Government should not allow further overreach from Court

Government should not allow further overreach from Court
Alex Penk

The Opposition just rolled out the usual tough-on-crime rhetoric disconnected from evidenced-based solutions, announcing that it is “time to smash the gangs” and decrying the benefits paid to gang members. Oh, sorry, that was Labour’s police spokesman Stuart Nash in 2017.

The similarly-disconnected 2019 update is that “National hates gangs” and wants to stop gang members receiving benefits, which Police Minister Stuart Nash labelled “desperate political grandstanding.”

New distortions

So the Government’s proposal that the courts should use their cool rationality to test Parliament’s laws against the lofty standards of the Bill of Rights Act might sound like an appealing solution to cynical politics.

However, it’s more likely to introduce new distortions than to fix the existing ones.

The Government wants to amend the Bill of Rights Act to say that the courts can issue “declarations of inconsistency,” formal statements that a particular law limits fundamental rights and freedoms in a way that can’t be justified in a democratic society.

Unfortunately, there is no hard and fast legal answer to whether a limitation is justified. For example, imagine that someone wants a declaration that a new hate speech law is inconsistent with the right to freedom of expression.

Deciding whether that limit on speech is justified ultimately involves contestable, non-legal ideas about what we can expect from each other in a shared society, and how we should pursue truth and meaning in our lives.

Responsibility of politicians

Making these decisions is our politicians’ job, and they are accountable for them while unelected judges are not.

Legal academics Richard Ekins and Chye-Ching Huang have said that if judges can make these declarations, MPs are likely to guesstimate a court’s reaction to a proposed law rather than making independent judgments.

They have also noted that someone who doesn’t like Parliament’s decisions could seek a court’s declaration to try and force a different result, something that will be easiest for wealthy people.

The Government might counter that these are just declarations, not the power to strike down laws, so this change wouldn’t undermine Parliament.

But courts sometimes read rights-related laws in unexpected ways.

For example, our courts have already asserted power to grant remedies for breaches of the Bill of Rights Act even though this power was deliberately left out of the Act.

Change coming

In fact, the Supreme Court has already gone so far as to say these remedies include issuing declarations of inconsistency and the Government may say they’re just confirming what’s now the law.

But Parliament could have overruled this decision and affirming it instead signals to the courts that they should continue to read the Act in a way that expands their power.

Apparently the change will be introduced before the end of 2019.

The best-case scenario may be that this proposed law languishes and the election provides a chance for a re-think. In the meantime, Ministers should heed their former colleague, Lianne Dalziel: “We know the courts, and we know that if we allow them to make declarations as to consistency they will be entering into the legislative arena, and they are not equipped to do so.”

Alex Penk is Chief Executive of Maxim Institute based in Auckland.

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