Abstract:
In this article the author tests whether the New Zealand Bill ofRights Act 1990 has contributed to a more transparent judicial review methodology. She attempts to explain apparent inconsistencies and technical doctrinal disagreements in the case law about the roles played by s 5 of that enactment and the "proportionality calculus" by reference to the nature of the different individual rights themselves and the philosophical controversies about whether to take an "act utilitarian "or "rule utilitarian " approach. The very justification for some rights, such as the right to be free from torture and the right to natural justice, can be framed in a "rule utilitarian" way, which does not allow for limitations to be imposed in particular cases, so that one may never need reach the balancing calculus. Where certain liberty rights, such as the right to freedom of expression and religion, are at issue, then a balancing approach is more likely to be appropriate. She argues that s 5 of the New Zealand Bill of Rights Act 1990 does not clearly set out a methodology by which one can take account of the importance ofpoliticaljudgements and relative institutional competence. ....