In Dissent of Dialogue: Why dialogue is a dangerous metaphor for conceptualising declarations of inconsistency in Aotearoa

Abstract

A declaration of inconsistency allows the higher courts of Aotearoa to formally declare an Act as inconsistent with the New Zealand Bill of Rights Act 1990, a remedy which now requires an executive response and debate on the matter. Given this cross-government involvement and the constitutional centrality of human rights, the precise relationship between the courts and parliament under the Bill of Rights Act has attracted great attention. Internationally, these relationships have been metaphorically compared to a dialogue, framing the judiciary as ‘speaking’ to Parliament to facilitate robust, collaborative engagement with human rights protection. Dialogue infiltrated the development of Aotearoa’s DOI, albeit inconsistently, resulting in a multi-branch remedial framework which is conceptually confused. Despite the legislative approval of dialogue, it was rejected by the Supreme Court, which puts the key actors in DOIs at odds as to the remedy’s purpose and underlying constitutional relationships. DOIs conceived as dialogue masks reality. Aotearoa’s Supreme Court wants no part in the conversation, so the remedy, under a guise of collaboration, only serves to hegemonise legislative rights erosion. Dialogue has been inappropriately imported into our remedy, and as this paper argues, should be reconceptualised to better reflect the reality of practice in Aotearoa, as well as to abate the inherent dangers of the metaphor. By tracing the judicial development and subsequent legislative affirmation of DOIs this paper traces dialogue’s implementation in the conception of the DOI to demonstrate that its current form is unworkable. A case study of Make it 16 reveals these failures unfolding currently and highlights the dangers of dialogue in Aotearoa. Finally, this paper attempts to address these dangers by recasting the metaphor as Discourse, which better reflects Aotearoa’s constitutional landscape and promotes richer parliamentary responses to declarations. The DOI is new to Aotearoa, but the risk of hegemonic parliamentary supremacy is not. The opportunity to reconstitute the remedy must be taken before it fossilises into another mode of parliamentary supremacy over human rights.