Abstract
Introduction: This dissertation examines the impact of two contemporary bills of rights, the New Zealand Bill of Rights Act 1990 ('BORA') and the United Kingdom Human Rights Act 1998 ('HRA'), on statutory interpretation in the courts of New Zealand and the United Kingdom. Unlike other common law bills of rights, such as the Canadian Charter of Rights and Freedoms 1982, neither the BORA nor the HRA sanctions judicial invalidation of legislation. But, as will be seen, the bill of rights model adopted by New Zealand and the United Kingdom is problematic, since it provides an evaluative and interpretive role for judges, which is occasionally wont to ascend to quasi-judicial invalidation of legislation.
In Chapter I, the problems raised by bills of rights will be discussed, proceeding from the premise that New Zealand and the United Kingdom are both constitutionally committed to the tradition of Parliamentary sovereignty. The concept of Parliamentary sovereignty is elucidated with close reference to Jeremy Waldron's defence of democratic law-making, which, it is suggested, is a particularly elegant explication of the philosophical basis of Parliamentary sovereignty. Then, against this background, the legislative histories and enacted provisions of the BORA and HRA are explained.
Chapter II examines the experience of the BORA and HRA in the courts, and the approaches that New Zealand and United Kingdom judges have taken to their respective interpretive roles in the protection of rights. As will be seen, the BORA and HRA have generated quite distinct lines of precedent, and Chapter II concludes with the observation that in the United Kingdom, statutory interpretation has undergone, since the enactment of the HRA, a fundamental recharacterisation.
Noting that this recharacterisation seems to be at odds with the traditional concept of Parliamentary sovereignty, Chapter III attempts to shed light on the United Kingdom's novel interpretive path, such that it might be rationally distinguished from that of New Zealand, rather than condemned as judicial roguery.
Finally, it is proposed that the BORA and HRA, while anatomically analogous, are the products of two politically, socially - and, increasingly, constitutionally - divergent countries. Their interpretation and application, therefore, is conditioned by the particular legal rubric in which each is operating.
But, setting aside for the moment the points of difference between New Zealand and the United Kingdom, it is with the points of constitutional convergence between the two jurisdictions that Chapter I begins.