31
A fourth option similar to that just discussed comes from Canada. In this respect it
is important to recall that our own Bill of Rights was based in important respects
on Canadas Charter or Rights and Freedoms. It would be a relatively simple
change in technical terms to repeal section 4 of the New Zealand Bill of Rights
Act and enact in its place a version of the Canadian provision, section 33 of the
Charter:
(1)
Parliament or the legislature of a province may expressly declare in an Act
of Parliament or of the legislature, as the case may be, that the Act or a
provision thereof shall operate notwithstanding a provision included in
section 2 or sections 7 to 15 of this Charter.
(2)
An Act or a provision of an Act in respect of which a declaration made under
this section is in effect shall have such operation as it would have but for the
provision of this Charter referred to in the declaration.
(3)
A declaration made under subsection (1) shall cease to have effect five years
after it comes into force or on such earlier date as may be specified in the
declaration.
(4)
Parliament or the legislature of a province may re-enact a declaration made
under subsection (1).
(5)
Subsection (3) applies in respect of a re-enactment made under subsection
(4).
32
Some rights in Canada cannot be overridden. These are democratic rights and
some equality rights. But for those that can, the override only lasts five years,
although it can be re-imposed. The interesting thing about this provision in
Canada is how little it has been used. The political arms of government have to
pay a reasonably high price to use the override and they do not seem willing to do
so. The politics of overriding fundamental rights in a democracy are never
good.28 Giving Parliament the final say is consistent with New Zealands
traditions and making the judgment to invade rights a political decision is also
consistent with our traditions. This option would protect rights and restrain
government, but at the same time it would not disturb the supremacy of
Parliament.
33
The fifth option comprises a number of smaller changes that could be pursued
independently of one another. The Human Rights Act 1998 in the United
28
Peter W Hogg Constitutional Law of Canada (3 ed, Carswell, Toronto, 1992) 898.
12