The NZBORA and the Noble Dream

Introducing my new paper on the whether the idea of dialogue about rights between courts and Parliament makes sense in New Zealand

Last year, I posted here about a decision of the New Zealand Court of Appeal, Attorney-General v Taylor, [2017] NZCA 215, which held that when a court found a statutory provision inconsistent with the New Zealand Bill of Rights Act 1990, it had the power to make a formal declaration to this effect, in some circumstances anyway. As I noted in that post, the Court of Appeal invoked the idea of constitutional dialogue between courts and Parliament to support its view that courts had an inherent power to make such formal declarations, despite the absence of an explicit authorization in the Bill of Rights Act. I noted, too, that I was skeptical about the usefulness of that idea in New Zealand.

I developed these initial thoughts into an article which the New Zealand Universities Law Review published over the holidays under the title “Constitutional Dialogue: The New Zealand Bill of Rights Act and the Noble Dream“. Here is the abstract:

In its recent decision affirming the courts’ power to issue “declarations of inconsistency” between legislation and the New Zealand Bill of Rights Act 1990, the Court of Appeal embraces the notion of a “constitutional dialogue” between the judiciary and Parliament regarding issues of rights. It suggests that, since both branches of government are engaged in a collaborative process of giving effect to the Bill of Rights Act’s provisions, Parliament can be expected to take the courts’ views on such matters into serious consideration.

This article questions the suitability of the notion of constitutional dialogue to New Zealand’s constitutional arrangements. The idea of dialogue, largely developed as a means to alleviate concerns about the “counter-majoritarian difficulty” that arises in jurisdictions with strong-form judicial review of legislation, cannot be usefully adopted to a system of very weak judicial review, such as the one put in place by the Bill of Rights Act. Dialogue may seem to be an attractive way of addressing what might be termed the “majoritarian malaise” caused by a sovereign Parliament’s sometimes cavalier approach to the rights of individuals and minorities. Yet meaningful dialogue cannot take place if one of the parties is entitled to ignore the other, which has no resources to impress its views upon an unwilling potential interlocutor.

As others have argued in the context of constitutional systems with strong-form judicial review, there is no need to attribute the positive connotations of the dialogue metaphor to a set of institutional interactions that is, in truth, very far from being a conversation, because the participants may neither understand nor be interested in understanding each other. Indeed, there is a danger that the embrace of the notion of dialogue will serve to obscure the reality that, the Bill of Rights Act notwithstanding, New Zealand’s constitutional framework remains one of essentially untrammelled parliamentary sovereignty, which can be, and sometimes is, abused.

Of course, a meditation on New Zealand’s peculiar form of weak judicial review may be of limited interest to most Canadian readers. If it is interest to you, however, I’d be happy to hear what you make of it. And at least my call for transparency about constitutional power dynamics is, I think, relevant beyond the shores on which I now find myself.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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