solidarité

Zaoui, Pierre

doi:10.3917/vaca.027.0064

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“…That role can be given effect to by the judiciary, and a declaration is the logical vehicle for doing so when such a course is required. 304 The High Court in Zaoui v Attorney-General (Zaoui 2004) In contrast to the orthodox view of the courts that would see them not engaging on constitutional review of legislation because it encroaches on Parliament's lawmaking domain, it has been observed that being able to issue declarations of inconsistency would complement the courts' role under s 5 and is a practical judicial companion to reports issued by the Attorney-General under s 7 of the Bill of Rights Act. 311 Butler and Butler observe that this is particularly the case for legislation that predates the Bill of Rights Act.…”

Section: E Constitutional Review and Declarations Of Inconsistencymentioning

confidence: 99%

“…305 and Reid v Minister ofLabour (Reid) 306 referred to the Court of Appeal decisions in Moonen (No.1) and303 Putting declarations issued by the Human Rights Review Tribunal's under the Human Rights Act 1993.304 Poumako, above n 57, at [97] per Thomas J.305 Zaoui v Attorney-General & Anor [2004] 2 NZLR 339[Zaoui (2004)]. 306 Reid v Minister ofLabour [2005] NZAR 125.307 Zaoui (2004), above n 305, at[166].It does not contravene the prohibition in s 4.…”

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Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

Connell¹

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<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

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Section: E Constitutional Review and Declarations Of Inconsistencymentioning

confidence: 99%

mentioning

confidence: 99%

Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

Connell¹

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solidarité

Cited by 1 publication

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Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

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