New Zealand Bill Of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (sometimes known by the acronym NZBORA or simply BORA) is a statute of the Parliament of New Zealand and part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a bill of rights. It imposes a legal requirement on the attorney-general to provide a report to parliament whenever a bill is inconsistent with the Bill of Rights.

The High Court of New Zealand in '' Taylor v Attorney-General'' issued an unprecedented declaration that the restriction on prisoners' voting rights was a limit on their right to vote in periodic elections and that it had not been justified under the Bill of Rights. On appeal, the Supreme Court confirmed that senior courts had jurisdiction to make such a declaration, and in 2022 a law was passed to establish procedures to require the New Zealand Government a reporting and response mechanism to inconsistency declarations.

History

''A Bill of Rights for New Zealand: A White Paper''

In 1985, the Minister of Justice, Geoffrey Palmer introduced to Parliament a document titled ''A Bill of Rights for New Zealand: A White Paper''. The paper proposed the enactment of a law to protect certain rights and freedoms considered crucial for upholding liberty in a democratic society.

The ''White Paper'' proposed that the Bill of Rights become entrenched law so that it could not be amended or repealed without a qualified majority in Parliament or a simple majority in a referendum, therefore having status as supreme law. Furthermore, the Treaty of Waitangi was to be fully incorporated into the Bill of Rights, also elevating the Treaty's status to that of supreme law. Lastly, the judiciary would have the power to invalidate any act of Parliament, common law rule or official act that was contrary to the Bill of Rights. Due to its status as supreme law and the ability for the judiciary to invalidate legislation, the Bill of Rights would contradict parliamentary sovereignty in New Zealand. As a result, it sparked widespread debate due to those controversial features.

The Justice and Law Reform Select Committee considered the ''White Paper'', and recommended that New Zealand was "not yet ready" for a bill of rights in the form proposed. The Committee recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law.

First reading

On 10 October 1989, the 42nd New Zealand Parliament debated and passed the New Zealand Bill of Rights Act 1990 in its first reading. The proposed bill followed the recommendations of the select committee and was an ordinary statute without entrenchment. Despite this, Palmer introduced the legislation with the aim of providing some protection for civil and democratic rights. He highlighted the importance of the bill in ensuring that the government's actions are able to be subject to judicial scrutiny to uphold individual rights.

Opponents of the bill questioned the purpose of the bill as it would lack supreme law status. One opponent, Doug Graham, said that "a Bill of Rights has some merit, but it has no merit at all as an ordinary law." He quoted an excerpt from the ''White Paper'', which said, "to enact a Bill of Rights which can be overridden, either expressly or impliedly, by a simple majority of the Government's parliamentary supporters would be no real advance on our present situation with respect to the protection of our basic rights and freedoms."

Second reading

On 14 August 1990, the New Zealand Bill of Rights Act 1990 was debated and passed at its second reading, almost a year after its initial introduction. Largely the same concerns echoed in the first reading were made in the second reading, with a greater emphasis on concern of judicial overreach and bias in the second reading. Warren Kyd, speaking against the bill, argued a hypothetical that a conservative judiciary could say that the right not to be deprived of life prohibits a person from having an abortion.

Third reading

New Zealand Bill of Rights Act 1990 passed its third reading on 24 August 1990 and received royal assent on 28 August 1990. It came into force on 25 September 1990.

Application of the Act

The Act applies to acts done by the three branches of government (the legislature, executive and judiciary) of New Zealand, or by any person or body in the "performance of any public function, power, or duty" imposed by the law.

Section 4 of the Act denies the Bill of Rights supremacy over other legislation. The section states that courts looking at cases under the Act cannot implicitly repeal or revoke, or make invalid or ineffective, or decline to apply any provision of any statute made by parliament, whether before or after the Act was passed because it is inconsistent the Bill of Rights. Section 6 states, where another act can be interpreted that is consistent with the Bill of Rights, the courts are obliged to use the most consistent interpretation.

In section 5, one of the core provisions in the Act allows for "justified limitations" on the rights guaranteed throughout the Bill of Rights. It says that the rights are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", which is the same wording as in Canada's Charter of Rights and Freedoms.

In section 7 of the Act, the attorney-general is required to draw the attention of parliament to the introduction of any bill that is inconsistent with the Bill of Rights. The Ministry of Justice, which prepares this advice for the attorney-general, requires a minimum of two weeks to review draft legislation.

Rights guaranteed by the Act

Life and the security of the person

The Act guarantees a range of rights as part of the right to life and security of person in sections 8 to 11 to every person. These are the right not to be deprived of life except in accordance with fundamental justice. Furthermore, that every person has a right in section 8 not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. In addition, it guarantees the right not to be subject to medical or scientific experimentation without consent, and the right to refuse to undergo any medical treatment, except where a person is involuntarily committed.

Democratic and civil rights

The Act guarantees two fundamental electoral rights in section 12 for New Zealand citizens who are of or over the age of 18. Firstly, it guarantees the right to vote in elections to elect members of the New Zealand Parliament, guaranteeing that they are held by equal suffrage and secret ballot. Secondly, it guarantees the right to become a member of the New Zealand House of Representatives.

Furthermore, in section 13, the Act guarantees everyone the right to freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference. The Act also guarantees, in section 15, everyone the right to manifest their religion or belief in worship, observance, practice, or teaching, either individually or in a community with others, and either in public or in private.

In addition, in section 14, it confirms a right to freedom of expression, which includes the freedom to seek, receive and impart information and opinions of any kind and in any form. The right of peaceful assembly is also guaranteed by section 16 and the right to freedom of association is guaranteed in section 17.

The right to freedom of movement and residence is also guaranteed in section 18, with New Zealand citizens given the right to enter New Zealand, and everyone else the right to leave New Zealand. It also guarantees that non-New Zealand citizens who are lawfully in New Zealand have a right to not be required to leave except under a decision taken under grounds prescribed in law.

Non-discrimination and the rights of minorities

Freedom from discrimination under the prohibited grounds of discrimination as set out in the Human Rights Act 1993 is guaranteed in section 19 of the Act. The prohibited grounds of discrimination notably include a right against discrimination on the basis of sex, sexual orientation, disability, race, and ethnic and national origins, among others.

Rights of ethnic, religious and linguistic minorities are also guaranteed, with section 20 of the Act providing protection against minorities, individually and as part of their community, being denied the right to enjoy their culture, profess and practice their religion, or to use their language.

Search, arrest and detention

Everyone is guaranteed under the Act in section 21 a right to be secure from unreasonable search or seizure of the person, their property and correspondence. The right against arbitrary arrest and detention is also guaranteed by section 22.

People who are arrested or detained are guaranteed a set of rights relating to their arrest or detention in section 23 of the Act. These are the right to be informed of the reason for the arrest or detention at the time it occurs, the right to consult and instruct a lawyer without delay and to be informed of that right, and the right to challenge the validity of the arrest or detention without delay by habeas corpus and to be released if the arrest or detention is unlawful. Furthermore, everyone arrested or detained has the right to be treated with humanity and dignity, and the right to refrain from making any statement and to be informed of that right. In addition, people who are arrested for a crime have both a right to be charged promptly or to be arrested, and those who are not released have a right to be promptly brought before a court or tribunal.

Criminal procedure

Everyone who is charged with an offence is guaranteed a set of rights under section 24 of the Act. They are guaranteed the right to be informed promptly and in detail the nature and reasoning of the charge, to be released under reasonable terms and conditions unless there is a just cause to continue their detention, the right to consult a lawyer and to adequate time and facilities to prepare a defence, the right to a lawyer without a cost if it is in the interests of justice and the person does not have the funds to pay for legal assistance, and the right to a free interpreter if the person cannot understand or speak the language used in court.

Furthermore, everyone charged has a right to a trial by jury if the offence they are charged with carries a term of imprisonment of 2 years or longer. However, this right does not apply to people being tried by a military tribunal under military law.

Fair trial

Everyone who is charged with a crime is guaranteed with a set of rights to ensure their fair trial as a defendant by section 25 of the Act. These rights are, the right to a fair and public hearing by an independent and impartial court, the right to be tried without an undue delay, the right to a presumption of innocence, the protection against self-incrimination through the right not to be compelled to be a witness or profess guilt.

Furthermore, the defendant has the right to be present at their own trial and present a defence, the right to examine the prosecution's witnesses and to call their own witnesses, the right to retroactive application of the more lenient law, the right to appeal their conviction or sentence to a higher court, and the right for a child to be tried in a manner that is appropriate for their age.

Double jeopardy and natural justice

Double jeopardy is covered in section 26 of the Act, which guarantees that no one should be held liable for an act or omission that at the time it occurred, was not an offence. This protects people from being charged under new crimes for acts or omissions they committed prior to the new crime existing. Furthermore, the protects people from being tried or punished for a crime that they have already been finally convicted, pardoned, or acquitted for.

Everyone is granted the right, in section 27, to the observance of the principles of natural justice by any tribunal or other public authority that has the power to make a determination regarding a person's rights, obligations, or interests that are protected or recognised by law. Furthermore, every person also has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

Remedies

The Act does not provide express remedies for when one of the rights contained in the Act has been breached. Despite this, the Court of Appeal has held on several occasions that it has the jurisdiction to develop remedies as it sees fit. The focus remedies under the Act is to provide vindication in such a way that upholds the importance of the right, rather than invokes punishment for its breach. As such, court decisions can often include a combination of remedies in order for the breached right to be properly vindicated.

Exclusion of evidence

A common remedy under the Act is that the evidence obtained through breaching a right is inadmissible in court. This initially developed in the courts as a presumption of exclusion but was subsequently lessened to a balancing exercise where various factors are weighed up to determine the admissibility of evidence tainted by a breach of the Act. This remedy is now reflected in section 30 of the Evidence Act 2006.

Reduction in sentence

A reduction in sentence can be granted as a remedy in cases where section 25(b) of the Act has been breached: the right to be tried without undue delay. In ''Williams v R'' 009NZSC 41, the Supreme Court held that a reduction in sentence was a more appropriate remedy than a stay of proceedings, except for extremely minor offending.

Costs

The regular rule that costs will follow the event is not always the case under the Act. In some cases, the court can reduce costs for claims under the Act that were worthy, even if they were ultimately unsuccessful.

Compensation

In '' Simpson v Attorney-General'', the Court of Appeal awarded compensation under the Act. This was a new remedy under the Act. In this case, the plaintiffs were seeking damages for a search warrant executed on their place of residence that was obtained on the basis of incorrect information. The police were informed that the warrant was based on false information, but they continued with the search nonetheless. The Court of Appeal held that the Court had an inherent jurisdiction to develop remedies under the Act, and that compensation was an appropriate remedy in this case. Cooke P stated that the court would "fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed". The Court of Appeal thus held that there is a public law action available against the Crown for a breach of the Act. It is likely to only be available to those who do not attain a suitable alternative remedy for a breach of the Act.

Compensation under Act is discretionary and the Supreme Court of New Zealand has emphasised that it is just one of many public law remedies and that non-monetary remedies will often be more appropriate. Indeed, there are relatively few examples of where compensation for violations of the Bill of Rights have been awarded. In ''Udompun v Attorney General,'' Justice Glazebrook of the Court of Appeal stated that monetary compensation will not be awarded where a more suitable remedy exists. Most significantly, in ''Taunoa v Attorney-General'' the Supreme Court of New Zealand awarded compensatory damages for breaches of the Bill of Rights by the Department of Corrections' Behaviour Management Regime.

Exemplary damages

It is often cited that exemplary damages are an inappropriate remedy under the Act, because the focus should be on compensation rather than punishment. Exemplary damages were awarded in ''Archbold v Attorney-General'' 003NZAR 563, but William Young J qualified this remedy by stating that he would alternatively have awarded the same amount as public law compensation for the breach. Whether a court can award exemplary damages for a public claim of a breach of the Act is therefore uncertain.

Declaration of inconsistency

A declaration of inconsistency is a remedy in the form of a formal declaration by a court of law that legislation is inconsistent with a right contained in the Act. It was first made available as a remedy following the litigation in '' Taylor v Attorney-General'' 0153 NZLR.

The first suggestion that a declaration of inconsistency could be available was in 1992. Following this, ''Temese v Police'' (1992) C CRNZ 425 and '' Quilter v Attorney-General'' (1998) 1 NZLR 153 both suggested that it could be available in the appropriate case, but fell short of making a declaration. In ''Moonen v Film and Literature Board of Review'' 0002 NZLR 9, Tipping J stated that the courts had a duty to indicate when legislation was inconsistent with the New Zealand Bill of Rights Act 1990, but it was unclear whether he meant a formal declaration of inconsistency or a mere indication of inconsistency contained within the judgment. In ''R v Poumako'' 0002 NZLR 695, Thomas J dissented by making a formal declaration of inconsistency. It followed in '' Zaoui v Attorney-General'' 0051 NZLR 577 that the Court held that ''Moonen'' and ''Poumako'' had established a jurisdiction for courts to issue a formal declaration of inconsistency. However, in ''R v Hansen'' 007NZSC 7, while the Court of Appeal established that courts could inquire into the consistency of legislation with the New Zealand Bill of Rights Act 1990, they did not make a formal declaration of inconsistency.

In July 2015, Heath J at the High Court of Auckland in ''Taylor v Attorney-General'' issued a formal declaration of inconsistency that an electoral law amendment introduced by the Fifth National Government that removed the ability of inmates voting rights (section 80(1)(d) Electoral Act 1993) was an unjustified limitation under section 12(a) of the Act, which prescribes voting rights to all citizens aged 18 years and over. This was the first declaration of inconsistency in New Zealand.

This was appealed to the Court of Appeal by the Attorney-General who argued that the Court had no jurisdiction to issue a declaration of inconsistency unless it was expressly authorised by legislation, the Court of Appeal called this a "bold argument" and said that "inconsistency between statutes is a question of interpretation...and it lies within the province of the courts." Furthermore Speaker of the House David Carter in the case challenged the use of parliamentary proceedings in the High Court decision and argued that this was a breach of parliamentary privilege. In its ruling, concluded that no breach of parliamentary privilege occurred and that senior courts had the jurisdiction to make a declaration of inconsistency. This was then further appealed by the Attorney-General to the Supreme Court which dismissed the appeal and upheld the judgment by the Court of Appeal. As such, declarations of inconsistency are an available remedy under the Act.

On 29 August 2022, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 received Royal assent and commenced on the same day. The amendment act introduced a legal requirement for the Attorney-General to notify parliament when a declaration of inconsistency is made, and further that the responsible Minister must present a report to parliament that details the government's response to the declaration. On 21 November 2022, the Supreme Court in '' Make It 16 Incorporated v Attorney-General'' affirmed the jurisdiction confirmed by the court in ''Attorney-General v Taylor'' and noted the passing of the amendment act.

Other remedies

Several other remedies were suggested to be available in ''R v Taylor'' (1996) 14 CRNZ 426. These included a reduction in the penalty, police disciplinary proceedings, criminal prosecution, a declaration, or future-looking relief. Other remedies have included special jury directions, and orders that witness testimony be disregarded. It can often depend on the nature of the right breached as to what remedy will be appropriate to vindicate that breach.

The future of Bill of Rights remedies

Article 2(3) of the International Covenant on Civil and Political Rights requires parties to the treaty to ensure that any person whose rights and freedoms have been breached to have an effective remedy. It is often argued by New Zealand academics that the lack of express remedies in the New Zealand Bill of Rights Act 1990 does not meet this requirement. One such express remedy is a judicial power to strike down legislation that is inconsistent with the Act. This is similar to the powers of the Court under the Canadian Charter of Rights and Freedoms.

It is an ongoing conversation amongst legal academics in New Zealand as to whether there should be an entrenched constitutional Bill of Rights that gives the court the power to strike down inconsistent legislation. This would provide a remedy to breaches of the Act as the courts could uphold the right, rather than finding it to be subservient to the contradictory legislation under section 4. The UN Human Rights Committee criticised New Zealand for the lack of court power to strike down legislation inconsistent with the Act. They equated this lack of power with a lack of human rights protection. Geoffrey Palmer and Andrew Butler published a book in 2016 entitled ''A Constitution for Aotearoa New Zealand'' that laid out a proposed entrenched bill of rights, including a judicial power of strike down. This was intended to start a conversation in New Zealand as to whether entrenching their Bill of Rights in a constitution was the way forward.

The resistance to an entrenched Bill of Rights in New Zealand is partly because the country is currently governed by parliamentary sovereignty. Giving the courts the power to strike down Parliament's legislation would be contrary to the doctrine of parliamentary supremacy. There is also resistance because the protection of human rights is not regarded as the courts' responsibility, but instead seen as requiring involvement by all branches of government.

See also

*Constitution of New Zealand
*New Zealand Human Rights Commission

External links

New Zealand Bill of Rights Act 1990

Ministry of Justice pamphlet on the Bill of Rights (PDF)

Public Address: A Clayton's Bill of Rights

New Zealand Herald: Bill of Rights unlikely to grow up

A Constitution for Aotearoa New Zealand

Notes

References

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Constitution of New Zealand
National human rights instruments
Statutes of New Zealand
1990 in New Zealand law
Human rights in New Zealand
Human rights legislation