sentence given would have been appropriate under the prior legislation as well. In
the other case the court also avoided having to apply section 4 of the Bill of
Rights Act by finding that the offending occurred before the power to impose
minimum periods of imprisonment came into existence. But one judge went as
far as to say the provision “is incompatible with the cardinal tenets of a liberal
democracy.”18
19
The problem arose in part because the legislation had been amended by
Supplementary Order Paper agreed to by the House at the Committee of the
Whole stage, late in the legislative process and for which there was no Bill of
Rights Act report. Nor is there any provision for a report on amendments made at
the Select Committee stage or later. New Zealand ought to be able to do better
than that.
20
In essence, the Bill of Rights achieved two things. It required rigorous processes
to be gone through by the executive branch in reporting to Parliament when
legislative measures were in breach of the Bill. While Parliament has the right to
legislate despite breaching the Bill there is a reluctance to advocate measures that
do so. Second, it provided the Courts with a new weapon on carrying out statutory
interpretation. Both have been important. But in the final analysis neither is
controlling.
Future Policy Options
21
The policy issues concerning the New Zealand Bill of Rights Act to be addressed
in the future deserve consideration. There are at least six broad directions on
offer. The first is to retreat and repeal the Bill of Rights Act and go back to where
New Zealand was prior to the developments of the past fifteen years. Strange as it
may seem this is an option that has supporters. Take for example, the position of
Professor John Smillie of Otago University that has been articulated recently.19
22
Professor Smillie offers the following policy prescription.
18
R v Poumako, above n 17, para 70 Thomas J.
19
J Smillie, “Law, Social Policy and the Courts: Who wants Juristocracy”, (2006) 11 Otago
LR 183.
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