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The Constitution Conversation

Thu 4 Jul 2013 In: Our Communities View at NDHA

Rainbow Wellington has made a submission to the Constitution Conversation, primarily on strengthening our Bill of Rights. Read it here. RAINBOW WELLINGTON SUBMISSION TO THE CONSTITUTION CONVERSATION WHO WE ARE: Rainbow Wellington is an organisation which supports and advocates on behalf of lesbian, gay, bisexual, transgender and intersex (LGBTI) people, in the Wellington region and nationwide. TREATY OF WAITANGI: We wish to express our support for the Treaty of Waitangi as New Zealand’s founding document. For various reasons reference to the Treaty was not incorporated in the New Zealand Bill of Rights. However, we consider that the time would now be appropriate for the position of the Treaty to be revisited, within the broader framework of New Zealand’s constitutional arrangements, to recognise the status of Māori as tangata whenua o Aotearoa and reflect te mana Māori motuhake. HUMAN RIGHTS LEGISLATION: Our main concern in supporting our LGBTI communities is human rights, and in particular the place of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 within our constitutional arrangements. We believe that this legislation needs strengthening, to further protect the rights of our communities, and others. The Constitution Conversation talks of supreme law. This concept is currently largely absent in New Zealand legislation, although it was proposed in the original 1985 White Paper, A Bill of Rights for New Zealand. Supreme law can only fully operate within the context of a single constitutional document, which the Courts may in appropriate circumstances then use to override other legislation. Attractive as this solution might be to many, we do not believe it is practical within the context of New Zealand’s constitutional traditions and arrangements, and that other solutions need to be sought. At present the only element of supreme law present in our current legislation appears to be entrenching an Act or parts of an Act. This again was proposed in the 1985 White Paper, but currently applies only in respect of reserved provisions specified in the Electoral Act (section 268), which can be amended or repealed by a majority of 75 per cent of all members of the House of Representatives or at a referendum. We believe that a similar solution should be sought for at least key sections of NZBORA and the Human Rights Act. NZBORA: But first, the current legislation should be strengthened. In NZBORA the key sections are 5 (Justified limitations) and 7 (Attorney-General’s reports). Both are intended to be safeguards against an over-assertive Government (the Executive in Parliament) pushing through legislation which clearly infringes the Bill of Rights. However, there are problems with these provisions. It is appreciated that the rights and freedoms stated and guaranteed in NZBORA, albeit expressed as broad principles, do not exist in a vacuum and cannot be absolute: individual rights and freedoms are constrained by duties towards other individuals and the community, with careful consideration needing to be paid to the scope of rights and competing interests requiring to be balanced by the judiciary. However, there appears to be an increasing trend for the State to encroach on individual rights and on those of particular sections of the community. It has been left to the courts to assess the application of section 5 but they are constrained from doing so in a robust manner. In fact, as the interrelationship of the provisions of sections 4 (Other enactments not affected), 5 (Justified limitations) and 6 (Interpretation consistent with Bill of Rights to be preferred), as well as section 5 of the Interpretation Act 1999 (Ascertaining meaning of legislation), has remained a vexed issue, a re-evaluation of the interaction of those provisions is called for. Section 7 requires the Attorney-General, who is a Minister of the Crown as well as its principal law officer, to report to the House of Representatives on any bill introduced that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights. Executive processes require Ministers to confirm for Cabinet, prior to introduction, that bills comply with certain legal principles including the Bill of Rights. Vetting of bills is carried out by the Ministry of Justice or the Crown Law Office , whose opinions have been considered to be covered by legal professional privilege, and it is essentially an Executive-controlled process. It has been established that it is entirely a matter for the Attorney-General, not the House nor the Courts, whether a report is made on any particular bill. We consider that this process is not sufficiently transparent: a reasoned report should be made available on all bills introduced as to consistency with the Bill of Rights. Moreover, the process should be extended to include all proposed substantive (other than merely technical) amendments. An option put before the Justice and Law Reform Committee, during its Inquiry into the White Paper on a Bill of Rights for New Zealand, was that a specialist Human Rights Committee be constituted as a select committee of the House of Representatives, to consider rights issues in bills. As it is apparent that there is no systematic or regular scrutiny of bills by select committees for rights issues or breaches of rights in proposed legislation, we consider that that course should be adopted by the House of Representatives, through amendment of its Standing Orders, as a high priority. However, the main issue here is that these safeguards have no power, there is no penalty for infringing them. In the case of Section 7, there are many examples of Governments flagrantly ignoring Attorney-General’s reports, knowing that there is no come-back against such actions. Provision was made in the White Paper draft Bill of Rights whereby “Anyone whose rights or freedoms as guaranteed by this Bill of Rights have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” (Article 25) This important provision did not survive into NZBORA in the form enacted. While the courts, in the absence of specific statutory provision, have nevertheless not felt constrained from developing remedies to meet particular situations, as notably in Baigent’s Case (1994), it seems highly desirable that a statutory foundation be given to this process. Compensation should be specified as a remedy that is available. Similarly the Courts have introduced the concept of Judicial Indications of Inconsistency where they are unable to interpret an Act as consistent with the Bill of Rights (since adopted to a limited extent by amendments to the Human Rights Act, but not NZBORA). The formal presence of these in the British Human Rights Act 1998 has shown itself to be a far more powerful restraint on Governments than our rather informal version, which has not so far proven to be of much substance. Again, incorporating this role of the Courts into the legislation itself would seem to be another good way of strengthening the Bill of Rights. Whilst the proposals in the 1985 White Paper proved to be a step too far for New Zealand, the subsequent Act removed far too many of its safeguards. Governments have since shown that they cannot be trusted with the unbridled power still able to be exercised despite NZBORA. It therefore follows that some of the elements rejected in 1990 should be restored to our Bill of Rights. This would not include a full judiciary veto, but should incorporate a system where there can be more dialogue between Parliament and the Courts. HUMAN RIGHTS ACT Section 19(1) of NZBORA enjoins freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Section 21 of the latter Act is of particular significance for the LGBTI communities. We urge that “Gender identity” be added to the prohibited grounds of discrimination specified in section 21 so that the transgender and intersex members of our communities can be assured that their rights are clearly included. Just as prohibition on the grounds of sex was insufficient to include sexual orientation, neither ground is adequate to encompass prohibition of discrimination on grounds of gender identity. Section 21, as so amended, is one that should most certainly be entrenched; there have already been attempts to remove some of the current grounds from the Act, and our communities (along with other minorities prone to discrimination) require a stronger protection than the current law offers. Rainbow Wellington Board   the Rainbow Wellington Board - 4th July 2013    

Credit: the Rainbow Wellington Board

First published: Thursday, 4th July 2013 - 1:01pm

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