1.
Repeal the New Zealand Bill of Rights Act.
2.
Reduce the number of Judges.
3.
Abolish the Supreme Court.
4.
Abolish the position of Judges Clerk.
5.
Train career Judges.
23
It is not an exaggeration to characterise this as a radical agenda. On the internal
evidence of the article it is fair to claim that Professor Smillie has little confidence
that his agenda will be adopted. He offers this explanation: Even though I have
spent most of my life in the deep south of New Zealand I realise that my
recommendations for change are not likely to find a sympathetic ear in
Wellington.20 So he offers an alternative prescription should his Plan A not be
adopted. His alternative is to extend the Bill of Rights to cover social and
political rights because, he argues, the social justice element has been neglected in
Bill of Rights jurisprudence. Advocates of Bills of Rights will want, he says,
judges to be charged with making really important decisions that impact directly
on the lives of people.
24
While I do not have time to deal in full with the argument he runs, it seems to me
that its fundamental flaw stems from the fact that in advocating a Bill of Rights
that includes judicial review of legislative action it is important to recognize the
limitations on the judicial method. To say the Courts are good at some things
does not imply a judgment that they are good at everything. The limits of
justiciability need to be firmly kept in mind.
25
So Professor Smillie offers the second policy option, at the other end of the
spectrum to his first, which is to adopt a Bill of Rights as superior law that
includes not only civil and political rights but also social and economic rights. The
prime model for that approach flows from the modern South African
Constitution.21 South Africa has a constitutional court. That Court played an
important role in the formation of the new constitution. It had to approve the draft
20
Smillie above n 19, 193.
21
Constitution of the Republic of South Africa, as adopted by the Constitutional Assembly on
8 May 1996.
9