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(3) "It is cause for concern that our Bill of Rights Ordinance does not preserve the demarcation between the Judiciary and the Legislature as clearly as does, for example, New Zealand's Bill of Rights Act which, as I understand it, requires their Executive to bring to their Legislature's attention any bill (that is, proposed legislation) which appears to be inconsistent with their Bill of Rights. Therefore New Zealand's system may be preferable to ours."
Comment: The New Zealand Bill of Rights Act 1990 requires the Attorney General to bring to the legislature's attention any provision of a bill that appears to be inconsistent with the Bill of Rights. This requirement as to proposed legislation needs to be understood in the context of the New Zealand system, under which there is no constitutional impediment to the enactment of legislation restricting human rights. In Hong Kong, however, Article VII(5) of the Letters Patent (which mirrors Article 39 of the Basic Law) prohibits the enactment of any law after commencement of the Bill of Rights Ordinance which is inconsistent with the ICCPR as applied to Hong Kong.
So far as existing legislation is concerned, the New Zealand Act prohibits a court from holding any enactment to be impliedly repealed by reason of inconsistency with the Bill of Rights. That provision represented a deliberate policy choice by the New Zealand legislature based on a range of local political and other factors. Similarly, the approach in s.3 of the Hong Kong Ordinance was a deliberate policy choice by the Hong Kong legislature, made in 1991 in the light of the particular circumstances of Hong Kong. In arriving at that choice, a number of different models were considered, including but not limited to the New Zealand one. The New Zealand model is but one of several different Bill of Rights models operating throughout the world.
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The repeal-by-reason-of-inconsistency approach in s.3 of the Hong Kong Ordinance was chosen to give the Ordinance a direct impact in relation to existing legislation. It is worth recalling in this respect that the Administration's original proposal for a two-year "freeze" period for existing laws, during which time suspect laws would be reviewed and amended, was rejected by the Legislative Council in favour of a one- year freeze for six key ordinances only. The commonly held view at the time was that the protection of human rights afforded under the Bill of Rights should be made fully available as soon as possible and that the authority for deciding whether local laws are consistent with the Bill should be the Judiciary not the Administration or the Legislature.