'You Say You Want a Revolution': Bills of Rights in the Age of Human Rights

Abstract

Written constitutions and bills of rights have, in many countries, emerged from revolutions, or otherwise at the birth of nations. In contrast, New Zealand's unwritten constitution has developed peacefully, without a grand plan. It has something of an 'accidental' character. It is susceptible to changes wrought by law and practice, and some of these might be said to have the character of a 'quiet revolution'.

Something like this has been happening in the field of human rights. The New Zealand Bill of Rights Act was born in unpropitious circumstances - largely unloved by the profession, the citizenry, and even within the Labour Party that promoted it - yet its stature has risen with the tide of international human rights consciousness. This tide has brought human rights into the New Zealand legal system through other pathways as well - as international treaty rights, as fundamental common law rights, and in a renaissance of Maori rights in the Treaty of Waitangi. All of these things have tugged at Parliament's supremacy, mediated through doctrines surrounding judicial review and statutory interpretation.

Many assume that the adoption of a supreme law bill of rights, with judicial power to invalidate legislation, is a natural development in the evolution of New Zealand's constitution. In this paper we argue that the decision to reject a supreme law bill of rights was the right one for New Zealand in 1990 and that it would be a mistake to adopt a supreme law bill of rights now.

The adoption of a statutory bill of rights has allowed New Zealand's human rights culture to continue to develop from the ground up, rather than be imposed by judges from the top-down. New Zealand's human rights record stacks up well against that of any democratic country in the world - even countries that have supreme law bills of rights such as Canada and the United States - and there is no compelling reason to alter the balance of power between Parliament and the judiciary by empowering judges to invalidate legislation. On the contrary, there is a significant risk that the adoption of a supreme law bill of rights would undermine New Zealand's successful human rights culture by diminishing the likelihood of political engagement with important moral issues.

Keywords: New Zealand Bill of Rights Act, Treaty of Waitangi, Canadian Charter of Rights and Freedoms, parliamentary sovereignty, dialogue theory, common law rights, statutory interpretation, principle of legality, culture of justification, discretionary powers

JEL Classification: K10, K19, K39