Wednesday, October 5, 2016

Stephen Franks: Social and economic rights in a NZ constitution

My last post mentioned the risks and problems arising when social and economic “rights” are created in law.  The Palmer/Butler draft constitution tries to allay those concerns by saying that such rights are “non-justiciable” (presumably meaning not enforceable in court). It then lays out in draft section 106 a glittering array of new rights – without solving the fundamental political problem – whose duty is it to provide the goodies, at whose cost.

106 Social and economic rights

In making provision for the social and economic welfare of the people, Parliament and the Government shall be guided by the following non-justiciable principles:

(a) the right of everyone to an adequate standard of living, including adequate food, clothing and housing:
(b) the right of everyone who requires it to social security for the provision of financial and other support that clearly establishes the entitlements that may be claimed:
(c) the right of everyone to the enjoyment of the highest attainable standard of physical and mental health:
(d) the right of every worker to resort to collective action in the event of a conflict of interests, including the right to strike:
(e) the right of every worker to enjoy satisfactory health and safety conditions in their working environment:
(f) the right of workers to earn their living in an occupation freely entered upon.

Those rights could provide an entire new generation’s lawyers’ with the upkeep for pampered families, hobby vineyards, yachts and holidays overseas.  That is, if ‘non-justiciable’ fails to stop lawyers from getting to decide what taxpayers must provide.

I look forward to seeing in the book how the authors expect our courts to handle “non-justiciable”. Twenty years ago our Court of Appeal did not take long to invent cost liabilities to ’enforce’ provisions of the New Zealand Bill of Rights Act, despite the clear Parliamentary expectation that it would not be enforceable directly.

So how long would ‘non-justiciable’ survive? Judges can start with a common law  assumption that Parliament must be assumed to have meant the law to have effect, and that a court’s task is to ensure it does get effect in accordance with its words.

Perhaps the Palmer/Butler draft constitution will acquire the kind of useful authority  which European courts give to eminent scholars’ texts. On many topics the draft constitution codifies the net effect of the mix of statute, common law, convention and customary approaches to the exercise of power – that is our “unwritten” constitution.

The Palmer/Butler constitution could be cited in that way, as a convenient and concise formulation of rules and prescriptions that must otherwise be drawn from a range of sources. Indeed it is such a good compilation of best practice rules on things like Cabinet composition and structure, for example, that it may fossilise features  that should remain open to evolution. It locks in a contemporary view without analytically identifying the mischiefs addressed by “best practice”.

So the draft unapologetically goes much further than codifying current practice or crystallised consensus.  It is substantially normative or aspirational. It says what the authors think the law should be in areas of substantial dispute internationally, let alone here.

That does not mean it could not serve as a guide in court, even in those areas. Civil law scholars expect good writing to steer judges in determining disputes. They resolve uncertainties left by Civil Codes, toward decisions that will enhance the consistency and power and ‘morality’ of the law. If New Zealand courts take account of the Palmer/Butler formulations when faced with ambiguity or gaps in our law, and use it to support their reasoning, the Palmer/Butler draft could be useful, without condemning New Zealand to the profitless “conversation” I wrote about here.

For example, judges have been increasingly assertive in telling the government what it should do for care-givers of disabled relatives, for special needs students in school. I predict cases where the lawyers (and the judges) will draw on EU law and UN documents, to assert a legitimate “common law” evolution in the dangerous territory of comprehensive social and economic “rights”.

And perhaps until Parliament shows plainly that it will not tolerate de facto legislating, elements of the Palmer/Butler constitution will creep into judges’ development of our common law.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at


Barend Vlaardingerbroek said...

"Non-justiciable" = platitudes with no legal teeth. In international law, exemplified by the International Covenant on Economic, Social and Cultural Rights. It enables do-gooders to salve their social consciences by making the right noises while at the same time not having to worry about anything actually happening.

paul scott said...

Old long legal tooth Palmer can write you another 400 page of formulaic nonsense any day you want him to. In fact he is going to write even though we don't want him to.
He's good for David Seymour meetings on how to provide ecbolic non-justiciable provisions against Christians in the death with dignity bill.
If our blue rinse Government had a backbone, it would expel him to my care in Khlong Toei, where he will learn humility. In other words he nocomebackie.

Brian said...

No Legal teeth, Barend, I agree….
But do the Iwi need to be concerned over what is legal or indeed not legal? They have very a successful political system in Parliament they have been using to such good effect since the last election? This Palmer/Butler book is a lawyers dream, and a taxpayer’s nightmare.
Perhaps we should recognize the reality of this situation, that our political masters whatever the shade of their politics have actually attuned rightly to the situation; that Maori must be given whatever they demand. That the rest of us, are puppets on the mere strings of real power, to be discarded and abused, and finally shepherded like willing sheep, into the fold of total racial obedience.
National & the leftist parties have taken us into separatism, and a dominance of the majority of New Zealanders by a vocal, hostile and #terrorist# tribal minority.
#Reference. The Tuhoe Tribe who willfully disregarded the Court order in the Tamahere case, allowing National the luxury to bury a lawful Court decision, and in doing so, have successfully “buried” the whole affair.

Anonymous said...

I fail to see any justice in the above so-called legal right. No one has a right to be a bum and expect handouts. Yes everyone has the right to feed themselves. I will go along with hat, but no one has the right to expect others to feed us, unless we pay the people for the privilege [ ie restaurants ]
Charity where charity is due, but that's all it should be. The government has never been elected to dish out charity. Leave that to the charity organizations.
The professional charity receivers should be shown up, not be tolerated.
The do gooders in society, should be held to task. If they want to feed the masses, then let them pay out of their own pockets , but don't dictate to us poor hard working sods, who have built up our own reserves through honest hard work and most importantly, sensible spending.
Shit , one of the biggest TV sets I have ever seen was in a house rented by a person on the DPB and other handouts. They also had a never car then we drove at the time.
Pull yer head in do gooders. Charity begins at home.

Unknown said...

Right to privacy would be a good start with Shonkey mass surveilling the whole population. And the most basic human right to access to whatever nature provides for us all with no government interference would be another one. But dream on while the US new world order, pathological lying plant is your prime minister.

Geoff Bourke said...

But one must always be aware that, notwithstanding the magnificent phrases in one of the USA's founding documents, there are NO such things as universal rights. The only "rights" that a member of a society has are those set down by the governing body of that society. The UN can (and does) state that there are various rights; however, if a society, say North Korea, does not ratify any of those rights, then they do not apply to the members of that society, e.g. North Koreans, or those living therein.

Also there is, usually unacknowledged though it is, a corollary to any "right", and that is the corresponding "responsibility". (Shock, Horror)

Sam Esler said...

If anything that Sir Geoffry conjures up is in anyway like the permission he gave to Maori to claim back as far as 1840, then I would be very suspicious of his intention. Personally I think he is a academic that should be taking on the persona of a clown,only problem is we no longer see any circus in the mold of what we used to attend as kids.