Aversive constitutionalism in the Westminster world: The genesis of the New Zealand Bill of Rights Act (1990)

International Journal of Constitutional Law

Volumn 5, Issue 2, 2007, Pages 343-369

  Erdos, David ^a  

^a UNIVERSITY OF YORK   (United Kingdom)

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[No Author keywords available]

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EID: 34247278656     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom001     Document Type: Article

References (144)

1. New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 109, hereinafter NZBOR.
2. F.L. MORTON & RAINER KNOPFF, THE CHARTER REVOLUTION AND THE COURT PARTY (Broadview Press 2000).
3. RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM (Harvard Univ. Press 2004).
4. Id.
5. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (Harvard Univ. Press 1980)
6. and Kenneth Keith, A Bill of Rights for New Zealand? Judicial Review versus Democracy, 11 NEW ZEALAND U. L. REV. 307 (1984).
7. See MORTON & KNOPFF, supra note 2.
8. Suggested Constitution for New Zealand (Constitutional Society 1961), reprinted in READINGS IN NEW ZEALAND GOVERNMENT (L. Cleveland & A.D. Robinson eds., Reed Education 1972).
9. Canadian Bill of Rights 1960, R. S. C., 1985, app. III (1985) (Can).
10. 336 N.Z. PARL. DEB. (1963) Col. 1181-1198.
11. N.Z. PARLIAMENT, CONSTITUTIONAL REFORM COMMITTEE, EVIDENCE PRESENTED TO THE CONSTITUTIONAL REFORM COMMITTEE, 1964, ON THE NEW ZEALAND BILL OF RIGHTS (Government Printer 1965).
12. Paul Rishworth, The Birth and Rebirth of the Bill of Rights, in RIGHTS AND FREEDOMS: THE NEW ZEALAND BILL OF RIGHTS ACT 1990 AND THE HUMAN RIGHTS ACT 1993 11 (Grant Hunscroft & Paul Rishworth eds., Brookers' Legal Information 1995).
13. GEOFFREY PALMER, UNBRIDLED POWER: AN INTERPRETATION OF NEW ZEALAND'S CONSTITUTION AND GOVERNMENT 282-283 (Oxford Univ. Press, 1987). The Treaty of Waitangi was signed in 1840 by both a representative of the British Crown and over 500 chiefs of the indigenous Māori population. The treaty provided for British sovereignty over New Zealand and guaranteed the Māori a number of rights.
14. Constitution Act, 1982, pt. 1, as Schedule B to the Canada Act, 1982, ch. 11 (U.K.) (Canadian Charter of Rights and Freedoms).
15. N. Z. GOVERNMENT, DEPARTMENT OF JUSTICE, A BILL OF RIGHTS FOR NEW ZEALAND 11 (Government Printer 1985). It should be noted that aboriginal and treaty rights in the Constitution Act (Can) (1982) are formally outside both the Charter and its limitation clause. On the other hand, however, the clause is tightly framed so as to protect only "existing" aboriginal and treaty rights.
16. See Constitution Act, 1982 pt. 2 (Rights of the Aboriginal Peoples of Canada) §35.
17. N.Z. GOVERNMENT, DEPARTMENT OF JUSTICE, WHITE PAPER ON A BILL OF RIGHTS: REPORT OF THE DEPARTMENT OF JUSTICE 4 (Government Printer 1987).
18. Stephen Levine, Bills of Rights in Parliamentary Settings: New Zealand and Israeli Experience, 44 PARLIAMENTARY AFF. 337, 342 (1991).
19. Rishworth, supra note 11, at 20. It seems this new approach resulted from a meeting of the parliamentary Labour Party caucus held on Dec. 2, 1987, to specifically address the matter.
20. See Memo from Palmer to Caucus Justice Committee (Mar. 22, 1988), in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG-7-4-3, Box 14, Part 23 (1985-1988).
21. N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, FINAL REPORT OF THE JUSTICE AND LAW REFORM COMMITTEE ON A WHITE PAPER ON A BILL OF RIGHTS FOR NEW ZEALAND (Government Printer 1988).
22. N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, SUBMISSIONS ON THE NEW ZEALAND BILL OF RIGHTS BILL: AS RECEIVED BY THE JUSTICE AND LAW REFORM SELECT COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF NEW ZEALAND, 1989-90 (Parliamentary Library, Wellington, Boxes 1990/29 & 1990/30).
23. Rishworth, supra note 11, at 21.
24. In particular, a specific provision was added stating that the legal effect of "other enactments" were not affected by the passage of NZBOR (See New Zealand Bill of Rights Act 1990, 1990 S.N.Z. No. 82 § 4).
25. Mark A. Graber, Constructing Judicial Review, 8 ANN. REV. POL. SCI. 425 (2005).
26. Ran Hirschl, The Political Origins of Judicial Empowerment through the Constitutionalization of Rights: Lessons from Four Constitutional Revolutions, 25 L. & SOC. INQUIRY 91 (2000).
27. Id. at 138.
28. Id.
29. Ran Hirschl, The Struggle for Hegemony, 36 STAN. J. INT'L L. 73, 86 (2000).
30. MORTON & KNOPFF, supra note 2
31. ROBERT H. BORK, COERCING VIRTUE: THE WORLDWIDE RULE OF JUDGES (Vintage Canada 2002).
32. BORK, id. at 9 & 6.
33. MORTON & KNOPFF, supra note 2, at 31.
34. RONALD INGLEHART, CULTURE SHIFT IN ADVANCED INDUSTRIAL SOCIETIES (Princeton Univ. Press 1990).
35. See HIRSCHL, supra notes 3, at 24-27, 83-89
36. Hirschl, supra note 23, at 130-134
37. and Hirschl, supra note 26, at 107-111.
38. See, e.g., Ran Hirschl, The Political Origins of the New Constitutionalism, 11 IND. J. GLOBAL LEGAL STUD. 71, 104 (2004).
39. Hirschl, supra note 23, at 138.
40. Hirschl, supra note 26, at 83.
41. Government Moving Too Fast Says Mr. Palmer, NEW ZEALAND HERALD, Apr. 22, 1985.
42. For similar later remarks see GEOFFREY PALMER, NEW ZEALAND'S CONSTITUTION IN CRISIS: REFORMING OUR POLITICAL SYSTEM 179 (John McIndoe 1992).
43. KEITH SINCLAIR, A HISTORY OF NEW ZEALAND 342 (Penguin NZ 2000).
44. Memorandum to Department of Justice and Professor Keith from Minister of Justice (Feb. 24, 1985). The memorandum later prepared for the cabinet similarly emphasized the deliberate exclusion of economic rights ([Draft] Memorandum for Cabinet [on] the Bill of Rights from Office of the Minister of Justice (prepared Mar. 1, 1985)). Both held in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Record LEG 7-1-3, Box 10, Part 7 (1985-86).
45. Some of the initial possible drafts of the bill of rights prepared by the bureaucracy and held within the bill-of-rights papers at Archives New Zealand did include protection of the rights to private property. On Geoffrey Palmer's advice, however, these provisions were deleted. Moreover, despite subsequent pressure from at least one prominent lawyer to reinclude property rights, such siren calls were rejected. See Memorandum from David Williams on Draft Bill of Rights (stating support for inclusion of rights to private property) in Bill of Rights Papers, Archives New Zealand, Agency ABVP, Series 7410, Record LEG 7-1-3, Box 10, Part 6 (1985-86).
46. Hirschl, supra note 26, at 88.
47. In contrast, National's abortive draft bill of rights of the early 1960s had given a place to key private property rights. See CONSTITUTIONAL REFORM COMMITTEE, supra note 10.
48. N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, SUBMISSIONS ON "A BILL OF RIGHTS FOR NEW ZEALAND: A WHITE PAPER" (Parliamentary Library, Wellington, Boxes 1988/41-44).
49. Property ownership as a basic right, NEW ZEALAND TIMES, Jul. 7, 1985 (Op-ed by Richard Manning, Professor of Economics, University of Canterbury urging entrenchment of a right to private property)
50. Kiwi Forum Submission on a Bill of Rights, OTAGO DAILY TIMES, Nov. 28, 1985 (reporting on Dunedin Kiwi Forum's concern that the enactment failed to protect private property but was "heavy" in its protection of "drug pushers" from search and seizure)
51. In favour of a Bill of Rights, THE PRESS, Oct. 18, 1989 (Op-ed by Christchurch lawyer John Fogarty urging inter alia inclusion of a right to private property in Bill of Rights).
52. Indeed, Richard Northey, the key instigator behind the suggestion, has noted that when the matter came to be finally debated by the parliamentary Labour Party it faced the clear majority opposition of both "right" and "left" of the caucus. The decision to exclude was taken quite specifically by the whole caucus. Interview with Richard Northey (Nov. 3, 2006). Indeed, archival material shows that a draft including these rights (in a not directly justiciable fashion) had been produced within the Department of Justice. See Draft No. 4 (24th July 1989) in Bill of Rights records, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 13, Part 19 (1989-90).
53. Hirschl, supra note 26, at 88.
54. In this context it should be noted that, fearing the birth of a U.S. Lochner-style free enterprise jurisprudence in New Zealand, a number of the most strenuous opponents of the idea of judicially enforceable economic and social rights came from the "left" and "center" not "right" of politics. See submissions of New Zealand Democratic Party (Submission 409) and left-wing civil liberties lawyer Tim McBride (Submission 23) to the original 1985 White Paper parliamentary enquiry (JUSTICE AND LAW REFORM COMMITTEE, supra note 41).
55. Hirschl, supra note 23, at 133.
56. At the beginning of the process at least one prominent National MP (Rt. Hon. Doug Graham) was willing to give "in principle" support to the idea of a bill of rights despite a clearly negative reaction from the opposition as a whole. See Storm Clouds Gathering Over Bill of Rights NEW ZEALAND HERALD, Jan. 16, 1984 (citing opposition of National's Leader Jim McLay but support of Graham for a Bill of Rights)
57. Mr Bolger Attacks Draft Bill, THE PRESS, Apr. 8, 1985 (citing Deputy Opposition Leader Jim Bolger's general attack on the bill including its failure to protect the right not to associate in a trade union)
58. and Economic and Social Rights Not Recognized in Draft Bill, NEW ZEALAND HERALD, Apr. 12, 1985 (remarks by George Gair, National Party's spokesperson on Labour and Industrial Relations opposing NZBOR on neoliberal basis). By 1990, opposition from National was overwhelming. No National MPs supported passage of NZBOR at Third Reading and even Doug Graham spoke against it.
59. See 510 N.Z. PARL. DEB. (1990) Col. 3760-3773.
60. Hirschl, supra note 26, at 105.
61. Interview with Sir Robin Cooke, in GARRY STURGESS & PHILIP CHUBB, JUDGING THE WORLD: LAW AND POLITICS IN THE WORLD'S LEADING COURT 376 (Butterworths 1988).
62. Rights Bill has "Dangers," NEW ZEALAND HERALD, Apr. 8, 1985.
63. Cited in Rishworth, supra note 11, at 19.
64. A Bill of Rights? THE DOMINION, Apr. 28, 1986.
65. JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 140). When the whole profession was polled it indicated a much more ambivalent (and, thus, more positive) attitude to the whole initiative.
66. See Few lawyers support Bill of Rights as drafted, 248 LAW TALK: NEWSLETTER OF THE NEW ZEALAND LAW SOCIETY 1 (Sept. 24, 1986) (citing roughly even support/opposition toward principle of a bill of rights from those replying). This suggests, at the very least, that opposition to the bill-of-rights model was as much an "elite" as an ordinary "mass" phenomenon.
67. Partly as a result of the findings of this poll, during the 1989-90 consultations on a more limited statutory bill of rights, the Law Society adopted a much more neutral attitude (JUSTICE AND LAW REFORM COMMITTEE, supra note 19 (Submission 49)).
68. See Hirschl, supra note 3 at 87.
69. For similar comments, see Hirschl, supra note 3, at 132. These arguments appear in some tension with another argument, offered by Hirschl especially in relation to other cases such as Israel, Egypt, and Turkey, that secularists have been key supporters of the constitutionalization of rights, while religious fundamentalists have been opposed.
70. See Ran Hirschl, Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, 82 TEX. L. REV. 1818 (2004). However, at least as Hirschl presents the matter, in these other three cases a central dynamic fueling support relates to the declining interest in the secularist agenda at the popular level. In contrast, it is fundamentalist religious groups that have generally been regarded as a somewhat weak and declining political influence in the New Zealand case.
71. JUSTICE AND LAW REFORM COMMITTEE, supra note 41.
72. GEOFFREY PALMER & MATTHEW PALMER, BRIDLED POWER? NEW ZEALAND GOVERNMENT UNDER MMP 270 (Oxford Univ. Press, 1997).
73. JUSTICE AND LAW REFORM COMMITTEE, supra note 41.
74. Ran Hirschl, Looking Sideways, Looking Backwards, Looking Forwards: Judicial Review vs. Democracy in Comparative Perspective, 34 U. RICH. L. REV. 415, 433 (2000). It should be noted that, while not directly addressing the political origins of bills of rights, Hirschl has, in some subsequent writing, acknowledged that a number of these groups may have benefited in at least some respects from judicial rights provisions.
75. See, e.g., Hirschl, Constitutionalism, Judicial Review, and Progressive Change: A Rejoinder to McCain and Fleming, 84 TEX. L. REV. 471, 495 (2005).
76. Hirschl, supra note 26, at 83.
77. MARGARET WILSON, LABOUR IN GOVERNMENT: 1984-1987 55-67 (Allen & Unwin in assoc. with Port Nicholson Press 1987).
78. Homosexual Reform Act 1986, 1986 S.N.Z. No. 33. Significantly, this enactment also provided for an equal age of consent.
79. Immigration Act 1987, 1987 S.N.Z. No. 74.
80. Those representing groups discriminated against in a primarily economic fashion seem largely to have ignored the bill-of-rights initiative. This probably reflects the fact that the instrument deliberately sought to avoid codifying economic rights either of a left- or right-wing variety. Nevertheless, it should be noted that NZ's primary trade union body, the Federation of Labour, did pass a resolution at its annual conference in 1984 supporting the principal of a bill of rights. See INTERNATIONAL COMMISSION OF JURISTS (NEW ZEALAND SECTION), TRANSCRIPT OF SEMINAR HELD ON BILL OF RIGHTS ON 19th MAY 1986 40 (International Commission of Jurists (New Zealand Section) 1986).
81. Certainly, therefore, it is incorrect to argue that core opposition to NZBOR came from "leftist opponents of privatization" (Hirschl, supra note 26, at 89).
82. Those representing both (non-Māori) ethnic and religious minorities and the physically and/or mentally disabled were almost universally supportive. In contrast, feminist groups were clearly split with four submissions received in opposition and only two in favor (one of these being from an internal Labour Party women's group) (JUSTICE AND LAW REFORM COMMITTEE, supra note 41).
83. DEPARTMENT OF JUSTICE, REPORT OF THE DEPARTMENT OF JUSTICE ON A WHITE PAPER ON A BILL OF RIGHTS FOR NEW ZEALAND, printed as Appendix 2 in N.Z. PARLIAMENT, JUSTICE AND LAW REFORM COMMITTEE, INTERIM REPORT (I (8A)), Appendix to the Journals of the House of Representatives (1986-87).
84. Treaty of Waitangi Amendment Act 1985, 1985 S.N.Z. No. 148.
85. Some eighteen submissions were received in 1985/86 from Pakeha New Zealanders arguing that such a clause would lead to racist laws that disadvantaged non-Māori (JUSTICE AND LAW REFORM COMMITTEE, supra note 41). Mainstream legal opinion also seemed opposed to the idea of including the treaty. In a survey of Law Society members carried out in 1986, 57 percent opposed including the treaty in a bill of rights while only 24 percent were supportive.
86. See Findings from Tactical Marketing in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-3-1, Box 13, Part 20 (1985-88).
87. Hirschl, supra note 26, at 89.
88. Notable Māori supporters of the Treaty of Waitangi clause included Judge Eddie Durie, chief justice of the Māori Land Court and chair of the Waitangi Tribunal. Judge Durie stated that the clause was "of crucial importance to Maoridom because it creates new rights previously denied" (INTERNATIONAL COMMISSION OF JURISTS, supra note 63, at 59).
89. JEROME B. ELKIND & ANTHONY SHAW, STANDARD FOR JUSTICE: A CRITICAL COMMENTARY ON THE PROPOSED BILL OF RIGHTS FOR NEW ZEALAND 42 (Oxford Univ. Press N.Z. 1986).
90. Similarly all four submissions received from Māori organizations in the 1985-1986 submission process were opposed (JUSTICE AND LAW REFORM COMMITTEE, supra note 41).
91. "The Department of Maori Affairs does not favour incorporation of the Treaty into a Bill of Rights. The Treaty can only be handled in such a way as befits its Tapu nature. The proposed bill is not the appropriate mechanism by which this can be achieved." [Late] [s]ubmission by Department of Maori Affairs to Justice & Law Reform Committee [on 1985 White Paper] (1988), Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-13, Box 14, Part 23 (1985-88).
92. JANE KELSEY, A QUESTION OF HONOUR? LABOUR AND THE TREATY 54 (Allen & Unwin 1990).
93. JUSTICE AND LAW REFORM COMMITTEE, supra note 18, at 4.
94. In fact, following the inclusion of a reference to the "principles of the Treaty of Waitangi" in the State-Owned Enterprises Act 1986, 1986 S.N.Z. No. 124, the New Zealand Court of Appeal issued a path-breaking "pro-Māori" decision setting out a "partnership" understanding of the treaty, which many Māori had been advocating. New Zealand Maori Council v Attorney-General, 1 NZLR 641 (1987). Incidentally, this decision appears to have increased support among some Māori for recognition of the treaty in the bill of rights. Thus, in the 1989-90 consultation a number of Māori submissions were received advocating some form of inclusion.
95. See JUSTICE AND LAW REFORM COMMITTEE, supra note 18. However, consensus within Māoridom was still not forthcoming and, in any case, by this time the chance to influence debate had probably been lost.
96. Hirschl, supra note 26, at 102.
97. Similarly some of the more general statements that Hirschl makes regarding voter dealignment during the 1980s are at least open to some question. Thus, it is important to note that the New Zealand Party did not quickly become the third political party in New Zealand." Hirschl, supra note 26, at 85. In fact, it effectively only fought one general election (in 1984) and never won a single electoral seat. Similarly, it is important to note that despite the founding of Mana Motuhake in 1980, it also never won a single seat and in 1991 decided to disband as separate force via merger with three other left-wing parties in the Alliance party.
98. N.Z. HUMAN RIGHTS COMMISSION, A GUIDE TO THE PROPOSED BILL OF RIGHTS IN QUESTION AND ANSWER FORM (New Zealand Human Rights Commission 1986)
99. JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 135).
100. JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 243).
101. McBride had been a longtime civil liberties activist and member of the New Zealand Council for Civil Liberties. His support for the 1985 white paper proposals represented a departure from his previous opposition to a bill of rights. Tim McBride, Do We Need a Bill of Rights in IMPROVING NEW ZEALAND'S DEMOCRACY 97, 105 (J. Stephen Hoadley ed., New Foundation for Peace Studies 1979).
102. JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 186)
103. ELKIND & SHAW, supra note 70.
104. INGLEHART, supra note 30.
105. JAMES BELICH, PARADISE REFORGED: A HISTORY OF NEW ZEALANDERS FROM THE 1880S TO THE YEAR 2000 509 (Penguin 2001).
106. Id. at 3.
107. Geoffrey Palmer, A Bill of Rights for New Zealand, in ESSAYS ON HUMAN RIGHTS (K.J. Keith ed., Victoria Univ. Press 1968) (opposing idea of bill of rights for New Zealand)
108. and PALMER, supra note 12 (supporting looking at enacting a bill of rights).
109. Sir Kenneth Keith, then a law professor at Victoria University of Wellington and key adviser to Sir Geoffrey Palmer in the 1980s, had opposed the idea of a bill of rights during the 1960s debate (CONSTITUTIONAL REFORM COMMITTEE, supra note 10, at 33-34).
110. However, in 1978 he indicated a change of attitude. See K. J. Keith, A Lawyer Looks at Parliament, in THE REFORM OF PARLIAMENT: PAPERS PRESENTED IN MEMORY OF DR. ALAN ROBINSON 40 (Sir John Marshalled., New Zealand Institute of Public Administration 1978).
111. See DEPARTMENT OF JUSTICE, supra note 14, at 28
112. and Keith, supra note 5, at 312.
113. See DEPARTMENT OF JUSTICE, supra 14, at 86. At the time of final enactment, the protections with regard to freedom from discrimination remained in the form of a closed list. NZBOR, 1990 S.N.Z. No. 109 §10. Later, in 1993 the range of characteristics contained within this list were expanded but remained closed.
114. See Human Rights Act 1993, 1993 S.N.Z. No. 82.
115. See generally ELY, supra note 5
116. Keith, supra note 5
117. and Lawrence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories 89 YALE L. J. 1063 (1980).
118. JUSTICE AND LAW REFORM COMMITTEE, supra note 41 (Submission 22).
119. JOHN W. KINGDOM, AGENDAS, ALTERNATIVES AND PUBLIC POLICIES 197 (Longman, 2003).
120. It should be noted that this was by no means the first or longest period of substantial nonincumbency for Labour. In fact, National dominated the political scene in New Zealand throughout the second half of the twentieth century leading to three long periods when Labour was out of power: (a) 1949-1957; (b) 1960-1972; (c) 1975-1984.
121. In 1978 Labour won 40.4 percent of the vote to National's 39.8 percent. However, National won more seats by a substantial margin (54.35 percent to 44.57 percent). In 1981, National again won (slightly) more seats than Labour (51.09 percent to 46.09 percent) while gaining fewer votes (38.78 percent to 39.01 percent) (PALMER, supra note 12, at 243). The policy that most directly flowed from these "injustices" was a commitment by Labour to establish a Royal Commission on Electoral Reform (which, in part, paved the way for the adoption of proportional representation for parliamentary elections in 1996). More generally, such debate helped loosen Labour's hitherto conservative stance on constitutional matters.
122. Interview with Jonathan Hunt (Jun. 21, 2005). See also PALMER, supra note 12.
123. In fact, in the Fitzgerald case the High Court found that such action had indeed amounted to an illegal executive suspension of the law contrary to the bill of rights (UK) 1 Will. & Mar., sess. 2, c. 2 (1688) - an "imperial" statute that remained in force in New Zealand. See Fitzgerald v. Muldoon 2 NZLR 615 (1976).
124. Clutha Development (Clyde Dam) Empowering Act 1982, 1982 S.N.Z. No. 20.
125. Rishworth, supra note 11, at 10.
126. Thus, for example, Palmer strongly criticized this decision stating that "[t]he ultimate referee, when the chips are down, should not belong to one of the teams playing the game." See PALMER, supra note 84, at 21. Sir Keith Holyoake had been a former National Party prime minister and was a member of the Muldoon cabinet up until a few months prior to his nomination.
127. Rishworth, supra note 11, at 11. Such powers were mainly contained within the Economic Stabilization Act 1948, 1948 S.N.Z. No. 38. Clearly, it can be argued that concern over such powers not only reflected the draconian and sudden nature of their use during this period but also an increasing feeling that the country's method of economic planning was unsustainable. It is plausible to argue that this growing perception may have marginally helped the selling of the idea of a bill of rights during this period. This is the kernel of truth in the HPT's analysis.
128. BELICH, supra note 82, at 396.
129. Id. For an analysis of the fate of these politicians and the role Muldoon played in their downfall,
130. see BARRY GUSTAFSON, HIS WAY: A BIOGRAPHY OF ROBERT MULDOON (Auckland Univ. Press 2000).
131. PALMER, supra note 56, at Preface.
132. Interview with Jonathan Hunt, supra note 93.
133. The importance of the Muldoon factor is well brought out in the following quote from a speech Palmer gave in 1984: "We can no longer be confident that our fundamental rights will be protected within our system of Government. [Ten] years ago I shared that confidence when I myself argued against the adoption of a Bill of Rights in New Zealand. However, times have changed. Since then we have seen inroads made into our traditional rights and freedoms through the abuse of Executive power." Address to Public Meeting organized by Canterbury Council on Civil Liberties, Sept. 28, 1984 in Bill of Rights papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 9, Part 1 (1984).
134. PALMER, supra note 84.
135. PALMER, supra note 12
136. and PALMER, supra note 84.
137. Interview with Sir Geoffrey Palmer (Nov. 16, 2004). In fact, it would appear that Labour's comprehensive Open Government policy did not fully emerge until the 1984 general election, although a more limited commitment to a bill of rights was included in the 1981 General Election Manifesto.
138. Levine, supra note 16, at 351.
139. PALMER, supra note 35, at 58 & 52.
140. Id. at 58.
141. Rishworth, supra note 11, at 19.
142. Minutes of officials Committee on Constitutional Reform, First Meeting (Dec. 11, 1984)(reporting that the target date for enactment was 1986) in Bill of Rights Papers, Archives New Zealand, Agency ABVP, Series 7410, Accession W5196, Record LEG 7-1-3, Box 10, Part 4 (1984-86).
143. JUSTICE AND LAW REFORM COMMITTEE, supra note 42 (Submission 350W).
144. In 1989, just prior to the enactment of NZBOR and in a clearly related move, the New Zealand Government did accede to an optional protocol giving those subject to New Zealand jurisdiction a right to appeal to the Human Rights Committee if, having exhausted their domestic remedies, they still felt their covenant rights had been violated. See PALMER & PALMER, supra note 56, at 271. Despite this important development, however, international oversight of human rights norms in New Zealand remains much weaker than in the U.K. In particular, in contrast to European Court of Human Rights, the UN Human Rights Committee is not a Court and can issue no judgments that are binding even in international law.