The Climate Change Response Bill (Second Reading) and the Bill of Rights

The Green Party rises to support this bill. It is very important to establish the mechanisms in this bill to enable New Zealand to implement its commitments to the Kyoto Protocol. It gives powers to the Minister of Finance to hold and trade units relating to Greenhouse gas emissions, with the aim of reducing those emissions. Other speakers have relayed the importance of dealing with the critical issue of global warming.

The bill also sets up a registry to enable an accurate, transparent, and efficient exchange of information, along with a national inventory agency to record New Zealand’s emissions, particularly in relation to sinks and other information that is required for the purposes of implementing New Zealand’s commitments.

I will go on to the debate that has taken place around the search and seizure provisions. The bill did undergo great improvements in the Foreign Affairs, Defence and Trade Committee in that regard. There were quite arbitrary powers of search and seizure given to different Government agencies before that. In my opinion, the bill was in conflict with the Bill of Rights Act before those changes were made.

I support the comments made earlier on by Peter Dunne. We were quite united in the Foreign Affairs, Defence and Trade Committee on the question that we were not getting sufficient information on the application of the Bill of Rights Act to this legislation. It does relate back to the Bill of Rights Act, in that the Attorney-General has the clear power to report to Parliament where a bill appears to be inconsistent with the Bill of Rights.

I think it is not just a statement from the Attorney-General that is implicit in that, but also that information on which that judgement is based should be conveyed to members of the select committee. That is particularly important in view of a certain weakness in the Bill of Rights Act in comparison with, say, the United States Bill of Rights, which gives the courts more powers to make sure that the rights outlined in that bill are implemented by the legislature. It is true that section 5 of the Bill of Rights Act states that any limits that Parliament imposes in its laws to the Bill of Rights must be those “as can demonstrably justified in a free and democratic society”. That is very good, but unfortunately that is significantly countermanded by section 4 of the same Act, where laws can override the Bill of Rights provisions and courts cannot actually repeal laws just because they are inconsistent with the Bill of Rights.

Section 8 of the Bill of Rights Act does allow, where there is some grey area in the law, or where it is subject to different interpretations, that the courts should rule in favour of the most consistent interpretation of the provision in the Bill of Rights Act. However, in the way the Bill of Rights Act is written, it comes back on to Parliament to make the ultimate decisions about whether the laws are really consistent with the Bill of Rights Act or not, which is why it is so important that Parliament — and particularly the select committees considering the legislation — be provided with proper legal advice about all the pros and cons in relation to the application of the rights contained in the Bill of Rights Act.

One of the problems I have found in this particular deliberation on the Climate Change Response Bill — and also on some other bills — is that one has to have things out in the open, because the ministries and agencies that are actually helping to design this bill are, to some extent, also involved in determining whether they are compliant with the Bill of Rights Act. For example, the Parliamentary Counsel’s office, the Ministry of Justice and the Attorney-General’s office are all involved in determining compliance. Their colleagues are the same people who are designing the bill itself, so one is not really getting an independent test unless their advice as to the pros and cons relating to the Bill of Rights Act is out in the open.

In this particular bill the provision of the New Zealand Bill of Rights Act we looked at was section 21 that relates to unreasonable search and seizure, which states that everyone has the right to be secure against unreasonable search or seizure whether of the person, property, correspondence, or otherwise. We made improvements in that regard. However, this bill and the fact that the select committee was not provided with full legal advice has drawn a lot of public attention and debate, which is good.

Some people have suggested further changes in the way we operate as a society. For example, in the New Zealand Herald of 29 October an editorial stated: “this is not a matter for idle concern. Because New Zealand has no constitution the Bill of Rights Act is pivotal in ensuring a parliamentary majority cannot suppress basic rights. The dismissive attitude to the Act makes change imperative. Parliament should pass an amendment dictating that legislation which officials find at odds with the Bill of Rights cannot be passed.” It also states: “Don’t hold your breath.” However, I think that throws it back on us in the light of what the editors of the New Zealand Herald are saying — that is, to really consider this matter. In the interim we should abide by what is just a common-sense approach that the advice be made available to select committees.

This is not a new question. I struck it in an earlier discussion we had in a Foreign Affairs, Defence and Trade Committee on what is now the Terrorism Suppression Act where the Green consideration was that this Act was in contravention to a number of the provisions of the New Zealand Bill of Rights Act relating to freedom of thought, expression, association, and the right to justice to name some. But all we got was bland statements that it was all consistent with the New Zealand Bill of Rights Act without any elaboration.

It is particularly important at this time in light of what we discussed in question time earlier today where people perceive a greater danger of terrorism requiring restrictions on some of our traditional civil liberties. We have to be careful that restrictions do not go too far, which is why we cannot just leave it to the agencies of Government. It has to come out into the open, into Parliament, into select committees, and into public debate.

I have often found that in select committees — and it is natural to some extent — that agencies, whether they be the Ministry of Justice, the Ministry of Foreign Affairs, Police or intelligence agencies, there is a tendency to want to be able to operate free of restraints, and to have more powers in that sense. That is a natural tendency in bureaucratic agencies. It is only the surveillance of the public, the Parliament, and of select committees that can hold back this process going too far down the track in terms of the violations of our basic democratic rights as outlined in the New Zealand Bill of Rights Act.

The first procedure is to enable the select committees and Parliament to have full access to the advice as to whether legislation is consistent or inconsistent with the New Zealand Bill of Rights Act.