'Something New Under the Sun?' A NZ-Centric Critique of Comparative Constitutional Law Scholarship on the Anglo-Commonwealth 'Model' of Human Rights Protection
10 Pages Posted: 13 Aug 2019
Date Written: February 1, 2019
There is a substantial body of literature suggesting that the new generation of Anglo-Commonwealth bills of rights exemplifies a discrete third form of constitutionalism; one that is distinct, that is, from the "traditional paradigms" of legislative and judicial supremacy. There is also a substantial literature critiquing this "constitutional distinctiveness hypothesis" (as I call it). But that critical literature tends to be dominated by northern hemisphere perspectives.
My project here is to develop a critique specifically from the perspective of the New Zealand Bill of Rights Act - one of the earliest exemplars of the (so-called new Commonwealth model). Ultimately, I suggest here that the real error made by constitutional distinctiveness scholars is in treating the“traditional paradigm” of legislative supremacy as a static benchmark, frozen in time around the middle of the twentieth century. The truth is far more complex. The NZ Bill of Rights was layered onto a system that was, and is, in constant flux. The constitutional distinctiveness hypothesis fails not because the NZ Bill of Rights creates nothing new, but because it does so in synergy with what came before it. The NZ Bill of Rights and the common law are not hermeneutically sealed. They are both on the move. But we cannot understand that journey unless we appreciate that they are travelling hand in hand.
Keywords: New Zealand Bill of Rights Act 1990, Dialogue, Separation of Powers, Statutory Bill of Rights, Commonwealth Model, Declarations of Inconsistency, Declarations of Incompatibility, Common Law, New Zealand
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