Judicial and political review as limited insurance: the functioning of the New Zealand Bill of Rights Act in ‘hard’ cases

Abstract

This article adapts Ginsburg's model of ‘judicial review as insurance policy’ to understand the functioning of the statutory New Zealand Bill of Rights Act (NZBORA) 1990 – a ‘parliamentary’ bill of rights that is principally insured through political rights review and marginally through judicial review. Arguing that judicial and political rights review has proven to be a less-than-adequate check on the introduction of incompatible legislation by the Cabinet in the context of the Crimes Act and the Misuse of Drugs Act, this article suggests that the NZBORA functions as an ‘under-insured’ bill of rights in the criminal law context. This is the result of the limited political cost paid by the Cabinet for introducing incompatible legislation in the criminal law context, structural factors within the NZBORA that limit judicial review as a substantive check on executive conduct, and finally, the limited value of political rights review mechanisms such as the reporting duty of the Attorney General under Section 7 of the NZBORA.