A Bill of Rights for New Zealand

The two Bills of Rights which have been suggested for New Zealand so far were in their different ways misconceived and we are better off without them. It would be possible, however, to have a Bill of Rights for New Zealand of the declaratory type, the provisions of which would not be enforceable. Such a Bill might be of benefit if a body such as a Human Rights Commission could report publicly on human rights implications of the government’s policies. To set up a Bill of Rights with real teeth involves a political judgment that Parliament and the political process cannot be trusted all the time to protect fundamental rights and liberties. The only way to enforce such a Bill of Rights would be through granting the courts the power to strike down legislation which is inconsistent with provisions in the Bill of Rights. This would involve a fundamental change in the distribution of political power in our society. This chapter traces the history of suggestions for Bills of Rights in New Zealand, discusses the matters above and evaluates the American experience with their Bill of Rights. It considers the complex institution of judicial review of governmental action, the ambit of any application of a Bill of Rights, and the policy content and political consequences of Bill of Rights interpretation.It concludes that New Zealand conditions are not right for an enforceable Bill of Rights because of the lack of inclination or ability on the part of New Zealand judges to take up a political role, the threat to the stability and respect of the New Zealand judicial system, the lack of clarity regarding any need for such a Bill, and the contrary nature of such a Bill to New Zealand’s pragmatic political traditions. Additionally, Bills of Rights with judicial review available will not protect society from overwhelming social forces likely to restrict liberty.