legislation notwithstanding a negative vet, but it will usually be reluctant to do so.
The effect of these requirements upon the governments policy making system is
substantial and has an important deterrent effect on policy makers promoting
measures contrary to the rights and freedoms contained in the Bill of Rights.
13
A massive legal resource goes into producing these vets, and I doubt that many
people understand how far the Executive Government goes to ensure its
legislative proposals comply with the Bill of Rights. The impact of this work may
be more significant than that of the courts in ensuring New Zealand keeps to the
standards it has embraced. It is important to note that the vetting process has
evolved. It is now much more transparent and all vets are placed on the Ministry
of Justices website.
What was achieved?
14
The interesting thing about the New Zealand experience with the Bill of Rights is
that the measure has been effective in accomplishing its purpose despite the fact it
is not superior law. Parliament remains primarily in charge of the law making. It
needs to be said, however, that measuring its effect in empirical terms has not
been done and would not be easy to do. A recent legal text on the Bill of Rights in
New Zealand occupying 852 pages points out modern human rights instruments
need not be entrenched as a supreme law to be both influential and effective.11
A more recent book by Andrew and Petra Butler is 1204 pages.12 There must be
something going on here.
15
The reality is that fundamental rights and freedoms in New Zealand are protected
by the New Zealand Bill of Rights Act 1990. Although the Courts have no
powers to strike down legislation incompatible with it, they may make
declarations of inconsistency if a statute is not capable of being interpreted
consistently with the Bill of Rights.13 The Bill of Rights in New Zealand gives
the Courts powers that are additional to their ordinary and well established power
11
Paul Risworth, Grant Huscroft, Scott Optican, and Richard Mahoney The New Zealand Bill
of Rights (Oxford University Press, Auckland 2003) 2.
12
Butler, above n 10.
13
Some may quibble with this statement, but I take the view that in appropriate cases it is
available.
6