What's the point of Section 7 of the Bill of Rights Act if politicians simply subvert it for their own political ends?
Section 7 BORA requires the Attorney-General to
bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.
The assumption here is that a) the Attorney-General will report honestly; and b) Parliament will pay attention. We've already seen substantial doubts raised about (b) (notably in the case of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010). And now we have (further) good reason to doubt (a) as well.
On September 19, the government introduced the Public Safety (Public Protection Orders) Bill to Parliament. The bill would allow unpopular (technically serious and violent, but in practice it translates into "anyone the Sensible Sentencing Trust can whip up hysteria about") prisoners to be further detained at the end of their sentence, potentially indefinitely. The bill is a fairly explicit breach of the BORA provisions against retroactive penalties, double jeopardy, and arbitrary detention. Despite this, yesterday the Attorney-General finally released his advice declaring it consistent with the BORA.
As Andrew Geddis notes, there are a number of odd things about the advice. It is dated October 4 - two weeks after the bill was introduced into the House. And for only the second time - the other being the notorious Foreshore and Seabed Act - it is the personal view of the Attorney-General himself, rather than that of a named official from Crown Law or Ministry of Justice. But the oddest thing about it is the conclusion. Back in 2009, when considering the Parole (Extended Supervision Orders) Amendment Act 2009, which allowed similarly unpopular prisoners to be subjected to home detention at the end of their sentence, the Attorney-General declared the bill to be inconsistent. In doing so, he essentially used a duck test for determining whether something constituted "detention": if it looked like penal detention, it was. In that case, the law allowed the Parole Board to "impose what is in effect electronically monitored home detention for anything less than 24 hours a day". He was also very clear on detaining people based solely on the risk of future offending: that it was detention without charge or trial.
Fast-forward three years, and the Attorney-General has apparently reversed his position. The far harsher conditions imposed by the Public Protection Orders Bill (24 hour home detention within prison grounds, with censored mail, bugged phone calls, and guards) apparently is not penal, but a civil regime. And detention based on the risk of future offending is now OK.
This inconsistency raises grave doubts about whether the Attorney-General is consistently and conscientiously performing his statutory duties under the Bill of Rights Act. Those doubts could be mollified if he released all the legal advice he had received from his department on the bill, so we could see whether he really has changed his mind, or whether he had ignored the considered advice of Crown law to rubberstamp a bill to further Judith Collins' reputation as "the crusher". Sadly, I don't expect that: such release would be contrary to longstanding precedent, the Minister will not release anything that makes him look bad, and he is basically immune to the OIA on this.
But that secrecy has a cost, in that it raises doubts about the sustainability of the BORA regime itself. If Attorney-Generals can't be trusted to properly warn Parliament about bills that may contravene the BORA, there is only one alternative: to strengthen post-facto review by the judiciary by allowing laws to be struck down. Finlayson has a choice: he can either do his job properly (and be open about it), or see more power flow from an institution the public don't trust - Parliament - to one they do: the Supreme Court.