The New Zealand Bill of Rights Act 1990 and a Post September 11 Morality; Community Rights versus Individual Rights

Within this article I seek to examine the place of the New Zealand Bill of Rights Act 1990 (NZBRA) in the changing world of human rights protection post September 11, 2001. I will argue that the non-entrenched NZBRA, while traditionally subject to significant criticism, may now present a favourable world model for the effective democratic protection of substantive human rights. The anti-terror actions taken by the United States (U.S.) and the United Kingdom (U.K.) following the terrorist attacks of September 11, 2001 appear to give rise to a swing in human rights ideology. These acts represent a different form of human rights derogation from that which has traditionally been accepted. Apart from a small number of fundamental or core rights human rights are most often subject to some form of compromise within domestic systems of right protection. Notwithstanding this observation, the actions of the U.S. and the U.K., post September 11, appear to usher in a new form of compromise based upon state or community necessity. This new form of compromise has the potential to significantly modify the nature of traditional human rights ideology from the inviolable supremacy of an individual's rights to the supremacy of broader democratic, structural or societal rights. Consequently, if such a shift were to solidify to the extent that derogations from the protection of an individual's fundamental rights were held to be legitimate where society is faced with any type of amorphous threat, then a corresponding shift in appreciation of entrenchment versus non-entrenchment would also likely occur. The result would therefore be that right protection systems traditionally seen as weak, such as in operation within New Zealand and the U.K. could be seen as providing greater right protection through their promotion of intra-constitutional activity. Entrenched systems on the other hand, could lose favour as their rigid and concrete procedural protections provide little flexibility and therefore little intra-constitutional encouragement to executive administrations.