Norms in Competition: The Influence of Parliamentary Sovereignty and the Rule of Law on Human Rights Protection in New Zealand

Abstract

In 2018 the New Zealand Supreme Court issued judgments in three cases which indicated that the Court was reconsidering their role in respect of rights protection in New Zealand; Ngāti Whātua Ōrākei Trust v Attorney-General, Attorney-General v Taylor, and Ngaronoa v Attorney-General.

Building on the apparent shift in the dominance of the judiciary which is exhibited by these cases, the aim of this thesis is to explain the division of power between the judiciary and Parliament in respect of rights protection in New Zealand. I suggest that this relationship is dictated by, what I term, foundational norms. These foundational norms are social rather than legal rules which exist and draw their authority from outside the legal system but which the legal system reflects. In the context of rights protection by Parliament and the judiciary, the relevant foundational norms are parliamentary sovereignty and the rule of law. I suggest that these norms exist in a state of constant competition where when one gains a degree of dominance, the other must give way to an equal and opposite degree. This normative zero sum game has emerged due to the rise of human rights. Human rights have effectively supercharged the rule of law and given it a substantive element such that parliamentary sovereignty can no longer be absolute.

It is against this backdrop of norms in competition that the New Zealand Bill of Rights Act 1990 (NZBORA) was enacted. I argue that NZBORA, while enacted as a parliamentary bill of rights, failed to clearly define the role of the judiciary. Parliament and the judiciary were left to determine, between themselves, the appropriate level of power for the judiciary to exercise in rights protection. I suggest that Parliament has failed to fulfil the role which it was expected to fulfil in 1990. As a result, the judiciary need to fill the gaps if rights are to be protected. In 2018, the judiciary rose to this challenge by issuing a declaration of inconsistency for the first time but they remain hesitant to use the interpretative method to ‘cure’ inconsistencies. I conclude that, as there has been a shift in the foundational norms, NZBORA has given the judiciary significant interpretative powers and Parliament has failed to fulfil its role in rights protection, it is necessary and acceptable that the judiciary assert further dominance if rights are to be protected.