of the legislation”.xxvi Some commentary on the passage of the bill suggested that its impact would not be widely felt. Policy academic Jonathan Boston, for example told Wellington Rotary that “some may argue that the stakes are low in this particular case” while expressing concern that elected officials can disregard constitutional safeguards.xxvii
However, disabled people and their advocates feel a deep sense of bitterness about the legislation. Former Ombudsman Ron Paterson said the bill had created enormous distrust within the disability community and despite good work in other disability areas it had taken on a symbolic force. Disability advocate Mary Schnackenberg described it as “graffiti legislation” in relation to its urgency. xxviii
The Independent Monitoring Mechanism (IMM) established under Article 33 of the Convention of the Rights of Persons with Disabilities which included the Convention Coalition that comprises a range of disability groups, urged the Government in 2014 to urgently reconsider the legislation and repeal those sections that limited further legal action and the circumstances in which family members could be paid. The Disabled Persons Assembly (DPA) petitioned Parliament in 2014 for repeal arguing that the legislation imposed a lower rate of pay for family carers, limited the circumstances in which family members could be paid; limited the categories of paid family members and limited the right to judicial review.
The DPA also said the legislation was outdated and based on old principles whereby family carers were regarded as “natural supports” as if family members should provide unpaid support just because they were family and which abridged a disabled person’s autonomy in decision-making.xxix The petition was promoted by Carers New Zealand, the peak body for family caregivers. The PHDA Act 2013 was criticised by the New Zealand Law Society and the New Zealand Human Rights Commission with its Chief Commissioner noting that the legislation sent a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of their economic and social rights.xxx
The Government’s response to queries from the United Nations disabilities committee was to refer to the court decisions and to include that the Ministry of Health had the matter under reviewxxxi.
The way in which this legislation was passed has been used as a rationale for a written constitution for New Zealand.
By any measure, it was a shocking piece of legislation that ousted well-known constitutional principles and removed New Zealand citizens’ rights to be free from discrimination in certain cases. Yet it passed in a single sitting day despite almost immediate public outcry. Only another act of parliament can alter it or remove it. That is how fragile our constitutional system currently is. xxxii
In conclusion the question in this commentary is: would Select Committee deliberations have cured the flaws of the bill? Clearly the rushed legislation breached basic constitutional principles and values of New Zealand law and Select Committee deliberations alone may not have prevented the denial of basic human rights. It would not have addressed expert urgings for more care at the policy formation stage of new legislation, for example. And even the positive features of the Select Committee process that involves public participation and a close scrutiny of competing perspectives did not occur. The discriminatory features of the legislation and its Treaty of Waitangi implications were known of and ignored. On the other hand Select Committee scrutiny would have allowed the opportunity for heightened news media coverage, greater sector advocacy and representation, and for political pressure to restrain the abuse of power.
In 2019, six years later, the Labour-led Coalition Government announced its intention to repeal part 4A of the PHDAA which is inconsistent with human rights legislation because it denies families the right to complain about breaches of their rights relating to family care policies.xxxiii
The rights of prisoners to vote.
The second piece of rights-infringing legislation concerns the rights of prisoners to vote. It is a clear example of a Select Committee and Parliament ignoring the human rights implication
of the Bill before them resulting in subsequent legal activism. The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 placed a blanket ban on prisoners sentenced after 17 December 2010 relating to voting in general elections. This ban on the right of prisoners to vote was challenged in the High Court case of Taylor v Attorney-Generalxxxiv where plaintiffs sought a declaration of inconsistency between the Electoral Amendment Act and section 12 of the BORA that provides:
“Every New Zealand citizen who is of or over 18 Years –
(a) Has the right to vote in genuine periodic elections of members of the House of
Representatives, which elections shall be by equal suffrage and by secret ballot;...”
The central legal issue was whether the court had the jurisdiction to make such a declaration. Justice Heath, who heard the case, held the court did have jurisdiction and granted the declaration of inconsistency. The Attorney-General appealed the decision to the Court of Appeal that upheld Justice Heath’s decision.xxxv The Attorney-General appealed this decision to the Supreme Court that upheld by majority the decision of the Court of Appeal.xxxvi Although the appeal focussed on the right of the court to make a declaration of inconsistency, the Court of Appeal and the Supreme Court both accepted the 2010 Amendment Act is inconsistent with the right to vote in s section 12(a) of BORA. The Supreme Court also noted the Attorney-General in his report to the House of Representatives under section 7 of BORA said the disenfranchisement of prisoners appears to be inconsistent with section 12 and it cannot be justified under section 5 of BORA.
Although the BORA is not entrenched or superior legislation, it is the primary statutory acknowledgement of fundamental citizen civil and political rights. The fundamental right to vote is not without restrictions, however. Apart from age, mental capacity and residency, the electoral laws since colonisation have placed various restrictions on the rights of persons in penal institutions to vote. In Taylor v Attorney-General, Heath J reviewed the development of the electoral law as it relates to imprisonment and identified the reasons for such restrictions. The underlying rationale for disenfranchisement of some classes of prisoners was that the prisoner had breached the social contract between the citizen and the state. A more political rationale also given was that the concentration of prisoner voting in one district may affect the voting outcome in that district. The extent of disenfranchisement over the years however has varied from a complete ban on prisoner voting to relating the ban to the type of offence or the period of imprisonment.
The rationale for restrictions on prisoners’ rights to vote was reconsidered in 1993 during the review of a new Electoral Act to accommodate the introduction of a mixed member proportional (MMP) electoral system. The review included the question of whether such a restriction was consistent with the recently enacted BORA. Parliament eventually agreed to enact section 80(1)(d) of the Electoral Act 1993 limiting prisoner voting disqualification to those serving sentences of three or more years. Support for this formulation was found in the
recommendation of the Royal Commission on the Electoral System and an opinion of the then Solicitor-General. While neither body supported disenfranchisement for all prisoners, a three- year limitation was supported on the grounds that it took account of the triennial election cycle and minimised the possibility of arbitrary application. This limitation was considered to be demonstrably justified in a free and democratic society and therefore compliant with section 5 of the BORA. This formulation was also consistent with the notion of proportionality that was adopted by the European Court of Human Rights when it also addressed the issue of limitation on prisoners’ right to vote.
A review of the law and rationale for disenfranchisement of prisoners was undertaken by Greg Robins.xxxvii He noted there was only one case that raised the question whether prisoner voting restrictions are consistent with the BORA, and that case dealt with the predecessor of section 80(1). Unfortunately, the case was dismissed with an oral judgment that reasoned that where there is a conflict between the plain meaning of the Electoral Act provision and the BORA, the Electoral Act prevails, as the BORA is not supreme law. Robins also notes that between 1975-1977 prisoners were given the right to vote but this was repealed with the election of the Muldoon government. There was little debate in the Parliament when the restriction was removed, with the then Minister of Justice, Hon Martyn Finlay, remarking in support of the Amendment Bill, ‘[t]he imposition of a criminal penalty involves deprivation of liberty, but it should not mean a deprivation of all civil rights, and after conscious consideration we have concluded it would be proper to allow people in custody, as this Bill provides, to cast a vote.’ Robins’ review concludes that prisoner disenfranchisement cannot be a justifiable limitation on the right to vote.
The parliamentary process followed in the enactment of the 2010 Electoral (Disqualification of Sentenced Prisoners) Amendment Bill did not reflect the constitutional importance of removing the fundamental right to vote or the impact it may have on various groups. The Bill began life as a Member’s Bill introduced by Paul Quinn, a National Member of Parliament. The National Party in government adopted and supported the Bill. As a Member’s Bill it did not undergo the scrutiny normally attached to a party’s policy commitment. The Department of Correction Report to the Select Committee records also demonstrates a lack of policy and drafting scrutiny by the majority report, though both the Labour and Greens minority reports raised the issue of the Bill being in breach of section 12 of the BORA. The Bill would normally have been referred to the Justice and Electoral Committee but it was referred to the Law and Order Committee where the majority government members refused to enable the Justice officials to advise the committee and relied on the Corrections Ministry officials who could not be expected to possess knowledge of electoral issues.
The Corrections officials, however, did produce a comprehensive assessment of the submissions made to the Select Committee and identified the risks associated with the enactment of the Bill into law. The Report1 records 55 submissions were made with two submissions, including that of Paul Quinn MP, supporting the Bill and 51 submitters opposed, while two submitters neither supported nor opposed the Bill, but proposed to improve the
process to disqualify prisoners. The Report noted the key themes of the submissions included Bill of Rights issues, international obligations, the effect on democracy and universal suffrage, the proportionality of the disqualification, international enfranchisement trends, rehabilitation goals and community engagement, the effect on Māori, and practical administration of the process of disenfranchisement.
An analysis of the submission revealed 65% of those opposing the Bill explicitly cited the Attorney-General’s section 7 Report that stated “I consider that the Bill appears to be unjustifiably inconsistent with the electoral rights affirmed by s. 12 of the Bill of Rights Act.” Interestingly 47% of the submissions in opposition cited international jurisprudence to support their position. Submissions in support of the Bill argued if a person was imprisoned it must be assumed a serious offence had been committed and that the loss of the right to vote was the same as the loss of other human rights by prisoners. Paul Quinn MP further argued there had been a breach of the ‘social contract’ that justified disenfranchisement. The Report also noted amongst the risks of the Bill was litigation in the courts to challenge the consistency of the Bill with the BORA, including at the Supreme Court. As noted this prediction proved accurate with the Taylor Case. The risks to New Zealand’s international reputation were also recorded and the fact the Bill was contrary to article 25 of the ICCPR.
The Select Committee Report to Parliament included the majority stating it was in support of the Bill with procedural amendments but no rationale. There were two minority reports from the Labour and the Green Parties. The Labour Party Report relied on the section 7 Report from the Attorney-General, the fact there was no evidence of the wrong the Bill was intended to redress, and there was no evidence it would reduce recidivism.
For all these reasons – particularly the curtaining of fundamental and constitutional rights, the illogicality of the Bill, the fact it will have no effect on reducing crime or recidivism and the fact that the proponent of this Bill has made no case to justify making a constitutional change – the Labour Party is opposed to this Bill.
The Green Party expressed its opposition to the Bill in the following terms:
This Bill reflects a punitive and irrational approach to the right of prisoners, and if enacted would be counterproductive as it will further alienate inmates from society, while a major objective of the corrections regime should be to prepare for and facilitate the reintegration of former inmates into society.
The Bill was referred back to Parliament and enacted with the procedural amendments with 63 votes in favour and 58 opposed. As predicted the legislation did provoke litigation and clarified an important remedy available to those who challenge breaches of the BORA, namely the jurisdiction for the courts to make a declaration of inconsistency. In the Taylor case the Attorney-General argued that there was no jurisdiction for the Court to make a declaration of inconsistency because the Court was not exercising an interpretative function and there was no precedent for the making of a formal declaration of inconsistency. Heath J considered
the provisions of the BORA, in particular sections 4, 5, and 6,1 and, concluded there was no statutory bar to the High Court making a declaration of inconsistency under section 92J of the Human Rights Act.
The real issue in the Taylor case was whether a declaration of inconsistency was appropriate in the circumstances. The primary argument against the exercise of this jurisdiction was that it would offend the constitutional principle of comity between the legislative and judicial branches of government. This principle is often sourced to Article 9 of the 1688 Bill of Rights that basically provides that the proceedings of Parliament should not be questioned by any Court. The comity between the two branches of government is a convention that requires a balance of judgement, but it is not intended to prevent the Court declaring the law as was in breach of the BORA.
More importantly, the question of comity has been addressed in reality through the legislature enacting section 92J of the Human Rights Act (HRA) which provides for the Human Rights Review Tribunal to make a declaration of inconsistency if there is found to be a breach of the right to freedom from discrimination as protected by section 19 of the BORA. The Supreme Court recognised section 92J of the HRA provides some support for the notion declarations of inconsistency are within judicial functions. The Supreme Court also concluded after consideration of argument “... that there is power to make a declaration of inconsistency and that such a power is consistent with judicial function.” The recognition by the Supreme Court of the right of the courts to make a declaration of inconsistency enables not only clarity of the law, but also makes breaches of human rights more transparent. Although this do not mean the law in breach of human rights are void or invalid. It does enable however the government to review laws in breach and decide whether the law should be amendment. Although the Labour Party opposed the 2010 Amendment Act, it has not been a priority in its justice policy commitments. The Green Party has proposed pursuing Members Bill that includes the right of prisoners to vote.
The issue has recently re-emerged with the delivery of a Waitangi Tribunal report.xxxviii The Report had been filed with the Tribunal since 2014 but only recently accorded urgency to enable legislation to be enacted before the next election. The Tribunal recommended the legislation be amended to remove the disqualification to vote from all prisoners and that the Crown actively start to re-enrol prisoners and released prisoners. The Tribunal also recommended that Crown officials properly advise on the impact of the Treaty on any Bill before the Parliament. The Tribunal found that Crown officials had failed to provide the Parliament and the Select Committee with advice on the Treaty implications of the Bill and was therefore in breach of the partnership principles under the Treaty. Apart from a breach of the Treaty by the Crown of the principle to actively protect and provide equity for Māori, the Tribunal found as a fact the disproportionate impact on Māori of s.80(1)(d) of the Electoral Act that removed Māori from the electoral roll. The Minister of Justice has acknowledged the findings of the Tribunal and stated the issue is not a priority on the Justice policy agenda but that it is important.
i Geddis, A. (May 17, 2013) “I think National just broke our constitution.” Pundit.
ii Ministry of Health v Atkinson and Others [2010] NZCA 184.
iii Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the New Zealand Public Health and Disability Amendment Act (no 2) 2013.
iv Ibid, par 12, at page.2.
v Legislation Advisory Committee Guidelines (2014) 25.1.
vi Ibid at page 94.
vii Geiringer,C. Highbee,P. and McLeay,E. (2011) What’s the hurry? Urgency in the New Zealand legislative Process 1987-2010. Victoria University Press with the assistance of the New Zealand Law Foundation, Wellington.
viii Ibid at page 32.
ix New Zealand Parliament, Hansard Parliamentary Debates (16 May 2013) 10116-10195, at page 10116. x Office of the Minister of Health (2013) New Zealand Public Health and Disability Amendment Bill 2013: Approval for Introduction. Cabinet legislation Committee, Wellington.
xi McGregor,J. Bell, S. and Wilson M (2016) Human Rights in New Zealand: Emerging Faultlines. New Zealand Law Foundation and Bridget Williams Books: Wellington.
xii Ibid at page 134.
xiii Ibid at footnote ix at page 10123.
xiv Ibid at page 10140. xv Ibid at page 10136. xvi Ibid at page 10118. xvii Ibid at page 10163. xviii Ibid at page 10122. xix Ibid at page 10131. xx Ibid at page 10137. xxi Ibid at page 10156. xxii Ibid at page 10157.
xxiii Ibid at footnote x at page 2 pars 13,14 and 15.
xxiv Ibid at page 2 par 16.
xxv Ibid at footnote v; 4;1;4.6).
xxvi Palmer, G. (2015) The Harkness Henry Lecture-“ Law Making in NZ: Is There a Better way?” Victoria
University of Wellington Legal Research Papers. VULRPPC 82/2015.
xxvii Boston, J (October 14,2013) “Why New Zealand needs constitutional reform”. Wellington Rotary Club:
Wellington.
xxviii Ibid at footnote xi at page 141.
xxix Disabled Persons Assembly (2014). Petition 2011/122. Rachel Noble on behalf of the Disabled Persons Assembly New Zealand Inc. and 1,491 others. Health Committee, New Zealand Parliament.
xxx New Zealand Herald (21 May, 2013). Editorial: “Disability bill demonstrates contempt for due process.”
xxxi New Zealand Government (June 2015). “Government response to the United Nations Committee on the Rights of Persons with Disabilities: Concluding Observations of New Zealand”. Office of Disability Issues, Ministry of Social Development, Wellington.
xxxii Palmer, G and Butler, A (2016) A Constitution for Aotearoa New Zealand. Victoria University Press: Wellington. p.14.
xxxiii Newshub (2018) ‘Government set to repeal ‘discriminatory’ disability law, overhaul carer policy”. 27/09/2018 https://www.newshub.co.nz/home/politics/2018/09/govt-set-to-repeal. Accessed 15/07/2019. xxxiv Taylor v Attorney-General [2015] 3 NZLR at page 791.
xxxv Attorney-General v Taylor [2017] NZCA 215.
xxxvi Attorney-General v Taylor [2018] NZSC 104.
xxxvii Robins, G. (2006) ‘The Rights of Prisoners to Vote: A Review of Prisoner Disenfranchisement in New Zealand”. New Zealand Journal of Public and International Law. 4, 165.
xxxviii The Report of the Waitangi Tribunal Wai 2870 He Aha Pera Ai? The Māori Prisoners’ Voting Rights Report,
2019 (www.waitangitribunal.govt.nz).
Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill.
A contemporary case study examined in the research was the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill.
Reference details
The Justice and Electoral Committee considered a petition calling for an apology to those convicted of consensual homosexual acts prior to 1986 and a process for reversing those convictions. The Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill was introduced to the 51st Parliament by the National Government’s Minister of Justice Amy Adams. The First Reading occurred on 6 July 2017 at the same time as the apology was made. Following the 2017 election and a change of Government, the Minister of Justice, Hon Andrew Little, in the Labour-led coalition moved the bill’s Second Reading on 27 March 2018. The whole of House parliamentary debate occurred on 28 March 2018 and the Third Reading of the bill on 3 April 2018. It received Royal Assent on 9 April 2018.
Nature of bill
The petition of Wiremu Demchick and 2,111 others was presented to the House on 6 July 2016. The petition requested: “That, in the matter of those who were convicted of consensual homosexual acts prior to the Homosexual Law Reform Act 1986, the House, (a) promptly issue an official apology to those convicted, and (b) pass legislation which sets out a process for reversing the convictions of those convicted, both living and deceased in a manner which upholds the mana and dignity of those convicted.”i
The Justice and Electoral Committee of the 51st Parliament was still considering the petition on 28 June 2017 when the Government Bill was introduced to the House. On 6 July 2017, the Government issued a formal apology to all those convicted and referred the bill to the committee, which decided to consider the two at the same time.
The then Minister of Justice Hon. Amy Adams moved the apology in the First Reading of the bill: That this House apologise to those homosexual New Zealanders who were convicted for consensual adult activity, and recognise the tremendous hurt and suffering those men and their families have gone through, and the continued effects the convictions have had on them. She stated:
Today we are putting on the record that this House deeply regrets the hurt and stigma suffered by the many hundreds of New Zealand men who were turned into criminals by a law that was profoundly wrong, and for that, we are sorry. We are acknowledging that these men should never have been burdened with criminal convictions, and we are recognising the continued effects that the convictions have had on their lives and the lives of their families. New Zealand has a proud reputation for fairness freedom
and diversity. It is unimaginable today that we would criminalise consensual sexual activity between adults. ii
The Minister said it was the first expungement scheme ever to be created in New Zealand and she could not think of any other situation where a Government in this country would seek to rewrite criminal histories based on changes in societal views. The bill was modelled on similar legislation in Australian states and schemes in England and Wales. It covered five historical homosexual offences including indecency between males, sodomy and the keeping of places of resort for homosexual acts. Expungement applications would be made under the bill to the Secretary for Justice and could be made by family representatives or partners if an individual with historical convictions are deceased. The test for expungement to be applied by the Secretary of Justice was the balance of probabilities.
The Homosexual Law Reform Act 1986 decriminalised sexual activity between consenting males aged 16 and over and the Human Rights Act 1993 recognises the right to be free from discrimination on the grounds of sexual orientation. In addition, the Marriage (Definition of Marriage) Amendment Act to allow same-sex couples to legally marry was passed in 2013. However, criminal convictions for historic offences (between the 1908 and 1986) remained on the public record.
Human rights implications
The bill relates to the following:
The Preamble of the International Covenant on Civil and Political Rights (ICCPR) refers to recognition of the “inherent dignity and of the equal and inalienable rights of all members of the human family” being the foundation of freedom, justice and peace in the world. It also states that recognition of these rights “derive from the inherent dignity of the human person”.
Article 2 of the ICCPR provides for State Parties to respect and ensure to all individuals the rights recognised in the Covenant “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Article is largely repeated in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The New Zealand Human Rights Act 1993 explicitly refers to sexual orientation as a prohibited ground of discrimination.
Article 3(a) of ICCPR relates to the provision of effective remedies for those whose rights have been violated, notwithstanding that the violation has been committed by persons acting in an official capacity.
Article 6 of ICESCR refers to the right to work, which includes the right of everyone to the opportunity to gain a living by work that is freely chosen and the State’s obligation to safeguard this right free of discrimination.
In addition to these articles, several of the 2006 Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity directly relate to the legislation. These include:
Principle 1: The Right to Universal Enjoyment of Human Rights
(b) amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights
Principle 12: The Right to Work
Principle 28: The Right to Effective Remedies and Redress.
In November 2017, the Yogyakarta principles were amended reflecting changes in the application of international law and creating binding standards to which all States must comply. Several of the newer principles are directly applicable to the bill.
Principle 33: The Right to Freedom from criminalisation and sanction on the basis of sexual orientation, gender identity, gender expression or sexual characteristics. States shall: (d) expunge any convictions and erase any criminal records for past offences associated with laws arbitrarily criminalising persons on the basis of sexual orientation... and (g) ensure effective access to legal support systems, justice and remedies for those who are affected by criminalisation and penalisation on the grounds of sexual orientation...
Principle 37: The Right to Truth. (a) States shall adopt legal provisions to provide redress to victims of violations on the basis of sexual orientation.... Including public apology, expungement of relevant criminal convictions and records, rehabilitation and recovery services, adequate compensation and guarantees of non-recurrence.
In what ways does the Bill acknowledge/limit human rights?
The passage of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) legislation was widely regarded as a positive example of law-making protecting human rights, albeit retrospectively. Its passage appeared to largely transcend party politics revealing both the benefits of parliamentary processes in law making and of rights-based outcomes in legislation. While the Bill was introduced to the House in 2017 by a National-led Government it was then given priority after the election by the Labour-led coalition. The petition had been supported in the first instance by former Green MP, Kevin Hague.
Clause 3 described the purpose of the bill “is to reduce prejudice, stigma and all other negative effects, arising from a conviction for a historical homosexual offence” by the expungement. In other words, it aims to restore to those convicted for historical homosexual offences their inherent dignity and equal and inalienable rights as members of the human family.
In relation to the right to work, expungement of a criminal record means those convicted of historic homosexual offences will no longer suffer employment discrimination as a consequence of having to disclose their criminal records for historic convictions.
However, while expungement addresses contemporary stigma and prejudice for those convicted, it does not, of course, remove past shame, stigma and discrimination and the taint of conviction that negatively impacted on employment, family relationships, and the enjoyment of basic human rights. So while the bill satisfies Principle 1 of the Yogyakarta principles and Principle 33(d) for example, it does not address Principle 28, the right to effective remedies and redress, and 33(g). In fact, the bill specifically limited compensation “of any kind” under clause 22 while clause 22(2) stated that nothing...prevents a person being entitled to compensation in respect of anything that occurred while the person was serving a sentence or complying with an order or a direction.
The apology made in Parliament satisfied parts of Principle 37.
Three readings of the Bill
Parliamentary debate in the House is an important opportunity for MPs to promote human rights, and/or query perceived breaches of human rights. Analysis of the three readings of the Bill (6/7/2017; 27/3/2018;iii 3/4/2018iv) from Hansard debates reveals a number of indirect references to human rights and four explicit references.
The majority of the indirect references are couched in familiar terms around fairness and
diversity and New Zealand’s history. For example:
Hon Amy Adams (Minister of Justice) First Reading:
....New Zealand has a proud reputation for fairness, freedom, and diversity While
we cannot ever erase this injustice, this apology is a symbolic but an important act that we hope will help address the harm and right this historic wrong.
Grant Robertson (Labour-Wellington Central)
...Today is a day to celebrate progress, but if there is a chance to make right that wrong of the past, we must give the ultimate legacy of a country that includes, embraces, and cares for all our people.
Paul Foster-Bell (National)
(The Bill)...also sends, I think, a powerful message to our LGBT community in New Zealand-particularly the younger members of that community-that they are valued, that their lives are worthwhile....that we want to see every New Zealander treated fairly.....
Several politicians also referred to the abuse of human rights involved in the criminalisation of homosexual acts.
Jan Logie (Green) described the men whose lives had been ruined by conviction and described
the past policy as “the State’s institutionalised homophobia”.
To those men who were criminalised and irreparably hurt and who have been left, in the words of one submitter, with “self-hatred, worthlessness, unjustified guilt and shame” , I want to say clearly, on behalf of the Green Party, that the shame does not belong with you. The shame belongs with the Parliament and our society for robbing you of your inherent and inalienable rights.....
Louisa Wall (Labour –Manurewa) spoke of the impact on men who had been caught and convicted.
They lost their jobs, they lost their houses, and they lost their families. A lot of them were isolated. You can image how that dispossession then contributed to how most of them lived the rest of their lives-in poverty, as people addicted to drugs and alcohol, as depressed people. Some of them did commit suicide.
NZ First MPs who took calls to speak repeated three rights-based issues that the bill addressed. Darroch Ball (NZ First) outlined these in the Second Reading.
The first is that it reconfirms the freedom of people to lawfully express their sexuality and be free from any prejudice in doing so. The second is that it avoids the huge disadvantage of suffering such a conviction in regard to having to disclose the conviction in terms of employment and so on. But most importantly, the third one is that it goes some way, hopefully, to restore some sort of self-esteem to those individual(s), and helps enhance the mental well-being and self-worth for all those who suffered convictions.
Direct references to human rights in the First and Second readings of the bill were made by NZ First, National, Labour and ACT politicians.
Denis O’Rourke (NZ First)
Convictions for homosexual offences.....were evil laws with tragic effects for those who suffered the convictions under them. Those laws and the convictions pursuant to them were, and still are, an utter disgrace, and they were a fundamental and extreme breach of human rights. That is now, of course, confirmed under the New Zealand Bill of Rights Act and also the Universal Declaration of Human Rights.
Chris Bishop (National)
Today’s motion and this bill are one-step on that journey towards equality, respect, dignity and human rights.
Hon Annette King (Labour-Rongotai)
There are still human rights to be addressed, and I just want to mention one particular group: transsexual people and transgender people. I think there is still too much discrimination and too much stigmatisation of this very vulnerable group, and I look forward to when we can remove that discrimination for these people as well.
David Seymour (Leader ACT) said in the Second reading of the bill:
Indeed, it’s part of our tradition that we have worked on throughout our history as a nation to gradually expand the sphere of human rights so that people have the right to be who they want to be and act as they wish to act, so long as they are harming nobody else.
In the Bill’s Second and Third readings, Raymond Huo (Labour) the chair of the Justice Select Committee which heard 37 submissions on the bill referred directly to the Yogyakarta Principles. In the second reading, he said:
Several submitters raised the lack of compensation as an issue. Some submitters also claim the lack of compensation could be seen as a potential breach of the Yogyakarta principle.
In the third reading, he said:
Some submitters raised concerns that this bill had not gone far enough and claimed that lack of compensation could be seen as a potential breach of the Yogyakarta principle. Some submitters also raised the possibility that the establishment of a charitable trust, similar to the poll tax charitable trust would go some way to help address the issue.
The Select Committee chair said that compensation went beyond the scope of the bill and that Clause 22 did not limit other measures under the BORA protecting an individual’s right to civil proceedings against the Crown.
Select Committee submissions
Of the 39 submissions made on the bill, only one opposed it, on the grounds that expungement would undermine the legitimacy of the law. The other submissions from individuals and groups all endorsed the legislation as it was or approved the proposed legislation in principle with suggested amendments to various clauses. The Minister of Justice and others implied in parliamentary debates that there was a wide variety of perspectives on the issue of compensation. However, textual analysis using the parliamentary website shows that either the submissions did not mention compensation or wanted the bill amended so it was included. Fourteen submissions referred to the need for compensation including the submission of Young Labour. No submission rejected compensation.
For example, Young Labour said in its submission:
It is only right that after decades of state-imposed pain and suffering that those men who are alive and those families who suffered, be compensated. Money cannot scrub away the past. But it can help build for a better future. Many of the men who are still alive may benefit from compensation through access to good mental health services. Some men may have been denied access to decent paying employment because of their criminal record so compensation will provide financial stability and support.
In its submission, Young Labour described the issue as one of civil rights, not a political issue and that compensations should be seen as an issue of dignity and of civil rights.
Ted Greensmith-West in his submission added access to the prospect of better housing for those convicted as a result of compensation, in addition to mental health services and employment.
Denying compensation on the grounds that, while regrettable, the law at the time was the law of the land and therefore no one convicted under that law should be awarded compensation, is a fraught one. It is widely acknowledged across Parliament that those laws were wrong, they were evil. They were homophobic.
Rainbow Wellington said:
The removal of a right to any compensation should be rejected because it is unethical and might remove avenues for compensation that exist under other legislation (I.e.) s 92 of the Human Rights Act 1993 or in employment legislation.
Wellington Community Justice Project (WCJP) said the fiscal impact of compensation would be slight.
...widening the Bill to allow for compensation would further alleviate the past injustice.....In New Zealand the number of men who were convicted for homosexuality is very small so compensating these men would have a very minor effect on the government’s finances.
The WCJP suggested that convicted people should be paid compensation if they can prove that they have suffered loss arising from the expunged conviction. They also asked for compensation for takatäpui (intimate partner of same sex) to acknowledge those who have been estranged from their whanau or iwi as a result of those convictions.
Jennifer Leadbetter said:
Denying individuals adversely affected by homosexual convictions the chance to seek compensation undermines both this bill’s stated aim and New Zealand’s broader emphasis on social justice.
Joanne Newell who supported compensation saw it as a human rights issue.
It is imperative that New Zealand’s bill to expunge historic homosexual convictions meets international human rights law and our own human rights standards to wholly address the wrongs of the past.
A number of submitters brought up several other human rights issues suggesting amendments to the bill to accommodate them. Several objected to the burden of application on those that apply indicating that the process was not proactive and that the parties who could make such an application were limited. Ten submitters wanted a broader range of convictions covered in the scope of the bill which they said was too restricted. Rainbow Wellington and the New Zealand Law Society said there was no rationale for 1908 as the start point of the expungement regime. Several submitters wanted some form of independent assessment and for it not to be undertaken by the Secretary of Justice, on the basis that the justice system in the past had been part of the problem. Others wanted shorter timeframes for the Secretary’s consideration and several others wanted a right of appeal to the Ombudsman in the event of an application being turned down.
The Justice Department report to the Select Committee analysing the submissions said:
We acknowledge the concerns raised by submitters. However, compensation goes beyond the purpose of the scheme, which is to prevent further negative effects from the stigma of the conviction. There is no general principle that a person who is convicted of a repealed offence is entitled to compensation on the repeal of the offence. In this instance, there is no suggestion that the convictions in question were wrongfully imposed as they were in accordance with the law at the time.
Clause 22 of the Bill does not limit s27(3) of the Bill of Rights Act 1990 which protects the right to bring civil proceedings against the Crown and to have those heard according to law in the same way as civil proceedings between individuals. Further, clause 22 does not exclude other rights to compensation, which may be pursued under existing legislation.v
The Justice Department report said the policy behind the individual application process was to avoid the prospect of re-traumatising a convicted person who might not want to engage with the process, and in fact, it would be extremely difficult to identify previous convictions given the absence of record keeping prior to 1976. It referred the widening of the scope of the bill back to the Select Committee. The report also considered a number of drafting suggestions made in submissions.
Select Committee Report
Compensation, the significant human rights issue raised in submissions to the bill, was referred to in the Justice Committee report on the bill and in the Whole of House report prior to the third reading.
It appears that practical exigencies prevailed over human rights. Hon Andrew Little, the Minister of Justice, told Parliament during the Whole House Committee debate:
In terms of the specific question,....which is why compensation has not been provided for, I think it was pretty clear from a policy point of view, and I think the select committee discovered, it was just going to be too problematic. I think it is true, also, to say that there are mixed views within the community about whether compensation is warranted or justified, and even if you did want to work out a compensation regime, how would that work, what are you compensating, or what is the extent of compensation.
In the end, I think what most submitters raised was that in order to remove the stigma associated with a conviction for these offences, or this conduct that is no longer regarded as a criminal offence, it is removing the record of that offence. That is the right outcome to achieve rather than trying to come up with a complex arrangement for compensation.
Raymond Huo, in the same debate, referred again to the Yogyakarta principles and the fact that some submitters suggested that without a compensation regime New Zealand could potentially be in breach. The Labour Chair of the Justice Committee said:
The Yogyakarta Principles is a set of principles established in 2006 about human rights in the sexual orientation and gender identity space. The principles affirm binding international legal standards with which all States must comply. There are 29 such principles together with additional recommendations, and representatives from the UK, US, Australia, Canada, and New Zealand were among the signatories.
We acknowledge concerns raised by submitters. However, compensation goes beyond the purpose of the scheme, which is to prevent, as the Minister just said, further negative effects from the stigma of a conviction.
The MP then referred again to the existence of clause 22(2).
For those who are concerned about lack of compensation or that there is no mechanism provided under this bill, what we can confirm is that this particular clause or policy initiative aligns well with the approach in comparable overseas jurisdictions.
The justification for this limitation on human rights is couched first in terms of practicalities, second that it was not a right that was universally requested by submitters, third that it’s absence was in line with comparable jurisdictions, fourth that civil remedies were available (albeit without mention of how limited these are) fifth that there was no general principle that a person convicted of a repealed offence was entitled to compensation on the repeal of that particular offence, and sixth and arguably the most important, that compensation did not fit with the purpose of the bill. The last justification is flawed in that bill’s purpose is to “reduce prejudice, stigma, and all other negative effects, arising from a conviction for a
historical homosexual offence”. Compensation as well as expungement would have aligned with the purpose statement, requiring an additional explanatory sub section and sections that dealt with how a compensatory regime would work. There is nothing in the purpose statement that would exclude compensation and the Yogyakarta Principles.
However, by the Third Reading Members of Parliament who had raised compensation, as an issue appeared to have accepted its non-inclusion. For example, Hon Grant Robertson (Minister of Finance) said:
....So we have to recognise and accept that there are mixed views about that question. What I want to focus on is that while there may not be compensation, I can give my personal commitment that there will be a legacy that we as a Parliament, in the future will be able to find a way to pay tribute to those who have gone before and give to those who are to come.
And Louisa Wall (Labour-Manurewa) who highlighted that in other jurisdictions such as Canada and Germany compensation had been paid, accepted the bill as it was and said she was incredibly proud of “our Parliament because we’ve stood up for love tonight...”
Jan Logie (Green) in the bill’s Second Reading wanted to continue the call for compensation and said, “I hope to see wider discussion of that, either in this House through the debate on this bill or within Government”. Referring to the German precedent where modest amounts of compensation had been discussed she said, “It’s not huge. It’s doable. We can do this.” However, she did not raise the issue of compensation in the Third Reading.
Several other rights-enhancing amendments were recommended in the Justice Committee report with the most important of these changes being the removal of the word “only” from the phrase “for the purposes only of the laws of New Zealand” in clause 9(1) because it suggested that New Zealand expungement could not be recognised in overseas countries. The Committee also recommended inserting clause 13 A, which would make it an offence to require or request an individual to disregard the effect of expungement, changes to allow a convicted person control over access to their own criminal record, and revisions to the general effects of expungement to better reflect that it should not be taken into account for employment.
MPs’ views of the select committee process
The Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill is an example of legislation that is especially protective of human rights. Its priority during the early days of the Labour-led coalition Government in the 52nd session occurred when numbers of new Members of Parliament were being introduced to parliamentary culture and socialised in its norms. Over half, five of the eight MPs on the Justice Committee considering the bill,
were new MPs and all of them referred to their Select Committee experience positively during its legislative passage.
During the parliamentary debates on the bill, a number of themes emerged about the positive attributes of the Select Committee processes.
These included:
For example, the following comments were made in parliamentary debates during the Second and Third readings of the bill and in the Whole of House debate.
Non-partisan scrutiny
In the second reading of the bill Hon Amy Adams, a member of the Justice Select Committee that heard submissions and the former Justice Minister who had introduced the bill and made the apology to the House said:
There aren’t many opportunities in this House where you get the chance to do something that just simply feels, at a very innate level, right, and this bill feels like that to me....it’s one of those equally rare chances in this House to do something that I hope will continue to be collectively- certainly, that’s been the experience to date- but that is absolutely above party politics. Now, those of us who have been members of this House for some time know that there are more occasions that the public probably see where we do work, actually, for what is simply the right thing to do and in the best interests of this country, irrespective of party lines. This piece of legislation had certainly been one of those, and it will certainly stand out in my memory for that reason.
In the same debate, Darroch Ball (NZ First) said:
It’s actually not often that you get to stand up in the House and speak on a Bill that has 100 percent full support from every member of this House. But I think also that the most important part from my perspective is that there is no politics involved with this. I think that we have all recognised as a country and as the representatives here of that country that there were some terrible wrongs that occurred, and we have the responsibility in this House to not only recognise those wrongs but also apologise for our role as a Government .......
David Seymour (Leader-Act):
I can only join with other members in saying that this is a wonderful occasion- to see members from five different parties coming together unanimously to say that these historical convictions are wrong, they were hurtful and they should be gone.
New Justice Committee member, Priyanca Radhakrishnan (Labour) said:
Many people I speak to talk about the fact that, at times, things are rather adversarial in this House, and, again, as other members have pointed out, I wish they could have actually seen us in action at the Justice Committee, because that’s absolutely how it should be. It was such a pleasure to work with members from across the House on this bill, in refining this bill.
Another new Select Committee member Matt King (National –Northland) in the whole of
{Parliament debate said:
I was put on the Justice Committee when I first became an MP, which was only a few months ago, and I was learning about how Select Committees work. I thought that dealing with this particular case was the way Select Committees operated, and I didn’t realise that it’s not always the case. This important piece of legislation I’m proud to have served on, and I found that the whole select committee, across parties supported this.
Relationship between officials and MPs in select committee processes:
Hon Adams:
Again, it is incredibly heartening to see a group of committee members who actually hunted in a bit of a pack vis-à-vis the officials, really. There were the committee members sort of on one side, all lining up with a very similar view of what we wanted to see happen and on occasion running up against, perhaps, some drafters and some officials who hadn‘t quite understood how we wanted it to work.
.....actually, the members of the committee representing members across the House were really clear when this bill talked about being an expungement scheme that we wanted it to be an expungement scheme i.e. that the conviction was as if it had never happened, not a scheme whereby the convictions still remained in the record but everyone was just directed to disregard it. To us on the committee that was a really important distinction, and we believed that to submitters and those affected by this legislation that was an incredibly important distinction to make.
Andrew Falloon (National-Rangitata) commenting in the second reading on the collegial atmosphere said:
It was an absolute privilege and honour to sit on the Justice Committee, that
considered this bill. ....At times, it was, I think, eight members of the committee versus
the officials, rather than Labour versus National MPs. But that’s the way it should be on important legislation such as this.....
The Select Committee process as an improvement mechanism
Hon Amy Adams in the second reading said:
I think the bill now is in a better state than when I introduced it to the House, and I’m certainly happy to acknowledge that. I think we’ve got it far more to the place that we as a Government introducing it in the House had wanted it to be at first reading.
And in the same debate another Justice Committee member Chris Bishop (National- Hutt South) said of the Select Committee:
I think we’ve made some useful changes, actually. We interrogated the substance of the bill really closely, we did get really down into the weeds of the bill, because the operation of the expungement regime is of vital importance to the purpose of the bill and to giving effect to what the purpose of it is, which is to wipe from the statute book and wipe from the record books the history of that conviction and the conviction itself. Members previously have gone through some of the quite technical changes we’ve made around criminal records, what “official records” means, and amending the definition of “expunged conviction” in clause 9 of the bill, and those are very useful changes.
In the bill’s Third Reading, Hon Grant Robertson (Minister of Finance) said:
The Select Committee improved this bill. The Select Committee have made it- particularly in terms of travelling overseas, I believe that they have strengthened what Parliament is trying to achieve here so that, hopefully when people travel they won’t be required to disclose a conviction that is no longer with them.
The value of public participation and the role of submitters
A number of MPs, including several members of the Justice Select Committee, were clearly affected by the emotional power of some of the submissions made. This was exemplified by Matt King (National-Northland):
As part of this current Parliament’s Justice Committee, I’ve heard some pretty convincing and emotional submissions from people grossly affected by these outdated laws. Quite frankly, this legislation is overdue....
We have heard some harrowing submissions from members of the public about how this has affected their lives
The MP then recounted a submitter whose prior historic conviction had led to employment discrimination and suicide attempts. The MP said:
I felt there was no one in that Select Committee room that day who did not feel this man’s pain. It is one of the reasons why I became a politician: to help right the wrongs.
Virginia Andersen (Labour) a Justice Committee newcomer said:
I am also proud, as a new MP to this House, for this to be the first piece of legislation that I have spoken on at Second Reading that I’ve directly heard submissions on from members of the public....some of those submissions were really moving, and it’s great- as a former public servant who only got to write papers and draw diagrams- to be able to directly engage with the public and understand, first hand, about how laws can impact on people’s lives.....
Darroch Ball (NZ First:
One of the most important aspects of this piece of legislation going through is that it’s not just a piece of paper-that there were, and are, real-life stories and individuals who were affected by this. I think it is important to not just speak about what is written in the legislation- the bill that’s going through this House- but how the previous law affected specific individuals and their stories.
The MP then quoted from three submissions and said:
I think that those individual cases that we heard from submitters are just a few of the examples....of the hugely negative effects that a piece of horrid legislation...has had on individuals.
In the bill’s Third Reading, the chair of the Justice Select Committee, Raymond Huo, expressly thanked Community Law Wellington and Hutt Valley and all other submitters “with regard to the detailed analysis and the eventual removal of clause 13(2) to ensure employment opportunities for those affected parties would not be jeopardised.”
Conclusions
The passage of the bill through Parliament demonstrated that legislators were sensitive to a broad range of rights implications of an expungement regime. Members on the Justice Select Committee and its predecessor, the Justice and Electoral Select Committee, were prepared to contest official advice during the process suggesting an appropriate level of legislative scrutiny. They demonstrated understanding of both a broad range of rights implications and of a narrow set of implications attended to in drafting changes. However, whether the limitation on the right to compensation is justified remains a contentious point.
In some ways, the bill was an “easy win” for human rights considerations. Addressing historic human rights abuses in a non-political manner is less of a political, public and media contest than addressing contemporary human rights concerns. The bill had the flavour of “us too” because other similar overseas jurisdictions had passed comparable legislation. Members of the Justice and Electoral Select Committee had travelled to Australia to look at its experience.
In terms of positive Select Committee socialisation the Justice Committee was comprised of many new MPs who experienced collegial and non-adversarial relationships during hearings. This compares with strong political partisanship that characterises much law-making. The former Minister of Justice Hon Amy Adams, who had changed her mind about her initial lack of support for the petition that prompted the legislation, became an Opposition member of the Justice Committee. She was clearly influential.
A petition from the public became a catalyst for legislation demonstrating the influence of public participation in law making. The Select Committee process demonstrably added to the substance and drafting of the bill. Select Committee meetings progressively inducted and socialised new MPs while the hearings provided a respectful forum for both civil society groups and individual members of the public to participate.
In summary, the passage of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) legislation demonstrated how significant the Select Committee process is in protecting human rights through scrutiny of broad and narrow implications and as a mechanism for increased parliamentary understanding of human rights issues. It also tangibly revealed the power, potency and influence of public participation through petitions and submissions.
i Justice Committee Report (2018) Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill. 274-page 2.
ii New Zealand Parliament (2017) Hansard Debates. Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill- First Reading. p. 1. https://www.parliament.nz/en/pb/hansard- debates/rhr/combined/HansDeb-20170706-20170706.
iii New Zealand Parliament (2018) Hansard Debates. Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill- Second Reading. https://www.parliament.nz/en/pb/hansard- debates/rhr/combined/HansDeb-20180327-20180327.
iv New Zealand Parliament (2018) Hansard Debates. Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill- Third Reading. https://www.parliament.nz/en/pb/hansard- debates/rhr/combined/HansDeb-20180403-20180403.
v Ibid at footnote i.
Domestic Violence-Victims’ Protection Bill
The second recent bill analysed in terms of parliamentary scrutiny of human rights was the Domestic Violence-Victims’ Protection Bill.
Reference details
The Bill was introduced to the 51st Parliament as a Member’s Bill by Green MP Jan Logie on December 1, 2016. The First Reading occurred on March 8, 2017, before being referred to the Justice and Electoral Select Committee. The closing date for submissions was May 19, 2017. The Bill was reinstated in the 52nd Parliament and referred to the reformulated Justice Committee on November 8, 2017. The Select Committee received and considered 167 submissions. The departmental report to the Select Committee indicated that 161 submitters supported the overall intent of the Bill, including unions, social advocacy groups, the Human Rights Commission, business groups, firms, individual submitters, and the sponsor of the Bill. Three submitters, a firm and two individuals, opposed the overall intent of the Bill, and three submitters did not express a view for or against the overall intent of the Bill. They were the Employment Court judges, the Legislation Design and Advisory Committee and an individual.i While there was support for the intent of the Bill, several influential business groups such as Business NZ indicated they were opposing it because it would have a disproportionate impact on business. Oral evidence from 35 submitters was given at hearings in Wellington.
The Justice Committee reported on the Bill in May 2018 and the Bill was read for a second time on June 13, 2018. There were five Supplementary Order Papers and the Committee of the whole House debate occurred on 27 June 2018. The Bill had its Third Reading on July 25, 2018 and received Royal Assent on July 30, 2018.
Nature of the Bill
The Bill proposed an omnibus statute amending five other pieces of legislation to enhance legal protections for victims of domestic violence. It aimed to support victims to stay in paid employment and address any discrimination by amending the definitions and circumstances of forms of workplace violence such as bullying or violence from customers or clients. When first introduced, the Bill amended the Domestic Violence Act 1995, Employment Relations Act 2000, Health and Safety at Work Act 2015, Holidays Act 2003, and Human Rights Act 1993.
The general policy statement in the Explanatory note to the Bill stated:
Domestic violence has a damaging, yet often hidden, impact on victims’ lives. The protections of this Bill acknowledge the harm experienced by victims and the influences in the workplace of that harm. The Bill supports victims to stay in paid employment, maintaining productivity and reducing recruitment and training costs for employers. Staying in employment is critical to reducing the effects of violence. Secure employment enables victims to maintain domestic and economic stability and assists them to find a pathway out of violence and to successfully rebuild their lives.
Domestic violence can lead to discrimination in terms of employment due to misconceptions about victims’ experiences and the circumstances in which they may find themselves. The Bill addresses any discrimination and in doing so removes the barriers experienced by victims. ii
The policy statement said that domestic violence did not easily fit the definitions and circumstances of other forms of workplace violence, such as bullying, and that the Bill addressed a gap in legislation.
Human rights implications
The Bill embodied explicit human rights protections.
Article 3 of the Universal Declaration of Human Rights (UDHR) states that “Everyone has the right to life, liberty and security of person” and this is repeated in Article 9(1) of the ICCPR. The right to be safe and live a life free from violence is one of the most fundamental human rights, and is acknowledged as such. The right to be safe is a first order human right and is essential to human dignity. Women are overwhelmingly the victims of domestic violence. In addition to the women’s convention, a number of other population specific international treaties that New Zealand has ratified refer to the state’s duty to protect citizens from the discriminatory effects of violence.
These include:
Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) states that State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone to (5b) “the security of persons and protection by the State against violence or bodily harm whether inflicted by government officials or by an individual group or institution.” This is particularly relevant given that Māori are over-represented in domestic violence statistics. For example, 29 per cent of women using the Refuge Services are Māori, 39 per cent of children using refuge services are Māori and 37 per cent of referrals for support of Refuge Services are Māori women and children. iii
The United Nations Declaration on the Rights of Indigenous People (UNDRIP) requires under Article 22(2) that States Parties “take measures in conjunction with indigenous peoples to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”
Relevant children’s rights include Article 6 of the Convention on the Rights of the Child (CRC) which state that State parties recognise that every child has the inherent right to life (6.1) and that they ensure to the maximum extent possible the survival and development of the child (6.2). Article 19 says that States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.
Disabled people’s rights and domestic violence are covered under Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD) under which States Parties are expected to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home from all forms of exploitation, violence and abuse, including their gender-based aspects.
The place of violence against women (VAW) and the UN women’s convention is subject of continuing debate and scholarship. VAW is not specifically referred to in any article of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). However, the Convention’s monitoring body, the CEDAW Committee, issued a General Recommendation No. 19 in 1992 which stated that:
Gender-based violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions is discrimination within Article 1 of the Convention. These rights and freedoms include:
The General Recommendation also notes that equality in employment can be seriously impaired when women are subject to gender-specific violence and that family violence is one of the most insidious forms of violence against women.
The 1993 World Conference on Human Rights recognised violence against women as a human rights violation and called for the appointment of Special Rapporteur on violence against women in the Vienna Declaration and Programme of Action. It contributed to the 1993 Declaration on the Elimination of Violence Against Women. This was the first international instrument explicitly addressing violence against women, providing a framework for national and international action. It defines violence against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.iv In 1994 the first Special Rapporteur on violence against women, its causes and consequences, was appointed within the UN system.
Commentators such as Ronagh McQuigg (2016) say that it is unjustifiable that there are still no legally binding, global provisions on the issue of violence against womenv. International instruments are a benchmark for domestic legislation, policy and practice and are effective in
raising standards. They also allow UN committees and special procedures to raise issues with New Zealand in its regular reporting to the United Nations. In 2012 the CEDAW committee was explicit about its expectations around VAW to the New Zealand Government, despite the absence of a specific VAW Convention article.
Violence against women has been included in the United Nations Sustainable Development Goals of which New Zealand is a signatory. Measures to prevent, reduce and address violence against women are included in three of the 17 goals.
In what ways does the Bill acknowledge/ limit human rights?
The passage of the Domestic Violence- Victims Protection Bill was regarded as affirming the need for greater protection for victims of violence, a significant human rights abuse. Even its opponents, National Party Members of Parliament, did not disagree with the intent of the legislation, an example of law-making aimed at protecting and affirming human rights. National’s political opposition was not to the inherent human rights issue which is the right to life and a life free of violence, but whether the bill was fit for purpose, whether the legislative response would disproportionately impact on small business, and who should bear the cost of implementation of the legislation.
The legislation amended the Employment Relations Act 2000 to allow for flexible working short-term for people affected by domestic violence (Part 6AB of the Domestic Violence- Victims’ Protection Act 2018). It amended the Holidays Act 2003 to allow for up to 10 days’ paid domestic violence leave in a 12 month period (s72H(a) and s72i(1). It amended the Human Rights Act 1993 to replace in section 21A “social and racial harassment” with “sexual harassment, adverse treatment in employment of people affected by domestic violence, and racial harassment”. It also introduced a new section 62A to describe the areas in which adverse treatment in employment applied such as applying for a job, employment including unpaid work, dismissal or the absence of the same terms and conditions of work, and retirement.
A BORA compliance report was produced for the bill which simply stated that it appeared to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.vi No supporting argument was provided.
Three readings of the Bill
Green MP Jan Logie nominated the Justice and Electoral Committee to consider the Bill when it was introduced on International Women’s Day in 2017. She referred to both the nature of politics and the role of Parliament in her speech.
For me, politics becomes inspiring when we work in partnership with communities to solve problems and create social change....I think it is a testament to the importance of the issue, but it is also a signal to survivors who are watching this that we care, and
we should..... I hope everyone listening will go away thinking that in Parliament we are
prepared to listen, engage, and get this right.vii
The sense of Parliament’s role in social change was echoed by fellow National MP Chris Bishop who told the House that:
...I do not think this is actually about party politics but I hope people will look back and say that it was the 51st Parliament that put a marker in the sand and took serious action on family violence.
Labour’s Iain Lees-Galloway recognised that women’s groups outside the house and unions
had been involved in the campaign but noted that:
...the truth is it does actually take someone in this Parliament to put the bill into the ballot, and then, when it comes out of the ballot, to actually champion it, to have the negotiations and to work with colleagues around the House, especially the hard work to get to the point where it appears we will have unanimity when we come to vote on this First Reading.
He also urged business to submit to the Select Committee about “how we can make this work. Do not simply come to the Select Committee and say:” this can’t work. We‘re not supporting it.”
Hon Amy Adams, Minister of Justice at the Bill’s First Reading, noted the importance of the member’s bill but that parliament or any Government could not fix the problem of domestic violence on its own.
The point I made when I made the commitment on behalf of the National Government to support the bill-certainly through the First Reading and through to a Select Committee- that what we do know, and what we must know, is that whatever the answer is, business has to be part of it...
.....What I think will be very valuable through the Select Committee process is to hear more and learn more from those businesses that have put arrangements in place-what has worked, how they have found it works best, and what has not worked.
...Parliament and laws are, by definition, blunt instruments. I think we have to be very careful to ensure that our responses are not so blunt across that huge continuum of circumstances for New Zealand men, women and children who are represented in those 110,000 incidents (DV), but to ensure that we are able to arrange a framework that is proportionate, responsive, sensitive and appropriate for that whole continuum.
The Minister said her party was going into the debate with an open mind and registering some genuine concern about the Bill as drafted but happy to engage in the process.
It was clear from MPs who spoke that they had been lobbied hard for the Bill to reach a First Reading. National MP Jono Naylor said he had received a delegation from the National Council
of Women who had visited his office in Palmerston North asking that “this very, very important conversation gets on the table in Parliament and is debated”.
At the end of the First Reading Jane Logie MP acknowledged that more work was required on the drafting of the bill and that it was not the intention to make it complex. Referring to the burden on small business, she said the experience overseas where similar legislation existed was that people did not exploit the relationship of trust implicit in the legislation which provided up to ten days, not a mandatory ten days of leave.
In the Second Reading Jan Logie thanked the officials, submitters and Justice Committee members who had actively engaged to develop a workable piece of legislation providing up to 10 days leave to victims of domestic violence or people caring for affected children. She referred to Supplementary Order Paper (SOP) 39, and the removal of the requirement to provide a domestic violence document. She indicated that work had been undertaken with New Zealand First and “we look forward to their SOP at the committee stage”.viii She also referred to the removal of Part 3 of the original bill, which related to the Health and Safety at Work Act, in favour of WorkSafe providing guidance to employers.
Opposition Members raised disproportionate impacts on business, particular small business, in the Second Reading.
Hon Mark Mitchell (National, Rodney) said:
The problem that I saw with this bill is that what we’re going to do is we’re going to say, “small and medium sized businesses, you’re now going to have to find a way to manage an additional 10 days of leave. Small and medium sized businesses, you’re now going to have to find a way of managing the compliance costs and the compliance issues that come with that. Small and medium sized business owners, you’re going to have to find a way of being able to manage what are often very complex domestic violence and family violence issues back at home”.
He indicated that National would submit Supplementary Orders Papers (SOPs) to suggest that the leave entitlement was either existing annual or sick leave and urging the Ministry of Business, Innovation and Employment to conduct a nationwide educational campaign with small and medium sized businesses.
The National Member for East Coast Bays, Erica Stanford, told the House that National would not be supporting it:
The division between this side of the House and the other side basically boils down to a couple of points; That there is no clear evidence to show that employers aren’t currently recognising and providing appropriate support. In fact, the Select Committee heard from many employers who were doing a very good job. There was no real overwhelming evidence to show that there was, in fact, a problem to solve.
Secondly, the Bill uses an incredibly wide definition of domestic violence, which includes verbal abuse, monetary pressure, and other aspects that are difficult to define. On top of this wide definition, the Government is proposing amendments to put no time limit on how long ago that domestic violence occurred. So we have no identifiable problem within our current legislation, no reliable definition of domestic violence, and no set time limit.
National MP for Coromandel, Scott Simpson, asked why the cost of managing domestic violence was not spread more widely throughout society as a whole. “Why not have the taxpayer fund the annual leave that’s being sought from this Bill?” He said the National Party would support a more moderate Bill that had a tighter definition and was more realistic in terms of understanding the needs and conditions of a modern flexible work environment.
Coalition partner New Zealand First referred to two SOPs it was submitting on the legislation. Hon Tracey Martin, the Minister for Children, said:
All members of the Select Committee took this seriously. Nobody was flippant with the consideration of this Bill. But it is a reality that the Bill has been reported back to the House without the Select Committee being able to agree.
She said New Zealand First would support the Bill at its Second Reading and would bring forward two SOPs, one to reflect submissions by Rural Women New Zealand, and one relating to assisting small business when a request to change flexible working hours was declined. NZ First would also continue to work with the Minister of Finance who said the matter would be sent to the Tax Working Group to consider whether any leave under the legislation should be a tax-deductible expense.
The first of five Supplementary Order Papers (SOPs) presented a new definition of domestic violence document including either an affidavit from a domestic violence victim or a statutory declaration. However, by the time of the Second Reading on June 13, 2018, the Bill’s architect, Jan Logie MP, told the House that: “We’ve removed the requirement to provide a domestic violence document to be able to access that leave, and I’m grateful to the many submitters who drew our attention to sick leave and tangihanga leave as examples that we could follow”.
In the Third Reading of the Bill Jan Logie, tackled the cost issue.
It entitles victims to up to 10 days leave a year, and yet experience shows that most victims don’t take that full 10 days. On this side of the House, our debate has been founded on rigorous economic and social research from New Zealand and overseas, grounded in the workplaces who are doing this already. What this research has found is that the initial cost of implementing these policies right across the country would be less than the average wage increase in a bad year. That is rapidly offset from returns from lower staff turnover and increased productivity. So don’t buy the lie that this will be a cost.ix
She also indicated it had taken seven years of drafting, organising and unionising for the bill to have reached a Third Reading.
Opposition MPs ramped up their dissent based on costs of the legislation being borne by small business as the focus of their dissent. National’s member for Papakura Judith Collins referred to Jan Logie MP and said:
A Government that wants to use a member’s Bill to take on and to put on to small employers the responsibilities of the Government-that is not fair to anybody, and this Government should not think that that is a responsible way in which to act.....It is actually a cop-out by a Government that has the money and can’t be bothered using it.
Party politics was evident with references by the Opposition to its own Family and Whanau Violence Legislation Bill which had been put on hold by the Labour-led coalition Government.
The select committee process.
The Select Committee process saw a range of officials raise concerns about the design of the legislation and unintended consequences. These included Ministry officials, members of the Legislation Design and Advisory Committee and Employment Court judges.
A characteristic of the proposed legislation was its provisional amendments to five other statutes and the legislative design issues that arose because of this complexity. In the final analysis the bill amended The Employment Relations Act 2000, the Holidays Act 2003, and the Human Rights Act 1993.
In an initial briefing to the Justice and Electoral Committee officials from the two government agencies involved, the Ministries of Justice and of Business, Innovation and Employment, focused on the means by which the Bill sought to achieve its policy aims rather than on the merits of the overall policy objective. The briefing looked at the key amendments and in doing so raised the following issues:
In relation to the Holidays Act, the officials said the proposed Bill as drafted could have the unforeseen consequences of providing employees with almost unlimited domestic violence leave because of the lack of limitation on the number of requests an employee could make in a 12 month period. Clause 16 of the Bill proposed to include the experience of domestic
violence as a prohibited ground of legislation under human rights legislation which would also be imported into the New Zealand Bill of Rights Act 1990 (NZBORA) for claims of discrimination against the Government.
At present all grounds of discrimination in the HRA are based on fixed characteristics or beliefs, rather than experiences. It is possible that expanding the grounds of discrimination could create debate about whether other forms of victimisation (such as being the victim of sexual assault or having a family member murdered) or other negative experiences should also be included in the HRA.
It is unclear how this ground would apply to all areas of public life in the HRA (for example, what obligations would be imposed on employers or people providing goods and services) or the activities of the State under NZBORA. We have been unable to find any comparable jurisdictions with provisions in generic discrimination legislation for being a victim of family violence. There are, however, some examples (such as the Australian Fair Work Act 2009) where specific employment rights have been conferred on such victims (Ministry of Justice and Ministry of Business, Innovation and Employment, 2017)x.
The External Subcommittee of the Legislation Design and Advisory Committee (LDAC), comprised of independent advisors outside of Government appointed by the Attorney- General, reviewed the Bill and submitted to the Select Committee. Because it was a Member’s Bill it was not referred to LDAC prior to introduction. LDAC Chairperson, Geoff McLay, in a written submission said the bill had complex policy objectives. “We question whether the design of the Bill is the most effective or workable means of achieving those objectives.” LDAC recommended an assessment of whether the Bill’s provisions were a necessary, effective and workable way to achieve the policy objectives. LDAC queried the wide definition of victim of domestic violence, made suggestions relating to the domestic violence document, and suggested amendments to clauses relating to employer’s ability to refuse requests. LDAC suggested employers would need support in relation to the range of duties imposed such as requiring an employer to refer a victim to appropriate support services. It said that creating a new prohibited ground based on domestic violence in the Human Rights Act 1993 was inappropriate because it was inconsistent with the purposes of that act.
LDAC made three other broad points:
First, it is known that the majority of domestic violence occurs towards women and the vulnerable. The Bill may, wrongly, deter employment of women and the vulnerable. Secondly, the Bill does not address the conduct of the perpetrator, who may be in the subject family or household. Courses and counselling may be of equal use to him or her. Thirdly, New Zealand has many small businesses ....care will be needed to assess the impacts of this Bill in that context and in the context of an extended definition.xi
LDAC also submitted on the Supplementary Order Paper released on May 1, 2017, and said that the proposed changes involved “an element of duplication, may create confusion and may be unworkable”. xii
Chief Employment Judge Graeme Colgan in his submission said the practice of the Employment Court when making submissions to Select Committees was not to comment on the policy objectives of legislation but to alert Select Committees to potential interpretation and application difficulties, clarify legislative intention and lessen interpretative litigation. The submission asked whether the Bill’s objectives might be more simply and effectively met by making an unjustified refusal to alter terms of conditions of employment of an employee victim, a disadvantage personal grievance as a an additional category of grievance under s103 of the Employment Relations Act. The Chief Judge of the Employment Court also raised the Bill’s assumption that protective duties arose out of the employment relationship, but given the smallness of much business and the closeness of family business relationships in New Zealand such as in farming and local retail, “the generality of the Bill’s rights and obligations will not sit easily with such close family relationships”.xiii
In the final departmental report to the Justice Committee, the Ministries of Business, Innovation and Employment and Justice summarised a series of recommendations and analysed submissions on the Bill. They said generally submitters were making the following points in favour: the Bill would significantly benefit victims of violence; it would provide benefits to business; the Bill highlighted domestic violence as a societal issue and responds to a broader societal problems. Concerns identified were that the bill represents a cost to employers and whether the Bill was the most effective means to achieve policy intent.
The Select Committee had made a number of general information requests during its hearings such as how the Bill would interact with present arrangements for perpetrators’ access to domestic violence programmes, whether employers were likely not to employ likely victims of domestic violence and the potential costs of implementing the Bill. In particular the Committee asked for an assessment of Business NZ’s submission regarding the cost of the Bill for employers. Officials said that it is “unlikely that the Bill would have greater impact on smaller employers due to a supposed higher incidence of domestic violence among low- incomes households as the available evidence does not support this”.xiv
Public submissions
A range of submissions from the business lobby opposed the Bill on the grounds of its disproportionate impact on business and that appropriate workplace based tools were already in place. Rather than identifying domestic violence as a human rights issue, Business NZ said the role workplaces can and should play in alleviating the consequences of domestic violence came under the general rubric of Corporate Social Responsibility. Even that, though, appear to have a limited scope.
We accept that, while employers cannot be held accountable for the private lives of their employees they inherently have some responsibility for their employees’ general wellbeing. In the first instance this relates to ensuring that the workplace is not a source of risk or harm, and that measures are in place to address any instance of such. However, there is a limit to what businesses can and should be expected to do.xv
However, several of New Zealand’s largest employers indicated to the select committee that they were already ahead of the legislation. The Warehouse, for example, which has a long standing partnership with Women’s Refuge was in 2015 the first private sector business to adopt a family violence in the workplace policy. The policy allowed ten days paid leave for those impacted by violence and unpaid leave for those who may perpetrate family violence. Anna Campbell, Chief People Office of the Warehouse Group in an oral statement said: “Right from the start we realised that if we were to make a difference, then both users and perpetrators must have some form of support.”xvi
The union movement, women’s organisations, including those involved in refuge and domestic violence work, public health agencies, the New Zealand Human Rights Commission were among organisations supporting the Bill. A number of anonymous submissions from domestic violence victims were also received by the Select Committee. One of these said:
Domestic violence is a human rights issue. I support this Bill in agreement with the Human Rights Commission. Domestic violence is a leading human rights issue in New Zealand and contravenes at least articles 1, 3 and 5 of the Universal Declaration of Human Rights. New Zealand’s commitment to human rights needs to include taking all steps to stop domestic violence.
The Council of Trade Union’s submission carried a comprehensive section on domestic violence as a human rights issue stating that working people were entitled under human rights law to be protected from discrimination, harassment and abuse in the context of their work. The right to protection from violence and to security was embedded in international law and human rights agreements that New Zealand has ratified. xvii
Report to the House.
The Report of the Justice Committee to Parliament indicated that members were unable to agree whether the Bill should proceed and contained a National Party view and a Labour Party view. There was also a lack of agreement on possible amendments. National said it took domestic violence seriously as evidenced by its reforms and programmes and prioritisation of resources while in Government.
We are not satisfied that the provisions will work and note that no other jurisdiction or country has added these proposals as compulsory requirements on employers. National members could support a more moderate Bill such as one that extended the definition of existing leave entitlements to more explicitly include those affected by domestic violence. However, the greatest gains in business practice around issues of
domestic violence for employees are through encouragement, education, and advocacy, rather than complex new legislation of this sort.xviii
The New Zealand Labour Party members of the committee supported a range of proposed amendments to the Bill including removing reference to health and safety legislation and eliminating the provision allowing a support person being able to access domestic violence leave entitlements with possible implications for small businesses.
Conclusions
The Bill’s eventual passage into legislation was strongly influenced by changing political fortunes and the ultimate logic of party politics under coalition party arrangements. When it was drawn from the ballot its sponsor, Jan Logie MP, was a Green Opposition MP in the National-led Government. By the time it went to Select Committee she was Parliamentary Under-Secretary to the Minister of Justice on Domestic Violence in the Labour-Green-NZ First Coalition Government. The Minister of Justice, Hon Andrew Little, congratulated the Bill’s sponsor during the Third Reading for the “incredible work that she has done, not only on this bill, and indeed on the Government bill on domestic violence but in the work she does as Parliamentary Under-Secretary...” he spoke of her “drive and energy and dedication and commitment”.xix It is a moot point whether the Bill would have proceeded as far as it did had its sponsor remained an Opposition MP. Jan Logie in an interview said she felt eventual success was due more to the change of government and the “numbers” than it was to her new role.xx
She credits political organisation through the formation of an informal coalition operating before the Bill was drawn from the ballot involving unions, advocates and women’s organisations with its momentum in the legislative process.
The Bill was the result of a collective effort. One of the key things I would do again is the coalition because that was absolutely essential in getting it past the first reading and working on submissions to the Select Committee. It wouldn’t have got past the first reading if it hadn’t have been for the coalition.xxi
She said traditional wisdom and advice in relation to member’s bills was that they should encompass small changes that a member is able to get agreement on. Omnibus bills were mot recommended. But in this case she did not believe that the policy change could have been achieved through a mere amendment to the Holidays Act because it required human rights protections. However, by the time the Bill was discussed at Select Committee stage wholesale changes had already been made to health and safety legislation which meant that section was dropped from the omnibus Bill.
Member’s bills are an opportunity for a national conversation about necessary change.
...I think we get to a point as a society that we just assume things are given and we limit ourselves to working within certain frames without seeing the frames. Members’ bills are an opportunity to start to see those frames and hopefully change them.
Select Committee scrutiny of domestic violence as a human rights concern was enhanced by the scope, quality and nature of the submissions. Strong public submissions to Select Committees are regarded as a unique hallmark of New Zealand’s parliamentary democracy. This particular Bill shows the influence of political organisation. In the hearings business representatives provided best practice examples, civil society and individual women appropriately put the physical, social and economic costs of violence before the committee, and those like LDAC , employment court judges and officials raised issues of legislative design and integrity. In response the Select Committee tested some of the presumptions and assumptions made. Jan Logie said that the individual stories told by victims at the committee hearings were hugely powerful.
Ultimately Select Committee members are people and when you’ve got someone who has been a victim telling their story they listen. The hearings also provided businesses with an opportunity to recount their experiences of policies that they had introduced and how they worked at a practical level which allayed some concerns. There were the individual stories, organisational experiences and at a more macro level we had submissions outlining Australian policy and practice. Part of the development of the Bill had been undertaken through unions with links to Australian research and policy organisations.
The proposed legislation affirmed human rights protections, a fact not lost on many MPs who spoke of the increasing public expectations that elected representatives would raise issues like domestic violence and address them in legislation, policy and practice. Enhancement of support for lessening domestic violence, given its salience in the public and media agenda, was clearly an imperative for lawmakers even those against on the basis of the cost of implementation. There was universal political support for the intent of the Bill, a reduction of domestic violence, while there was expressed conflict about who should pay and whether legislation was the most effective intervention.
The Bill’s architect actively lobbied for support from business.
When I first drafted the Bill I visited the Employers’ and Manufacturers’ Association (EMA), the Auckland Chamber of Commerce and Business NZ) All of the conversations were initially quite convivial but only the Auckland Chamber of Commerce agreed to support it, and of course the Chamber’s chair has actively worked on EEO. In the conversations with the EMA and Business NZ they said they were concerned about the issue and business responsibility, the notion of even playing fields and consistent standards and protections across business, but then the conversation flipped to “nanny state”.
Jan Logie said that cross party political support for the Bill waxed and waned with time. National MPs initially opposed its introduction. Interventions from coalition members and support at the time from the Minister of Justice, Amy Adams, who could see benefit in the Bill’s First Reading and the work the Government was doing at the time around family violence, meant the Bill received support for a First Reading.
If I am being overly generous I would say that the timing was unfortunate in that those originally on the Select Committee who heard the submissions and had been on the journey of listening and hearing stories of business about their experiences were not the same group of MPs who finally deliberated given the change in Select Committee composition.
The complex nature of the omnibus Bill amending so many facets of existing employment– related legislation, and the large number of Supplementary Order Papers, though, suggests greater resources should be available for private members whose bills are drawn from the ballot not just in relation to drafting, but in relation to the best way to achieve policy objectives. Jan Logie says in retrospect the Bill would have had a smoother passage if it had been updated before it was pulled from the ballot so there would not have been the need for so much subsequent change.
The Parliamentary Counsel Office (PCO) can at the direction of the Attorney-General assist with the drafting of a member’s Bill.xxii However the PCO functions do not envisage policy advice on the overall aims of the Bill and is limited to drafting only. Given the small number of private member’s Bills in every three-year parliamentary term, it would seem sensible to consider greater allocation of expert and technical expertise from government officials to promote policy coherence in members’ Bills.
Again, this raises the question of the role of the New Zealand Human Rights Commission in the legislative process and how human rights consciousness in Parliament can be enhanced. Jan Logie says:
I think there needs to be a team of people who live and breathe human rights providing the advice. As long as it is incidental it will be weaker. What would it look like if the Human Rights Commission was resourced to do the job independently in a capacity that was a step removed from Government? I realise that the Commission makes submissions to Select Committees but its submissions have the same status as any other submission. The best that can happen is that Members get to say the “HRC raised this or that issue” and members do that, but the HRC has no greater influence.
Like other MPs interested in human rights issues, Jan Logie says she does not see much evidence of an obvious human rights consciousness in Parliament with a strong thread in parliamentary debate and conversation that human rights need to be earned. She says the availability of section 7 reports to Select Committees is really important as they prompt a “conscious scrutiny”. However, she is concerned that limitations on the fulfilment of
economic, social and cultural rights in particular, can be traded off on the basis that they are
justifiable “which puts it in the frame of being political”.
i Ministry of Business, Innovation and Employment (22 February 2018) Domestic Violence-Victim’s Protection
Bill. Departmental Report to the Justice Committee, page 4.
ii Domestic Violence-Victims’ Protection Bill, 2016 No 215-1. Explanatory note. General policy statement. p.1.)
iii Te Puni Kokiri (June 2017) “Understanding Family Violence: Māori in Aotearoa New Zealand”.
iv UN Women (2018) “Global norms and standards:Ending violence against women. http://www.unwomen.org/en/what-we-do/ending-violence-against-women/global-norms-and-standards. Accessed 1/10/2018.
v McQuigg, Ronagh (2016) “Why the world needs a UN treaty to combat violence against women”. The Conversation. Accessed on 28/09/2018 from http://theconversation.com/why-the-world-needs-a-un-treaty- to-combat-violence-against-women.
vi Ministry of Justice (8 December 2016) Consistency with the New Zealand Bill of Rights Act 1999: Domestic Violence-Victims Protection Bill. LPA 010121.
vii New Zealand Parliament (8 March 2017) Hansard Debates. Domestic Violence-Victims’ Protection Bill, First Reading, p.3)vii. viii New Zealand Parliament (13 June 2018) Hansard Debates. Domestic Violence-Victims’ Protection Bill- Second Reading. p.2.
ix New Zealand Parliament (25 July 2018 Hansard Debates. Domestic Violence-Victims’ Protection Bill- Third Reading. pp.2-3.
Ministry of Business, Innovation and Employment and the Ministry of Justice (2017). Initial Briefing to the Justice and Electoral Committee. Domestic Violence- Victims’ Protection Bill.
xi Legislation Design and Advisory Committee, (1 May 2017) Correspondence to Justice and Electoral Committee on the Domestic Violence-Victims’ Protection Bill- Supplementary submission, p.2.
xii Legislation Design and Advisory Committee (19 May 2017). Submission to Justice and Electoral Committee on the Domestic Violence-Victims’ Protection Bill-Supplementary Order Paper submission
xiii Colgan,G (12 May, 2017) Submissions to the Justice and Electoral Select Committee re Domestic Violence-
Victims’ Protection Bill.
xiv Ministry of Business, Innovation and Employment and Ministry of Justice (22 February 2018). Domestic Violence-Victims’ Protection Bill, Departmental Report to the Justice Committee.
xv Business NZ (1 May 2017). Submission to the Justice and Electoral Law and Order Select Committee on the Domestic Violence Bill, p.2.
xvi Oral statement from the Warehouse Group to the Justice and Electoral Select Committee as part of the Submission from the NZ Human Rights Commission. Statement presented by: Anna Campbell, Chief People Officer for The Warehouse Group.
xvii New Zealand Council of Trade Unions (CTU) (April 2017). Submission of the New Zealand Council of Trade Unions, Te Kauae Kaimahi, to the Justice and Electoral Select Committee on the Domestic Violence-Victims” protection Bill.
xviii Justice Committee (May 2018) Domestic Violence- Victims’ Protection Bill. 215-1. NZ House of Representatives.
xix NZ Parliament Hansard Report (25 July 2018) Domestic Violence- Victims’ Protection Bill- Third Reading p.6.
xx Interview with Jan Logie MP, 2018, AUT University.
xxi Ibid.
xxii Legislation Act 2012, s59 (1)(h) and (i),
The Electoral (Integrity) Amendment Bill
The Electoral (Integrity) Amendment Bill, colloquially known as the ‘waka-jumping” legislation was a clear example of balancing of various civil and political rights. The legislation, though, is a fundamental example of political pragmatism trumping fundamental human rights.
Reference Details
The Government Bill was introduced 13 December 2017 and was given its First Reading on 30 January 2018. It had its Second Reading on 2 August 2018, the Third Reading took place on 27 September 2018 and was given Royal Assent on 3 October 2018. The Bill was referred to the Justice Committee and attracted 55 submissions. There was no reference to human rights in the Digest, or the Explanatory Note.
Nature of the Bill
The Bill amends the Electoral Act 1993 in order to enhance public confidence in the integrity of the electoral system by upholding the proportionality of political party representation in Parliament as determined by electors. The Bill provides for a member to vacate their seat in Parliament if they choose to give notice to the Speaker of their ceasing parliamentary membership of the party for which they were elected. The Bill also provides for a vacancy to occur if the member’s party leader gives notice that the leader reasonably believes that the member’s actions have distorted, and are likely to continue to distort, the proportionality of political party representation in Parliament, as determined at the last election. It is not compulsory for the party leader to give notice that leads to the vacancy under this Bill. The giving of notice to the Speaker is at the leader’s discretion, which means the leader can take into account the circumstances and the party’s own rules. However, in new sections in the bill, the leader must give the member written notice and 21 working days to respond to the leader in writing. Also two thirds of the relevant party’s caucus must agree that the party leader should give written notice to the Speaker.
From 2001 to 2005 the Electoral (Integrity) Amendment Act 2001 provided a similar power to create a vacancy. The legislation was enacted after the adoption of MMP and experience of MPs leaving their parties and distorting proportionality. The law had a sunset clause and expired in 2005. The Act was applied by the Supreme Court in Prebble v Huatai when the court disallowed an injunction sought by Donna Awatere Huata following her expulsion from the ACT caucus in 2003 when she sought to prevent the delivery of the notice to the Speaker. The intention of the Bill was to be consistent with the Supreme Court interpretation. It has no sunset clause.
The Government Bill was the result of the confidence and supply coalition agreement between the Labour Party and NZ First Party. It was not a term of the coalition agreement between Labour and the Green Party although the confidence and supply agreement included a commitment to act in good faith to allow Labour and New Zealand First to implement their coalition agreement. It has been apparent from the formation of the Government that NZ
First regarded the legislation as an essential element of its policy agenda, while the Greens had strongly opposed the 2001 Act and a similar bill in 2005. The National Party and ACT opposition also opposed the legislation. The Labour Party agreed to support the Bill as part of the coalition agreement that enabled the formation of the current government.
Human rights implications
Freedom of expression and freedom of association have a special status as fundamental human rights. In terms of New Zealand’s international obligations they are included in the Universal Declaration of Human Rights and in Articles 19 and 22 of the ICCPR. The Bill directly impacts on sections 14 (freedom of expression) and 17 (freedom of association) of the BORA.
The Bill also embodies important constitutional objectives, enhancing public confidence in the integrity of the electoral system and enhancing the maintenance of political party representation in Parliament as determined by electors, which in this case are in tension with fundamental human rights of expression and association.
A section 7 report was not provided on the Bill on the basis it was substantially the same as the previous Act on which the section 7 report concluded that while it clearly limits the rights guaranteed by section 14 (freedom of expression) and section 17 (freedom of association) those limitations are justified in a free and democratic society. The Attorney-General, however, did provide an analysis on whether the Bill breached the Bill of Rights Act. In it he stated:
By empowering the leader of a political party to cause an MP to vacate their seat the Bill has the potential to cause a chilling effect on an MP’s freedom to express themselves inside and outside the House and also limits their ability to exercise their freedom not to be associated with a political party.
The Bill would only be inconsistent with those rights if the limitations are not demonstrably justified in a free and democratic society, applying s 5 of the Bill of Rights Act. To that end I am satisfied the Bill services a significant constitutional objective of preserving the proportionality of party representation in Parliament as determined by the election that preceded it and the Bill is rationally connected to that purpose. Further if the departure of a member from a political party distorts the proportions of party representation, no other measure would address this other than removal and replacement of the member who caused it, so I am satisfied the rights are impaired to the minimum extent necessary to achieve the constitutional objective.ii
In the Attorney-General’s analysis the proposed legislation raised a prima facie limit on freedom of expression and freedom of association.
The only limitation of freedom of expression caused by the Bill concerns expression
on subjects where the MP’s personal views conflict with those of the party or are
perceived to do so. The MP who belongs to a political party will have the capacity within caucus to express personal views contrary to those favoured by the party, and outside it to the extent permitted by the party but the expectation is that they will remain aligned with the party that saw them elected to Parliament. There does not seem to be significant difference in this respect between a party’s constituency MPs and its list MPs. Although the former MPs would say they have a personal mandate, they still campaign as a member of a political party and enter the House on an implied promise to the electorate of adherence to the values and policies of that party.iii
The Attorney-General said that if the Bill provided only for resignation of an MP, freedom of expression would be less effected. It was the facility for a party leader to start a process to have an MP’s seat declared vacant that had the potential to discourage an MP from speaking up against the party thereby suppressing dissent which was at issue. The right to freedom of association was engaged because the Bill imposed a disincentive to disassociation from a political party and possible association with another.
By ceasing to be a member of the party, the MP also loses his or her seat in the House and thereby their employment and their ability to engage in the democratic processes in the House.
....The impairment of rights is significant but there appears to be no alternative way to restore the proportionality of political party representation in Parliament other than by removing the member who has distorted it......
....There are strong points on either side of the proportionality assessment. The purpose of the Bill is clearly to enhance democratic government by the retention of the balance of representation that the election produced but this comes at a cost to the exercise of rights of freedom of expression and association by those elected to Parliament. In particular, the suppression of dissenting voices, whether intended or not and regardless of the circumstances, is a solemn matter for any parliament. Freedom of expression in the House has a special constitutional value.iv
He concluded “The issue is finely balanced but I am satisfied the limitations this Bill causes to the freedoms of speech and association are proportionate and therefore justified in a free and democratic society”. v
Three Readings of the Bill
The Bill was vigorously debated in the House. Human rights issues were characterised as competing with constitutional objectives of electoral integrity and the need for parliamentary stability trumping the right of an MP to speak up and dissent and to dissociate from a party. For example, the Minister of Justice, Andrew Little, in the First Reading said the bill affirmed a democratic principle that sits at the heart of our MMP system, “and that is that the proportionality of party representation in parliament is paramount”.vi
...what right does an individual MP have, in light of the bargain they have struck with the electorate, and in light of the bargain that every single party who is represented in parliament has struck with the electorate, to stand in the face of 2.6 million voters and to distort and undermine the decision of those voters? That’s the fundamental question this legislation, effectively seeks to answer. And what it says is that individual MPs do not have the right to undermine and overturn and distort the verdict that has been cast by 2.6 million voters...vii
The Minister said the legislation was similar to that passed in 2001 with the added considerations of the Supreme Court decision in the Huata decision. He referred to consultation with the Green Party and issues about the right of a party in compliance with its rules to have involvement in the decisions and he was critical of the news media commentary on the proposed legislation. He said there were five constraints on a party leader in the legislation which provided safeguards. The party leader had to believe that the MP’s actions had caused a distortion in the party’s representation in Parliament, the leader had to have put the belief to the MP, and have given 21 days for the MP to respond to the allegation. The party leader was required to have support from two thirds of the caucus before giving notice to Parliament, and the party leader had to comply with the party’s rules. “It is pretty clear that the party leader does not act on their own; the party leader is a cipher for the decisions and the judgment of the parliamentary wing of the party they are representing.”viii
The only Green MP who spoke during the First Reading, Golriz Ghahraman, described the negotiations undertaken.
.... The Green Party has always fostered deep concerns for this type of legislation, and our concern has always been that in seeking to preserve the proportionality of Parliament, laws like this can give too much power to party leaders. They can quash not only legitimate dissent within political parties but they can actually contribute to this exact problem-the problem that this bill is trying to address, which would be that in trying to uphold the integrity of the party against breaches by a party leader, the member could be ousted.ix
She said that because of those concerns the Green Party had insisted on tighter controls and checks and balances around the power of party leaders. She said that while the initial draft of the Bill required only a simple subjective belief by a leader that the MP no longer represented
the party a new section of the bill now applied a reasonableness standard which is law was
objective. “It is reviewable.”x The Green Party would be voting for the Bill at First Reading.
We do so while shouldering considerable concern within our party and our caucus about the implications of the bill on our democracy and the critical role of MPs to speak out with freedom and without fear of expulsion.xi
It was clear that the Green Party hoped for further concessions, too. The MP noted that traditionally Green Party MPs were often radicals relying on freedom of speech.
Any further changes we can secure to the bill in the Select Committee will hopefully, in some way, come to protect the traditions of radicals and those standing up for truth and human progress.xii
National and Act Party Opposition MPs advanced a range of arguments: that the bill was undemocratic; that it would tarnish New Zealand’s reputation in international human rights; that it was a creature of the political expediency of coalition politics; and that it damaged comity between Parliament and the courts.
For example, Amy Adams, National MP for Selwyn said it was a “devastating day for democracy” because the Bill “puts political party dictatorship into our electoral system”.xiii
....Electoral laws should seek to prevent the excessive use of parliamentary party control. Electoral law should be about stopping political parties having excess control over their MPs, and yet in this parliament here today we have a Government that wants to limit that exact right, the very free mandate that each of us because our communities put us here individually.xiv
She also raised the prospect of New Zealand being downgraded in international standings such as the World Electoral Freedom Index and Transparency International’s rankings. And like other Opposition speakers she invoked NZ First party leader Winston Peters as the architect of the change. Attacking the Green Party, she said “suddenly a ministerial warrant is enough to make their most deeply held principles expedient”.
I think it is utterly shameful. At least Winston Peters has always made it clear that he thought he should have total control over his entire party-he’s consistent. It’s abhorrent but he’s consistent.xv
National’s Hutt South MP Chris Bishop evocatively described the “ massive dead rat that the Green Party has to swallow in in voting for a bill that their founding leaders, Jeanette Fitzsimons and Rod Donald, rightly described, back in 2000 and 200, as constitutional outrage”.
National’s Nelson MP Dr Nick Smith referred to research by the Inter-Parliamentary Union who had said that while party loyalty and discipline are necessary they should not impair the full and effective exercise of freedom of expression and association by any MP since these
were fundamental human rights. There were 183 parliaments worldwide and 125 of these have proportional representation. “Is there a single democracy that we would want to associate ourselves with that gives the power of party leaders to sack members out of their Parliament?”xvi
In the Second Reading Dr Smith detailed what he described as “the lack of integrity of the
Select Committee process.”xvii
We had 55 submissions-not one supported this bill unamended. We had 21 constitutional and electoral law experts from our four great universities, the Human Rights Commission, the Law Society, former Speakers, and even the Clerk of the House opposing this bill. There are four concerning aspects of the process. Government MPs refused to discuss or consider any amendments, despite dozens of reasonable proposals from both officials and submitters. Secondly, Government MPs-shamefully- blocked the Justice Committee from even providing a report to this House on the bill. The Government refused to release the advice on this bill’s compliance with the New Zealand Bill of Rights Act, despite that always being made public in the past, and it’s an important issue when we have 21 legal experts saying it breaches the New Zealand Bill of Rights Act. We also want it recorded that the committee unanimously resolved for officials to appear to answer questions on the New Zealand Bill of Rights Act issue, but they refused to attend-something I have not seen in 28 years. These unprecedented lengths the Government has gone to hide critical advice completely contradicts this Government’s position that it is the most open and transparent Government ever.xviii
However, Justice Select Committee chair, Raymond Huo, had a different take on events.
Labour members are disappointed because National members, led by Dr Nick Smith, chose to put politics ahead of Select Committee business. We can all reflect on what happened in committee last Thursday, the very last meeting before the bill was due to be reported back on the following Monday. National members, led by Dr Nick Smith, refused to deliberate on the draft report, despite the fact that the draft report was on the agenda and had been circulated for review and amendments in advance.xix
The chairman said that the Justice Committee was a split committee of eight, with four members from National and four from Labour. Normally the report would be in three parts- the first being the committee report reflecting submissions- “so in this case their voice would be lost”- the second part recording the views of the Government/Labour Party, and the third part would be the views of the National Party. He said he believed that National MPs were now disappointed their views were not reported to the House. Mr Huo said:
During considerations, officials and advisers have been subject to criticism and attack. Dr Smith went as far as moving a motion of no confidence in the advisers and officials. With due respect, Dr Smith should really not challenge the advisers and officials,
because their job is to explain the policy initiatives. He should really challenge the Minister who is responsible for the Government policy initiatives.xx
Dr Smith then sought the leave of the House to table the draft Select Committee report on the bill and the amendments proposed by National so that they could be included in the record of the House. The Justice Committee chair tabled the draft report prepared by the Justice Committee. However, the report remains confidential to the committee, despite being tabled in the House. The Standing Orders Committee considered the release of draft reports in its 2017 review and concluded that “a draft report should remain confidential to a committee after the business to which it relates has been reported”.xxi
The only Green Party MP, Golriz Ghahraman, who took a call in the Second Reading, revealed that her party’s change of stance on such legislation was the price it paid for coalition politics. She thanked the submitters and acknowledged that many of them, including previous Green MPs Jeanette Fitzsimons and Keith Locke, would be disappointed with the Green Party support for the bill. She said it had been the most difficult decision for the party since the 2017 election and referred to the party’s vehement opposition to bills like this in 2001 and 2005. She said:
...the competing principles is that the Green Party is now committed to this new, multi- party Government, built on the merging of three parties’ priorities in the first true multi-party Government...
Our confidence and supply agreement includes a commitment to act in good faith to allow Labour and New Zealand First to implement their coalition agreement....So it is this commitment to good faith and our commitment to see the new Government succeed that has decided our position on this bill.xxii
She went on to say:
To be clear, we do not think this is a particularly good bill. We don’t think it addresses a pressing issue in New Zealand today, and we do have concerns about party caucuses being able to remove MPs from Parliament. So, yes, this was a difficult decision, but it has come about because we’ve decided that this new Government must succeed and we must support it in good faith to succeed.xxiii
Green co-leader James Shaw was equally as ambivalent about the bill in its Third Reading referring to the difficulty of grappling with two competing principles- the party’s strong, historical opposition and good faith. He said the decision made on the bill “is not typical or the sorts of decisions that we have made or will make in this parliamentary term”.xxiv He then went on to suggest to the National Party that if a party did not want to exercise or have the ability to exercise the bill’s provisions it could include a clause in its party constitution barring it from doing so. The Green Party as part of its constitutional review was looking at this possibility.
Rt Hon. David Carter, the former National Government Speaker, told the House that what had
become clear throughout the debate is that “a deal’s been done.”xxv
We know that the deal is the Greens got their oil and gas prohibition ban passed-to affect economies of New Zealand, but particularly Taranaki- and in return for that deal, they agreed to vote for the Electoral (Integrity) Amendment Bill.
The Minister of Justice, Andrew Little, said the bill had been well scrutinised and canvassed, both in the Justice Committee and the House. He said:
The committee of the whole House expended more than 21 hours examining this piece of legislation, and for very good reason too. It’s an amendment to our Electoral Act and where there is not a consensus across the House on changes to our Electoral Act, it is important that the legislation is very closely scrutinised, and members opposite certainly did that.xxvi
Thirty five Supplementary Order Papers were tabled and debated during the Committee stage but none were passed. Human Rights issues were raised by both the Minister of Justice (Third Reading) with a reference to the argument in the Attorney-General letter that there was a balance between freedom of speech and conscience issues and respecting the decision of the voters to have a proportional representation in the House. The argument was constructed as a choice between individual members’ rights and those of the voters. The Opposition raised freedom of speech arguments with the argument being led by Dr Nick Smith (Third Reading).
The Bill was enacted without amendment and received the Royal Assent on 3 October 2018 and became law the same day.
The Select Committee process
A number of officials submitted to the Select Committee raising significant concerns about the implementation of the bill. David Wilson, the Clerk of the House of Representatives said:
Although the House of Representatives holds a number of different privileges, the freedom of speech privilege is one of the oldest and perhaps the most foundational. Its statutory basis was established in Article 9 of the Bill of Rights 1688, which was unambiguously reaffirmed by parliament in the Parliamentary Privilege Act 2014. The meaning of this privilege, in essence, is that members of the House are free to say what they wish to say in the course of parliamentary proceedings because those proceedings cannot be questioned or impeached in a court or tribunal. The primary purpose of this privilege is constitutional rather than political-it operates to prevent conflict arising between legislative and judicial branches of government so that the House may operate efficiently.
He said the current version of the Bill risked inviting the Courts to question proceedings in the course of applying the proposed law. The reasonableness of a parliamentary party leader’s view that a member had acted in a way to distort the proportionality of party representation “would be judicially reviewable, which would involve the courts scrutinising and judging the member’s behaviour. The concern is that the courts may seek to rely on parliamentary proceedings in doing so.”xxvii
The Electoral (Integrity) Amendment Bill was not referred to the Legislation Design and Advisory Committee prior to introduction. Its External Subcommittee reviewed it and submitted that the Bill be amended to ensure that the Parliamentary Privilege Act 2014 was not a barrier to the availability of judicial review as a remedy for parliamentary members who are removed under the Bill’s provisions. It also recommended delaying the commencement of any legislation until after the dissolution or expiry of the current Parliament.xxviii
Public submissions
The Departmental Report provided a breakdown of the submissions and made no recommendations for changes to the Bill. Nine submitters supported the intent of the Bill but thought it should be limited to list members while one further submitter supported the Bill but suggested amendments. Six submitters did not declare a clear position for or against the Bill. These submitters included the Clerk of the House and the Legislation Design and Advisory Committee. The remaining 40 submitters opposed the Bill. A variety of arguments were given by the submitters but 18 submitters expressed reservations about the Bill of Rights consistency with the rights to freedom of speech and association.
Among those opposing the Bill were two former Green politicians, a group of academic and constitutional lawyers, several law students and two former Speakers of the House.
Former example, Jeanette Fitzsimons described the bill as a poor solution looking for a non- existent problem. While defections from political parties were an early feature of electoral system transition from First Past the Post to Mixed Member Proportional they had largely dried up. There had been only three in the 18 years since 2000. She said that dissent is a valuable part of the political process and while it could be uncomfortable, the remedy was inclusiveness and listening and wide discussion “not shutting down the political process”.
Major unsignalled changes in policy by parties have led to a number of the realignments of Members in order to better represent their constituents and their consciences- notably the move to neo-liberalism in 1985; division over war in Afghanistan in 2002; the Foreshore and Seabed legislation in 2004. The Bill is founded on the idea that parties are always right and dissidents always wrong. That is far from the case.xxix
Long-time opponent, former MP Keith Locke, told the Select Committee he had spoken up against similar legislation when it was first mooted in 1997 and in Parliament against the 2001 and 2005 versions of near-identical legislation. The Bill violated the rights of MPs to free speech and freedom of association and he quoted Green co-leader Rod Donald describing the 200-1 bill as “the most draconian, obnoxious, anti-democratic, insulting legislation ever inflicted on this Parliament”. Locke stated that some had argued that the amendments to the bill at Select Committee stage might make it more acceptable but he could not see how that could happen. He also said:
Others have argued that the Bill’s application could be limited, so it didn’t apply to certain parties. However, it would be very odd, and hardly principled for a party to vote for a Bill, with a proviso that it didn’t apply to that party, either through something added to the Bill, or something added to that party’s rules.xxx
Nineteen legal academics and political scientists opposed the Bill with or without amendment on the basis that it represented “an undesirable and harmful extension of legal regulation into an area that is better controlled by political imperatives and electoral judgments.” They detailed four reasons why the legislation was inadvisable- because such legislation created more problems than it solved; because political defections were not a major problem; because there were effective political sanctions where they occurred and because it may well violate the BORA. The academics suggested that the proportionality of political party representation was treated as a relative rather than an absolute good with the existence of ‘overhang’ seats and in other situations.xxxi
Professor of Law at the University of Auckland, Janet McLean, emphasised two points stating that the Bill was a ”major change to New Zealand’s current constitutional arrangements and not the democracy-enhancing measure it claims to be.” She said that the Bill elevated the principle of proportionality to a central position in the constitution “which it has never held”. She also said:
The foundational principle of New Zealand’s constitution is that the government of the day may continue in office for only as long as it continues to enjoy the support of the House of Representatives. That is both the source of a government’s mandate and a limitation on such a mandate. The Bill gives a Parliamentary leader of a party (including a Prime Minister) the power to sanction MPs who by their actions indicate they intend to cross the floor of the House including in a possible vote of no confidence. This would be a serious change to the New Zealand constitution and undermine one of its central democracy-protecting mechanisms.xxxii
Law student Erin Gourley of the University of Otago was one of many submitters who made reference to Germany’s protection of the freedom of Members of Parliament in its Basic Law which states at Article 38 that: “ they shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.”xxxiii
Former Speaker, Rt Hon David Carter, referred the Committee to the Inter-Parliamentary report that criticised electoral legislation that created “political party dictatorships” arguing that the free mandate of MPs was an indispensable guarantee of parliamentary democracy.xxxiv The report followed a global survey of laws relating to MPs who lose their mandates because of dissent. It reflected on material from its own Committee on the Human Rights of Parliamentarians which stated:
While party loyalty and discipline are necessary for the proper functioning of a democracy, they must never impair the full and effective exercise of freedom of expression and association by any member of that party since these are overriding fundamental human rights.
...It cannot accept, in light of the provisions of Article 19 of the ICCPR, that mere expression of a political view can lead to such a serious sanction as loss of the parliamentary mandate.....
The Human Rights Committee recognised that a political figure may be excluded from his or her party for having expressed views deemed unacceptable by the latter,” but can hardly admit that a parliamentarian who has been expelled from a party for that reason should lose his seat, in the last resort solely for having exercised his or her right to freedom of speech...”.xxxv In the IPU report’s recommendations it was suggested that electoral laws should seek to prevent excessive party control.
Party control was referred to by another former Speaker who submitted to the Select Committee. Rt Hon Lockwood Smith opposed the bill on the basis that it impaired long standing democratic traditions of the New Zealand parliament.
During my 29 year political career as both a constituency and list member, parliamentary debate became more constrained and increasingly controlled by political parties. Accountability to political parties has been strengthened at the expense of accountability to voters, especially local constituents. The instances of Members crossing the floor (common in similar jurisdictions in UK, US, Australia and Germany) has become almost non-existent. There is no case to impose an even tighter regime on MPs with this Bill. The current sanctions on an MP of future selection as a candidate, future list rankings, allocation of Ministerial/Spokesperson roles and select Committee roles provide ample incentive for members to try as far as possible to resolve issues internally within a party.xxxvi
The New Zealand Human Rights Commission was wary of recommending the passage of the Bill where the human rights issues are finely balanced. The Commission argued “it would not be appropriate to advance this Bill without careful scrutiny of its human rights implications in this context where: a. rights implicated by the Bill are fundamental to the running of a democracy; b. the issue of whether the limits on these rights are justified is finely balanced: and c. the Committee has the opportunity to consider changes to the Bill that could reduce
the risk of NZBORA inconsistency.”xxxvii The changes recommended included a distinction being drawn between list and electorate seats; allowing a MP to amicably depart from their Party and remain in Parliament as an independent; and the Bill should provide for a MP to remain in Parliament where the political party ceases to exist or has its registration cancelled.
The Departmental Report identified the common suggestions for changes to the Bill. While several submitters opposed the Bill in its entirety, they also suggested a variety of changes with the most common being differential treatment for list and electorate MPs; and clarifying the availability and scope of judicial review. Amongst the other submissions were suggestions to delay the Bill until there was a comprehensive review of the electoral system; the Bill would damage New Zealand’s international reputation because a significant constitutional change was being made on a simple majority; and constraining MPs free conscience thereby increased the power of the political party and their leaders.
The submissions reflected support for the freedom of individual MPs to express themselves without constraint. The Government position reflected the fundamental importance of the proportional electoral system to the maintenance of good government. These competing principles were described as finely balanced and reflect a lack of constitutional clarity in New Zealand on the rights and responsibilities of elected representatives and governments.
Conclusions
The bill’s passage, however, is troubling from a human rights perspective. New Zealand’s 52nd Parliament comprised a coalition agreement between three not equal parties pursuing differing policy agendas under tenets of good faith. The legislation was an early test of the political incentives as Green Party MPs swallowed the “dead rat” as the price of coalition survival.
The complexity of the tension between the fundamental rights of freedom of expression and association and the principles of proportionality and electoral stability were reduced to two stark positions- either for or against in the legislation in this context. As a result, political partisanship and blunt political expediency ultimately saw legislation that arguably imposes rights limits that could fail the BORA section 5 justification test, even if reasonable differences on questions of proportionality are taken into account.
The absence of a section 7 report was debated during the passage of the bill. In an interview the Attorney-General David Parker said of his opinion on the issue: “there are some reasons why it is not a section 7, and reasons why there is no need for a section 7 report.” He said there had been two previous section 7 reports relating to similar, previous legislation one by former Solicitor-General John McGrath and one by former Solicitor-General Terence Arnold. “They’re both similar...it’s an arguable proposition both ways”.xxxviii
The Attorney-General said the issue was finely balanced but he was satisfied the limitations this Bill causes to the freedoms of expression and association are proportionate and therefore justified in a free and democratic society. The New Zealand Law Society took issue with this and said that the requirement to show that limits were demonstrably justified required an evidential basis. This was particularly important when the rights impairment was significant; the proposal had not resulted from detailed policy analysis; and there was no Regulatory Impact Statement. The small number of historical MP defections also undermined the need for rights-limiting legislation.xxxix
While the Government’s position favoured retention of the balance of election representation, former Green MP Keith Locke in an argument favoured by many submitters suggested that freedom of expression and association, especially for Members of Parliament, simply could not be traded off. “Freedom of speech and association are pretty fundamental. They cannot be out-weighed.”xl
The Select Committee deliberations were clearly politically charged as were the Three Readings of the bill in the House. This was evidenced by absence of agreement over the committee’s draft report. While the draft report was tabled in the House after a tussle between National MP Nick Smith and Justice Committee chair Raymond Huo over who should table the document first, it was not made available to the public and not published on the parliamentary website. The Review of Standing Orders 2017 considered the publication of draft reports and considered they should remain confidential to a committee.
Draft reports are prepared for committees by secretariat staff as a service to the committee, and first drafts of reports do not necessarily reflect a committee’s views. It is paramount that the relationship between members and committee staff remains free and frank. We believe that routine publishing of draft reports could undermine this relationship.xli
Given that the current speaker Hon Trevor Mallard disagreed with the position while in Opposition, it would be useful to revisit the publication of draft select committee reports in light of enhanced transparency and accessibility of parliamentary proceedings. Trust between officials and Select Committees is important but first drafts that do not reflect committee positions would surely be amended in the normal course of business to reflect the committee’s stance or positions where there is more than one. If a document is tabled in the House it should be available for public scrutiny.
Officials aiding the Justice committee were unfortunately criticised by politicians. And while the public including legal experts used the opportunity to submit to the Select Committee, not a single amendment to the bill was made in recognition of strong opposition to the legislation or advice from those who felt it needed revision.
Whatever the ambitions of the Select Committee in scrutinising potential legislation such as this for rights infringement, history is likely to record the party-hopping legislation as a
casualty of coalition politicking and political party deal-making. It is an example of legislation that potentially breaches fundamental human rights.
i Prebble v Huata [2005] 1 NZLR 289.
ii Parker, D. (December 2017). Electoral (Integrity) Amendment Bill. p.1.
iii Ibid, p.2. iv Ibid, p.3. v Ibid, p.4.
vi New Zealand Parliament (30 January 2018) Hansard Debates.. Electoral (Integrity) Amendment Bill-First Reading, p.1. https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/H
vii Ibid.
viii Ibid, p.2. ix Ibid, p.13. x Ibid.
xi Ibid.
xii Ibid, p.14. xiii Ibid, p.3. xiv Ibid,p.4. xv Ibid, p.5.
xvi Ibid at p.11.
xvii New Zealand Parliament (2 August 2018) Hansard Debates. Electoral (Integrity) Amendment Bill- Second Reading. p.3.
xviii Ibid, pp3-4.
xix Ibid, p.19.
xx Ibid.
xxi New Zealand House of Representatives (July 2017) Review of Standing Orders, Report of the Standing Orders Committee. Fifty-first Parliament Standing, p.23.
xxii Ibid,p.14.
xxiii Ibid, p.15.
xxiv New Zealand Parliament (27 September 2018) Hansard Debates. Electoral (Integrity) Amendment Bill- Third Reading. p.15
xxv Ibid,p.13.
xxvi Ibid,p.1.
xxvii Wilson, D. (28 February, 2018). Submission- Electoral (Integrity) Amendment Bill.
xxviii McLay, G (18 March 2018). Legislation Design and Advisory Committee correspondence.
xxix Fitzsimons, J. (2018) Submission to Justice Select Committee. Electoral (Integrity) Amendment Bill.
xxx Locke, K. (15 March, 2018). Submission on the Electoral (Integrity) Amendment Bill to the Justice Select Committee.
xxxi Justice and Electoral Committee (2018): Joint Submission on the Electoral (integrity) Amendment Bill. xxxii McLean, J. (16 March 2018. Electoral (integrity) Amendment Bill. Submission to the Justice Select Committee.
xxxiii Basic Law for the Federal Republic of Germany, 1949, Article 38.
xxxiv Kedzia, Z and Hauser, A (2011). With Justice Committee “The impact of political party control over the
exercise of the parliamentary mandate”. Inter-Parliamentary Union, Geneva. Switzerland.
xxxv Ibid,p.21
xxxvi Smith, Lockwood (2018). Justice Select Committee, re Electoral Amendment (Integrity) Bill.
xxxvii New Zealand Human Rights Commission (2018) Submission on the Electoral Amendment (Integrity) Bill.
xxxviii Interview with Attorney-General David Parker, Auckland, 2018.
xxxix New Zealand Law Society (15th March 2018). Submission on the Electoral (Integrity) Amendment Bill
xl Interview with former Green MP Keith Locke, Auckland, 2018.
xli Ibid at footnote xxi, page 23.
Parliamentary scrutiny of human rights in New Zealand: Summary report
Introduction
The legitimacy of Parliament and its ability to function are of concern in several jurisdictions internationally (Saunders, 2019).i In New Zealand there is evidence of declining political trust coupled with poor parliamentary behaviour. These elements add to a growing concern about Parliamentary practices when making laws in New Zealand. For example, the recent Who Do We Trust Survey conducted by IGPS/ Colmar Brunton (March, 2019) recorded that trust in both government ministers and Members of Parliament has decreased.ii Declining political trust has in part been blamed on citizens feeling they no longer have a voice in the system coupled with an unresponsive system (Goodwin, 2019).iii Trust and evidence of poor behaviour and cultural norms when working in Parliament point to a new dynamic of fractured politics. The 2019 independent review of the New Zealand Parliamentary Workplace identified unacceptable behaviour in any workplace, let alone Parliament.iv
A recent report on developing policy options for parliamentary scrutiny of long-term governance and stewardship highlighted the need for a general review of parliamentary processes to ensure better governance in the way in which laws are made.v It adds to other commentary that law making requires attention. Constitutional reformer, Sir Geoffrey Palmer, has consistently urged a review of law-making in New Zealand indicating that the methods of making statutes are problematic and need reconsideration.vi The New Zealand Law Society recommended changes to strengthen parliamentary scrutiny including structural reform to reduce legislative backlogs, improve technical scrutiny and enhance “open- government.”vii
Parliament has made incremental changes through successive Standing Orders Reviews such as improvements to the use of urgency and greater Select Committee availability of section 7 reports. Additionally, the evolving Legislative Design and Advisory Committee works to improve pre-legislative scrutiny. But there are distinct gaps, too, in Parliamentary processes when making laws in New Zealand. The research highlights several democratic deficits with a particular focus on parliamentary scrutiny of human rights.
The case studies of bills as they pass through different stages in the House to Royal Assent are a useful barometer as to whether, and how, Parliament is undertaking its role in the protection and promotion of human rights. Interviews undertaken with the Speaker of the House, a variety of Select Committee chairs, other rights-advocating MPs and a range of officials offered insights into the levels of recognition by Parliamentary actors in identifying human rights issues and in legislating to address human rights violations. A specific focus of the research related to the effectiveness of the select committee mechanism in scrutiny of human rights issues.
Assessing the everyday, practical effectiveness of select committee scrutiny is difficult. The influence of parliamentary mechanisms may not be visible and may be indirect (Hutchinson,
2018;viii Webb and Roberts, 2014ix). Hutchinson (2018) states that an assessment of effectiveness that focuses solely on legislative outputs may only be capturing a small fraction of parliamentary activities. This study does not rely only on an assessment of legislative outputs (Sathanapally’s (2014)x. Instead it refers to Institutional mechanisms for human rights scrutiny; the culture of human rights; rights dialogue; as well as legislative outcomes.
The analysis utilised data gathered from multiple perspectives and includes a range of evidence from the case studies, interviews, participant observation, archival material and previous political experience.
The presentation of summary comment and recommendations follows the parliamentary process of legislation and the possible points of intervention for human rights scrutiny, including prior to law-making. For example, policy formation and the preparation of legislation is examined. Within the parliamentary process, the composition of Select Committees, the role of officials, and public participation as well as training for Select Committee chairs is analysed. Parliamentary processes, including the passage of rights- breaching legislation and the lack of attention to international human rights treaties, is evaluated. Finally recommendations are suggested to improve parliamentary scrutiny of human rights and to revitalise the role of the New Zealand Human Rights Commission in the legislative sphere.
Policy formation
The ideal environment in which human rights are taken seriously would include detailed rights analysis of the policy formation stage of potential legislation, including whether law-making is the best option or whether other options such as education or better implementation of existing policy will better achieve the same policy objectives. One MP told us that the most significant change that Parliament could make to ensure its scrutiny role was to guarantee that no legislation was either introduced or passed that breached human rights. Another suggested that all potential legislation should be considered from a rights-based perspective. “That should be the starting point. Where does this fit in our human rights framework and are rights threatened by it? “
Policy formation inclusive of rights prior to the incorporation into legislation is critical. Several concerns arise. One is there is too much quick law-making impacting negatively on parliamentary processes, and another concerns policy formation which impacts on the quality of legislation. Concern about New Zealand’s law making practices was expressed as early as 1979 by Sir Geoffrey Palmer in his text, Unbridled Power.xi Former Attorney-General Chris Finlayson has also described New Zealand in terms of “chronic micro-legislators” with an enormous statute book of approximately 65,000-70,000 pages of law and with a quantity of law as so great that it strains the principle of the rule of law.xii The pattern of passing too much legislation too quickly and the introduction of substantive Supplementary Order Papers at the last minute without rights scrutiny, undermines the quality of laws made.
The Speaker of the House, Hon Trevor Mallard, in an interview said:
The whole legislative process would be improved by a return to White and Green papers that enable a full discussion of policy issues before they are incorporated in a Bill. Such a process would enable an early intervention to ensure the human rights implications were addressed and would reduce ministerial ownership.
The current process is rushed with a tick box approach and lacks coherence. Better quality would come out of slowing down and negotiating policy change rather than bits being bolted onto legislation as late changes. It is a waste of parliament’s time having to go back to fix up legislation.xiii
The Speaker cited fisheries legislation as an example of legislation that returned time and again to Parliament. At the extreme end of rushed and poorly conceived policy and legislation that also undermined constitutional norms was the Public Health and Disability Amendment Act(PHDAA) which was passed into law under urgency in a single sitting day, bypassing Select Committee scrutiny and precluding public participation or informed debate in 2012.xiv The UN Human Rights Committee has noted that it is expressly possible to enact legislation contrary to the New Zealand Bill of Rights Actxv and the PHDAA legislation is an egregious example. Attorney-General David Parker said in an interview that the former Government had paid a big political price for the amendment legislation. The former Attorney-General, Chris Finlayson, concluded it potentially breached sections 19 and 27 of the Bill of Rights, concerning the right to be free from discrimination and the right to judicial review. xvi Despite this the bill was rushed through. Six years on in 2019, the Government announced its intention to repeal Part 4A of the PHDAA which is inconsistent with human rights legislation because it denies families the right to complain about breaches of their human rights relating to family care policies.xvii
Members’ bills, for which there is limited resource from officials, could also benefit from greater pre-legislative policy consideration. Jan Logie, Parliamentary Under-Secretary to the Minister of Justice on Domestic Violence, spent seven years thinking about and working on the Domestic Violence- Victims’ Protection Bill, an omnibus bill involving strengthening human rights protections. In an interview she said that on reflection it would have been smoother if she had updated the bill before it was pulled from the ballot to reduce the need for so much change to existing laws.xviii The bill amended multiple pieces of legislation and its passage would have been easier with greater policy coherence up front, requiring better support from officials at the policy formation stage.
The Speaker, Hon. Trevor Mallard, favoured early publication of bills as a proactive disclosure of the legislative schedule. The New Zealand Law Society has been critical of the lack of visibility of the Government’s legislative programme at the start of each parliamentary session and promotes less secrecy so the public has warning of impending legislation. It has also suggested that circulating drafts of Bills in order to promote public input at an early stage would help ensure policy coherence.xix We support these suggestions and have repeated
them here. A contemporary example of a bill that could have been substantially improved by draft circulation to ensure greater policy coherence and civil society support is the Equal Pay Amendment Bill, 2018. Submissions from non-governmental organisations (NGOs) and individuals at the Select Committee raised fundamental issues such as transparency of processes and human rights concerns which warranted earlier consideration.
Recommendations:
Preparation of Legislation
The Legislation Design and Advisory Committee (LDAC) plays a crucial role ensuring legislation introduced into Parliament is compliant with the government’s human rights obligations as set out in the Legislation Guidelines.xx The Guidelines have been adopted by Cabinet and are the government’s key point of reference for assessing whether draft legislation is consistent with accepted legal and constitutional principles including human rights.xxi Several chapters of the guidelines relate to “Constitutional Issues and Recognising Rights” and Chapter 7 provides guidance to assist departments with identifying whether proposed legislation might unjustifiably discriminate on its face or application, and how that might be avoided.
At an interview with the Attorney-General David Parker and Paul Rishworth QC, then Chair of the LDAC, a briefing paper was provided that explained the three ways in which LDAC carries out its role in practice.xxii An important point was that LDAC should be seen in the context of wider systemic safeguards for human rights, namely, the Ministry of Justice and Crown Law’s roles in supporting the New Zealand Bill of Rights Act 1990 and the Parliamentary Counsel Office’s (PCO) role in advising on good legislative practice.
The role of LDAC is to advise departments during the initial stages of developing legislation, at the time legislative proposals and drafting instructions are being prepared. It advises on basic framework and design issues and consistency with fundamental legal and constitutional principles. Because it cannot provide advice on all Bills prior to introduction, LDAC also has a role in reviewing bills that are before Parliament. The Committee may, and does, make submissions to Parliamentary Select Committees on issues of inconsistency with the Legislation Guidelines.
LDAC is not a policy or legal advisory committee. The role and activities of LDAC is set out in its terms of Referencexxiii and the Attorney-General appoints the members of the Committee. Apart from advising on legislation, LDAC advises on the “design, framework, public law, and constitutional issues to be addressed early, when the most value can be added.” xxiv LDAC was established as part of the “suite of initiatives to improve legislative design and quality, including the Parliamentary Counsel Office’s (PCO) vision for great law and stewardship of the statute book, the Treasury’s focus on regulatory quality and stewardship, and departmental chief executives’ regulatory and legislative stewardship obligations.”
LDAC merged and built on the work of the Legislation Advisory Committee that operated from 1986 to 2015 and the Legislation Design Committee from 2006 to 2008. It comprised a membership mix of public officials, private sector lawyers, economists and academics. The LDAC members are appointed for renewable terms of three years. The membership includes human rights expertise. Initially a two-tier LDAC organisation was designed to enable the internal committee of public officials to intervene at an early stage of legislative developments, while the external committee of non-public officials is limited to input after the Bill is introduced.
The Briefing notes this system did not work as well as expected and led to inconsistencies of advice between the two committees. Basically, it appeared the external members were not being used effectively because issues of confidentiality and privilege excluded external members before the Bill was introduced. Cabinet therefore agreed to remodel the LDAC back into a single committee. This new structure better enables use of external members, including their human right expertise, at the pre-introduction stage of the Bill to Parliament. Under the new operating model, LDAC usually establishes a subcommittee of four members to advise on each Bill that comes before it, generally meets with the agency during the development of the Bill and provides advice after meetings.
A key function of LDAC has been to provide advice to departments during the early stages of developing legislation. LDAC is frequently involved with discussions at the policy formation phase and when legislative proposals and drafting instructions are being prepared. This early engagement is advisory and collegial and enables a free and frank discussion amongst officials to identify any issues contrary to the Legislation Guidelines, including human rights issues. This advice enables officials to advise their Ministers of possible human rights implications of their legislation before it proceeds to Cabinet. This role of LDAC may be described as the “first line of defence” that supports legislation that is human rights compliant. If legislation is not compliant the LDAC advocates that the Cabinet paper includes a justification for the departure from the Guidelines so that Cabinet can consciously address the issue. The Attorney-General may also wish to intervene with colleagues where non-compliance has been identified.
Paul Rishworth, QC, described the interaction in the following way:
Generally speaking in relation to the preliminary, pre-introduction advice we take the view that we will discuss with the departmental policy officials what’s proposed. We give our advice in a collegial way, not as gate-keepers. They might have questions and we might say “what about this”, then they go away and think about the information. Then if we feel we’ve given advice that wasn’t accepted, the sanction is to escalate it to the Attorney General who would perhaps take it up with the relevant Minister. But that’s happened once since the election.xxv
Risks have been identified in the current process. First, the LDAC subcommittee will often not see the final version of the Bill on which advice is given before introduction. Second, LDAC does not have the resources to advise on all Bills, nor on every aspect of every Bill that comes before it. Third, referral to LDAC is voluntary and reference is made by the Minister on the advice of the relevant department. In the last financial year, LDAC reviewed 19 pre- introduction Bills. It is important to note that all Bills are subject to a section 7 Bill of Rights ‘vet’. The LDAC does not function as a second ‘vetter’.
The second important function is that LDAC may make submissions on a Bill before a Select Committee and generally these are Bills that have not been subject to pre-introduction review. The primary value of this intervention is that it makes transparent any trade-offs that may have been taken in terms of human rights implications. Examples of submissions to a Select Committee are found in the New Zealand Security and Intelligence Bill, Care and Support Workers Bill and the Christchurch Cathedral Restoration Bill. In the year 1 July 2016 to 30 June 2017 submissions were made on 10 Bills before Select Committees. And in the year 1 July 2017 to 30 June 2018 submissions were made on nine Bills before the Select Committee. Of the bills examined in this research the LDAC external committee made submissions on the Electoral (Integrity) Bill, End of Life Choice Bill, Domestic Violence-Victims’ Protection Bill, but neither the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill, nor the Equal Pay Amendment Bill.
The third important role of LDAC is providing education and training to public officials relating to its role and the Legislation Guidelines. This educative role is through the advisory engagement and also through specific workshops. The committee also works with the Office of the Clerk, PCO and the Cabinet Office in regular seminars to new public officials explaining the process of policy to legislation.
It is obvious that in the life of a Bill, the LDAC has a crucial role in ensuring legislation complies with the human rights obligations identified in the Legislation Guidelines. It is also apparent it lacks the resources to more fully leverage its current work on individual bills to achieve wider impact across the public sector. It is to be hoped the re-modelling of LDAC will continue to increase its authority and effectiveness.
Recommendations:
The Legislation Bill before Parliament provides for a Disclosure Statement to accompany Government
Bills that provides information about the policy background to the Bill and any matter in the opinion of the Chief Executive calls for particular attention. Section 106 (2)(a) provides for “information about the departures from the legislative guidelines or standards”.
Recommendation:
Parliamentary Process
Standing Orders (SO) provide the rules that govern the jurisdiction and procedures of Select Committees. They are reviewed every three years and amendments are made if approved by the Standing Orders Committee (SOC). The review is open to public submissions and over the past three reviews submitters have urged greater scrutiny of legislation to ensure human rights issues are considered. The 2014 Report of the Standing Orders Committee recommended that the Attorney-General present section 7 Reports that identify breaches of the Bill of Rights to Select Committees for consideration.xxvi Section 7 requires the Attorney- General to report to Parliament if he or she considers a provision in a proposed bill is inconsistent with any of the rights or freedoms in the New Zealand Bill of Rights Act 1990 (BORA). Three years later in 2017, the Committee noted that the recommendation for the section 7 reports to be sent to Select Committees was working satisfactorily.xxvii This was affirmed by interviews. For example Louisa Wall MP, Health Select Committee chair, said:
We weren’t required to take into consideration the section 7 reports until the last Parliament. They were done but no one even bothered to look at them. Now they do and there aren’t many pieces of legislation where they are ignored.xxviii
Jan Logie, Green MP, said Select Committee members can ask to see any section 7 reports that have gone to the Attorney-General but do not get to prompt them. There were some Bills that she did not understand why there was not a section 7 analysis undertaken. Foreign Affairs, Trade and Defence Select Committee chair, Simon O’Connor MP, warned of the challenge for Select Committees relating to section 7 reports.
To be honest there’s a challenge for Select Committees because it has become just a process...oh yes, we’ve got the section 7 report, let’s table that. There‘s a bit of a risk that Select Committees don’t spend as much time engaging with them and it becomes a tick box exercise. Part of it is the accessibility of the document with MPs wondering what does this even mean. Part of it is that members are busy and just don’t have time to sit back and fully read every item so they end up relying very heavily on officials to incorporate the issues into their reports.xxix
The 2017 Committee did recommend that the Attorney-General can report an amendment to Bills that appear inconsistent with the BORA at any time during the legislative process (not just on the introduction of the bills) and that it encouraged the practice. The SOC further noted that there was sufficient existing provision for the implications of the BORA to be drawn to the attention of Parliament by the Attorney-General. Attention was drawn to the provisions of the Legislation Bill that would strength the Government regarding the BORA implications of its own legislative proposals.
The recommendations of the 2014 Report may have relied on a 2014 Legislation Amendment Bill that did specifically refer to the disclosure of Bill of Rights and human rights issues. This Bill did not proceed beyond its first reading and while general disclosure provisions are included in the Legislation Amendment Bill 2018, specific reference to human rights and Bill of Rights is omitted. The Legislation Amendment Bill 2018 is currently awaiting a second reading. The Bill does make provision for disclosure by the government of legislation it initiated. The NZ Law Society in its submission on the Bill noted:
Consideration could be given to extending the material that is required to be disclosed. The nature of the administrative arrangements to be set up to administer the particular piece of legislation are important in assessing the provisions in a bill. So is the cost of the policies contained in the bill. Similarly, Treaty of Waitangi issues and Bill of Rights issues could also be relevant as they are likely to be discussed at select committee proceedings and be the subject of submissions where a bill raises points of concern.xxx
The Bill as reported back does not make specific reference to the Bill of Rights or human rights issues being specifically disclosed. This means the SOC recommendations that the Attorney- General has the means to ensure the human rights implications of legislation is addressed by the legislative process, lacks some substance. The only substantive change has been that the Attorney-General can raise a section 7 issue at any stage of the legislative process and not just on introduction of the Bill. The committee also noted that there had been a strengthening
of BORA reporting through the inclusion of such matters in the Regulatory Impact Statements and the requirement that there be a report on the BORA implications of Supplementary Order Papers.xxxi
The cases studies and other evidence, including SO, shows that while there is recognition of need to comply with the provisions of the BORA, the requirement to comply with the Human Rights Act (HRA) is not so clear. There seems to be an assumption that the BORA covers all human rights when it primarily addresses civil and political rights. This means social, economic and cultural rights are not accorded the same scrutiny. It is assumed they do not have the same status because there is no requirement for the Attorney-General to present to Parliament a section 7 report relating to compliance with these human rights obligations. The United Nations Committee on Economic, Social and Cultural Rights recommended to New Zealand in 2018 that its ensures that all human rights, economic, social and cultural as well as civil and political rights have equal status.xxxii Although there are obligations to consider human rights obligations by the Government when enacting policy and legislation under the Cabinet Manual and inclusion in the Regulatory Impact Statement, there needs to be more explicit requirement in SO for Parliament to address both BORA and HRA obligations.
The Cabinet Manual provides when preparing legislation that:
7.65 Ministers must confirm that bills comply with certain legal principles or obligations when submitting bids for bills to be included in the legislation programme. In particular, Ministers must draw attention to any aspects of a bill that have implications for, or may be affected by: the principles of the Treaty of Waitangi; the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993; the principles in the Privacy Act 1993; international obligations; and the guidance in the LAC Guidelines.xxxiii
It is argued that the regulatory framework for consideration of human rights issues by both the Government and the Parliament makes a distinction between civil and political rights under the BORA and social economic and cultural rights included in international treaties that have been ratified by New Zealand and incorporated in legislation such as the HRA. The fundamental issue is that social, economic and cultural rights are not accorded the same status as civil and political rights. It is section 7 reports that require specific consideration by Select Committees and Parliament, whereas attention to other human rights substantially rely on rights issues being identified by submitters or individual Members of Parliament and raised in law-making. This is perhaps one reason why constitutional reformers, Sir Geoffrey Palmer and Andrew Butler, want to see the BORA broadened to include the range of rights actually recognised in the New Zealand legal system and in international human rights treaties. These include equality, education, the environment, socio-economic rights, privacy and the right to property among others.xxxiv
There is no specific requirement for a Select Committee or the Parliament to be notified of a breach of the Human Rights Act. The result is that legislation can breach human rights
obligations or that Parliament knowingly enacts legislation in breach of human rights. The New Zealand Law Society compiled a list of legislation that breached human rights in a civil society shadow report to the United Nations Human Rights Council in 2018.xxxv Seven bills were enacted into law despite a negative section 7 report by the Attorney-General between 2009-2016 including the Public Health and Disability Amendment Act, prisoner’s voting legislation, and other penal legislation. Four more pieces of legislation (immigration and criminal justice bills) were enacted despite serious human rights concerns. Three pieces of legislation, including the Electoral (Integrity) Amendment Bill (one of the case studies) raised questions of compliance with New Zealand’s domestic and international human rights obligations. The Law Society recommended that no bill subject of a negative s.7 report of the Attorney-General should be enacted without Select Committee consideration and public submissions. It also suggested a sunset clause for rights-breaching legislation similar to recommended below.
Attorney-General Hon. David Parker said he favoured the introduction of a remedial bill of civil liberties to address some, but not all, of the issues addressed by the Law Society. He said the Attorney-General was meant to be the guardian of civil liberties but had no role to fix them because that function sat within the Justice portfolio.
You will be aware that I have been pushing this half way house under the Bill of Rights where we expressly confer a declaration power to the courts and create within Parliament a response which causes Parliament to revisit whether it overstepped the mark. Parliament can decide whether we should amend, repeal, or affirm what the courts have found not to be in accordance with human rights or the Bill of Rights.xxxvi
New Zealand told the United Nations Human Rights Council in its latest National Report for the Universal Periodic Review that:
The Government intends to propose legislation enabling senior courts to declare laws inconsistent with the Bill of Rights Act. Declarations of inconsistency will inform Parliament that the courts consider an Act is inconsistent with fundamental rights. Parliament could respond by affirming, amending, or repealing the law in question. The Government is carrying out work to determine how this legislative power could operate effectively.xxxvii
The “burdens of inertia” in the legislative process that result in rights-infringing laws remaining on the statute books by omission and delay and not driven by principled justification or resource considerations, are noted recent international human rights commentary.xxxviii Political, legal and bureaucratic barriers to remediation point to the imperative of avoiding rights-infringing legislation in the first place. But a remedial bill, or even the suggested “half way house” could mitigate instances where there is unsatisfactory parliamentary scrutiny of human rights. It could also help reset New Zealand’s human rights framework and is strongly supported in this research
Recommendations:
Select Committee Scrutiny
The notion that human rights issues should be “mainstreamed” throughout subject area Select Committees remains the major reason for resisting calls for a dedicated human rights Select Committee in the New Zealand Parliament. The 2017 reorganisation of Select Committees into 12 subject Select Committees sees human rights located as a nominated subject- area competency in the re-organised Justice Committee. Human rights sit alongside constitutional and electoral matters, justice courts, crime and criminal law, police, corrections, Crown legal services.xxxix
Mainstreaming human rights pre-supposes that departmental officers, committee members and members of the public have both the responsibility, opportunity and incentive to raise human rights-based concerns in other subject Select Committees. For example, it might imply that gender, age and ethnic minority discrimination analysis is regularly undertaken in the Social Services and Community Committee which includes the subjects of women, children, young people, seniors, Pacific peoples and ethnic communities.
The 2017 Standing Orders Review states that the slight reduction in the number of subject select committees from 13 to 12 would result in broader subject areas and thereby less compartmentalisation of committee business. The Review did not see any problem with potential overlaps in jurisdiction of committees-“it is for each committee to decide how to exercise its power to self-initiate business within its portfolio.”xl Human rights is designated within the one subject committee, Justice, even though human rights have broader implications across a spectrum of subjects and issues. Standing Order 188 outlines the subject select committees and nominates “their subject areas.”
However, there is no consistent approach to the mainstreaming of human rights issues in select committee deliberations evident from the research undertaken. One MP said:
I haven’t seen much evidence in Parliament of people responding to the concept of human rights. Mostly in committees the human rights framework gets discussed only when there is a section 7 report that prompts a conscious scrutiny.
In practice, rights-based deliberation in subject Select Committees other than Justice remains variable, indirect or non-existent beyond section 7 analysis or personal interest of an individual MP. It is contingent on factors such as whether any issues were raised at the early stages of drafting by the Legislative Design and Advisory Committee, whether there is a section 7 report, whether rights are raised by submitters, whether there is rights-attention in departmental reports, or whether committee members have personal motivations and subject interests. Most often human rights are raised directly or indirectly by public submissions, a pattern evident in the case studies. For example, several submissions to the Equal Pay Amendment Bill raised human rights issues despite there being no section 7 analysis undertaken. Equally, submitters raised compensation as a human rights concern in line with New Zealand being a signatory to the Yogyakarta Principles for those who had suffered stigma, isolation, family break up and even self-harm as a result of historic homosexual convictions.
The current configuration of Select Committee subject areas which has the Justice Committee as the ‘home’ of human rights along with constitutional and electoral matters, reinforces a narrow civil and political rights focus of human rights. Despite the Standing Orders Review (2014) statement that: “Bill of Rights scrutiny should be part of a mainstream discussion about legislative quality that takes place in all subject Select Committees and is applied in all policy contexts”xli, it has a low profile. A broader human rights perspective encompassing economic, social and cultural rights at a time when the most difficult societal issues relate to structural inequalities, disparities in outcomes and disadvantage suffered by vulnerable groups, is largely absent.
Calls for a dedicated human rights Select Committee in the New Zealand Parliament have been consistently rejected by successive governments for several decades. A specialist committee to undertake rights scrutiny of bills was recommended by the Justice and Law Reform Committee in its White Paper on a Bill of Rights for New Zealand. xliiIn 2003 the former Clerk of House, David McGee, urged that Standing Orders change to require Select Committees to report on whether provisions in bills appear to limit the rights and freedoms contained in the Bill of Rights, and if so, report on whether they could be demonstrably justified in a free and democratic society, under section 5 of BORA. In 2010, the New Zealand Human Rights Commission submitted to Parliament’s SOC that it was time for a new, separate human rights select committee, one that would debate treaty body reports in a standardised and dedicated forum.xliii Such a committee would allow for thematic inquiries and broad human rights scrutiny of proposed legislation. The SOC rejected the idea but recommended enhanced analysis of BORA rights and other constitutional matters.xliv
In 2014, the SOC stated:
A number of submitters sought the establishment of a human rights committee as a way to strengthen parliamentary oversight of human rights, with functions including human rights analysis of primary and secondary legislation, and advocacy on human rights matters, especially women’s rights and gender equality. It could be difficult to maintain the membership of such a committee, and in principle, this proposal could potentially marginalise important matters that already seem to be too confined to legal and academic circles.xlv
The SOC urged an increased emphasis on expressing rights issues in ways that were comprehensible, not only for members, but for the public in general. “The answer is not to shut NZBORA matters away in a specialist committee, as that could in fact be counter- productive”.xlvi The SOC said that the “challenge for the legal community, and for relevant NGOs, is to express these ideas more accessibly.”xlvii Human rights have been conflated to a narrower set of BORA nominated-rights. The implied criticism of the communicative powers of the New Zealand Law Society, a regular select committee submitter, and under-resourced NGOs signals a worrying self-insulation of the legislature. The idea that it is the public’s responsibility to ensure human rights are debated and considered by Parliament is symptomatic of a wider political malaise about the role and will of MPs to advance rights- based issues in the consideration and development of legislation.
In Human Rights in New Zealand: Emerging Faultlines, a number of academics, politicians and human rights lawyers and advocates drew attention to the need for a dedicated human rights select committee.xlviii Some wanted the committee to provide technical scrutiny, others wanted subject analysis and several suggested a hybrid role. The question of MP workload and the comparatively small size of New Zealand’s legislature led to the suggestion that rather than a new, stand-alone select committee, a re-designation of the then Justice and Electoral Select Committee (now Justice) to include human rights in its title and “make it responsible for oversight of New Zealand’s treaty commitments” would improve parliamentary scrutiny of human rights.xlix It was also suggested that the Māori Affairs Select Committee be given responsibility for monitoring human rights treaty recommendations relating to Māori and reporting to Parliament on their realisation.lSince then the Speaker, Hon Trevor Mallard said he believed there were currently still too many Select Committees and they should be reduced rather than increased. He couldn’t see a separate human rights Select Committee happening in future because it would need a broad party consensus.li It appears unlikely then that Select Committees will be increased in number in the short term to give human rights additional visibility. A recent call for a new specialist Select Committee to examine long-term governance may also not be heeded in the short term.lii
Given that “mainstreaming” is the current, preferred approach, there should be specific
Standing Order recognition that human rights inclusive of economic, social and cultural rights,
are identified and considered in accordance with New Zealand’s international obligations by
all Select Committees.
Recommendation:
Role of Officials
The scrutiny of human rights issues in Bills before Select Committees is dependent on submissions from the public and public institutions such as LDAC and Departmental officials, and on the advice the Select Committee receives from the Clerk’s Office officials serving the Select Committee. The Clerk’s Office has adopted the Enhanced Legislative Scrutiny (ELS) process as part of the Office’s Strategic Intentions 2015-18 to assist Select Committee scrutiny of legislation. Specifically, the ELS is designed to support the Parliament to monitor departmental compliance with the Departmental Disclosure Statements that are required under the Legislation Bill 2017.
The ELS process requires the completion of an ELS form for each Bill that includes the following question – do any provisions of the bill appear to limit any of the rights and freedoms affirmed in the BORA? Officials are trained to look for any section 7 Report from the Attorney-General relating to the Bill; any advice on the bill’s consistency with the BORA that is accessible on the Ministry of Justice website; and to consider on an individual reading of the bill whether there are any limitations on the rights and freedoms in the Bill of Rights have been identified.
In an interview with Rafael Gonzalez-Montero, former Deputy-Clerk of the House of Representatives and David Bagnall, then Acting Clerk of the Justice Committee and Clerk of the Standing Orders Committee, the role of the Clerk’s office in the training and supervision of clerks who support the Select Committees was outlined.liii They also identified the gaps in the Parliamentary process for the consideration of the human rights implications of bills before the Select Committee, in particular the lack of scrutiny of Supplementary Order Papers (SOPs) and any amendments made in the Committee of the whole stage in the process. Although the Clerk assisting any Select Committee cannot advise the Committee, the Clerk can identify and bring to the attention of the Select Committee any breach of the BORA, including a breach of human rights. The Clerk’s Office therefore plays a crucial role on the process of consideration of bill before Parliament. Where appropriate they work with departments responsible for a bill, LDAC and discuss rights implications to ensure bills that go through the Select Committee and are presented back to Parliament are compliant with human rights obligations.
The 2017 Standing Orders Review noted that since 1995 it had been suggested that amendments making substantial changes to a bill should be referred to a Select Committee to consider and possibly receive submissions. However the SOR Committee said while it supported the general principle it was a case of good practice rather than requiring a specific provision in the Standing Orders. The research, however, makes a case for the requirement of a specific provision and recommends that a mechanism that requires referral of substantial SOPs to Select Committees be prescribed.
Recommendation:
Officials were both praised and criticised by those interviewed. Several MPs were critical of the role of the Office of the Clerk backed up by departmental officials in advising a Select Committee not to prepare a report in relation to a recent bill under consideration. Former Senior Labour Whip, Ruth Dyson MP, said she had told the Select Committee chair that the advice was outrageous. “This is an inquiry where we called for submissions and on advice from officials decided not to hear the submissions and now the same officials were saying don’t report back, so you are going to offend people twice. Unbelievable”.liv
Former Justice Committee chair, Raymond Huo MP said sometimes the report back to the House had to be a compromise.
The End of Life Choice Bill was an example where at one stage it looked as if we could not agree and would have to send the Bill back to the House without a report after we had received 37,000 submissions, undertaken 48 regional visits, at a cost of $100,000. It would have been a huge waste of taxpayer’s money. So, as part of a compromise we agreed to make a technical report to the House but to leave it to the House to vote on the substantive issues. It was an achievement to get all members of the Committee to agree to this. It was a huge effort.lv
Simon O’Connor MP, said that early on new Select Committee chairs were reliant on officials to help them.
There is some feeling that officials come with their own agendas and are leading things too much on some committees. An example is where departmental reports come back to Select Committees, and they are often just accepted for the interpretation of submissions and who said what. It takes a very motivated MP to challenge and I do worry how much is led by officials at times. I don’t want to give the impression that we just sit there smoking our pipes over cups of tea enjoying life but it takes a very passionate MP or group of MPs to scrutinise and tease out issues of concern.lvi
Jan Logie MP praised the Clerks and said from an external perspective many looked to have huge workloads on busy Select Committees. Increased capability and capacity both of members and the officials servicing them is required to enhance parliamentary scrutiny of critical human rights issues.
Public participation
A unique feature of New Zealand’s law making process is the ability of the public to make submissions at Select Committee stage. Constitutional lawyer, Professor Philip Joseph (2017) says “Select Committees in New Zealand provide the scrutiny usually performed by a second parliamentary chamber and are therefore a crucial bastion of our democratic process.”lvii Civil society, Members of Parliament and the news media regard the opportunity to make public submissions on proposed legislation as a fundamental constitutional right. Of all the points of possible intervention in the legislation process, public submissions are arguably the most important symbolically and substantively as an expression of a vibrant and robust democracy
As McGee (2017) suggests it is in Select Committees that most of the intensive work of the House is carried on “whether of a legislative, financial or investigatory nature, or ..... of scrutiny.”
In select committees the public is involved directly in the work of the House. ...It involves tens of thousands of non-members each year-Government officials, members of public bodies, trade unionists, the business community, non-government organisations, representatives of associations and individual members of the public- who are themselves either the subject of some inquiry or scrutiny by a committee or, more often, wish to contribute to the consideration of a particular matter by a committee. This interchange between parliamentarians and the public as part of the legislative process is a distinctive feature of New Zealand’s parliamentary system.lviii
Several MPs interviewed emphasised the critical role of public submissions. Simon O’Connor MP said: “It is fundamental. It is a necessary condition not only because it adds to the understanding of Parliament but because people expect it to happen.”lix
Fellow Select Committee chair, Dr Deborah Russell MP, who now chairs Finance and Expenditure following a July 2019 Cabinet reshuffle, said:
I do see them as a fundamental constitutional right. It’s a check on the powers of government for starters and important to alert us to issues that we might not have understood and I can think of instances where that has happened. There‘s a particular bill we are hearing at the moment on indigenous fish and submitters have raised issues to do with the Resource Management Act that we possibly weren’t quite aware of. Similarly bills before the Finance and Expenditure Committee, especially highly technical ones. Submitters do raise technical tax issues stating ‘look there‘s a few things that need to be sorted in the legislation that are just not going to work” and that‘s fair enoughlx.
The public’s involvement in Select Committees clearly provides law-making with a greater legitimacy as a cooperative process and a greater public justification, which is relevant given the apparent declining public trust in politicians. Surprisingly, it is an aspect of legislative deliberation that has not been subject of sustained research attention.lxi Members of the public have one or more of the following rights-based motivations in making a submission on a proposed bill. They are:
relation to a bill’s clauses
MPs have several similar but also different motivations inside and outside of Select Committee hearings such as
Several MPs suggested that many public submissions do not frame human rights issues as such but draw on personal experience or singular individual impacts for their potency. That in itself can be transformative for MPs. For example, Matt King, National, Northland, spoke of the impact of submissions during debate on the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill.
As part of this current Parliament’s justice Committee, I’ve heard some pretty convincing and emotional submissions from people grossly affected by these outdated laws. Quite frankly, this legislation is overdue.lxii
Others suggested that it is often submitters who make human rights explicit in the law-making process even if they are not successful in changing minds. For example, former Green MP Keith Locke, strongly argued in a submission to the Select Committee on the Electoral (Integrity) Amendment Bill and in news media opinion pieces, that supporting electoral stability at the expense of freedom of expression and association could result in a serious breach of fundamental human rights.
How human rights are expressed in select committees raises the question of whether members of the public should always be heard by Select Committees. Standing Order 215
states that a witness will be given the opportunity to make a submission in writing before appearing to give oral evidence, implying a right to speak. However, it is noted that it is “for the committee to determine whether it hears oral evidence at all or hears from some or all of the submitters wishing to give evidence on matters before it”.lxiii Deborah Russell MP said: “I think it ought to be the default position that we hear submitters, and we should as a general rule always either hear all of them or none of them, rather than picking and choosing.” Former Senior Labour Whip and now Assistant Speaker, Ruth Dyson MP, said: “people have got to have their voice heard. Being able to do that in your own Parliament is very important...one part of the Select Committee process that works really well.”
Recommendation:
For deliberative dialogue to be evident in select committees on rights-based issues much relies on the strength or otherwise of the argumentation provided to convince committee members. Simon O’Connor MP said:
The number of submissions themselves don’t count for much, not to be dismissive, but it is the quality of the argument in a submission that counts. I think Select Committee members regardless of party affiliation will engage in the argument of a submission. We spend a lot of time in Select Committees behind the scenes and in the Select Committees I’ve been on (Health and Foreign Affairs) it has been congenial and discussion-focussed. Often we are trying to find ways through.lxiv
Evaluating competing arguments from submitters is aided and abetted by high quality advice from both departmental officials and the PCO to Select Committee members as they consider clauses in proposed legislation, discuss the policy options and consider whether the bill will do what is proposed.
In its latest National Report to the United Nations Human Rights Council as part of the Universal Periodic Review (UPR) the New Zealand Government said it had formed in 2017 an International Human Rights Governance Group involving 18 agencies. It was leading “cross- government work related to New Zealand’s international human rights monitoring and reporting and to improve accountability for meeting human rights targets.”lxv The inter- agency group was established to promote a more co-ordinated and consistent approach to international reporting to human rights treaty bodies and the UPR. According to its Terms of Reference it was expected to meet three times but this has not happened. Work is being undertaken to change the Terms of Reference and to develop a Government Human Rights network to operate as a community of practice that would help promote a rights culture in the public service, according to a Ministry of Justice official.
Slow progress is symptomatic of what has been called “rights ritualism”, which means the acceptance of institutionalised means for securing compliance and regulatory goals while losing focus on achieving outcomes.lxvi Disappointingly, it is likely to have an impact on the quality of advice available to Select Committees, as well as public service understanding of the importance of human rights when preparing policy advice for legislation.
Recommendation:
Members interviewed had firm views on whether Select Committees promote substantive change in legislation or whether it is a “ tinkering “ function in light of the strength of executive power. Ruth Dyson said:” Select Committee members who are persuaded by a submission and are competent can sway and influence a Minister. So it is possible but you’ve really got to be on top of your game.”lxvii
A divergent view of Select Committee efficacy was expressed by former MP Keith Locke reflecting on the passage of penal legislation and law-making relating to defence and terrorism during his time in the House. He said sometimes Select Committees “have to be a bit more pushy than they actually are.”lxviii
I don’t think Select Committees use all of their powers to gain information....There’s a reluctance of MPs, particularly when there is a government majority on the committee to really push it. And there’s a reluctance I’ve found to push the Defence Force and the police, the state agencies of control, and you see this play out time after time. You have the “brass effect” with the Defence Forces. They would come in for reviews, estimates, and the like. And they mightn’t have meant it but they would be intimidatory in a certain sense with their bright uniforms and braid. They looked very military and upright and had the air of “how dare you challenge us when we are doing so much for you.”
While the MP was referring to the determination of Select Committee members to extract quality information from government or public service officials who appear before them, the infrequent use of powers relating to deeper investigation of rights-based issues is also of concern. Select Committees have an inquiry function but the daily reality of law-making pressures limits Select Committees using the powers they have for substantial inquiries or of systemic issues. Subject Select Committees have a general power to receive briefings on, or initiate inquiries into, matters relating to their respective Select Committee subject areas.
However a committee may have little time left over from its heavy legislative commitments to devote to inquiry work.
The speed of law-making in New Zealand has been consistently criticised. Unrealistic deadlines for the public to file a submission means civil society groups cannot properly canvas their members. Timing is often a hurdle, too, for individual, ‘amateur’ submitters who might otherwise have something important to say. Compressed timeframes for submissions advantages elite lobby and advocacy voices who are specifically organised and resourced to write submissions and appear before select committees.
Despite time for submissions on bills being a basic element of good deliberation, respective SO reviews have kicked for touch on prescribing a minimum period. The 2017 SOC Report said in response to the New Zealand Law Societylxix and others:
Submitters asked that we consider certain minimum standards for public input into select committees’ considerations of bills. Select Committees are autonomous in their ability to determine arrangements for receiving and hearing submissions. This is appropriate, and enables committees to take account of the legislation or item under consideration and the time available to the committee to deal with it.lxx
The review said that the SO Committee had since 2003 indicated desirable time frames of a minimum of six weeks when setting a closing date for submissions, that lesser periods be allowed only in exceptional circumstances and that larger and more complex bills can take longer if a committee decides. The research shows a need to formalise time frames.
Recommendation:
Unrealistic timeframes for reporting back negatively impact on quality deliberation. Simon O’Connor, in answer to the question: “If there was one change you would make to improve parliamentary scrutiny of human rights at Select Committees what would that be?” responded with:
Time, that’s the answer that comes to mind. It has been from the time I was a junior member to Select Committee chair. I don’t have as much time as I would like to sit back and think about what I am receiving. I just don’t have the time.lxxi
A critical function of Select Committees is to not only hear from members of the public who have made submissions but to be able to balance competing perspectives on rights-based issues
The case studies and interviews highlighted concerns about the prospect of select committees not furnishing reports to the House. The prospect of no report occurred in relation to the end of life choice bill. There is a presumption in Standing Orders (SO 189(1) that a report will be made available. As Raymond Huo, former Justice Committee chair notes, to have omitted the report would have constituted a waste of public funding. Such reports generally acknowledge the diversity of political views of submitters and have an expressive and institutional purpose that should be enhanced.
Public transparency of draft Select Committee reports was an issue in the passage of the controversial Electoral (Integrity) Integrity Bill analysed in the research. The draft report was tabled in the House during a tussle between National MP Nick Smith and then Justice Select Committee chair, Raymond Huo, over who should table the document first. It was not made available to the public and nor was it published on the parliamentary website. The Standing Orders Review (2017) considered the publication of draft reports and considered they should remain confidential to a committee on the basis that first drafts of reports did not necessarily reflect a committee’s views and to preserve the relationship between members and committee staff that is free and frank.lxxii This view was not supported by the Speaker, Hon. Trevor Mallard.
Recommendations:
Training for Select Committee chairs.
The New Zealand Human Rights Commission in its submission to the 2011 Standing Orders Review recommended the “ Induction and professional development for Select Committee chairs and deputy chairs aimed at strengthening the effectiveness of Select Committees, the dignity of hearings and respect for submitters, and thereby the legitimacy of Parliament.”lxxiii In the report by the Office of the Clerk of the House and the Institute for Governance and Policy Studies (2019) it is recommended that the training and professional development of Select Committee chairs be improved.lxxiv None of the Select Committee chairs interviewed indicated they had received induction for the role and supported the usefulness of training. The SOC 2017 commented on the effective chairing of Select Committees noting that it relied heavily on the proper exercise of the role of the chairperson.
The role can be difficult. It requires balancing the needs and expectations of all participants in committee business: members, submitters and witnesses, advisers, journalists, and the public in general. Chairpersons can be subject to strong demands from Ministers, especially if they are from the same party. All chairpersons must balance their
legitimate political loyalties with the need to be fair and effective when arranging committee meetings and presiding over proceedings.lxxv
Standing Orders list a set of expectations for chairing select committees indicating that it was appropriate that the Standing Orders did not set out how the role should be performed. The eleven expectations are aspirational and are expressed in terms of serving the interests of the House. They include “participants in parliamentary processes are treated fairly and respectfully” and “Parliament engages well with the public and democratic participation is encouraged.”lxxviIt would be timely, given concerns about the culture of Parliament, that Select Committee chairs receive training for the role. Simon O’Connor MP said:
There’s no induction for Select Committee chairs and I think there should be. As a chair you can frustrate the process of the passage of legislation if you want. I think the Parliament works on a system of osmosis which doesn’t work in the modern parliamentary environment because the days when you come in as a junior and have time to let everything wash over you and you slowly progress up the ranks just doesn’t happen anymore. You appear in Parliament, as has happened in this Parliament, and ‘congratulations, you’re a Select Committee chair’.lxxvii
Dr Deborah Russell she had been to Select Committees as a submitter prior to becoming a Member of Parliament. In terms of attendance as an MP she attended a Select Committee as a member on a Wednesday and the next day she chaired another Select Committee. “I learnt on the job.”
The training for Select Committees on the job seemed to work, although it is probably not the best. The day Select Committee chairs and positions were allocated I thought “Oh my goodness.”
It is clear from those interviewed that a formal induction for Select Committee chairs would be supported. The development of rights consciousness in Parliament would also be enhanced by human rights training and education of all MPs for select committee work.
You get what I call a very high level induction and there’s nothing on Select Committee membership. It’s a sink or swim process regardless in the House, whether it be a Select Committee or Committee of the whole house, you just get thrown in and you see who swims.lxxviii
One MP emphasised the need for induction around human rights issues and select committee work to be a collaborative process “acknowledging the difference between an understanding of the human rights framework and how best to apply them in different situations.” Deborah Russell MP described the human rights deficit for new MPs in the following way:
We come from a variety of backgrounds. A huge variety of backgrounds. Obviously we have some lawyers and they may have a better understanding of rights because they would have covered human rights law but I had a minimal background in human rights. I really had no idea how human rights are incorporated into our legislation, which bits of legislation matter more than others with respect to human rights. And to what extent our legislation interfaces with international obligations and treaties like the Universal Declaration of Human Rights. So I can
probably muddle through on a lot of these things. I have a reasonable sense of what is a human right and what is not. Actually how we put those rights into the day to day practice of government and how that flows into implementation is beyond me.
Part of the responsibility for effective Select Committee chairing lies within political parties themselves. They have the opportunity to pair less experienced MPs with more experienced and senior MPs to teach them the business of the House. However, structured and systematic cross-party training should also be made available. The recently formed Parliamentary Education Trust could be a vehicle for upskilling professional development of MPs and it publicity identifies Select Committee work as a target. Funded by Sir Owen Glenn, the Glenn Family Foundation website described the Trust as an “opportunity for MPs to build knowledge and skills for their role in targeted ways-including being more effective Select Committee members, Chairs and Spokespeople and being able to provide robust scrutiny and effective opposition.”lxxix
Recommendation:
A Parliamentary Code of Conduct?
Data gathered for this research supports the need for better realisation of human rights processes and outcomes in law-making. Somewhat to our surprise, it also provided evidence that dignity and respect, bedrock principles of personal, everyday human rights fulfilment, have eroded for parliamentarians. For example, a former Select Committee chair indicated that he felt he had been subject to racial discrimination in committee proceedings and that when an MP consistently breached Standing Orders there was no political accountability. Enhanced pre-legislative scrutiny to ensure fundamental rights progress and not regress is undermined if the legislative process is alienating for those responsible for the task. Parliament will need to look to itself to regenerate.
During the period of this research a review was undertaken of bullying and harassment in Parliament.lxxx The review report stated:
Some respondents commented on undignified and disrespectful behaviours between Members in Select Committee proceedings including “put downs and belittling” of other Members when the public was present. One said: “how does that behaviour help citizens engage with democratic process? It was disgusting”.lxxxi
The report concluded that there was an under-investment in leadership and professional development in Parliament and there needed to be explicit investment in the development of a culture of dignity and respect in the parliamentary workplace. It was suggested that a new Parliamentary Workplace Code of Conduct be developed along with an Independent
Parliamentary Commissioner for Conduct with investigative powers for complaints of poor conduct by elected MPs. The review report noted that a core perceived problem was low accountability, particularly for Members, who faced few sanctions for poor behaviour.
The significance of the review report became apparent in this research when a former Select Committee chair complained in an interview that he had faced persistent denigration by one opposition MP and that “a level of congeniality disappeared from the Committee’s deliberation”. Officials had also suffered abusive comments and gestures. The MP at fault had ignored Standing Orders and was prepared to breach Standing Orders because there was no way of holding him to account and “nothing would happen to him from within his own Party.” A Privileges Committee complaint would only have ensured further politicisation of the issues.
The Speaker Trevor Mallard has announced that Deputy Speaker Anne Tolley is leading a group to develop a Code of Conduct for all those working in Parliament. lxxxii While Transparency International has been calling for a Code of Conduct for some timelxxxiii, it remains to be seen if such a Code will be symbolic only or whether it will signify cultural change and influences everyday behavioural norms such as Select Committee member adherence to Standing Orders. It is worth noting that the 2009 Standing Orders Committee report rejected incorporating a voluntary code of conduct because there was insufficient support amongst members.lxxxiv
Parliament institutionalises oppositional politics in a formal manner but the tone and style of the current contest is counter to increasing public expectations of a well-functioning Parliament. It does not align either with the need for increased cross party dialogue on urgent rights-based issues such as climate change and addressing growing income inequalities, to name two. Party leaders and Whips are well aware currently of who is badly behaved and probably have available mechanisms to deal with poor performance. An MP said:
I feel very disappointed that people like myself are not protected by Standing Orders. While I respect an MP who is doing the job of holding the government to account, breaching Standing Orders and the human rights of other MPs is not acceptable.
The Prime Minister Jacinda Ardern has promoted in her signature address to the United Nations in 2019 a new style of national leadership embodying compassion and kindness in dealing with contest, but a more consensus style of politics is not evident in Parliament. Ruth Dyson MP said: “It hasn’t infiltrated this place yet. It may have got the rest of the country but I don’t think it has got Parliament.” Several MPs interviewed regretted that there was not more cross party discussion on significant rights-based issues, but then expressed resignation at the inevitability of party politics and executive domination. In such an environment a Code of Conduct may be more ritualistic than real unless it was accompanied by compliance and higher accountabilities for non-compliance.
In assessing the quality of deliberative dialogue at Select Committee hearings the research findings revealed two extremes- evidence of personal politics and poor behaviour in relation
to some law-making and examples of high quality engagement that enhanced the legitimacy and authority of Parliament. The passage of the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill was an example of effective, collaborative deliberative dialogue by members of all political parties. MPs unanimously in speech after speech during the Bill’s readings commented constructively on its policy objectives and the power of public submissions, and regarded such constructive scrutiny as the “right thing to do and in the best interests of the country” regardless of politics. Because it was the first Select Committee experience for several new MPs early in the 52nd Parliament, the Bill had the profound effect of positive cross-party socialisation. By contrast, aspects of Select Committee hearings into the Electoral (Integrity) Amendment Bill was characterised by a lack of dignity and respect, and the debate was highly partisan. Cross-party deliberative dialogue on rights-based issues remains a work in progress, even allowing for the contestability of human rights.
Recommendation:
Parliamentary scrutiny of international human rights treaty body reports
A particular weakness of the New Zealand system is the lack of rights consciousness or formal debate of New Zealand’s progress in relation to the seven primary human rights treaties that New Zealand has ratified. The gap is amplified by the absence of any parliamentary consideration of the harmonised treaty body process, the Universal Periodic Review, and its recommendations made to New Zealand every cycle about what needs to be implemented and actioned for rights to be realised and progressed.
Three Select Committee chairs interviewed for this research offered suggestions relating to
parliamentary processes. Simon O’Connor MP, said:
More recently the committee has been much more interested in UN treaty body reporting and have written to Foreign Affairs to say “what are our major treaty body obligations, when is New Zealand reporting and we want to see those reports, thank you very much”. First and foremost we want to know the schedule and then we might want to have a say or receive a briefing. We can also write a report. There has been a change in the Standing Orders so that Select Committee reports can be debated and a recent example was the Environment Committee writing to the Speaker asking for such a debate in the House. There is now a way forward for parliamentary debate on treaty body reports.lxxxv
Dr Deborah Russell MP, commented on the concept of “mainstreaming” or provision of a content specific select committee so that UN human rights treaty body reports could be debated in Parliament.
The solution to that might not necessarily to have a stand-alone committee but to adopt the process by which budget estimates and other reviews are allocated which is that technically they are all done by the Finance and Expenditure Committee but in practice Finance and Expenditure delegates them out to other committees. There’s a precedent that could be followed...environment ones go to the Environment Committee, for example. So, one way to handle it may be that the UN human rights reports do sit under the Justice Committee but then could be allocated to a specific committee for discussion and report back. So, what’s the most viable way of getting that scrutiny going- a separate committee may be one way but that might be another mechanism that’s more achievable than a separate committee. We’re a Parliament of 120 MPs.lxxxvi
Louisa Wall MP, said there should be a two-hour parliamentary debate on reports of New Zealand’s examinations under the seven international human rights treaties. The treaty body reporting cycle (often four years) means there might be only one treaty body report per year which would not be constitute an unreasonable time imposition on Parliament. “We should be highlighting important human rights issues and we should as elected representatives be holding ourselves accountable.”lxxxvii Ruth Dyson, said:
Special debates would certainly raise awareness. If you asked the 2017 intake of new MPs from all parties what international human rights conventions we’d signed up to you might just get a blank look. I am sure reports are tabled and they could trigger debate so the mechanism is there. It would be good to have debate, too, in topic relevant select committees.lxxxviii
Currently Standing Orders appear to be framed with reference to commercial and trade treaties, as opposed to human rights treaties. For example, Standing Order 250(1A)b states:
A report on an international treaty examination is set down as follows: (a) if the Government has indicated that it intends for the treaty to be implemented through a bill, as a Government order of the day, or (b) otherwise, as a Members’ order of the day.
However, human rights treaty body reports are not presented as bills to the Parliament and are not presented to either Select Committees or Parliament. New Zealand claims ratification through existing legislation and policy practice. The lack of a formal mechanism for parliamentary debate of human rights treaty body reports relating to New Zealand is of concern to the United Nations Human Rights Council. In this year’s Universal Periodic Review examination of New Zealand the Working group included in its recommendations a suggestion from Paraguay that New Zealand “establish a national mechanism for reporting
and follow-up on the implementation of international human rights recommendations received by the State”.lxxxix
In addition to United Nations treaty body recommendations to New Zealand, there are a small number of significant domestic human rights reports monitoring progress under international treaties that should be debated by Select Committees and/or Parliament. The New Zealand Human Rights Commission, for example, has suggested that the latest Monitoring Places of Detention Annual Report 2017/8 should go to the Select Committee for further discussion, rather than just be tabled in Parliament.xc Given the unique nature of the monitoring mechanism created by Article 33 of the Convention on the Rights of Persons with Disabilities and the high-level aspirations for scrutiny of the State’s progress in disability rights, it is argued that the State’s responses to any reports from the Independent Monitoring Mechanism should also be properly debated.
Recommendation:
New Zealand Human Rights Commission (NZHRC)
Role in parliamentary processes
The research has highlighted the ambiguous role of the New Zealand Human Rights Commission (NZHRC) in parliamentary processes. It is an independent agency and as such from time to time makes submissions on legislation relating to human rights. It does not appear to have an advocacy role as provided for in the legislation but provides the Select Committee with a human rights perspective on the legislation under consideration. The research indicates it is respected but not influential in the decision-making of the Select Committee. For example, Simon O’Connor MP said: “I think the NZHRC has become a voice rather than the voice and I think that is an issue for New Zealand and for the Commission that it has to address.”
I think there is merit in a weightier role for the New Zealand Human Rights Commission, even though I am not the greatest fan in its current form. I think it would be desirable if there was more engagement with parliamentarians in terms of introduction. I could imagine that as part of the induction of new MPs that the NZHRC could come in and say who we are, what we do and why in these areas in a constructive and non-partisan way.xci
The NZHRC is perhaps best suited, too, to address the general lack of understanding of human rights by many MP to advance human rights consciousness in the House. ” All legally trained members have an understanding of human rights implications but the others take what is said at face value”, said one MP. Suitable induction for incoming parliamentarians about human rights treaties that New Zealand has ratified was referred to universally by those interviewed for the research. The Speaker, Hon. Trevor Mallard said: “The Commission could have a greater and more impactful role in education of both staff, chairs and members”. Human rights champion and former Green MP, Keith Locke, said it “would be a very good idea if the Commission had a role in the induction of new MPs. It would be a very good idea if they would accept being educated!” Simon O’Connor MP said: “There’s nothing at the moment and it could be something that interests a proactive Human Rights Commission.”
The Australian Parliamentary Joint Committee on Human Rights has produced an accessible Guide to Human Rights that provides an introduction to the 25 key human rights protected by the seven human rights treaties that make up the United Nations human rights framework.xcii It is accessible in the Australian Parliamentary website. A similar guide for the New Zealand context that covers BORA and the HRA, and additionally provides a timetable for New Zealand’s treaty reporting so members know when the state party is reporting on conventions and when the UN committees are examining progress, would have general parliamentary utility for members, officials and submitters to Select Committees. It would also have value for civil society. Ruth Dyson said: “We don’t have such a guide to the best of my knowledge. It could be a task for the New Zealand Human Rights Commission so it was non political.”
Recommendation:
Expert advisors
Several Members of Parliament felt an NZHRC with enhanced visibility and capacity could play a great role in Select Committee proceedings as experts. Ruth Dyson MP said she was not even aware of the Commission was active in the parliamentary process as she had not had any engagement with it during the term. She was aware of efforts by the Minister of Justice “to improve how Parliament sees the Commission’s integrity.” Jan Logie MP said that to raise human rights consciousness in Parliament there needed to be a “team of people who live and breathe human rights providing the advice. As long as it is incidental it is ineffective. What would it look like if the Human Rights Commission was resourced to do the job independently, step removed from Government?”
Commission submissions at the moment had the status of any other submission, they did not have extra influence. Louisa Wall MP, noted, however, that Select Committees could ask the
Commission for a human rights assessment and analysis. “But I don’t think committees are as pro-active as they could be in understanding what the issues are and framing them from a human rights perspective.” She said the whole way Select Committee proceedings were structured was as a systemic response; bills go through the House, they pass their First reading, the Attorney-General may or may not undertake a section 7 report which is then referred to the committee as evidence and the committee responds. While section 7 reports are taken seriously most Select Committees consider human rights as pro forma within the context of s section 7, she said.
Select committee work outside of bills do not benefit from human rights scrutiny said the Health Committee chair.
Take petitions, for example. I don’t think anyone looks at them from a human rights perspective or asks for a human rights analysis. But if you think about it a lot of petitions then give rise to legislation. If we wanted a really robust system we would ask for some form of analysis which could highlight the value of the Human Rights Commission in the legislative process.xciii
Currently the Standing Orders, SO 189(2) state that: “the subject select committees may receive briefings on, or initiate inquiries into, matters related to their respective subject areas”. This could confine human rights inquiries to the Justice Committee, given the placement of human rights as a subject area within that committee. However, Select Committees, could proactively seek human rights advice through SO 211 which states that: A Select Committee may seek the assistance of persons as advisers to the Committee during its consideration of a matter (211(1); and Advisers may remain present during relevant proceedings that are not open to the public, unless excluded by the Committee.(211(2).
Recommendation:
Legal status
If the Parliamentary process is to benefit from the expertise and experience of the NZHRC it needs to have an enhanced status and be resourced independently of departmental budgets. Given that there has been a reluctance over a period of time for the SOC and individual members of Parliament to support a designed Human Rights Select Committee, an alternative institutional recognition of the importance of human rights to the legislative process would be for the Chief Human Rights Commissioner and other Commissioners to become Officers of Parliament. The Human Rights Foundation and other NGOs have consistently advocated for legislation designating them as such. It would mean the Parliament as an institution recognises the importance of human rights as fundamental to its role as the primary law maker. It would also give the commission a greater level of independence and authority in its dealing with Parliament but also in the advocacy of human rights generally, than it does when it receives funding directly from the Justice portfolio. In her ministerial review of the Commission, Judge Coral Shaw, said that if Commissioners were Officers of Parliament (such as the Ombudsman and the Auditor-General) their appointment would require cross party consensus.xciv
Such an appointments system may also provide a less partisan funding model. The latter would be in accordance with the requirements of the Paris Principles for adequate funding that would enable the institution to “be independent of the Government and not be subject to financial control which might affect its independence”.xcv
Recommendation:
Conclusions
The research identifies both strengths and weaknesses of existing legislative institutions and processes as they engage with human rights issues. As previous research has noted developing a deeper understanding of how, and how well, legislatures protect human rights makes an important contribution to academic and political debates. The recommendations follow from evaluating the evidence gathered from case studies, interviews, personal involvement as Select Committee submitters, archival research and prior academic scholarship during the 2017-2019 period. The case studies were not chosen to suit any predetermined conclusions but because they took place in the 52nd Parliamentary session, the time period of the research. It is not claimed that they are representative of the overall performance of the New Zealand legislature, rather that they provide valuable insights into parliamentary scrutiny of human rights obligations. The research aimed to redress the scant analysis of Parliament’s performance in the protection of human rights domestically. Particular attention was paid to Select Committees in their role as legitimating parliamentary
democracy through public participation, itself a human rights norm, and human rights analysis and debate. It adds to richer seams of research which have focused on the role of the judiciary, the effects of Bill of Rights legislation, and the scope of executive action.
In summary the following general conclusions can be made:
The research confirms the primacy of public participation in Select Committees as an expression of human rights and in their protection and promotion in everyday life. However, the New Zealand Parliament generally under-performs in its role of scrutinising human rights in law-making. The recommendations are made with the aim of helping to address democratic deficits.
Summary of Recommendations
Acknowledgements
The researchers would like to thank all those who made themselves available to talk about New Zealand’s parliamentary scrutiny of human rights. Your insights immeasurably enriched the research. Your time, thoughts and feedback were generously provided. The interviews and case studies helped shape our conclusions and recommendations. Any errors are ours alone.
The New Zealand Law Foundation provided funding for this research and we are immensely grateful for its support and its continuing encouragement of human rights-based research. The Faculty of Culture and Society at Auckland University of Technology and the University of Waikato have also supported this research. Thanks to Kirsty Whitby for administrative help and to John Harvey for proofing.
i Saunders, R. (2019) ‘The rise and fall of British democracy”. New Statesman. 12-17 April. pp 25-29.
ii IGPS/Colmar Brunton (March 2019) Who Do We Trust www.victoria.ac.nz/data/2019a-Trust-Survey- presentation.pptx.
iii Goodwin, M. (2019) “The End of Trust: Britain’s New Political Crisis”. New Statesman.3-9 May, pp 29-31.
iv Francis, D (May 2019) External Independent Review, Bullying and Harassment in the New Zealand Parliamentary Workplace. www.parliament.nz/.../independent-external-review-into-bullying-and-harassment- in the -new-zealand-parliamentary-workplace-final-report.)
v Office of the Clerk of the House of Representatives and the Institute for Governance and Policy Studies (2019) Foresight, Insight, Oversight: Enhancing long-term governance through better parliamentary scrutiny. Victoria University. (Https://apo.org.au/node/244956.
vi Palmer, G (2014) “Law making in New Zealand: Is there a better way? “ 22 Waikato Law Review 2.
vii New Zealand Law Society (2016) Review of Standing Orders, Standing Orders Committee, Parliament Buildings, Wellington. 25 November.
viii Hutchinson, Z (2018) “The Role, Operation and Effectiveness of the Commonwealth Parliamentary Joint Committee on Human Rights after Five years”. Australasian Parliamentary Review. Autumn/Winter Vol 33. No 1. Pp.72-107.
ix Webb, P. and Roberts, K. (2014) Effective Parliamentary Oversight of Human Rights: A Framework for Designing and Determining Effectiveness. June.
x Sathanapally,A. (2014) Beyond Disagreement: Open Remedies in Human Rights Adjudication. Oxford, Oxford University Press.
xi Palmer, G (1979) Unbridled Power? An Interpretation of New Zealand’s Constitution and Government. Oxford University Press, Wellington.
xii Finlayson, C. (27-28 October, 2016) “Advancing Better Government through Legislative Stewardship”,
Parliament Buildings, Wellington.
xiii Interview with Hon Trevor Mallard, Speaker of the House, Parliament, 25 May, 2019.
xiv McGregor,J, Bell,S and Wilson,M. (2016)Human Rights in New Zealand: Emerging Faultines. Bridget Williams Books with the New Zealand Law Foundation. Wellington. p.134.
xv United Nations Human Rights Committee (31 March 29016) Concluding Observations, New Zealand CCPR/C/NZl/CO/ at 9.
xvi Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the New Zealand Public Health and Disability Amendment Act (No 2), House of Representatives, 2013.
xvii Newshub (2018) “Government set to repeal ‘discriminatory’ disability law, overhaul carer
policy”.27/09/2018.https://www.newshub.co.nz/home/politics/2018/09/govt-set-to-repeal. Accessed 15/07.2019.
xviii Interview with Hon Jan Logie, Parliamentary Under-Secretary to the Minister of Justice on Domestic Violence, Auckland. 2019.
xix New Zealand Law Society (25 November, 2016). Review of Standing orders, Standing Orders Committee, Wellington.
xx Legislation Design and Advisory Committee (2018) Legislation Guidelines. www.ldac.org.nz/guidelines/legislation-guidelines-2018-edition.
xxi Cabinet Office circular CO (18) https//dpmc.govt.nz/publiucations/co-18-1-legislation-guidelines-cabinet- requirements-and-expectations.
xxii Interview with Attorney-General David Parker and Paul Rishworth QC, LDAC Chair, Auckland, 10 August 2018
xxiii Legislation Design and Advisory Committee Terms of Reference http://www.ldac.org.nz/about/terms-of- reference/
xxiv Ibid at footnote xix.
xxv Ibid at footnote xx.
xxvi NZ House of Representatives (2014) Review of the Standing Orders Committee, 1.18A, p.15.
xxvii NZ House of Representatives (2017) Review of the Standing Orders Committee, 1.18A, p.26.
xxviii Interview with Hon. Louisa Wall, Chair of Health Select Committee, Auckland, March 15, 2019.
xxix Interview with Simon O’Connor, Chair of Foreign Affairs, Defence and Trade Select Committee, Auckland, April 15,2019.
xxx New Zealand Law Society submission on Legislation Bill 2017 para 6.3. www.parliament.nz/en/pb/sc/submissions-end-advice/document/52SCJU EVI 74367 7033/new-zealand-law- society
xxxi Ibid at xvii, pp.36-37.
xxxii United Nations Committee on Economic, Social and Cultural Rights (1 May, 2018) Concluding Observations on the Fourth Periodic Report of New Zealand. E/C. 12/NZL/Co/4. P.2. par 6.
xxxiii Cabinet Manual (2017) Cabinet Office, Department of Prime Minister and Cabinet, Wellington, p.109. xxxiv Palmer, G. and Butler, A. (2016) A Constitution for Aotearoa New Zealand. Victoria University Press. Printlink: Wellington.
xxxv New Zealand Law Society (2018) New Zealand’s 3rd Universal Periodic Review, 2018-19: Civil society shadow report to the UN Human Rights Council, 12 July.
xxxvi Interview with Hon.David Parker, Attorney-General, Auckland, 10 August,2018,Auckland.
xxxvii United Nations Human Rights Council (21 January-1 February 2019) National Report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21. New Zealand. Working Group on the Universal Periodic Review. Thirty--second session. A/HRC/WG.6/32/NZL/1. p.3.par 17.
xxxviii Ibid at footnote X. xxxix Ibid at footnote xxv.. xl Ibid,1.18A, p.18.
xli Ibid at footnote xxiv. 1.18A, p.15.
xlii Justice and Law Reform Committee. Final report on a White Paper on a Bill of Rights for New Zealand (1987- 1990). 17 AJHR 1.8C at 11.
xliii New Zealand Human Rights Commission (2010) Strengthening Parliamentary Democracy: A Discussion Paper. www.hrc.co.nz.
xliv NZ House of Representatives (2010) Review of Standing Orders. Report of the Standing Orders Committee,
xlv Ibid at footnote xxiv 1.18A p.15
xlvi Ibid
xlvii Ibid
xlviii Ibid at footnote xxiv.
xlix Ibid, p.210.
l Ibid.
li Ibid at footnote xiii.
lii Ibid at footnote v, p15.
liii Interview with Rafael Gonzalez-Montero, former Deputy Clerk of the House of Representatives and David Bagnall, then Acting Clerk Justice Committee and Clerk of the Standing Orders Committee. Wellington. 31 August, 2018.
liv Interview with Hon.Ruth Dyson, former Senior Whip, Labour Coalition Government, Wellington, 8 May, 2019.
lv Interview with Raymond Huo, former Chair, Justice Committee, Wellington, 22 May, 2019.
lvi Ibid at footnote xxvii.
lvii Joseph, P (2017) Quoted in a New Zealand Law Society press release, “Law Society recommends changes to Parliament’s rules to achieve better legislation.” 16 February.
lviii McGee,D. (2017). Parliamentary Practice in New Zealand. 4th Ed., edited by Mary Harris and David Wilson. Oratia Books, Auckland. Chapter 20.
lix Ibid at footnote xxvii.
lx Interview with Dr Deborah Russell, chair of Environment Select Committee, Auckland, 16 May,2019,
lxi Ibid at x.
lxii Criminal Justice (Expungement of Convictions for Historical Homosexual Offences) Bill- In Committee. https://www.parliament.nz/en/pb/handard-debates/rhr/combined/HansDeb 20180328 Accessed on 18/04/2018.
lxiii Ibid, at footnote x.
lxiv Ibid at footnote xxvii.
lxv Ibid at.xix p. 3, par 16.
lxvi Kalin, W. (2015) Ritual and Ritualism at the Universal Periodic Review: a Preliminary Proposal. In Hilary Charlesworth and Emma Larkin (eds). Human Rights and the Universal Periodic Review: Rituals and Ritualism. Cambridge University Press, Cambridge. pp.25-41.
lxvii Ibid at footnote Iii.
lxviii Interview with former Green MP, Keith Locke, Auckland, 2019.
lxix New Zealand Law Society (2016). Submission to the Review of Standing Orders. Standing Orders Committee, Parliament Buildings, Wellington, 25 November.
lxx Ibid at footnote xxv, p.28.
lxxi Ibid at footnote xxvii
lxxii Ibid, at footnote xxv, p.23.
lxxiii New Zealand Human Rights Commission (2010) “Strengthening Parliamentary Democracy: A Discussion Paper”, www.hrc.co.nz.
lxxiv Ibid at footnote v, p.16. lxxv Ibid at footnote xxv, p.20 lxxvi Ibid.
lxxvii Ibid at footnote xxvii.
lxxviii Ibid at footnote iviii
lxxix Glenn Family Foundation Trust (3 April, 2019) “Launch of the Parliamentary Education Charitable Trust”.
Https://www..glennfamilyfoundation.com/launch-of-the-parliamentary-education-charitable-trust.
lxxxIbid at footnote iv.
lxxxi Ibid, p.45.
lxxxii Radio New Zealand (25 May, 2019) “Trevor Mallard on rape comment, Parliament code of conduct”.
https://www.rnz.co.nz/news/political/391886/trevor-mallard-on-rape.
lxxxiii Radio New Zealand (25 May, 2019) “Government rejected a code of conduct for staff in 2013”.
https://www.ranz.co.nz/news/political/389851/government-rejected-a-code-of-conduct.
lxxxiv NZ House of Representatives (2009) Review of Standing Orders, Report of the Standing Orders Committee. iI8b
lxxxv Ibid at footnote xvii. lxxxvi Ibid at footnote lviii. lxxxvii Ibid at footnote xxvi. lxxxviii Ibid at footnotelii.
lxxxix United Nations Human Rights Council (24 June -12 July 2019) Report of the Working Group on the Universal Periodic Review: New Zealand. Forty-first session. A/HRC/41/4. P. 13, par.122.39
xc New Zealand Human Rights Commission (2019) “Annual Report on Monitoring Places of Detention”. July 25.
https//www.hrc.co/news/annual-report-monotring-places-of-detention-released/
xci Ibid at footnote xxvii.
xcii Parliamentary Joint Committee on Human Rights (2015) “A Guide to Human Rights”. Commonwealth of
Australia.
xciii Ibid at footnote xxvi.
xciv Ministerial Review of the Human Rights Commission in relation to the internal handling of sexual harassment claims and its organisational culture. Judge Coral Shaw, May, 2018.
xcv The Paris Principles, paragraph 2, quoted in the Ministerial Review.
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