Post-Cabinet Press Conference: Monday, 26 February 2018

Thank you, Prime Minister. So this issue arises for one of two reasons—or, in fact, two reasons. One is that there is litigation in the courts at the moment. It goes to the Supreme Court in a week or two’s time. That’s one of the Arthur Taylor cases, to do with the right of prisoners to vote. That has worked its way through the court system. The courts at every level so far have confirmed their view that they have the right to declare laws passed by Parliament inconsistent with the Bill of Rights.

What the Supreme Court does is, of course, a matter for them. What we wish to do is indicate not only to the court but, actually, to New Zealand at large that we think that it is right, as a further check and balance on the exercise by MPs of their rights as parliamentarians, to make sure that laws passed by Parliament are not inconsistent with the Bill of Rights, where that can possibly be avoided. There is already the section 7 process that the Attorney-General goes through to indicate whether or not a piece of legislation is inconsistent with the Bill of Rights.

The proposed law that Cabinet has agreed in principle to goes beyond just confirming that courts will have the right to declare laws inconsistent with the Bill of Rights. But it also triggers a process that will require Parliament to review and reconsider a law that is declared to be inconsistent. So the process will be that if a court—let’s say the Supreme Court—declares a law to be inconsistent, then Parliament would then, in a timely fashion, have to reconsider it and decide either to affirm the piece of legislation—and say that we made a political judgment and, therefore, we’re going to stand by the law, or to amend it to make it consistent with the Bill of Rights, or to repeal it in its entirety. So those options will be there. Have you got anything, Mr Attorney-General?

No, I think you’ve well described that. The only thing I would say is that we’re doing it in a way that preserves the sovereignty of Parliament in the end to have the final word but creates the opportunity for Parliament to review whether it’s gone too far at times. We’ve got a wonderfully flexible system in New Zealand. We’re not encumbered by a written constitution or complicated by upper and lower Houses of Parliament. The risk is that when you have a system like that, which serves New Zealand very, very well—we’re at the forefront of recognising human rights and civil liberties around the world— nevertheless, the risk is there that at times we can just be a bit peremptory in Parliament, and with a rush of blood can authorise legislation which is inconsistent with the Bill of Rights. This provides a mechanism for Parliament to reconsider that. It was recommended for consideration by the Constitutional Review Committee a couple of years ago, and we’re picking up that recommendation, which will be achieved by a combination of amendment to the Bill of Rights to confer the statutory jurisdiction on the courts to make declarations of inconsistency, plus some provisions inside the Standing Orders so that we achieve that outcome, which is reconsideration of the underlying issue.

Will it be retrospective in any way?

No.

Can either of you give us an example of where this has occurred?

Well, you’ve got the case that’s going to the Supreme Court now, which is the law that now prohibits prisoners from exercising the right to vote. Before that law, prisoners had a right to vote. They were subject to a sentence, custodial sentence, of less than 3 years, and the underlying principle at least there was that upon their release they were going to go back into the community and have a stake in whatever the Government of the day was doing. So there is that, and there have been other findings of inconsistency, if not from the courts then certainly from the Human Rights Review Tribunal.

If you’re looking for international examples, though, Barry, my understanding is that Australia, one of their states allows such a mechanism. Canada goes further than us on this, though—it has a mechanism as well.

What’s the likely impact on the Taylor case of this announcement?

That will be a matter for the courts. The Crown will be bringing to the attention of the court that we are proposing this amendment to the New Zealand law, but how the court reacts to that is a matter for them. We’re not trying to control the outcome, although it is relevant to their decision.

I think the point to make, though, is that this is a change more broadly because of the importance of our interaction with the Bill of Rights Act, and giving some footing to declarations of inconsistency. So it isn’t being triggered necessarily by one particular example or case.

But it does enable you to avoid an embarrassing situation downstream if the Supreme Court did find this was inconsistent with BORA. You would at least not be playing catch-up.

Well, actually, I think the more important thing here is it provides a remedy. A declaration doesn’t change anything. What needs to happen is where these instances of inconsistency are identified, that we take a breath in Parliament and reconsider it, and, as the Prime Minister and Andrew Little have already indicated, at times Parliament is quite within its rights to say, “No, we believe this to be justified.” But on other occasions it is likely to say, “Well, actually, upon reconsideration, we think that position should be modified.”

Do you think it will mean that bills that currently don’t pass their Bill of Rights Act vet are less likely to be passed through the Parliament?

Not necessarily. Not necessarily, no. I mean, the standard, the bar for this is still reasonably high. A declaration of inconsistency requires the senior courts to make that declaration. So, no, I don’t think that would necessarily—of course, we should always give considerations to whether or not a bill passes or fails the Bill of Rights vet. That’s the point of that mechanism, but this is a secondary measure to that.

For this to be triggered, does someone have to take a case to the court? So this potentially won’t happen for some years after a bill is passed?

Correct. The court has to make their declaration of inconsistency to trigger the process. What it might do, as the Prime Minister has suggested, is that as parliamentarians are considering a law, there might be a slightly more considered view taken given that a certificate from the Attorney-General saying it’s inconsistent with the Bill of Rights, might or would be relevant evidence at a subsequent hearing for somebody who is seeking that declaration of inconsistency.

But in the select committee process—I mean, you already have the AttorneyGeneral section 7 process, and then you have the ability at select committee—I’ve been in many select committees where judges themselves have submitted as a collective on legislation and said, “This doesn’t sit right with us in the Bill of Rights.” I just—I don’t see—is that not that enough? I don’t really see the point when—

Well, the distance of time, I think, can sometimes be beneficial. I think when a number of—as you point out, quite often these things unfold over a number of years, and when the court, in a very considered way, because our courts are very considered in these matters, presents their reasoning some time later, when the heat may’ve gone out of the argument anyway, it enables Parliament to just take a breath and reconsider it.

But aren’t you also relying on someone taking—you know, actually having put themselves through the expense of taking a case to court?

But the alternative is the status quo, in which case someone can go through the expense of the court and there be a declaration of inconsistency that leads to nought. This at least allows for there to be a valve, which means it comes back to Parliament for further consideration, and that is far better than the status quo.

David Parker, is there actually anything at present preventing the courts from declaring that a law is inconsistent with the Bill of Rights Act?

That is a moot point that is being discussed through the courts at the moment in the Taylor case that Andrew Little referred to.

But surely courts can declare anything they want, really, if there’s no particular action required?

I think that, given that that case is before the courts, it would be inappropriate for me to express a firm view on that. The Court of Appeal judgment, which is the latest law on that, sets out the arguments that were made in favour and against that proposition.

Did the previous Government consider doing this, or was it not put to them?

It appeared in the Constitutional Advisory Panel’s report a few years ago as a recommendation, and it wasn’t taken up.

Isn’t that also a path—the sort of inconsistency with the Bill of Rights Act that some of the pay equity claimants have taken through the courts as well?

Some of those were Human Rights Act, which has a different—my understanding is some of those were Human Rights Act claims, and there is an existing mechanism for them, which does allow a mechanism for redress that doesn’t exist for BORA. That’s at least my understanding

The Human Rights Act has a specific provision to allow the Human Rights Review Tribunal to declare a law in breach of human rights.

Can you name a couple of bills that this would affect at the moment that we’re looking at?

Yes, as the Minister said, there’s been rare cases. The one that’s currently before the courts is probably the most recent, but there haven’t been many.

We haven’t introduced any piece of legislation that we’re proposing to vote for that has got a negative Bill of Rights vet in the current Government.

Well, you voted—actually, I think you voted last week for a bill that had a negative—

Which one was that?

Well, that’s the teacher’s registration bill—it’s a former Tracey Martin one, now it’s Jenny Marcroft. It didn’t pass the Bill of Rights Act vet, and you guys voted for it.

The member’s bill that’s just about to go before select committee?

Yes.

Yeah, I mean, that’s obviously—has a process before it. But as I’ve said, there will be cases where there will be vets. Of course, we take Bill of Rights vets seriously. There will be cases from time to time where there may be a negative Bill of Rights vet, but we must make sure that when that happens, that is a very considered view. What we’re providing for is another mechanism by which the public or individuals can challenge us through the courts and we are forced to reconsider again. And so that’s currently a mechanism that does not exist that we believe has a place.

Can you think of any examples of what specifically you’re trying to avoid happening? You know, are there any sort of cases in the past maybe the previous Government—

One of the criticisms that’s made of New Zealand’s constitutional settings is that Parliament holds all of the cards. Now, there are good arguments in favour of that. It’s worked pretty well for New Zealand for the last couple of hundred years. But it’s also true that, at times, it would be good if there was a mechanism to give effect to where things go a wee bit skew-whiff in breach of the Bill of Rights. Now, this provides a mechanism to address those that doesn’t currently exist, and I think you’ll find that most of the civil libertarians in the land will see this as significant progress towards giving better effect to the Bill of Rights without compromising the sovereignty of Parliament.

We are unusual in the Westminster system in that we have a single—well, a unicameral Parliament, whereas Australia, Canada, the UK, obviously, and many other Parliaments have two Houses. So there is a kind of a check on it and a bit of an opportunity for a senior House to reflect on a piece of legislation and make recommendations to a lower House. We don’t have that. So this is just a further mechanism to ensure that when our Parliament is passing laws that infringe upon human rights, we think very carefully before passing that law.

I’ll just take another—yes, so obviously this is an “in principle” decision, so we still have a process to go through, Barry. James.

So on the retrospectivity issue, can someone take a piece of old legislation—old law, something that’s already been passed—to the courts and challenge whether it fits in with the Bill of Rights?

I would envisage, after this amendment to the Bill of Rights Act is passed, that that would be possible, yes.

So it is retrospective?

Well—

But that’s not retrospective. If you take a current case, that’s not retrospective.

But you can take a case of an old law—

Any law, technically, from the day it passes is old law, in that sense.

And if the goal is to have this oversight, why rely on someone taking it to the courts in the first place? Can’t you just make that process automatic so that they look over it and make sure that it fits in with the Bill of Rights, before—

Well, that’s our Bill of Rights vet. Obviously, though, that then comes down to a decision of Parliament. This adds a level of oversight that’s external to Parliament.

We still want to maintain the separation of powers between the legislature and the judiciary. That’s the proper thing to do. But this is allowing, or giving, Parliament the opportunity to respond to a finding by our courts that a law that Parliament has passed is inconsistent with the Bill of Rights.

I mean, one of the concerns that people have is the tendency for Government itself to resort to “Henry VIII” powers? Is this mechanism likely to put a brake on the tendency for Government to use “Henry VIII” clauses to further its agenda?

It wouldn’t so much do that; it’s really focused on the Bill of Rights issues and the human rights contained in the Bill of Rights. Where there is a law passed by this Parliament that on the face of it is inconsistent with the Bill of Rights and citizens’ human rights, then that is when it comes into play. Just the exercise of powers by the executive wouldn’t necessarily meet that test.

If the exercise of those powers is in conflict with BORA, presumably that would then click in as a potential route.

Arguably yes.

Mr Parker, can I ask while we’ve got you here: have you made any progress on the Hit & Run investigation?

We’re getting closer to a decision, but we haven’t yet taken one.

When do you think that will be?

I would say within a month.

Just getting back to BORA, though, there are a lot of people who would like the courts to have the power to strike down laws of Parliament. Can you give us a commitment that any Government you lead will not give the courts that power?

Yeah, no, that is not what Cabinet agreed in principle to today.

Yeah, what about the future?

future.

Well, Cabinet today didn’t agree to that so I wouldn’t see us doing that in the

It’s just that some people will see this as a halfway house, or the thin end of the wedge to give, you know, the courts a lot more power than they have.

No, I would see it, as I say, as a way of making sure that there’s an additional mechanism, which still retains the sovereignty of the New Zealand Parliament.

So is there any legislation at the moment that you think could be affected by this, where there’s been a declaration of conflict and where—

That would require us to anticipate what someone might choose to take before the courts. I don’t know that we’re in a position to do that.

It often arises—of course it arises in Government legislation, but I think it more frequently arises on a per capita basis with private member’s bills, because not every MP has access to the drafting skills and knowledge that Government Ministers have. The legislation that is presently before the Supreme Court exactly comes from that stable.

But there must have been legislation where the vetting process alerted everyone that this is a problem. Could this trigger the use of this legislation there?

Well, although—look, the vet is the attorney’s opinion. Parliament can have a different opinion sometimes, and it is possible that sometimes Parliament is right and the attorney is wrong.

Not that you’re suggesting that for a moment.

Ha, ha! Prior attorney. Ha, ha! No, I’m not suggesting that at all. But—look, the courts will be wise in their use of this power, and where, in their wisdom, they think that Parliament’s gone too far, we’re now creating a mechanism for Parliament to reconsider it. We’re not promising that we’ll agree with the courts, but we’re creating a vehicle for that reconsideration and for the wisdom of both arms in these divisions of power to listen to each other, and at times modify the outcome, which I think would be a good thing.

Is there any exemption intended for security intelligence - type issues?

Presumably, the courts won’t have full access to those, and a complainant may feel that their BORA rights have been infringed by the security and intelligence agencies. How is—

This is about legislation, not individual operational cases. Yep. All right. I’m heartened by the level of interest in this subject matter, greatly. And, look, if I could add the final word on it: you know, as a Government we made a commitment to operating as a Government differently to try to enable there to be greater faith built in the way that we operated as a Government. I see this as one mechanism by which we can do that, allowing ourselves to be challenged while still maintaining the important sovereignty of Parliament and fulfilling some of the work that was done some years ago by that constitutional committee. I’ll leave the Ministers with me here just in case you have anything additional. But otherwise, any other questions for today?

Prime Minister, just on the 60 Minutes interview that aired last night in Australia, how did you feel when he asked you about a conception date?

Well, look, I have to say I haven’t had a chance, obviously, to watch the show. It aired in Australia last night. It’s fair to say that actually I couldn’t recall their being anything from the interview that I found that particularly stood out for me, and had to be reminded of that question. And you’re assuming that I haven’t been asked by New Zealand media that question before, as well.

Have New Zealand media asked you what date you conceived your baby?

They asked a question that in a round-about way implied that, yes.

So you were comfortable—generally you were comfortable—

Oh, look nothing stood out for me. Look, at the time, certainly, I think that question threw me a little bit, but it would be going a bit far to say I was somehow offended by it. I wasn’t it. It’s one I think is put under the heading of “too much information”.

What about him calling you attractive?

Again, the implication there is that I’ve never had an interview where that’s been done or raised or in some way implied before. I have. Again, I wasn’t particularly offended or phased by the interview as a whole.

Did you find it sexist or insulting at all?

No, no. Again, as I say, the interview didn’t particularly stand out for me in a way that made sense when I saw some of the headlines that followed on. I had to look back and remind myself of what the questions might have been.

Do you think the guy’s been picked on because he’s an older white male?

No. I haven’t spent a lot of time analysing it. Yeah—maybe I’ve lost all my sensitivity. Maybe it’s just that I’m from Morrinsville. I don’t know, but I wasn’t particularly phased by any of it.

Regarding the Russell McVeagh allegations, just following on from an MP’s comments in select committee last week that she had concerns around Government departments using the firm, are you aware of any directives to Government departments to review their relationship?

No, no. I’ve obviously seen the reporting, as others have, and think it’s entirely appropriate that there be further investigations undertaken based on what’s been reported by Russell McVeagh, but beyond that, no, I’ve had no conversations with any Ministers or anyone who may have contracts with Russell McVeagh as to the nature of their arrangements.

The firm does quite a lot of sensitive work for people like ACC, rape cases, the Human Rights Commission. Is it appropriate that they’re undertaking that work?

I think every member of the public would have an expectation after seeing some of those stories that those firms undertake their own internal processes to respond to what are some significant allegations, but beyond that I’ve had no conversations with anyone from Government departments about any flow-on effects for them.

So you’re comfortable with Russell McVeagh working—

I think they need to undertake that work for themselves, but at this point I’m not having any conversations with Government departments about repercussions, in any way.

Can we put that question to the Attorney-General and the Minister of Justice in terms of, is there any work being done in considering the procurement policies—around sexual harassment or—

Well, I’m aware that Russell McVeagh are on the panel of lawyers who are, from time to time, engaged by Government. I’m also aware that they’re active in those roles currently. The Government procurement rules include appropriate requirements of good conduct, but I’m not aware of the Government procurement agency—and I’m responsible for it; it’s MBIE—currently, actively, on the basis of the investigations, trying to strike them off the list of approved providers.

But should they?

I wouldn’t jump to that conclusion.

Sorry—can you just step up to the mike if you’re going to talk? Sorry.

I wouldn’t jump to that conclusion, but I—as the Prime Minister’s already indicated—you know, there’s more work that needs to be done by Russell McVeagh.

So Julie Anne Genter said last week that Jan Logie was looking at the Government’s policies around sexual harassment. Could procurement be part of those options?

I would need to ask Jan Logie what was covered by the work that she’s likely to do. But I think it’s fair to say that, as there has been for some time, there’s a real awareness of making sure that our workplaces are safe and respectful places. And she’s undertaking a piece of work to ensure that that’s the case. I cannot tell you at this point whether or not anything she’s doing would then have any crossover impact with anything we’ve seen reported.

What about individual lawyers? Should the Law Society, if the organisation decides, you know [Inaudible] that lawyers have to—

Yeah, I mean, and that’s a—yeah, and that’s a question I think worthy of asking the Law Society, and I would be interested to hear what they would say to that.

You’re heading to Australia this week.

Yes.

The relationship’s been rocky over the past couple of years. Are you—what are you going to do to try and, I guess, heal some of that?

Again, maybe I just have no sensitivity. I think our relationship is absolutely fine.

My expectation is that we will continue on what has been some really constructive bilaterals and informal meetings to date—continuing to talk about the strength of our relationship with a particular focus on where to take CER next for Australia and New Zealand. There is no other country that has a relationship like ours with Australia. They are our closest ally. But, really, for us it’s about the next step. How can we make sure that we continue to see economic gains from that relationship for the likes of our small and medium sized enterprises, for instance?

Malcolm Turnbull, meeting with Donald Trump last week, said America was Australia’s best mate.

Ha, ha!

You’ve just said that Australia’s our closest friend.

Yeah, by definition. I mean, our economic relationship, the freedom of movement—by definition, they absolutely are. We have no relationship that mirrors the one we have with Australia. I’m not particularly concerned by whether or not—where we rank in the hierarchy of besties.

On this foreign policy topic, you’ve got this keynote address tomorrow—a big foreign policy speech. What are you going to be saying?

I never called it big, but thank you. So tomorrow, I’ll be highlighting some of the areas where this Government wants to place emphasis on international relations and the way that New Zealand conducts itself—referencing some of the things that we’re known for, but also the importance for us of rules-based mechanisms, but also placing emphasis on some of the current challenges that we’re facing in the international environment. So that’s a general overview. I wouldn’t want to ruin your reason for coming by giving away too much.

The ANZ Business Confidence numbers are out later this week. Are you expecting to see optimism bounce back?

Oh, look, I think these things sometimes are a bit of a slow burn. So I don’t have high expectations for us to see immediate jumps. That’s something that this Government will be working diligently on over time, regardless, actually, of what the numbers say.

What sort of things have you been doing to try and restore that confidence?

For us it’s about making sure that there is reassurance about our future agenda and the involvement we anticipate having with business. We want to work collaboratively on some of the issues that we’re looking at, going forward. There are real opportunities within our housing area, within the areas around environmental sustainability, regional growth. We want to maximise those by partnering and working closely with business, and on employment law. For those larger pieces of work, we are going to take a tripartite approach, and we’ve been talking to business about that, as well.

Prime Minister, just some questions from Newshub Nation’s Mike Wesley-Smith.

Yes.

Do you believe that compensation averaging $20,000 is fair and reasonable for people who were repeatedly sexually abused as children in State care?

Certainly, as spokesperson who had a lot to do with people who went through the claims process, I’ve seen a huge variance in the range of compensation that people have received. That’s one of the reasons we do want to allow, within the royal commission, the ability of people to talk openly and for them to refer back to us a view on the compensation and claims process as a whole. So without commenting on individual cases, I anticipate that they will have something to say to us about that.

But $20,000 doesn’t seem that fair and reasonable for someone who was sexually abused in State care.

Yeah, I’ve seen cases that were lower than that too. So, as I say, we want to create a mechanism for people to be able to feed back on their experience going through the process. In some cases, that will have been via the courts, which adds a whole layer of additional experience for those victims. Sometimes it’ll be through the historic claims unit. Either way, we want that royal commission to be able to report to us on whether they think that is working well and adequately.

And will it have teeth, those recommendations? Will those people who have already received, you know, 10 grand in compensation be able to go back to the Crown and say, “Actually, I want more?”

Look, for those cases, I imagine probably what’s happened, if they’ve been settled through the court, probably their right of redress there is probably somewhat limited. But that shouldn’t stop them being able to come and make the case that we should look more broadly at what’s happening in that space. And by all means, of course, the Government has undertaken this work because we believe it’s important to hear from them.

Just under the last Labour Government, Crown lawyers argued in court in 2007 that sexual abuse of a child in State care hasn’t caused any long-term mental health problems to people. Does that represent the official position of your Government?

No. No, it does not. What I would say as well is that we have asked specifically to make sure that our terms of reference that allow people who have had an experience where the Crown may not have acted as a responsible litigant to also share their experience.

Ms Ardern, are you proud of the actions of your two Labour MPs in select committee last week, who refused to shake the hands of the Iranian delegation?

Look, I obviously wasn’t in the room, but my personal perspective on these matters is that we will often encounter people from a range of different backgrounds and ethnicities, cultural beliefs, and religious beliefs. We won’t always know the protocols that they’re likely to be most comfortable to engage with, but my personal practice has always been to observe those and be respectful of them.

But are you happy with the actions that those two Labour MPs took?

Again, I’m not going to pass judgment without knowing the context for them. You know, I’ve been situations where I may have inadvertently caused offence without intending to, and without knowing all of the ins and outs. I’m not going to pass judgment on their actions, but, certainly, my personal belief is that where someone is particularly observing their religious beliefs, that for me is something that I am totally happy and willing to respect.

Just on the foreign policy side, the Communist Party has decided to remove the term limits for President Xi Jinping. Are you concerned or surprised about that, given the concerns human rights groups and others have about his crackdown on dissidents and the like?

No. That is a matter solely for the Chinese Government. Of course, regardless of any of those matters, regardless of terms of power, we’ve always taken our opportunity to raise individual human rights issues where they exist, and that wouldn’t change.

And also on China, but just a bit different: a top US defence official—it might have been in the same speech where they said they were best mates with Australia—said that they are hoping to ask for help with the freedom of navigation in the South China Sea. They said that the tensions have risen. Are you seeing that? Will you talk about that with Malcolm Turnbull, and do you expect any request to be made—

Yeah, look, I think the South China Sea issue has been an ongoing one for quite some time now. I don’t see that necessarily changing. In fact, the only thing that probably has overtaken it in recent times has been discussion around the response to North Korea. New Zealand’s view has always remained consistent on the South China Sea. We want rules-based institutions that are followed. We want open access. We want to ensure consistency in the application of those rules. None of that has changed for us, so I don’t imagine that issue will come off the table any time soon. OK. Oh, last question?

Prime Minister, just quickly, it is the eve of the new National Party leader. Who is your pick?

So you’re asking who I want to spike in the last moments of their campaign. I haven’t made any picks throughout this contest for the National Party. It’s an internal matter. I don’t intend to now, either. Right.

Is that because you don’t care or—

No. Obviously I take an interest, but, no, it’s just not a matter for me, and probably I’m reflecting of my own trauma of being involved in these in the past. All right. Thanks, everyone.