ABSTRACT
This chapter argues that a genuine rights/democracy reconciliation requires a theory of legitimate breach, i.e. a common understanding within public and select-group deliberation as to when it is appropriate to legislate contrary to the Act. Legitimacy for statutory override need not be conditional on a finding of judicial overreach. There are suggestions in the literature of exceptional issues which may justify the legislature overriding judicial decisions without agonising about judicial activism. Commitment to Human Rights Act compliance may be challenged by stronger preferences. A theory of 'legitimate breach' founded on co-reasoning may properly honour the citizens' right to be the dominant power in the state, whilst using constitutional review to promote rights protection. If Parliament uncritically translates constitutional-review decisions into legislative change, the consequential and inevitable acceptance of the results of the proportionality test as applied by the judges would mean that the judiciary's conception of common good would be tracked instead of that of the citizens.
