The New Zealand Bill of Rights Act 1990 (NZBORA) and the United Kingdom’s Human Rights Act 1998 (HRA) share common constitutional DNA. Both are “parliamentary bills of rights” that eschew a judicial power to invalidate rights-infringing legislation. However, the two rights instruments historically have diverged in a couple of important ways regarding the form of post-enactment judicial rights review of legislation that they are taken to authorise. First, the HRA, s 4 confers on the courts an express power to issue a formal declaration that a parliamentary enactment that cannot be interpreted consistently with certain rights contained in the Convention is incompatible with that rights instrument. The NZBORA, by comparison, is almost completely silent as to the judicial remedies available in a case involving a breach of its rights guarantees. Second, the UK courts have adopted an approach to interpreting potentially Convention inconsistent legislation using the HRA, s…
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