¹ For more on the history of the New Zealand Bill of Rights Act see John Smillie, 'The Allure of “Rights Talk”; Baigent's Case in the Court of Appeal' (1994) 8 Otago Law Review 188 and Paul Rishworth, 'The Birth and Rebirth of the Bill of Rights' in Grant Huscroft and Paul Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995) 91.

² See James Allan, Sympathy and Antipathy: Essays Legal and Philosophical (2002), especially Section B, and 'Rights, Paternalism, Constitutions and Judges' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 29. See too 'Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990' (2000) 9 Otago Law Review 613; 'The Effect of a Statutory Bill of Rights Act Where Parliament is Sovereign: The Lesson from New Zealand' in Adam Tomkins, KD Ewing and Tom Cambell (eds), Sceptical Essays on Human Rights (2001); 'Take Heed Australia—A Statutory Bill of Rights and its Inflationary Effect' (2001) 6 Deakin Law Review 322. These last three articles also give my full views on how the New Zealand judiciary 'upgraded' what had clearly been intended to be an enervated Bill of Rights Act. See too Tom Campbell's 'Incorporation through Interpretation' in Sceptical Essays above for a powerful argument (and lament) to the effect that interpretive provisions (such as section 6 below n 3) can go most of the way towards accomplishing US-style strong judicial review.

³ Section 6 reads: 'Interpretation consistent with Bill of Rights to be preferred—Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.'

⁴ Section 4 reads: 'Other enactments not affected—No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights)

(a) Hold any provision of the enactment to be implicitly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Bill of Rights.'

⁵ Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439.

⁶ '[The court saw] force in the argument that, to give full effect to the rights … [a particular statutory provision with a long-standing interpretation] … should now receive a wider interpretation than has prevailed hitherto', ibid 441.

⁷ See the last three articles cited above n 2 for more details.

⁸ Section 5 reads: 'Justified limitations—Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.'

⁹ Ministry of Transport v Noort [1992] 3 NZLR 260, 283 (Richardson J) (emphasis added).

¹⁰ Moonen v Film and Literature Board of Review [2000] 2 NZLR 9. This was a judgment of a five member Court, delivered by Tipping J. Richardson P was also a member of this Court.

¹¹ Ibid 16-7 (emphasis added).

¹² Ibid 17.

¹³ Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667.

¹⁴ I discuss Baigent's Case in the three last mentioned articles cited above n 2, and in the further papers cited in those articles.

¹⁵ Ministry of Transport v Noort [1992] 3 NZLR 260, 271 (Cooke P).

¹⁶ Baigent's Case, above n 13, 702 (italics mine) (Hardie Boys J).

¹⁷ See the two Lange cases: Lange v Atkinson & Australian Consolidated Press Ltd [1998] 3 NZLR 424 and then two years later after returning back from the Privy Council at [2000] 3 NZLR 385.

¹⁸ See R v Pora [2001] 2 NZLR 37. In Pora, three of the seven Court of Appeal judges took this rather revolutionary view. Three others disagreed, and the seventh judge and President of the Court, deciding the case on other grounds, remarkably, left open the possibility the revolutionary view might prevail. For an excellent analysis of the implications of the three rather revolutionary judgments, an analysis that comes to the conclusion that these three judges' views undermine the rule of law, see Jim Evans, 'Questioning the Dogmas of Realism' [2001] New Zealand Law Review 145, 166.

¹⁹ See below n 27.

²⁰ Sir Gerard Brennan, 'The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Perspective' in Philip Alston (ed), Promoting Human Rights Through Bills of Rights (1999) 454, 458.

²¹ Ibid.

²² Above n 13.

²³ See the last three articles cited above n 2 for more detail.

²⁴ Professor Michael Taggart, friendlier than I to bills of rights, describes the case as follows: 'Baigent's Case gives some indication of the potential potency of the technique known as 'reading down' (and its travelling companion 'reading in'). My colleague, Paul Rishworth, has championed the use of these techniques in the context of the [Bill of Rights Act] from the beginning. In essence, his argument is that in respect of statutes which affirm fundamental rights the courts are justified in departing from even clear words by reading the statute down (or reading words in) so as not to infringe rights as long as by so doing the legislative purpose is not frustrated. This well-supported thesis opens up considerable scope for attaining rights-respecting outcomes by the judiciary.' See Michael Taggart, 'Tugging on Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990' [1998] Public Law 266, 284.

²⁵ Above n 10.

²⁶ The Board ultimately came to the same conclusion as it had originally.

²⁷ The five justices said that the purpose of s 5 of the Bill of Rights Act 'necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights … '. Not only is this incredibly far-fetched in terms of interpreting s 5 (a sort of finding-the-purpose-that-best-allows-you-to-reach-the-outcome-you-want exercise), it is simply untrue in its last assertion. The Courts will not be indicating inconsistency with the Bill of Rights Act. In fact, what courts will be doing is indicating that some statutory provision is inconsistent with their view (i.e., the judges' view) of what the Bill of Rights Act covers or of what is a reasonable or unreasonable limitation on some right. However, it is simply fallacious to assume that judges' views are a better indication of truth (about what a Bill of Rights does or does not require) than are the views of elected legislators. This point is made by Jeffrey Goldsworthy, 'Legislation, Interpretation and Judicial Review' (2001) 51 University of Toronto Law Journal 75 and by Grant Huscroft, 'Rights, Bills of Rights and the Role of Courts and Legislatures' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 3. In the New Zealand context the assumption is doubly fallacious, given that the New Zealand Bill of Rights Act is—or was passed on the basis that it was meant to be—a parliamentary bill of rights, one that reserves the power to the legislature to determine the meaning of rights in the event of a dispute with the courts.

²⁸ In my opinion, in any imaginable scenario in which elected legislators would contemplate the sort of things most of us today (when times are good and there is no external threat) would consider wicked, the judges too would contemplate the same measures. Cf. the plight of Japanese Americans in World War II. See Korematsu v US, 323 US 214 (1944).

²⁹ Quilter v Attorney-General [1998] 1 NZLR 523.

³⁰ As it happened, within a couple of years a new government had been elected that passed legislation putting all de facto couples in the same position as married couples, save for the 'symbolism' of being married.

³¹ Above n 18.

³² Section 2(4) of the 1999 Act reads: 'Section 80 of the principal Act (as amended by this section) applies in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date'.

³³ Section 25(g) reads: 'Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty'. See too the International Covenant on Civil and Political Rights.

³⁴ See above n 18.

³⁵ Evans, above n 18, 169.

³⁶ Lon Fuller would appear to fall into this category. '[I]t is generally more important that a man have a clear warning of his legal duties than that he should know precisely what unpleasantness will attend a breach; a retroactive statute creating a new crime is thoroughly objectionable, a similar statute lengthening the term of imprisonment for an existing crime is less so' in The Morality of Law (revised ed, 1969) 93. A special thanks to the referee of this journal for this citation.

³⁷ See HLA Hart, The Concept of Law, (2nd ed, 1994) ch 9. See also, Jeffrey Goldsworthy, 'Legislative Sovereignty and the Rule of Law' in Tomkins, Ewing and Campbell, above n 2, 67ff, for a powerful defence of the claim that '[l]egislation that changes the law retrospectively can often be justified, sometimes by the rule of law itself'. Ibid, 67.

³⁸ Indeed, anyone tempted to condemn all retrospective law-making in some blanket fashion must either also condemn all international war crimes prosecutions (until very recently, at least) or make a case for there having been laws in existence at the time outlawing the misdeeds. The latter seems to me to be a very difficult task indeed, requiring the full battery of natural law assumptions that many find highly implausible.

³⁹ Jeremy Waldron makes this point in various places. See, for one instance, Jeremy Waldron, 'Freeman's Defense of Review' (1944) 13 Law and Philosophy 27. See too Section III below.

⁴⁰ In particular, start with Waldron's Law and Disagreement (1999). Note however, that Waldron has not (to the best of my knowledge) considered the cases of override clauses or of statutory bills of rights. On the former, see Jeff Goldsworthy, 'Judicial Review, Legislative Override, and Democracy' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2002 forthcoming) and the Concluding Remarks of my Sympathy and Antipathy, above n 2. Goldsworthy is more ambivalent about override clauses than I am. But the point is that claim '10' below (see text accompanying n 42) does not rest on arguments made directly or indirectly by Waldron.

⁴¹ For a thorough skewering of one Australian High Court judge who rejects originalism as a basis for interpreting the Constitution see Jeffrey Goldsworthy, 'Interpreting the Constitution in its Second Century' (2000) 24 Melbourne University Law Review 677, 684: 'Taken to the extreme, this [judge's] non-originalism argument entails that “this Constitution” is a meaningless text, a mere assemblage of marks on paper, which can be given any meaning at all by those entrusted with its “interpretation”.' See too Mirko Bagaric, 'Originalism: Why Some Things Should Never Change—Or At Least Not Too Quickly' (2000) 19 University of Tasmania Law Review 173, 203: '[Non-originalism] is ultimately an argument for either not having a written constitution, or for making constitutions as minimalist as possible'.

⁴² I elaborate at length in the Concluding Remarks of my Sympathy and Antipathy, above n 2.

⁴³ And I argue exactly that, the case against some sort of institutional design argument, in my chapter 'Protecting Human Interests' in Campbell, Goldsworthy and Stone (eds), above n 40. For a strongly made case that this institutional argument in favour of judges also fails in the US context see Mark Tushnet, 'Scepticism about Judicial Review: A Perspective from the United States' in Tomkins, Ewing and Campbell, above n 2.