- Sam Bookman
A showdown between Parliament and the courts is rarely desirable, especially in a country that lacks a written constitution. Instead, our governmental balance of power has weighed heavily on the side of parliamentary supremacy. In the absence of written constitutional safeguards, it is incumbent on Parliament to exercise its power responsibly, having regard to constitutional conventions. One of the central conventions in the gentlemanly arrangement is the undertaking not to remove the fruits of litigation; Parliament should avoid directly overriding the courts. Yet in its latest budget and accompanying New Zealand Public Health and Disability Amendment Bill (No 2) (“the Bill”), that is precisely what Parliament has done.
Of course, this convention is not always followed. Robert Muldoon (in relation to hydropower dam development) and Helen Clark (in relation to Maori title) both notoriously ignored Court directions. Unlike those instances, it is not so much the brazenness of the present Bill that is of most concern. Rather, it is an insidious and cynical denial of rights fought hard for and won in the Court process, passed under urgency with almost no public scrutiny. Criticism and concern (such as Professor Andrew Geddis’s excellent critique) is well-justified.