NZ Constitutional Reform (2023)

This post is probably the most controversial, so I'll keep it brief. Protecting fundamental rights, or (from another perspective) limiting the powers of Parliament to curtail rights by ordinary law, is one of the key features separating a free society from an oppressive society. Parliament's hand has usually been light, but has sometimes been quite heavy, notably in the COVID response, though other periods of history such as the Muldoon era and the 1950s have also been regarded as characterised by heavy-handed legislation. New Zealand has, famously, not one, but two Bills of Rights: The 1688 and 1990 Acts. The catalogue of rights that are protected is extensive, but they're subject to the "justified limitation" exception, and to explicit override by Parliament. The danger is obvious. I'm going to start off with three things, only three, that Parliament should not be able to touch. Some of these aren't even mentioned, or are mentioned in other ways. Menta...

One of the major criminal law reforms of the last decade was the passage of a Criminal Procedure Act that abolished trial by jury for most crimes, and for the crimes where a trial by jury is permitted on its face, giving the Court the power to deny trial by jury. There are some technicalities and exceptions, but that's the crux of it. This move, if not popular, seems to have passed with minimal complaint. It seems clear that the disruption to people's lives from jury service, and the inadequate compensation offered (most workers would get considerably more per hour from their employers, but were obliged to take leave without pay and accept jury compensation of $25 per hour minus tax instead), caused the public to regard jury service as an unwelcome imposition rather than a safeguard of their liberties. But a natural consequence is that now, subjective findings of fact reflect the prejudices of the class from which judges are drawn: mostly middle- to upper-class, highly educate...

One of the landmark changes achieved by Helen Clark's Labour Government was the abolition of the right of appeal to the Privy Council. While the merits of doing so, and the replacement of the Privy Council with a local Supreme Court, could be debated either way, the real problem with it in a context of fundamental rights and of a limitation of powers of Parliament is simple. These rights and limitations can be overridden by Parliament if, by ordinary statute, Parliament can erect a new higher court, which the Government can then pack with judges unsympathetic to the right or limitation to be overridden. The obvious solution to this is to entrench the supremacy and make-up of whatever court is to be supreme. A government might even choose to reinstate appeals to the Privy Council! I think this unwise, though, because the composition of the Privy Council is not subject to the people of New Zealand, either directly or through a representative body. A better step would be to entrench t...