Monday, July 26, 2004

Flag-burning, and legislative interpretation

Over at NZPundit, Ackbar lambasts the High Court for continuing "that dangerous trend of using the NZ Bill of Rights Act 1990 to essentially strike down other legislation". All I can say is that section 6 of the New Zealand Bill of Rights Act 1990 - the one that requires that, whereever possible, other legislation be interpreted so as to be consistent with the rights and freedoms guaranteed by that Act - wasn't made up by judges, or put there for no reason. Parliament wanted other laws to be subjected to such review and interpretation, while at the same time explicitly denying the courts the power to invalidate laws. The result is a balance between Parliamentary sovereignty and judicial interpretation; the courts have a lot of power to gut an act by "reading down" its provisions ("a time-honoured technique of construction for upholding individual rights or freedoms"), but Parliament has the final say.

If Parliament doesn't like the decision, it should legislate to clarify its intent with regard to flag-burning. If it means to override freedom of expression, then it can bloody well go on the record and say so.