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Social and economic rights in a NZ constitution

  • September 26th, 2016

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

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.



  • Jim Rose
  • September 26th, 2016
  • 3:44 pm

Scalia was no fan of economic rights

  • Kiwiwit
  • September 26th, 2016
  • 5:05 pm

Palmer and Butler must be either incredibly naive or mendacious. Take the right to ‘highest attainable standard of physical and mental health’, for example. That is a boundless right with a limitless cost. In practice it cannot be universal – for every recipient of the right there has to be someone whose rights are trampled (and someone to decide who falls into which camp). If it is not universal it is not a right.

If you want to see an example of such rights in practice, look at Venezuela today.

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