Wednesday, September 08, 2004

Misinterpreting the Bill of Rights Act

Ackbar blames the Bill of Rights Act for the government's decision to force students to be financially dependent on their parents until age 25:

That wonderful piece of legislation, empowered by Judges (ie: Judge-man law, very unconstitutional) the NZ Bill of Rights Act now appears to be setting government policy.

Unfortunately, it is clear from the above that he has no idea of what the Bill of Rights Act actually says or how it is interpreted. The BORA is not "empowered by judges" to set or constrain government policy. There is no "judge made" power to overturn legislation that is inconsistent with the rights and freedoms affirmed in the act - in fact, such power is explicitly denied. What influence the BORA has over policy and legislation comes purely from Parliament.

The BORA was always intended to guide government policy. That is why it requires that the Attorney-General bring any clause in a bill which is inconsistent with the BORA to the attention of Parliament. But it does not prevent such a bill from being enacted into law (and current interpretations of the doctrine of Parliamentary Sovereignty explicitly forbid such limitations).

In practice, this means that every cabinet proposal or piece of legislation must be scrutinised for inconsistency. Unfortunately, as the example of student allowances shows, this scrutiny is not always conducted in good faith. In this case the government is simply using the BORA as cover for a purely financial decision. Their current moves towards legal equality for de facto couples would have required them to recognise the financial independence of every student in a de facto relationship (just as they had done for married couples). They didn't want to pay for this, and so they concocted the fiction that the student allowance scheme discriminated on the basis of employment or marital status (it didn't - instead, it used marriage or employment as signs that an applicant was financially independent of their parents, a valid distinction in a means-testing regime). And so in the name of not discriminating on the basis of employment or marital status, they decided to discriminate on age instead.

Like any good lefty, I am in favour of universal student allowances. But if the government is going to means test, it should follow the logic and exclude (or rather, pay) those who are actually independent of their parents - not adopt a one-size-fits-all solution designed purely to save them money.