- Elias J ruled the Bill of Rights directly applied to the common law in Lange v Atkinson  2 NZLR 22 (HC) (and that point was not questioned by the Court of Appeal).
- The application of the Bill of Rights to the development of the law by judges was asserted in (dissenting) judgments in R v Pora  2 NZLR 37 and R v Shaheed  2 NZLR 377.
- The need for common law developments to comply with the Bill of Rights was taken as a given in Hosking v Runting  1 NZLR 1.
Without undertaking an in-depth analysis of these cases, it's clear that the issue has not been subject to extensive consideration by the courts. I think the question deserves greater reflection. And, I'm not convinced either that the courts have actually grappled with the implications of the idea that s3(a) binds the courts to develop the common law consistently with the Bill of Rights. Expression cases might be easy ones, where the common law has always grappled with the balance to be struck between freedom of expression and other interests. However, does this mean that other common law principles (and statutory provisions regulating private relationships) similarly need to be Bill of Rights consistent? Section 21 might require the common law doctrine of distress damage feasant – that, amongst other things, allows private property owners to tow illegally parked cars – be revisited? And s19 might require the revision of the principle that admission to a private club or society is entirely discretionary and the courts will not force a club to admit an unwanted member, if the reason for refusal triggers a prohibited ground of discrimination? Of course, the fact that the Bill of Rights might not directly apply does not stop the values in the Bill of Rights forming a backdrop for the common law or interpretative questions. Or those values – or fundamental rights generally – being considered in each of those tasks. But there are important differences between direct and indirect application of the Bill of Rights. It's a pity our courts haven't been more clear about this point.