One of the more odious features of Fiji's military dictatorship is its use of "ouster clauses", purportedly denying the jurisdiction of the courts to review its illegal policies. Such clauses have a long and dubious history in military dictatorships. But now National is using them here. Their New Zealand Public Health and Disability Amendment Bill (No 2) - a discriminatory bill specifically intended to overturn the family carer's victory in Atkinson & Others v Ministry of Health, rammed through the House under all-stages urgency on Friday - includes an ouster clause purportedly denying the courts jurisdiction to review decisions made under it on human rights grounds:
On and after the commencement of this Part, no complaint based in whole or in part on a specified allegation [one that a decision under the Act discriminates on the grounds of marital status, disability, age or family status] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation may be commenced or continued in any court or tribunal.
As for cases that got in before then, apart from Atkinson, they are denied any effective remedy. The result is effectively to excise the Act from the jurisdiction of the courts, giving the government a free hand to discriminate on those grounds in its policies over home care, regardless of the Human Rights Act.
This is a direct attack on the rule of law, a direct attack on our constitution, and a direct attack on the rights of all of us. After all, if the government feels that it can excise family carers and the disabled from the Human Rights Act, what's to stop them from doing it to the rest of us? What's to stop them from excising our right to free speech, free assembly, or our right to vote? Nothing. The problem is what to do about it.
The immediate solution is to throw this government out on their arses at the next election. This is simply the latest in a long line of constitutional abuses, and they have clearly shown that they cannot be trusted with power. In the long term, we need to make sure that this can never happen again. And that means entrenching the Bill of Rights Act as supreme law and allowing laws which purport to contravene it to be overturned. Half-measures such as declarations of inconsistency and mandatory reporting will no longer cut it anymore. Parliament has shown that it will not act to guard our fundamental human rights. They have betrayed our trust. It is therefore time to take that role off them and give it to a body which can be trusted: the courts.
[Hat-tip: Andrew Geddis]