The Effect of a Statutory Bill of Rights where Parliament is Sovereign: The Lesson from New Zealand

Abstract

This chapter examines the first decade of operation of the statutory New Zealand Bill of Rights Act 1990 and the extent to which there have been any judicial moves to ‘upgrade’ it, to make it a more potent instrument than the enactors seemed to intend. Next, and related to these concerns, is the issue of certainty and the degree to which Bill of Rights Act jurisprudence in New Zealand can be said to be settled. There is the further but connected issue of the degree of discretion the judges have given themselves (in that case law) when it comes to applying the Bill of Rights Act. The likely role and powers of unelected judges called upon to operate, apply, and interpret a statutory Bill of Rights Act are also considered. The Bill of Rights gives judges power to strike down legislation and decide controversial questions of social policy over which sincere, intelligent, well-meaning people disagree.

Sex Discrimination in Uncertain Times

“…41 She chose to defend herself in 'an attempt to cut across accepted legal notions of what might be acceptable to an "average man"'. 42 Despite her efforts, she lost the case and was sentenced to Mulawa Women's Detention Centre for eight days. The experience of being in jail-as it had for those who formed PAG-undeniably sharpened Bacon's political focus and formed the experiential basis for her unfolding commitment to challenging and confronting the operation of the law, which had arguably ever broadening 40 Coombs,Sex and Anarchy,; Wendy Bacon and Ken Maddock, 'Symposium on Does Women's Liberation Conflict with Human Liberation?…”

“…41 Growing attention is also being paid to the roles of national and international mechanisms aimed at improving the conditions of work. 42 At the international institutional level, both the European Commission (EC) and the ILO have focused on the development of separate agendas around quality or decent work. The ILO's conception of decent work, which built on the ILO Declaration on Fundamental Principles and Rights at Work, was first formally elaborated in 1999 as involving opportunities for work that is productive and delivers a fair income, security in the workplace and social protection for families, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity and treatment for all women and men.…”

“…Anne Summers is quoted as saying that there was a need 'to end the charade of government giving awards to companies that are barely compliant (and sometimes in breach) of even the watered-down legislation that currently exists' (ibid., p. 114 [7.2.3] The absence of adequate and appropriate targets and benchmarks linked to an enforcement regime allows organisations to be seen to make progress, when the reality is otherwise…our preferred model would be the establishment of voluntary targets for organisations (eg, specific year-on-year improvements in female representation at leadership and senior leadership levels). 42 There was less industry support for mandatory quotas set by government, though strong union and academic support for such initiatives. 43 Current sanctions available to the EOWA were, unsurprisingly, also viewed as inadequate, with 34 per cent of submissions indicating penalties were inadequate.…”

“…Having achieved the passage of the Fair Work Act through the Parliament, she wanted to move the reform process further forward, she said, by developing 'a new focus on cultural change in the workplace. We need to build partnerships between management and workers and their unions that operate for the benefit of all' 42 -an aspiration directed away from the neo-liberal market society and towards a Scandinavian social-democratic balance between capitalism and welfare.…”

“…There was intent at the time that this provision be extended further in the future, 41 and the Senate Legal and Constitutional Inquiry into the efficacy of the SDA called for the provisions to be expanded. 42 The Rudd Government enacted legislation guaranteeing paid parental leave in 2010. 43 While it is clear that, in a de jure sense, the SDA now meets the obligation to protect workers with family responsibilities from termination of employment by virtue of their family responsibilities, two questions remain.…”