scholarly journals Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

2021 ◽  
Author(s):  
◽  
Charlotte Connell
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Judicial Review ◽  
Direct Result ◽  
Legal Authority ◽  
Bill Of Rights ◽  
New Paradigm ◽  
Constitutional Review ◽  
Orthodox View

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

scholarly journals Evolving Role of the Courts: Constitutional Review of Legislation under the New Zealand Bill of Rights Act 1990

2021 ◽  
Author(s):  
◽  
Charlotte Connell
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Judicial Review ◽  
Direct Result ◽  
Legal Authority ◽  
Bill Of Rights ◽  
New Paradigm ◽  
Constitutional Review ◽  
Orthodox View

<p>The constitutional landscape in New Zealand has undergone significant change over the last 20-35 years to improve the transparency and accountability of decision-making in the three branches of government. While most of these changes are a direct result of legislation, the constitutional role of the court has also been evolving and has seen the development of judicial review of the substance of the law for consistency with the New Zealand constitution. The orthodox view of the constitution is heavily critical of judicial, or constitutional, review of legislation by the courts and considers it to be an illegitimate encroachment on the domain of Parliament. This paper explores the legitimacy of constitutional review of legislation by the courts, specifically constitutional review of legislation under the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). To be legitimate, constitutional review by the courts must have both legal authority and be performed consistently with the constitution. This paper observes that s 5 of the Bill of Rights Act has been employed by the courts, without interference from Parliament, to review legislation for consistency with that Act and that the courts use the purposive approach to interpretation and the proportionality analysis to perform such review consistently with the constitution. Finally, the paper explores whether the developing jurisdiction of constitutional review necessitates a new paradigm to define the constitutional relationship between the courts and Parliament because the orthodox view of New Zealand's constitution is no longer supportable as the definitive position</p>

scholarly journals AI-Enabled Sensing and Decision-Making for IoT Systems

Complexity ◽  
2021 ◽  
Vol 2021 ◽  
pp. 1-9
Author(s):  
Hao Qinxia ◽  
Shah Nazir ◽  
Ma Li ◽  
Habib Ullah ◽  
Wang Lianlian ◽  
...  
Keyword(s):  
Decision Making ◽  
Real Life ◽  
Research Community ◽  
Smart Sensors ◽  
Future Research ◽  
New Paradigm ◽  
Exclusion Criteria ◽  
Intelligent Devices ◽  
Research Questions

The influential stage of Internet of Things (IoT) has reformed all fields of life in general but specifically with the emergence of artificial intelligence (AI) has drawn the attention of researchers into a new paradigm of life standard. This revolution has been accepted around the globe for making life easier with the use of intelligent devices such as smart sensors, actuators, and many other devices. AI-enabled devices are more intelligent and capable of doing a specific task which saves a lot of resources and time. Different approaches are available in the existing literature to tackle diverse issues of real life based on AI and IoT systems. The role of decision-making has its own importance in the AI-enabled and IoT systems. In-depth knowledge of the existing literature is dire need of the research community to summarize the literature in effective way by which practitioners and researchers can benefit from the prevailing proofs and suggest new solutions for solving a particular problem of AI-enabled sensing and decision-making for the IoT system. To facilitate research community, the proposed study presents a systematic literature review of the existing literature, organizes the evidences in a systematic way, and then analyzes it for future research. The study reported the literature of the last 5 years based on the research questions, inclusion and exclusion criteria, and quality assessment of the selected study. Finally, derivations are drawn from the included paper for future research.

Constitutional Rights and Democracy: A Reply to Professor Bellamy

2013 ◽  
Vol 14 (8) ◽  
pp. 1039-1051 ◽  
Author(s):  
W.J. Waluchow
Keyword(s):  
Judicial Review ◽  
Constitutional Rights ◽  
Social Cooperation ◽  
Bill Of Rights ◽  
Political Equality ◽  
Constitutional Review ◽  
The People ◽  
Democratic Character ◽  
Self Rule ◽  
Elected Representatives

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.

scholarly journals To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

2021 ◽  
Author(s):  
◽  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Group V ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

<p>The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.</p>

Divining Disposition: The Role of Elite Beliefs and Gender Narratives in Women’s Suffrage

2020 ◽  
Author(s):  
Mariel J. Barnes
Keyword(s):  
Decision Making ◽  
New Zealand ◽  
Party Identification ◽  
Process Tracing ◽  
The Political ◽  
Historical Process ◽  
Political Preferences ◽  
Primary Documents ◽  
And Gender

Most accounts of franchise extension hold that elites extend electoral rights when they believe expansions will consolidate their political power. Yet, how do elites come to believe this? And how do elites make inferences about the political preferences of the disenfranchised? I argue that elites utilize the cue of “disposition” to determine the consequences of enfranchisement. Disposition refers to the innate characteristics of an individual (or group) that are believed to shape behavior and decision-making. Importantly, because disposition is perceived to be intrinsic, elites assume it is more stable and permanent than party identification or policy preferences. Using historical process-tracing and discourse analysis of primary documents, I determine that disposition was frequently and repeatedly used to either support or oppose women’s enfranchisement in New Zealand.

Trust in Procurement Decisions of New Zealand SMEs

2022 ◽  
pp. 24-50
Author(s):  
Kripanshu Vora
Keyword(s):  
Decision Making ◽  
Supply Chain ◽  
New Zealand ◽  
Exploratory Study ◽  
Repertory Grid ◽  
Grid Technique ◽  
Owned Company ◽  
The Right ◽  
Selection Of

The purpose of this chapter is to explore the role of trust or confidence through the managerial lens. The chapter aims to acquire empirical evidence regarding the importance of factors that play a role in fostering trust during procurement decision making exemplified through a New Zealand-owned company, ContainerCo. This exploratory study scrutinises trust as perceived by SME managers in the supply chain of logistics and procurement in New Zealand. It uses the repertory grid analysis and is based on two interviews conducted through the repertory grid technique, a semi-structured method. Although different in every company and country, trust plays a major role during the selection of suppliers. Factors such as reliability and value are regarded as the most important ones for choosing the right supplier in the case of ContainerCo.

Constitutional Adjudication and Constitutional Politics

2020 ◽  
pp. 34-66
Author(s):  
Yvonne Tew
Keyword(s):  
Judicial Review ◽  
Federal Court ◽  
The Political ◽  
Constitutional Politics ◽  
Constitutional Review ◽  
Judicial Decisions ◽  
Challenging Environment ◽  
Federal Statute ◽  
Constitutional Adjudication

This chapter explores the role of courts and how judicial review operates in practice within the wider political context of Asian states historically dominated by consolidated political power. Judiciaries in Malaysia and Singapore are empowered by their written constitutions to invalidate legislation and executive actions for rights violations. Yet these Asian courts have traditionally adopted an insular, rigidly formalistic approach toward constitutional review, marked by extensive deference to the political branches, stridently rejecting notions of implied constitutional principles or basic structures. This chapter consider why. Constitutional adjudication in practice is inextricably bound to constitutional politics. Courts facing a dominant political party operate within a challenging environment for exercising strong judicial review. In the 1980s, the government’s aggressive backlash to judicial decisions with which it disagreed resulted in constitutional crises in Malaysia and Singapore. Chastened, the courts retreated to a subdued position toward constitutional review. Over the next two decades the Malaysian apex court refrained from invalidating any federal statute, while its Singaporean counterpart has not once struck down any law. Recent displays of assertiveness by the Malaysian Federal Court, however, show signs of a reinvigorated judiciary. The chapter tells the story of the courts’ rise, fall, and uneven journey toward constitutional redemption in these Asian democracies.

Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan

2020 ◽  
Vol 18 (1) ◽  
pp. 51-77
Author(s):  
David Kenny ◽  
Conor Casey
Keyword(s):  
Comparative Analysis ◽  
New Zealand ◽  
Judicial Review ◽  
Dark Side ◽  
Major Area ◽  
Negative Effects ◽  
Constitutional Review ◽  
Central Aspect ◽  
The Uk ◽  
The Right

Abstract Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.

scholarly journals God, Civic Virtue, and the American Way: Reconstructing Engel

2017 ◽  
Author(s):  
Corinna Barrett Lain
Keyword(s):  
Decision Making ◽  
Social Movements ◽  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Decision ◽  
Historical Record ◽  
Constitutional Change ◽  
School Prayer ◽  
Source Materials

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel for what it is: a re- markablyrich account of Supreme Court decisionmakingthatfurthers a number ofconversationsin constitutionallaw. Engel adds a new strandto a burgeoning body of scholarship on the power of culture in general,and social movements in particular,to generate constitutional change, It presents a rare glimpse of the Justices explicitly engaging in a dialogue with the American public. And it exposes qualitative differences in the forms that popular constitutionalism might take, with implications for the theory itself In the end, Engel still offers valuable in- sights about Supreme Court decision making and the role of judicial review. They just aren't the insights we tend to think

scholarly journals To whom will ye liken Me, And make Me equal? Reformulating the Role of the Comparator in the Identification of Discrimination

2014 ◽  
Vol 45 (1) ◽  
pp. 1 ◽  
Author(s):  
Asher Gabriel Emanuel
Keyword(s):  
New Zealand ◽  
Social Development ◽  
Attorney General ◽  
Child Poverty ◽  
Chief Executive ◽  
Bill Of Rights ◽  
Analytical Reasoning ◽  
Recent Developments ◽  
Court Of Appeal

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts' approach to the formulation of comparator groups admits a lack of a clear methodology. The author argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of non-discrimination provisions and offending against the proper construction of s 19. Of particular concern is the involvement of matters of justification at the comparator stage. The judgments of the High Court and Court of Appeal in B v Chief Executive of the Ministry of Social Development and G B as Executor of the Estate of B of Whangarei v the Chief Executive of the Ministry of Social Development respectively are emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group Inc v Attorney-General have provided some guidance, but have not gone far enough. The author recommends that the courts defer to the claimant's choice of comparator, and decouple the identification of differential treatment from questions of causation.

Sign in / Sign up

Export Citation Format

Share Document