Helping the Attorney-General out of a jam

Attorney-General Chris Finlayson has told Parliament that disenfranchising all prisoners cannot be justified in a free and democratic society. So why does it look like he's going to vote for this to become our law?

Looks like some oik at Crown Law has been at it again. The Attorney General Chris Finlayson apparently has been bamboozled into attaching a section 7 notice under the New Zealand Bill of Rights Act 1990 to Paul Quinn's members bill designed to take away the vote from all convicted persons while they are detained in prison. A section 7 notice alerts Parliament to the Attorney-General's opinion that a legislative proposal would strip individuals of a fundamental right in a way that cannot be demonstrably justified in a free and democratic society.

Chris Finlayson's reasons for this conclusion largely mirror arguments I made a month ago in another Pundit post. (In that post I also stated: "it's a virtual certainty that the Attorney-General will attach a notice to Paul Quinn's bill to the effect that it is inconsistent with our New Zealand Bill of Rights Act." How I now bitterly regret including that weasely "virtual" in that sentence.)

The Bill's objectives are not "rationally linked" to its means, says Chris Finlayson. Because the primary determinant of whether a person loses their right to vote is when they are sentenced, not what they are sentenced for or how long they are sentenced, it would have arbitrary outcomes. You could, for example, see a person jailed for a month for not paying fines being unable to vote, whilst a recidivist burglar just released from 2 1/2 years in jail still casts a ballot. Removing the indvidual right to participate in the most fundamental task of selecting who will make laws for our society in such a capricious and unprincipled manner simply is not acceptable in a country that calls itself a democracy.

So there is no surprise that the Attorney-General acted as he did. It was not even a close call. Indeed, had he not attached a section 7 notice to this Bill, the entire system of "rights vetting" of proposed legislation would have failed catastrophically.

But here's the kicker. Having given his opinion that this proposed law limits a fundamental right in an unjustifiable fashion, it looks like Chris Finlayson will join his National Party colleagues in voting in favour of it at its First Reading.

I don't mean to have a pop at him personally for this - other Attorney-Generals have done the exact same thing. They are, after all, also MPs who are bound by caucus loyalty. And Paul Quinn is a National MP, so it would be a slap in his face if National did not agree to support his proposal at least as far as select committee. For that is all the First Reading vote does; no doubt this Bill will quietly die there once its full flaws and inconsistencies are revealed.

Nevertheless, there still is something a bit off about the Attorney-General one day giving his best considered advice that a proposed law is so inimical to individual rights that it ought not to find a home in the statute books of a free and democratic society, and on the next going into Parliament and voting to allow it to proceed towards enactment into law.

Other MPs don't face the same problem. A section 7 notice is just the Attorney-General's view of the matter. Other MPs are fully free to accept or disagree with it (although we should expect them, as a matter of legislative best practice, to at least consider the Attorney-General's view and come up with reasons why they think it is wrong).

So if MPs choose to vote for a Bill that the Attorney-General believes unjustifiably limits rights, that only means that they think the rights limits is justifiable. I have no problem with that happening. And it happens quite often: in the 20 years the Bill of Rights Act has been in place, fully half the Bills attracting a section 7 notice have passed in an unchanged form; with respect to Government Bills the passage rate is 90 percent.

But the Attorney-General is in a rather different position. As a law officer, his job under the Bill of Rights Act is to warn Parliament about proposed legislative measures that he believes unjustifiably trench on fundamental individual rights. For him to then, as a parliamentarian, vote in favour of those measures becoming law completely undercuts the message his warning is meant to send. Why take the Attorney-General's opinion seriously when he himself doesn't think it important enough to follow? After all, he can hardly say; "as Attorney-General I believe this is an unjustified limit on rights, but as an MP I believe it is fine."

So here's my proposed solution. We need to develop a constitutional convention in New Zealand that the Attorney-General will vote against, or at least abstain on, the First Reading of any Bill in respect of which he has issued a section 7 notice. A vote against would be preferable, but I retain the abstention option in recognition of the political reality that the Attorney-General cannot oppose measures brought before the House by his cabinet (or caucus) colleagues.

It may be that such a convention would not appreciably alter the fate of any future legislation. But it would put an end to what otherwise is a practice that just cannot be justified on any principled grounds.