The small and the big and the Bill of Rights

Big parties have radical fringes. Small parties have fundamentalists and realists.

Deep greens left the Green party while it was inside the leftist Alliance. The Alliance split when its fundamentalists rejected Jim Anderton’s compromises with Helen Clark. Now ACT is in the same grinder.

The dividing lines are not black and white and are as much by personality as principle. Rodney Hide is expansive, bouncy, rummages through ideas and leans to the realist side. Heather Roy is gritty, less intellectually supple and leans to the fundamentalist side.

The product: a peripheral party in splinters, lacking the stabilising influence of a strong president and large membership. A strategy pushed by the Roy side and accepted in compromise by the Hide side offers a prospect of recovery. But disunity is a cardinal and often mortal electoral sin. One day — 2014, 2017 — National will reclaim Epsom.

But, while Hide frustrates fundamentalists with his compromises (and last year in his double-standard last year on perks), he does often invoke principle: witness his blistering attack on the Declaration of Indigenous Rights (DRIP) on the ACT principle that ethnicity is not a basis for policy.

Fundamentalists also overlook what Hide has won for ACT realists in regulatory and local government reform, where National would not on its own have made the changes he has prodded it into.

Hide’s problem, needing to lift ACT’s tiny 3.7 per cent 2008 vote, is that neither is a conversation-stopper in pubs and clubs. The three-strikes policy, which does excite people, has been subsumed in National’s law-and-order drive.

In fact, Hide’s reforms are important. They amount to small-c constitutional change. That is explicit in his planned discussion paper on the constitutional position of local government and his push for a Regulatory Responsibility Bill to give formal protection to property rights akin to Sir Geoffrey Palmer’s 1990 Bill of Rights Act’s protection of civil and political rights.

He won’t get that, even though Sir Geoffrey did favour it in a speech in 2006. One problem is deciding what amounts to property. And generally National prefers a less prescriptive approach to setting regulation-making criteria.

The Bill of Rights will be 20 years old on Saturday. Sir Kenneth Keith, now on the International Court of Justice and author of the white paper which led to it, will mark the anniversary with a speech on Thursday.

Sir Kenneth will likely agree with Sir Geoffrey that the Bill of Rights has had much more influence on Parliament and the courts than expected in 1990. It is a classic example of our constitution’s incremental evolution.

Traditionalists, including many in the National party who only got the point when Labour’s Electoral Finance Act in 2007 ran afoul of it, thought it unnecessary in a common law system. Rights advocates were frustrated that it did not override other legislation, requiring only that the Attorney-General report to Parliament if legislation was inconsistent with it.

In fact, the courts have assumed a power to declare legislation inconsistent and to award compensation for breaches. And governments, according to Sir Geoffrey and Sir Kenneth, have since 1990 thought twice before incurring an adverse report.

Taken with the 1993 Human Rights Act, it is an important element in the constitution. If anything, its influence will grow, especially if to it is added the right to property and — much less likely because it would be to step beyond a focus on process to one on substance — economic (jobs) and social (housing, education and health) rights.

And alongside it is the Treaty of Waitangi, a bill of rights of sorts, which has much more influence on law and administration than the formal standing some parliamentary acts have assigned it.

The DRIP will, too, in time. John Key and Chris Finlayson, Treaty of Waitangi Minister and Attorney-General, heavily qualified their accession to it in April. But it is highly likely nevertheless to influence court decisions and government practice. Key has thereby joined Hide as a constitutional reformer.

Next up is a constitutional review Key agreed with the Maori party in 2008. The terms of reference go to the cabinet soon, in the wake of the foreshore and seabed repeal legislation (which is a property rights issue, also with constitutional implications).

Actually, others are on the case. The Institute of Policy Studies (IPS) and Centre for Public Law are running a conference next week, 10 years after an IPS conference in 2000 which ACT tried to wreck.

The IPS is also leading a project for the state sector on Treaty issues after historical grievances are settled.

There is big and small in politics. A small party ripping itself up is small. Changing the constitution is big. Hide happens to be doing both.

* The Labour-led government initiated, with Simon Power’s support, the legislation curtailing deposition hearings, mentioned here as a Power initiative.