I
think National just broke our constitution
Our
constitutional arrangements work on an implicit bargain - the
principle of comity - that the Courts and Parliament don't mess with
each other's turf. I think that bargain just got broken.
by
Andrew Geddis
23
May, 2013
I
really don't want to be "that guy" who leaps up at
monotonously regular intervals to proclaim that a latest
constitutional outrage marks some sort of nadir in governmental
practice. But I'm going to have to run that risk by following up a
post accusing the National Government generally (and Justice Minister
Judith Collins in particular) of manifest bad faith regarding
electoral reform with another one claiming that it's just done
something that tramples all over a basic foundational principle of
our constitutional order.
(But
before we get to that, and in the interests of "balance",
may I temper any previous criticism of Judith Collins with a bouquet
for both her announcement of more
money
for restorative justice conferences and her recent, somewhat frenetic
and sometimes odd activities
on twitter.
There we go - friends again!)
Back
to the latest outrage, however. In the wake of the budget, the
Government is pushing through a whole bunch of bills in one great
rush of non-stop, orgiastic lawmaking. Most of these measures are to
do with the budget. But at least one isn't - tucked away amongst the
things apparently requiring Parliament's urgent attention is a
proposal to further amend a law that Parliament amended just a mere
month ago. Part of this new amendment legislation is intended to
extend still further the new offence provisions covering sea-bourne
protests against oil exploration and production activities -
something I posted on here.
Normally this sort of sloppy (and highly
questionable)
law making would deserve a post of its own, but it's not the real
target here.
Because
alongside everything else, the Government rushed through - and I mean
rushed
through
... it got passed right through the House the same day debate on it
commenced - a bill intended to sort out the problem of paying family
members of severely disabled people to look after them. What is that
problem, you ask? Well, it goes back a bit, so some scene setting is
necessary.
For
the longest time, DHBs would not pay family members who chose to stay
home and act as caregivers for their disabled loved ones. They would,
however, pay for an outside caregiver to come in and do the job. This
rankled at least some family members; why should their labour
(lovingly given though it was) be taken for granted and their
sacrifices for their family go unrewarded, whilst a stranger coming
in to do the job could get paid for it?
So
in 2010, some family caregivers went off to the Human Rights Tribunal
and challenged the DHB policies on the grounds that these
discriminated against them on the basis of their family
status;
which in turn breaches their rights
under the New Zealand Bill of Rights Act, 1990. They won, but the
Government appealed the matter to first the High Court, and then the
Court of Appeal ... where the family members won again. And so,
finally, the Government caved and recognised it was going to have to
come up with some policy that would deal with the problem.
As
announced in the budget, that policy takes two forms. First, the
Government passed
legislation
that gives a statutory underpinning to the "family care policy"
setting out who will (and who won't) be paid. This statutory
underpinning is in section 70C, and will say:
[When
the law kicks in], neither the Crown nor a DHB may pay a person for
any support services that are, whether before, on, or after that
commencement, provided to a family member of the person unless the
payment ispermitted by an applicable family care policy ...
With
this statutory provision in place, the Government will work out with
DHBs over time just who will be eligible to be paid (and how much)
under the family care policy. At the moment, it looks like only those
relatives caring for persons aged 18 or more will be ... and spouses
looking after each other won't be. Furthermore, the payment rate
looks to be at the level of the minimum wage, which is less than
externally contracted carers would get.
So,
it's a policy with a lot of gaps in it (caring for your kids or your
spouse still is unpaid labour), and even those family members whom it
covers don't get the same pay rate as strangers coming in to care for
their loved ones. Which has made some of the family caregivers in
question a
bit angry.
[T]he
outlay over four years has been dismissed as "miserly", and
will still discriminate against some relatives, according to one of
the parents who took the Ministry of Health to court.
"We
took a case for all disabled people," Cliff Robinson of Thames
said. "It seems like, after all our years and years of fighting
to get a decent scheme, we've got a half- baked one. There will be
challenges to this."
Well,
what form might such challenges take? Remember section 70C above - it
specifically prohibits any caregiver being paid anything unless the
family care policy allows it. If the policy says you don't get paid,
then Parliament says you can't
be paid. But getting around that problem is easy enough ... the
family caregivers can just challenge the family care policy itself,
on the grounds that it discriminates on the basis of family status.
After all, the policy isn't
a statutory provision - it's something that the Government
(that
is, the executive branch) has worked out with DHBs. And the
Government cannot make policies as to who will/won't get paid that
breach the New Zealand Bill of Rights Act 1990 (unless specifically
authorised by Parliament to do so). After all, the courts backed this
argument last time, so you'd think the family carers would have a
better-than-even chance of winning this time around.
Now,
this is where things start getting a bit weird. I assume the above is
roughly the advice that was given to the Minister as the Bill was
being put together. I say "assume" because all the relevant
discussion of legal risks produced by the legislation has been
redacted from the publicly available information about it. You can
see this for yourself in the Regulatory
Impact Statement
that must be provided to the House when the Bill is introduced
(there's a more arresting visual of it here).
So not only can't I say for sure what risk there may have been that
the legislation would have had the effect of dumping the Government
back in court, neither
can the MPs who are being asked to debate it and vote on whether it
should be law.
Pause
and think about that fact for a moment.
Because,
things are about to get even weirder. What's a good way, you might
ask, to create a policy on paying family caregivers without running
the risk of it being overturned? And the answer I assume you'd give
is "make sure that the policy isn't unlawfully discriminatory,
so there is no reason for this to happen." If so, you are an
idiot. Because there's a far, far better way to respond.
You
simply tell the Human Rights Review Tribunal and the courts that they
are not allowed to look at the policy and decide whether or not it is
unlawfully discriminatory. That's just what the Government is seeking
to get Parliament to do under section 70E(2):
[When
this law kicks in], no complaint based in whole or in part on a
specified allegation [that the policy unlawfully discriminates] may
be made to the Human Rights Commission, and no proceedings based in
whole or in part on a specified allegation [that the policy
unlawfully discriminates] may be commenced or continued in any court
or tribunal.
You
might need a moment to let the implications of this sink in. By
passing this law, Parliament is telling the judicial branch that it
is not allowed to look at a Government
policy
(not, note, an Act of Parliament) in order to decide whether it is in
breach of another piece of legislation enacted by Parliament (the New
Zealand Bill of Rights Act 1990). In other words, the judiciary's
primary function - to declare the meaning of law and its application
in particular cases - has been nullified. Furthermore, the
judiciary's role as protector of individual citizens in terms of
ensuring that they are being treated in accordance with the laws of
the land has been removed. While the stakes may be small in the
immediate case, this is about as big a deal as it gets in terms of
our constitution.
Now,
I sort of get why Tony Ryall (the Minister in charge of this bill)
wanted to do this. Trying to come up with a policy on who does and
doesn't get money here is probably pretty complicated. And health
dollars are a finite resource - everything that is paid over to
family caregivers means less services somewhere else. So having the
threat of the judiciary coming into this mix and upsetting whatever
compromises he comes up with over the next few months when he
finalises the family care policies would be a real pain in the
backside. You can even argue, as does Attorney General Chris
Finlayson in his New Zealand Bill of Rights Act assessment (which
I'll get to in a moment) that the courts were wrong to intervene in
the first place.
But
what Tony Ryall's doing here is, as far as I know, unprecedented (at
least in recent constitutional history). Here's what the Legislation
Advisory Committee has to say about attempts to "oust" the
jurisdiction of the courts to examine some matter:
Ouster
clauses are objectionable because they interfere with the courts'
constitutional role as interpreters and expounders of the law. In
general, legal obligations are enforceable by the courts. Where
judicial review is ousted, it is often argued that the public body
whose decisions cannot be reviewed is not subject to the law and
therefore has legally unlimited power. ...
[T]he
undoubted normative strength of the presumption against ouster
clauses means that Parliament should only seek to oust the courts'
review jurisdiction in exceptional cases.
And
how "exceptional" is the current situation? Well, it's not
exceptional enough to stop Attorney General Chris Finlayson declaring
the Bill to be inconsistent with the Bill of Rights Act, s.27(b)
right to justice:
Every
person whose rights, obligations, or interests protected or
recognised by law have been affected by a determination of any
tribunal or other public authority has the right to apply, in
accordance with law, for judicial review of that determination.
And
yet this declaration itself was not enough to stop the National
Government using its numbers in the House to rush this Bill through
all stages of lawmaking and onto the statute books in a single day.
So
there you have it - another day in the life of the Government of the
nation and the laws made by the Parliament it commands. I'll simply
close with a reminder of what Sir Kenneth Keith says
about our Constitution in the foreward to the Cabinet Manual, the
"bible" of good practice every Minister is expected to know
by heart:
A
balance has to be struck between majority power and minority right,
between the sovereignty of the people exercised through Parliament
and the rule of the law, and between the right of elected governments
to have their policies enacted into law and the protection of
fundamental social and constitutional values. The answer cannot
always lie with simple majority decision making. Indeed, those with
the authority to make majority decisions often themselves recognise
that their authority is limited by understandings of what is basic in
our society, by convention, by the Treaty of Waitaingi, by
international obligations and by ideas of fairness and justice
Poisoned
Legacy: Why is the News Media and the Left so bad at defending our
freedoms?
Andrew
Geddis has shown how professors can fight. If the mainstream media
and our left-wing politicians were now persuaded to demonstrate the
same effectiveness in defending New Zealanders’ rights, then our
lucky stars could confidently submit a claim for overtime.
Chris Trotter
22
May, 2013
NEW
ZEALANDERS should be thanking their lucky stars for Andrew Geddis,
Professor of Public Law at the University of Otago. Without his I
Think National Just Broke Our Constitution posting, the Government’s
latest attack on democracy would likely have passed without much more
than a mild media murmur. Professor Geddis’ post went up on the
Pundit blog on Sunday, 19 May. By 22 May it had received nearly
14,000 page-views. In New Zealand that amounts to “going viral”.
Belatedly
(but better belatedly than never) other media voices are being raised
in protest at the extraordinary provisions of the New Zealand Public
Health and Disability Amendment Act. As the National-led Government’s
decision to wall off the Crown’s treatment of family carers from
any kind of legal challenge gains greater exposure, public
consternation and concern is mounting.
The
public is right to be concerned. A governing party prepared to cast
aside long-established constitutional conventions is a danger to us
all.
And,
there are questions.
Why
did the National Government’s support parties, Act and United
Future, fail to function as the people’s constitutional guardians?
Why was the Opposition parties’ performance so limp? Is there
really no legally qualified Labour or Green MP clever enough to
arouse the media’s interest in the manner of Professor Geddis? Is
this lack of an effective Shadow Attorney-General further proof of
just how foolish the Shearer faction was to drive out the talented
Charles Chauvel? And isn’t it sad that there was no one in the
Leader of the Opposition’s Office capable of seeing the big
political pay-off for Labour in leading the charge against National’s
latest assault on Kiwis’ rights?
Not
that the news media’s performance was any better than the
politicians. Did no one in the Press Gallery feel even a twinge of
righteous indignation at the spectacle of Opposition MPs holding up
page after blacked-out page of the Crown’s legal advice? They were,
after all, reporting from the New Zealand legislature: the place
where the country’s laws are made; but where, apparently, the
law-makers are denied access to the very legal opinions against which
the quality of this legislation could be measured.
Did
no journalist, determined to put this travesty on the front page/at
the top of the news bulletin, demand to be put through to his or her
paper’s/network’s news editor? Were no instructions issued to
immediately contact the likes of Professor Geddis for a stand-up
interview in his front garden? Did no banner headlines screaming
“Democracy Under Attack!” confront National Party MPs as they
munched on their Weet-Bix the following Monday morning? Of course
not.
Which
raises yet more questions.
Is
the New Zealand news media even interested in defending the
democratic rights of its readers, listeners and viewers? Or, are New
Zealand’s editors and senior journalists still of the view that if
a National Government does it, then it must be alright?
Because,
historically-speaking, that does seem to be the way of things. When
the First National Government declared war on the New Zealand
Waterfront Workers Union in February 1951 and invoked the draconian
powers of the Public Safety Conservation Act, New Zealanders found
themselves in the grip of “emergency regulations” which violated
practically all of their civil and political rights. The right to
free speech; the right to peaceful assembly; the right to freedom of
association; the right to freely dispose of one’s own property: all
were set aside by the National Government of Sid Holland.
How
did New Zealand’s “free press” respond? The answer, sadly, was
with almost universal applause for the National Government’s
actions. Not one newspaper – out of the scores of locally-owned
daily papers then published in New Zealand – was prepared to resist
the Crown’s use of such a huge and dangerous sledgehammer to crack
so small a union nut. Not one editor was willing to risk jail rather
than submit to having his paper’s content censored. Not one
proprietor was willing to tell his editor to: “Publish and be
damned!”
The
veteran journalist, Gordon Dryden, recalls the repression of media
freedom during the 1951 Lockout in his autobiography Out of the Red:
“In
my view the emergency regulations introduced on 26 February slashed
at everything I believe about journalism. It became against the law
to report both sides of the biggest industrial dispute in New Zealand
history. It became against the law to make donations to help feed the
families of workers who were on strike. It became unlawful for
opponents of the Government to hold meetings.
Walter
Nash, then Leader of the Opposition, even though he was ‘neither
for nor against” the unions involved, was banned from speaking to a
public meeting in the Auckland Town Hall, and the same thing happened
to other Labour MPs as well as to unions …
“… I
was appalled at the sight of a police sergeant entering the building
and demanding, under the emergency regulations, to check the next
day’s editorial, and issuing instructions that no advertisements
were to be published concerning meetings that were banned. The unions
concerned and the Labour Party were also refused permission for time
on radio to refute what they considered to be one-sided Government
propaganda.”
To
those who object that all these things happened sixty-two years ago,
it is worth considering the legacy of ’51. The near universal
failure of the New Zealand news media to defend not only the
democratic rights of its readers and listeners, but also its own
freedom to publish and broadcast fairly and in a balanced way,
couldn’t help but shape the nation’s media culture for decades to
come.
It
explains our media’s deep-seated reluctance to challenge and/or
expose the misdeeds and shortcomings of the Right while never missing
a chance to put the boot into the Left. Also explained is the way in
which the policies of National and the Right are so easily confused,
in the minds of far too many editors and journalists, with the claims
and objects of legitimate state authority. And, conversely, how
easily those same editors and journalists associate the policies of
Labour and the Left with spurious, unreasonable – even unlawful –
challenges to the proper functioning of the state.
The
legacy of that game-changing and deeply repressive historical event
has poisoned not only New Zealand’s media culture, but also its
political culture.
The
Right’s (which generally means the National Party’s)
identification with legitimate authority encourages its followers to
believe that: “If we’re doing it, then it’s obviously in the
public interest and people have no cause to worry.” A view that
allows them to do just about anything with a clear conscience.
The
Left, however, has inherited a very different set of responses from
the events of 1951. Perhaps the most pernicious is the response that
causes parties like Labour and the Greens to recoil from any
political idea or project that threatens to brand them as
unreasonable or untrustworthy stewards of the national interest. For
decades, this attitude has encouraged leftists to accept New
Zealand’s constitution as being pretty much whatever the Right says
it is. That it might be the role of the Left to keep the
constitutional rights of New Zealanders in focus, and to frustrate
the Right’s proclivity for blurring or even eliminating them, is
dismissed as foolhardy political romanticism.
Andrew
Geddis has shown how professors can fight. If the mainstream media
and our left-wing politicians were now persuaded to demonstrate the
same effectiveness in defending New Zealanders’ rights, then our
lucky stars could confidently submit a claim for overtime.
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