Abstract:
The New Zealand Bill of Rights Act 1990 stands alone among interpretative bills of rights in that it makes no provision for judicial declarations of inconsistency in cases where a breaching enactment cannot be given a rights-consistent interpretation. Although some commentators and judges have alleged the existence of an implied jurisdiction to make such declarations, in practice New Zealand courts appear content to 'indicate' inconsistency in the course of a decision. The question of whether or not a formal declaration can be made remains unanswered. As indications have essentially the same dialogic consequences as a formal declaration it has been suggested that 'it does not matter' if the New Zealand courts continue to indicate rather than declare inconsistency. This thesis argues that recourse to a formal jurisdiction is preferable and shows how it can be asserted under the current legal framework in New Zealand. The thesis concludes, however, that in light of the constitutional effect of rights-based judicial review of legislation, New Zealand would be best served with a new bill of rights that contains both a clear mandate for judges, and has the support of the majority of citizens.
