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Bill of Rights Reform and the case for going beyond the Declaration of Incompatibility Model

Hickman, TR; (2015) Bill of Rights Reform and the case for going beyond the Declaration of Incompatibility Model. New Zealand Law Review , 2015 (1) pp. 35-71. Green open access

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Abstract

Taking as its impetus the recommendation of the New Zealand Constitutional Advisory Panel that consideration should be given to a greater judicial role in ensuring that Parliament complies with protected rights, the article contrasts the approach taken bycthe United Kingdom Human Rights Act 1998 to review of primary legislation with that taken by the New Zealand Bill of Rights Act 1990. Examining the power of the United Kingdom courts to declare legislation incompatible with protected rights — which has been widely praised in the United Kingdom and followed in two Australian jurisdictions — the article argues that it is unfair, unprincipled and not a particularly effective method of protecting rights against parliamentary encroachment. This is for three connected reasons: (1) it fails to afford an effective remedy to litigants who establish a violation of their rights; (2) it will often provide an inadequate incentive to potential litigants to commence proceedings testing legislation; and (3) it is neither well-suited to locating responsibility for legislative infringements of rights with Parliament nor should it be supported as a means of inculcating a “dialogue” between courts and politicians. The article goes on to identify several reasons why the declaration of incompatibility model is particularly unsuitable to the New Zealand context. It concludes that New Zealand should afford judges greater powers than they possess in the United Kingdom and move closer to a supreme law bill of rights, such as exist in most Commonwealth jurisdictions.

Type: Article
Title: Bill of Rights Reform and the case for going beyond the Declaration of Incompatibility Model
Open access status: An open access version is available from UCL Discovery
Publisher version: http://www.legalresearch.org.nz/new-zealand-law-re...
Language: English
Additional information: This version is the version of record. For information on re-use, please refer to the publisher’s terms and conditions.
UCL classification: UCL
UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: https://discovery.ucl.ac.uk/id/eprint/10085318
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