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Allan, James --- "Take Heed Australia - A Statutory Bill of Rights and its Inflationary Effect" [2001] DeakinLawRw 17; (2001) 6(2) Deakin Law Review 322


Take Heed Australia — A Statutory Bill Of Rights And Its Inflationary Effect

JAMES ALLAN[*]

I INTRODUCTION

Despite the worldwide trend which tells against it, there is a rather small, but perhaps growing, school of thought which argues against the adoption of a Bill of Rights on the basis that such instruments are inherently undemocratic and transfer much social policy-making power to unelected and unaccountable judges.[1] I do not intend here to retrace those general arguments, though I confess straight off to finding them convincing.[2] Instead, I seek in this article to do something quite specific and limited. I hope to convince the reader that a statutory, unentrenched Bill of Rights Act does not provide some sort of desirable halfway house alternative to constitutionalisation - somehow delivering the attractions of being able to possess a fundamental human rights legal text, but without the hangover of too great (perhaps far too great) judicial power. An inflationary effect will kick in and the judges operating under a statutory model will simply take for themselves much of the power that was deliberately withheld from them. This I will argue by examining what has happened in New Zealand since one of the most enervated bills of rights imaginable was enacted almost a dozen years ago.

There will be three steps in my argument. First, I will back up the claim that New Zealand’s statutory Bill of Rights — both in its plain meaning and in the apparent intentions— is one of the most enervated bills of rights imaginable.[3] Secondly, I will recount the first wave of judicial upgradings which is now over half a decade old. Both these first two steps shall be fairly concise as I have already made the same claims elsewhere at substantial length.[4] The third and final step in the argument will consist of a close examination of a recent New Zealand Court of Appeal case which was remarkable for its audacity in inflating the status and potency of the New Zealand Bill of Rights Act 1990 (NZ) (‘Bill of Rights Act’). I shall then conclude by drawing out the lessons the New Zealand history might hold for Australia.

II BACKGROUND TO THE BILL OF RIGHTS ACT

Let us start at the beginning, however, and take each step in turn. The reader needs to know that the passage of even a statutory Bill of Rights Act in New Zealand went against public opinion at the time. An earlier mooted Bill of Rights, one that was constitutionalised, justiciable and on the lines of the Canadian Charter of Rights and Freedoms, had ‘met with overwhelming public opposition’.[5] Hence that plan had eventually to be dropped. The fallback option was to try for a statutory Bill of Rights Act. But even to get a statutory model passed through the House three main things had to be done. First, the draft remedies clause carried over from the constitutionalised model had to be deleted. Secondly, the Prime Minister of the day and sponsor of the Bill, Sir Geoffrey Palmer, had to promise, in moving the second reading, that the Bill of Rights Act would create no new legal remedies for courts to grant.[6] And thirdly, a new operative provision had to be added to the two then existing.

This newly added operative provision, not present in the originally mooted constitutionalised Bill of Rights, became section 4 of the Act and read:

4. Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), —
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective;
or
(b) Decline to apply any provision of the enactment
by reason only that the provision is inconsistent with any provision of this Bill of Rights.

It must be noted that this operative provision not only explicitly acknowledges the doctrine of implied repeal but also, singularly, directs that even earlier inconsistent Acts should prevail. Judges who were guided by section 4 when faced with a seeming inconsistency between some other statute and one or more of the Bill of Rights Act’s substantive rights (hereinafter ‘BOR rights’) might be characterised as doing one of two things. They might be thought to be enfeebling or enervating the Bill of Rights Act itself, or, they might be thought to be recognising the Act as ‘a parliamentary Bill of Rights...[which left parliament as the] guardian of fundamental rights and freedoms in New Zealand.’[7]

Of course this section 4 was not the sole operative provision but was added to two other operative provisions already there in the originally mooted version. One of these latter two was altered slightly by making it subject to the new operative provision. This became section 5:

5. Justified limitations — Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Note that this section 5, save for the added first nine words, mimics section 1 of Canada’s Charter of Rights and Freedoms.[8]

Finally there is section 6 which reads:

6. Interpretation consistent with Bill of Rights to be preferred — Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning

These then are the three operative provisions in the New Zealand Bill of Rights Act. It is an open question, however, whether it is possible to read these three operative provisions all together in any way that does not simply ignore part or all of one or more of the three sections. Is it even possible, in other words, to pay heed to all three of these operative provisions when attempting to resolve an apparent inconsistency between a BOR right and some other statute?[9] In my opinion the answer is ‘no’.[10] And if I am correct about this, the concomitant claim that judges who are free to pick between otiose or redundant provisions have more room to manoeuvre, seems indisputable to me.

But whatever the answer to whether (and how) the three operative provisions can be read together, my point is that the legislative history, the inclusion of section 4, and the removal of any remedies clause all point to a Bill of Rights Act which was meant to keep increased judicial policy-making and increased judicial power to an absolute minimum. In that sense, the New Zealand Bill of Rights Act seemed to be one of the most enervated bills of rights imaginable.

It did not take long, however, for the judiciary to change that.[11] Almost immediately it became clear that section 6 (‘do what you can to interpret this statute as consistent with the BOR rights’) would be emphasised over the specially inserted section 4 (‘all other inconsistent statutes override BOR rights’). Likewise, despite the specially added qualification at its start to help ensure the Bill’s passage (‘Subject to section 4 of this Bill of Rights’), even section 5, the abridging inquiry operative provision, was given pre-eminence over section 4. For instance, consider what the current President of the New Zealand Court of Appeal had to say about the extent of section 5 inquiries in a 1992 case:

It is worth emphasising too that in principle an abridging inquiry under s.5 will properly involve consideration of all economic, administrative and social implications. In the end it is a matter of weighing:
(1) the significance in the particular case of the values underlying the Bill of Rights Act;
(2) the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights Act;
(3) the limits sought to be placed on the application of the Act provision in the particular case; and
(4) the effectiveness of the intrusion in protecting the interests put forward to justify those limits.[12]

This downgrading of section 4 was combined with an almost universal judicial sentiment, regularly articulated, that the status of the Bill of Rights — be it constitutionalised, entrenched and overriding or be it statutory — did not much matter. Here is one example:

Certainly the Act is not entrenched. Still it is an affirmation of the basic rights of people in New Zealand. The correct judicial response can only be normally to give it primacy, subject to the clear provisions of other legislation.[13]

Most noteworthy of all, though, in this first wave of judicial upgradings to the Bill of Rights Act was a 1994 decision, Baigent’s Case.[14] In a 4-1 decision by the New Zealand Court of Appeal, the judges simply read back into the Bill of Rights Act the remedies provision that parliament had specifically removed (and had removed as the price of getting the Bill enacted). In doing so, the judges ignored everything in their way, in particular the Crown Proceedings Act 1950 (NZ) which precluded all known Crown liability at the time — and simply created an ad hoc public law remedy sounding in the Bill of Rights Act (and distinguished it from the common law tort of breach of statutory duty). In effect, the Court of Appeal ‘discovered’ that the Bill of Rights Act subjected the Crown to potentially unlimited liability for its breach.[15]

III JUDICIAL ACTIVISM AND THE MOONEN CASE

That is all I intend to say here in support of the first two steps in my argument.[16] We can now move forward to the recent New Zealand Court of Appeal case of Moonen.[17] In this case, at least as much as in the earlier Baigent case, we can see insouciant judicial activism at work to an extraordinary degree. As I stated above, the five Court of Appeal justices in this case were nothing short of audacious in the manner in which they inflated the status and potency of the Bill of Rights Act. In my view, Moonen can only really be understood in terms of the New Zealand judiciary unilaterally deciding to give the Bill of Rights Act a power, status and effect that parliament (reflecting public opinion) had deliberately and clearly repudiated. It also had the attendant side-effect, mirabile dictu, of the unelected judges giving themselves more of the sort of power and social policy-making role that the elected representatives in parliament had specifically withheld.

Let us look at Moonen in detail. The case involved the classification by the Film and Literature Review Board of certain publications as ‘objectionable’ in terms of section 3 of the Films, Videos and Publications Classification Act 1993 (NZ) (hereinafter ‘the Act’). At issue was a book and various photographs belonging to Mr. Moonen. The book was described by the Board as containing stories outlining sexual activity between men and boys under the age of 16. The relevant photographs were of naked children, mostly boys. Section 3 of the Act set out the meaning of ‘objectionable’. In particular, s 3(2)(a) read: “A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support, — the exploitation of children, or young persons, or both, for sexual purposes”.

Moonen appealed the classification to the New Zealand High Court on the basis of error of law. His appeal was dismissed. Moonen subsequently appealed to the Court of Appeal and his appeal was heard by five justices.[18] The judgment of the court was delivered by Tipping J, allowing Moonen’s appeal. The judgment rested on the claimed impact of the Bill of Rights Act (in particular sections 13 and 14 dealing with freedom of thought and expression) on the correct interpretation and application of the Act, in particular section 3 of the Act.

For our purposes, all that is relevant is what the court had to say about the Bill of Rights Act. Start with the most egregious assertion first. Out of nowhere, and with only the flimsiest, most implausible statutory basis for doing so at all, the five justices say that henceforth when some statute is found to be inconsistent with the Bill of Rights Act, although the courts will be bound by section 4, they may also make a declaration of inconsistency. According to the court:

That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum...New Zealand society as a whole can rightly expect that on appropriate occasions the Courts will indicate whether a particular legislative provision is or is not justified thereunder.[19]

As I have mentioned, one will search in vain for any halfway plausible statutory warrant authorising the New Zealand courts to issue declarations of inconsistency. The simple fact is that there is nothing remotely similar to the explicit provision in the United Kingdom’s Human Rights Act 1998[20] (though, of course, the New Zealand judges may well have been influenced in doing what they did by the fact that their British colleagues were given this power). That is point one.

Point two is that it is highly misleading to characterise declarations of inconsistency on the basis that ‘Court[s] [will]...indicate that ... a statutory provision ... is inconsistent with the Bill of Rights’. Not true. In fact, what courts are doing is indicating that some statutory provision is inconsistent with their view (i.e., the judges’ view) of what the Bill of Rights Act covers or of what is a reasonable or unreasonable limitation on some right. The point is crucially important. We all know that the individual rights set out in a Bill of Rights (statutory or constitutionalised) are expressed in vague, amorphous, yet emotively stirring language. We also know that there is much disagreement — reasonable disagreement taking place between reasonable people — on what such rights do and should cover or entail, how they do or should rank against one another, what their scope is or should be, and much more. The same is true in spades of what might or might not constitute a ‘reasonable limit’ or a ‘demonstrable justification’. Quite frankly, there are absolutely no grounds for thinking unelected judges have some sort of pipeline to heavenly wisdom and that their views[21] are a better indication of truth than elected legislators’ views on the questions of which statutory provisions are inconsistent with the BOR rights and of whether they are anyway reasonable or justified.[22] Of course, there would not be quite the same rhetorical punch had the New Zealand Court of Appeal simply asserted it had some sort of duty to indicate what its views of the matter were, without the implicit suggestion that its views amounted to some sort of indisputable truth on the matter.

My third point about the long passage from Moonen[23] needs me only to draw attention to the implicit threat being made by the judiciary. ‘Beware, legislature and executive, or we will draw your failings to the attention of the Human Rights Committee.’ Such an implicit threat, made without any but the flimsiest of statutory bases and resting on the implicit assumption that only unelected judges know what is inconsistent with Bills of Rights, strikes me as wholly remarkable. I say no more than that.

Leave now the egregious creation (by unelected judges) of a power (resting with those same unelected judges) to issue declarations of inconsistency and turn to what else the court had to say in Moonen. We need to look at what was said about the three operative provisions, not least because section 5 was stated to be the authority for issuing the just discussed declarations of inconsistency.

For our purposes, the reader needs only to know that prior to Moonen the leading case on the inter-relation of the three operative provisions was the 1992 New Zealand Court of Appeal case of Noort.[24] There the five judges split three different ways. Two thought the correct order of application was section 5, then section 6, then section 4. Two other judges held section 5 had no application in situations of possible inconsistency between some BOR right and some other statutory provision. The fifth judge held that (somehow) all three operative provisions ‘must be read as a whole’[25] in accord with some sort of gestalt, holistic approach. As a result, and possibly owing to the feebleness of the majority reasoning,[26] Noort was generally taken as weak authority for the section 5, then 6, then 4 approach, though usually the subject was simply ignored by later judges. ‘However you do so, avoid recourse to section 4, if at all possible’, sums up the judicial approach.

In Moonen the judges appear to backtrack on the question of the order of operation of the operative provisions. They do so, however, in far from clear terms and, incredibly, without any reference at all to Noort:

Although other approaches will probably lead to the same result, those concerned with the necessary analysis and application of ss 4, 5 and 6 of the Bill of Rights may in practice find the following approach helpful when it is said that the provisions of another Act abrogate or limit the rights and freedoms affirmed by the Bill of Rights. After determining the scope of the relevant right or freedom, the first step is to identify the different interpretations of the words of the other Act which are properly open.[27]

This is the section 6 undertaking. So it would seem that that section is now to be the first operative provision applied. The judges immediately continue:

If only one meaning is properly open that meaning must be adopted. If more than one meaning is available, the second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question.[28]

Here we see that if the other Act has only one meaning properly open, then that meaning applies regardless. In other words section 4 will apply in the event of inconsistency. But if there are more available meanings than one, we are to choose that ‘which constitutes the least possible limitation on the right’.

Notice what is being glossed over here. There are only three possibilities:

(a) All available meanings (say, meaning X and meaning Y) are nevertheless inconsistent with the BOR rights;

(b) Of the available meanings, some are inconsistent with the BOR rights (say, meaning X is inconsistent) and some are consistent (say, meaning Y is consistent);

(c) All available meanings (say, meaning X and meaning Y) are consistent with the BOR rights.

The judges in Moonen tell us the second step is to identify the meaning imposing the least possible limitation on the relevant right. But why? If there be a consistent meaning (as in possibilities (b) and (c) above), nothing in any of the three operative provisions dictates or suggests that the preferred meaning should be that ‘which constitutes the least possible limitation on the right’. In other words, if meaning X and meaning Y are both consistent with the BOR rights, ‘least possible limitations’ simply do not come into it. Presumably the normal rules of statutory interpretation should determine whether one opts for X or Y.

Possibility (a) is more arguable, but not much more. If both meaning X and meaning Y are inconsistent with the BOR rights, why are we to opt for the lesser inconsistency? Nothing in section 6 tells us to do so, certainly not explicitly. And section 5, the abridging provision, seems completely unrelated to choosing between lesser inconsistencies. So it seems the judges are incorrect when they claim, as they do, that:

The second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question. It is that meaning which s 6 of the Bill of Rights, aided by s 5, requires the Court to adopt.[29]

Undaunted, however, the judges promptly go on to say:

Having adopted the appropriate meaning, the third step is to identify the extent, if any, to which that meaning limits the relevant right or freedom.
The fourth step is to consider the extent of any such limitation, as found, can be demonstrably justified in a free and democratic society in terms of s 5.
...
The fifth and final step which arises after the Court has made the necessary determination under s 5, is for the Court to indicate whether the limitation is or is not justified. If justified, no inconsistency with s 5 arises, albeit there is, ex hypothesi, a limitation on the right or freedom concerned. If that limitation is not justified, there is an inconsistency with s 5 and the Court may declare this to be so, albeit bound to give effect to the limitation in terms of s 4.[30]

These third, fourth and fifth steps all relate to what the judges claim s 5 requires. Having started with s 6 (first step), then used s 6 again — somehow ‘aided by s 5’ — (second step), we finish by relying solely on s 5 (third, fourth and fifth steps). It is this abridging or reasonable limitation provision, the one parliament explicitly made subject to section 4, that the judges assert allows them to issue declarations of inconsistency. Not only that, we are told that in the course of the fourth step, s 5 gives the judges the following powers to make value judgments:

In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.[31]

Can anyone, with a straight face, really believe that an operative provision that was a carry-over from an earlier, and thoroughly rejected, constitutionalised Bill of Rights model — one that had to be amended to make it explicitly subject to s 4 — in fact gives the judges this sort of sweeping power to make all these value judgments ‘on behalf of the society which they serve’? Would any disinterested observer honestly think section 5 was authority for issuing declarations of inconsistency?

I trust the reader will see these are rhetorical questions. I believe the answers are virtually self-evident and that the extent of the illegitimate judicial activism at work is unmistakeable. But allow me to labour the point all the same. Section 5 is the abridging provision asking two questions: (1) Does the other statute place a limit on some BOR right?, and (2) If so, is the other statute’s limit ‘reasonable’ and ‘demonstrably justified’? Notice, however, that in any and every case in which some other statute’s provision was held to be inconsistent with the BOR rights (after using section 6, the first step), question 1 must be answered in the affirmative. After all, how can some other statute be inconsistent with BOR rights and yet not place a limit on them?

But having answered ‘yes’ to question 1,[32] why even bother with question 2? Here lies the key to how the judges simply inserted themselves into the value judgment dispensing process. Once question 1 has been answered, there is absolutely no need to proceed to question 2. A finding that a limit has been placed on some BOR right makes it inevitable that the other statute will prevail as is in accord with section 4.[33] There is no need for the sweeping, costly and — in the practical sense of whether the other statute will prevail or not — irrelevant abridging enquiry the judges plainly wish to undertake.

Whether needed or not, though, the enervated, statutory Bill of Rights Act has been transformed by the New Zealand judges in fewer than ten years into an instrument that allows them to do almost as much as their Canadian judicial brethren. How amazing! We have declarations of inconsistency; we have potentially sweeping abridging inquiries (with the Brandeis Brief-type reliance on contestable social science which they necessitate); we have an ad hocBaigent Bill of Rights Act cause of action subjecting the Crown to potentially unlimited liability for its breach; we have the regular exercise of political value judgments by unelected judges.

IV CONCLUSION

My goal has been to convince the Australian reader that a statutory, unentrenched Bill of Rights Act, one seemingly designed to foreclose too great social policy-making by unelected judges, is unlikely to deliver on the promised judicial restraint and moderation. An inflationary effect will kick in and the judges operating under such a statutory model will simply take for themselves much of the power that was deliberately withheld from them. That, at any rate, is what I have argued has happened in New Zealand.

The causes for such an inflationary effect are no doubt many, including the incredibly emotive appeal and power of ‘rights talk’.[34] Whatever the causes of this inflationary effect, however, readers in Australia are uniquely placed to react. After all, Australia is the only democratic country of which I am aware lacking any sort of Bill of Rights at all. Nor is there much prospect of a constitutional model being adopted anytime soon.

Consequently, Australian advocates of bills of rights would be wise to accept any sort of model they can get — be it statutory and be it enfeebled, enervated and emasculated. Odds are it will not matter. The judges are likely to read back in (in the name of fundamental human rights and the need to protect them) whatever is taken out. Supporters can afford to make just about any deals required with their perceived devils.

The lesson for opponents of the sort of strong judicial review powers that come with entrenched, overriding Canadian and American-style bills of rights is the opposite. This really is an instance in which small concessions are likely to gain their own momentum and lead on to continually larger ones. A statutory Bill of Rights Act, no matter how clearly intended and articulated its limitations, is unlikely to stay for long a halfway house, compromise alternative. Inflation, even hyper-inflation, is around the corner.


[*] Associate Professor, Faculty of Law, University of Otago. Thanks to Grant Huscroft for his comments, suggestions and criticisms.

[1] The case against bills of rights, with their concomitant strong judicial review, is most powerfully and eloquently made by Jeremy Waldron. See, inter alia, Law and Disagreement (1999); ‘Freeman’s Defense of Judicial Review’ (1994) 13 Law and Philosophy 27; and ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18. Others taking the same side of the argument as Jeremy Waldron include Mark Tushnet, Taking the Constitution Away from the Courts (2000); Tom Campbell, ‘Legal Positivism and Deliberative Democracy’ (1998) 15 Current Legal Problems 65; J A G Griffiths, ‘The Brave New World of Sir John Laws’ (2000) 63 Modern Law Review 159; and Jeffrey Goldsworthy, The Sovereignty of Parliament (1999).
[2] Indeed in the same vein I too have argued against the adoption of a bill of rights, in one context or another, in ‘Bills of Rights and Judicial Power — A Liberal’s Quandary’ (1996) 16 Oxford Journal of Legal Studies 337; ‘A Bill of Rights Odyssey for Australia: The Sirens are Calling’ [1997] UQLawJl 1; (1997) 19 University of Queensland Law Journal 171 (co-written with Richard Cullen); ‘Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990[2000] OtaLawRw 3; (2000) 9 Otago Law Review 613; and A Sceptical Theory of Morality and Law (1998).
[3] Let me be perfectly clear here by stressing that I do not mean to imply that such weakness and lack of judicial bite is undesirable. Quite the contrary. I am solidly against adopting any bill of rights. If one must be had, however, then the weaker the better in my view. Unfortunately, as this paper seeks to show, no bill of rights is likely to stay weak and enervated for long.
[4] On step one see James Allan, ‘Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990’ above n 2, and the further references contained therein. See too James Allan, ‘The Effect of a Statutory Bill of Rights Act Where Parliament is Sovereign: The Lesson from New Zealand’ in Adam Tomkins and Tom Campbell, Sceptical Essays on the Human Rights Act 1998 (2001). On step two see those same articles as well as, for more detail, James Allan, ‘Speaking with the Tongues of Angels’ [1994] 1 New Zealand Bill of Rights Bulletin 2; James Allan, ‘Was Sir Geoffrey Wrong? Seeing through a Glass Darkly’ [1995] 3 New Zealand Bill of Rights Bulletin 43; James Allan, ‘The Operative Provisions — An Unholy Trinity’ [1995] 5 New Zealand Bill of Rights Bulletin, 79-82; and James Allan, ‘Hoisting Grayson with Baigent’s Petard’ [1997] 1 New Zealand Bill of Rights Bulletin 13.
[5] J A Smillie, ‘The Allure of ‘Rights Talk’; Baigent’s Case in the Court of Appeal’ [1994] OtaLawRw 3; (1994) 8 Otago Law Review 188, 194. This article gives a history of the New Zealand Bill of Rights Act’s adoption. So too does Paul Rishworth ‘The Birth and Rebirth of the Bill of Rights’ in Grant Huscroft and Paul Rishworth, Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995) and Allan, ‘Turning Clark Kent into Superman’, above n 4.
[6] The Bill creates no new legal remedies for courts to grant. The judges will continue to have the same legal remedies as they have now, irrespective of whether the Bill of Rights is an issue’: New Zealand, Parliamentary Debates, 1990, 3449-50.
[7] New Zealand, Parliamentary Debates, 1989, 3038 (Rt Hon Geoffrey Palmer, Prime Minister) moving introduction of the Bill.
[8] One might recognise at this point that the sort of abridging inquiries mandated by section 5 of the NZ Bill of Rights Act and section 1 of the Canadian Charter of Rights and Freedoms clearly make sense against the backdrop of an entrenched, constitutionalised Bill of Rights in which a set of vague, amorphous (but emotionally attractive) individual rights sits at the apex of the constitutional structure and is entrusted to judges for enforcement. Indeed the precursor to section 5 was included in the 1985 New Zealand proposal for an entrenched, supreme Bill of Rights. When it became clear that this model would fail, however, and the fallback statutory model was advanced, section 5 was kept. Whether a direction to judges to undertake an abridging inquiry is sensible against the backdrop of a statutory Bill of Rights Act will be explored below. Here I simply note that no such operative provision has been included in the UK’s Human Rights Act.
[9] This is the situation that really counts. In the rarer instances (such as, say, some exclusion of evidence dispute) where some BOR right appears to conflict with a common law rule the three operative provisions can be accorded equal pre-eminence for the simple reason that section 6 does not apply.
[10] For detailed argument see James Allan, ‘The Operative Provisions — An Unholy Trinity’, above n 4. For a competing view see Paul Rishworth, ‘Two Comments on Ministry of Transport v Noort: Part A — How Does a Bill of Rights Work?’ [1992] New Zealand Recent Law Review 189.
[11] What follows in the next two paragraphs is a very brief précis of the arguments I have made at much greater length before.
[12] Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260, 283-284 (Richardson J) (as he then was) (emphasis added). Compare the sentiments in the main text to n 31 below and note that Richardson P was a subscriber to the judgment of the Court in that case too.
[13] R v Butcher [1991] NZCA 135; [1992] 2 NZLR 257, 267 (Cooke P). See too, for other good examples of the same sentiment, all the judgments in Baignent’s Case, below n 14.
[14] Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667.
[15] I discuss Baigent’s Case in the first four papers cited in n 4 above. The most in-depth analysis of the case is given in the third paper, ‘Speaking with the Tongues of Angels’.
[16] Again, nothing in the first two steps is new. See above n .4 .
[17] Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (‘Moonen’).
[18] Elias CJ, Richardson P, Keith J, Blanchard J, and Tipping J.
[19] Moonen [1999] NZCA 329; [2000] 2 NZLR 9, 17.
[20] See section 4 of that Act.
[21] As Waldron, above n 1, points out judges themselves regularly disagree about the extent, ranking and reach of rights. When they do, those judges settle their disputes in a purely procedural manner. They vote. Five votes beat four. They do not settle this disagreement in some substantive way, on the basis, say, that X’s judgment is better reasoned and so truer than Y’s and Z’s. The decision-making rule for judges, the one often castigated by proponents of strong judicial review, is simple majoritarianism.
[22] In the context of Canada’s section 1, this point is excellently made by Jeffrey Goldsworthy. See ‘Legislation, Interpretation and Judicial Review’ (2001) 51 University of Toronto Law Journal 75. Goldsworthy makes this point in a review of two books by Jeremy Waldron. This should not be surprising as Waldron is the leading scholar in the world, in my view, in pointing out how thin the case for strong judicial review is. See above n 1.
[23] See Moonen [1999] NZCA 329; [2000] 2 NZLR 9. See the main text to n 19 above.
[24] See Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260.
[25] Ibid 287 (Hardie Boys J).
[26] See above n 10.
[27] Moonen [1999] NZCA 329; [2000] 2 NZLR 9, 16 (emphasis added).
[28] Ibid (emphasis added).
[29] Ibid (emphasis added).
[30] Ibid 16-17 (emphasis added).
[31] Ibid 16-17 (emphasis added). Compare the last sentence to the text cited in n 12 above.
[32] Of course if the answer to question 1 were ‘no’, that is the end of the matter.
[33] And the judges realise as much. ‘It might be said that the potentially difficult and detailed process involved under s 5 is somewhat academic when the provision in question is bound to be applied according to its tenor by dint of s 4. Section 5 would have had more persuasive effect if the court had been given the power, as in Canada, to declare legislation invalid. That was deliberately not done in New Zealand and the late introduction of s.4 into the Bill of Rights was not accompanied by any express recognition of the remaining point of s 5. That section was, however, retained and should be regarded as serving some useful purpose, both in the present statutory context and in its other potential applications’: Moonen [1999] NZCA 329; [2000] 2 NZLR 9, 17. So far, not too objectionable, though it is far from obvious why section 5 must have some purpose in the statutory context, as two Court of Appeal justices in Noort made clear (see the paragraph of the main text to n 26 above). But it is what comes immediately following this passage that amounts to an extraordinary leap of logic, faith or self-aggrandisement: ‘That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate ... a statutory provision ... is inconsistent with the Bill of Rights’: Moonen [1999] NZCA 329; [2000] 2 NZLR 9, 17 (emphasis added). See n 19 above for the full passage.
[34] Indeed, the power and appeal seems such that elected politicians are depressingly incapable of standing up to judicial pronouncements about rights. Consider Canada’s almost unused ‘notwithstanding clause’ under s 33 of the Charter of Rights and Freedoms (see n 22 above). And here in New Zealand, there are rumblings that the government may try to formalise by statute the power the judges gave themselves to make declarations of inconsistency. The alternative, it appears, is to be seen to be ‘against rights’.


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