OnPoint by Keith Ng


What Andrew Geddis Said, But Shorter and With More Swearing

During the Budget lock-up last week, an old hand from one of the law firms said that I should ask Bill English about all the legislation that was going to get rushed through immediately after the Budget. I gathered, from what he told me, that a lot of bills got passed in the wake of the Budget with very little scrutiny.

Well. This happened:

You're looking at the Regulatory Impact Statement (RIS) for the Public Health and Disability Amendment Bill. Basically, the courts said that the Government had to pay family members who looked after people with disabilities (because not doing so was discriminatory), so the Government passed this law to say: "Yeah nah."

The RIS isn't just redacted for the public - it was redacted for MPs. *Parliament* voted on this, with all the relevant facts blacked out.

Sure, it's understandable, right? If you're passing a law that's really fucking dodgy, you don't want advice from civil servants saying "uh, this is pretty illegal" to be public. That shit is super embarrassing in court. But actually, that's not really a problem here, because in the same piece of legislation, THEY SAID THEY CAN'T BE TAKEN TO COURT.

Andrew Geddis, over on Pundit, pulled out this shiny little turd (section 70E in the bill):

[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.

That's to say, it doesn't really matter whether the law is discriminatory or not. Hell, it doesn't matter even if the RIS explicitly admits that it is, because they just changed the fucking law to say that you can't complain to *any court or tribunal* over it.

Geddis also pointed out that Attorney-General Chris Finlayson has said that, actually, no, this is not okay. From Finlayson's report to Parliament:

[Section 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 [the Freedom from Discrimination section] of the Bill of Rights Act... On balance, I have concluded that limitation cannot be justified under s5 of the Bill of Rights Act.

(s5 of the Bill of Rights Act says that the Bill of Rights "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society")

Geddis suggested that you "might need a moment to let the implications of this sink in". In the interest of expediency, I'm going to start you off:


In the GCSB case, they did something illegal, then just changed the law to make it legal (which is already quite a large crazy basket of NOT OKAY). Here, they're doing something which was against the Human Rights Act before, and is still against the Human Rights Act after, but just made sure the people on the receiving end can't have their legal rights recognised or enforced.

It's saying, sure, the Government's doing something illegal to you, but it's okay, because we just made a law to say there's nothing you can do about itLolz!

Well, it's not okay. It's not okay that human rights promised by law are not honoured because it costs money. It's not okay that due processes promised by the Bill of Rights doesn't apply because the Government says it doesn't apply. It's not okay that advice about how Parliament is about to piss all over the rule of law (at least I assume that's what the legal advice says, because we can't see it) is denied to Parliament. It's not okay that saying "Budget, Budget, Budget" means that the Government can bypass all the checks and balances of Parliament itself and just put itself above the law overnight.


Here's where it gets awkward. Ours is a system of parliamentary sovereignty, with only an informal consitution. Parliament *can* change the Bill of Rights, and it *can* make the Government exempt from it. There's no upper house to stop them, no presidential veto*, no supreme court which can strike it down.

It's only "not okay" in the sense that we have a reasonable expectation that the Government respects the principle of the rule of law, constitutional conventions, and the laws which make up our constitution. Because DEMOCRACY.

When you say it out loud, it really makes our constitutional set-up sound stupid. And it kinda is. But it is, nonetheless, a system. And in this system, *we* are the check against Parliamentary power.

To exercise our constitutional responsibilities, we need to start by getting really, really fucked off.


* Bonus points: Actually, the Governor-General is the other check in the system. Is this a legitimate case for the GG to refuse to sign this into law? Are there conventions for when the GG should activate their Cause-Constitutional-Crisis powers?

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