Earlier in the week I blogged about Green MP Keith Locke's Member's Bill to strengthen the Bill of Rights Act. That bill adopts the UK scheme: the courts can find inconsistency, and this results in a formal notification to Parliament, which must respond (the bill also goes further than I thought, repealing s4, and thus allowing legislation to be overturned, though that doesn't seem strictly necessary for the notification scheme). But as highlighted by Butler and Butler at the "Reconstituting the Constitution" conference yesterday, there's another possible model as well - that of the Canadian Charter of Rights and Freedoms. Unlike the BORA, the Charter is supreme law, and enactments can be overturned by the courts. But Parliamentary sovereignty is preserved by allowing the legislature to include a "notwithstanding" clause, effectively saying "this clause of the Charter does not apply to this law". The catch? Such a derogation lasts only for five years, after which it must be re-enacted.
You might think that this makes the Canadian Charter worthless, as Parliament can overturn it whenever it wants. But in practice, the need to go on record and explicitly state in legislation "we are violating your right to freedom of speech", "we are violating your right to equality" is a strong deterrent to politicians from doing it. The power has been invoked a handful of times, typically by provincial governments wanting to cast themselves as opposing the federal government on equality issues (e.g. linguistic rights, same-sex marriage), but it has not been used to licence the sort of widespread violations we see in New Zealand.
Interestingly, New Zealand already effectively uses such a scheme in regards to the Treaty of Waitangi. As noted in Ngati Apa v Attorney-General [2003], the court noted in passing that it was reluctant to overturn customary rights and Treaty rights without an explicit statement in law that such rights were being overturned from Parliament. That's judge-made law, predicated on the (quite reasonable) idea that Parliament would keep its bargains and not violate these rights unless it really, really meant to, but it doesn't let them overturn the law, only read it down to nothing to accommodate those rights. The interpretation clause of the BORA gives some leverage towards creating a similar scheme for human rights, and arguably R v. Hopkinson is an example of such an approach. But its still weaker than Canada, since laws cannot be specifically overturned.
I'm not sure which of the Canadian and UK approaches is better. Both give greater protection to human rights, while respecting Parliamentary sovereignty and the need for ultimate accountability to rest with democratically elected politicians. Both do it by basically putting said politicians on the spot and forcing them to admit what they are doing and justify their behaviour. And either I think would make an excellent addition to New Zealand law.
