24Mark T ushnet, W eak-Form Judicial Review: Its Implications For Legislatures, Victoria University of
W ellington, New Zealand, Faculty of Law, New Zealand Centre For Public Law, 28 and 29 November 2003.
25Princ ipally by informal scrutiny of proposed legislation by the Law Reform Division of the former
Department of Justice and the advice provided to the Cabinet Legislation C omm ittee as part of its
consideration of Bills prior to introduction.
14
placed to engage in informed debate. The vetting process is rigorous. It is not
uncommon for the number of separate opinions on Bill of Rights issues in regard to
a particular Bill to reach double figures. Draft Bills undergo substantial change in
the face of Bill of Rights objections raised during the policy development and
drafting processes. Section 7 reports impose a high level of political accountability
on a government. No Minister in charge of a Bill wants to have to face a section 7
report if he or she can avoid it.
22
Scrutiny of proposed legislation for consistency with what Professor Mark Tushnet
describes in his paper, also delivered in this lecture theatre as part of the programme
of the New Zealand Centre for Public Laws first annual c onference on the primary
functions of government, as first g eneration classical liberal political rights24 did
not begin in New Zealand with the enactment in 1990 of the New Zealand Bill of
Rights Act. It was done in a less structured and perhaps less focused way by other
means.25 What the statute has done, however, is elevate the importance of Bill of
Rights values in the legislative context. These values now have greater legitimacy.
That legitimacy has been brought about, not incrementally through the cautious
development of common law principles, but by a single event, the passage of an Act
of Parliament. Parliament has placed a constraint on the executive. It has also
directed the courts to rea d down potentially inconsistent enactments by giving
preference to the least infringing interpretation. It has also devised a mechanism
designed to ensure that Parliament will be able to address any Bill of Rights