Thursday, 25 March 2010

Constitutional spirit

I wrote earlier this week:
Quasi-constitutional constraints are great, but they have a hard time being effective in a Parliamentary system if the majority party doesn't particularly wish to be constrained and if voters aren't particularly constitutionally minded.
The Attorney General argues Paula Bennett's proposed welfare reforms are incompatible with the Bill of Rights because of unwarranted discrimination: recipients of the Domestic Purposes Benefit will be subject to work requirements while women receiving the Widow's Benefit or the Women Alone benefit will not.

And so I'm worried when Paula Bennett's response to the Attorney General's concerns about compatibility of her proposed welfare reforms with the Bill of Rights isn't that they'll seek out further advice, possibly asking the Supreme Court for an opinion, or that they'll move to apply equal treatment across the three types of beneficiary groups putting in some general rule that anyone under the retirement age will be subject to work requirements; rather, here's what she has to say:
Social Development Minister Paula Bennett admits that part of her welfare reforms breach the Bill of Rights Act but says it would not bother most people.

"I think that is a discrimination that most New Zealanders will see as being fair and reasonable."
She's right. Most folks will see it as being fair and reasonable. Heck, it seems fair and reasonable to me too. But that isn't the point: if it runs counter to the Bill of Rights, we ought to amend it to make it compatible. There are all kinds of things that will seem fair and reasonable to most New Zealanders, but the point of constitutional constraints is to stop us from doing things that the majority feels are fair and reasonable but impose large costs on minorities. But there's little constitutional spirit in New Zealand.

HT: Big News.


  1. What I don't understand about Bennett's comment is this. If Bennett's changes go through, can I not sue for breach of the Bill of Rights and cite both the Attorney General and the Minister responsible as being in my corner? Or does she intend to draft legislation that says nothing in the Bill of Rights shall apply to benefits, or at least the cuts?

    I'm also confused by the double standard. Plainly, benefits must discriminate on the circumstances of the person. So why are cuts held to contravene the BoR but not the underlying benefit?

  2. Parliament can trump the Bill of Rights; it's a Parliamentary system and Parliament Supremacy means that they can pass legislation inconsistent with the Bill of Rights so long as they're explicit that they wanted to contravene the Bill of Rights, as best I understand things.

    I'm also confused about why this particularly contravenes BoR.

  3. I did a law degree during the time the Bill of Rights Act had just been past. The Right Honourable Professor Sir Geoffrey Palmer, author of the act, was guest lecturing Public Law down at Otago at the time. He seemed to think, then, that the Courts would blow life into how they interpret executive activity brought before the judiciary. Like, the judiciary review of a decision to compel a work requirements rule to DPB beneficiaries, which looks like it might breach the Bill of Rights Act is a pretty good indicator to say that action was unreasonable (in a judicial review sense).

    Palmer was making this quasi-constitutional constraint as a squarely judicial tool, while at the same time, keeping Parliament sovereign.