The Constitutional Significance Of The Declarations Of Inconsistency Amendment Act

Abstract

The New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act is a significant constitutional change. It requires Parliamentary response to the courts when a declaration is issued, and therefore results in greater involvement of the courts in determining important rights issues. However, Parliament has been very careful to state that it does not see this Act as upsetting parliamentary supremacy. This paper utilises the dichotomy of political and legal constitutionalism to question this contention and consider the implications of the Amendment Act on the respective rules of Parliament and the courts. It explains how this Act has the potential to either result in a shift towards legal constitutionalism, or to reinforce the New Zealand political constitution. It argues that the extent of any impact will be dependent on the responses of constitutional actors, making it necessary to draw on constitutional culture scholarship to consider the likely impact of the Amendment Act. The values of our constitutional culture mean we are most likely to see a reinforcement of our political constitutionalism. Importantly, this Act may change the justifications for our political constitution, and in doing so provide a unique opportunity for the courts to demonstrate the importance of their role within the New Zealand political constitution.