New Zealand Bill of Rights Act 1990

Part 1

Has the option that imposes no limit or no more than a reasonable limit on a particular right been selected?

NZBORA rights should not be limited, or should be subject only to such reasonable limits as can be justified in a free and democratic society.

The first question that must be answered is whether a right or freedom in the Bill of Rights is implicated by a legislative proposal. Making this determination requires an awareness of all the rights and freedoms set out in NZBORA. (The particular case of rights against discrimination in section 19 of NZBORA is dealt with in the next chapter.) The initial inquiry is into whether a right is “implicated”—in the sense of being likely to be affected in some way by proposed legislation. This requires an understanding of what falls within the scope of a right. Sometimes rights will be implicated in ways that are not obvious at first.

The scope of a right in NZBORA, and hence whether it is implicated by a particular legislative proposal, is ultimately a legal question. It is important to identify the rights potentially in issue at an early stage in the policy process and, when in doubt, seek and proceed on the basis of legal advice.

If a right is implicated, then the manner in which that right would be affected by the proposed legislation needs to be considered. If it is possible to attain the legislative goal without limiting a protected right or freedom, then that should be the preferred option. That possible option might arise through adopting a different legislative approach or relying on non-legislative alternatives (see Chapter 22).

But NZBORA also recognises that rights are not always absolute. Section 5 of NZBORA says that rights may be subject to limits so long as those limits are “reasonable” and are able to be “demonstrably justified in a free and democratic society”. Legislation that imposes no more than reasonable limits on protected rights and freedoms is therefore consistent with NZBORA. Determining whether a limitation is “justified in a free and democratic society” involves an inquiry that can be summarised as follows:[1]

(a)Does the proposed limit on a right serve a purpose sufficiently important to justify limiting a right?

(b) (i) Is the limiting provision rationally connected to its purpose?

(ii)   Does the proposed limit impair the right no more than is reasonably necessary for sufficient achievement of its purpose?

(iii)  Is the limit proportionate to the importance of the objective?

In many cases there will be a range of reasonable options that may be taken, and there will be consistency with NZBORA if the chosen option is within this range.

Officials must therefore work closely with their legal advisers when conducting this assessment. For their part, legal advisers will need information on the policy objectives and the impact of the selected means of implementing those objectives (and whether there are any more rights-consistent alternative modes of implementing them). The aim should be to attain the least possible limit on a right that is consistent with attaining the legislative purpose (and certainly no more than a “reasonable” limit on that right, with reasonableness being determined in the manner set out above).

[1] This summary paraphrases the approach set out by Tipping J of the Supreme Court in R v Hansen [2007] 3 NZLR 1 at [104].

Part 2

If the limit on a right cannot be justified, but remains the only possible way to achieve the policy objective, is the limit drawn as narrowly as possible to achieve that objective?

Any unjustified limitation should be restricted to that which is necessary to achieve the policy objective.

There may be cases where the Government wishes to proceed with legislation that results in an unjustified limitation on an NZBORA right—one that cannot be regarded as a reasonable limit on that right. This ought to be very rare. In these situations, great care must be taken to ensure the legislative intent of the bill is very clearly stated. Section 6 of NZBORA requires that wherever an enactment can be given a meaning that is consistent with rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning. It follows that clear and unambiguous language must be used to confirm a rights-infringing (and thus inconsistent) intention.

Section 4 of NZBORA makes it clear that courts are prevented from striking down, or refusing to apply, legislation that is inconsistent with NZBORA. However, that provision must not be seen as an invitation to develop legislation inconsistent with NZBORA. Such legislation can have serious consequences:

• First, the Attorney-General is required by section 7 of NZBORA to notify Parliament if he or she considers a bill imposes a limitation on an NZBORA right that is not a reasonable limit demonstrably justified in a free and democratic society.
• Secondly, Standing Order 269(5) requires the Attorney-General’s report to be referred to a select committee. The inconsistency may then be the subject of adverse comment during the select committee process, which might attract negative publicity.
• Thirdly, while the courts are not empowered to strike down an Act, they may declare the existence of the inconsistency in their judgments.
• Finally, legislation that is inconsistent with NZBORA will place New Zealand at risk of breaching its international human rights obligations (under the International Covenant on Civil and Political Rights and possibly other instruments) and expose it to adverse comment from the international treaty monitoring body, which may have negative political consequences.

In any event, all possible steps must be taken to ensure that any unjustified limitation of rights is the least limitation required to achieve the policy objective. Additional procedures or safeguards that might further mitigate the limitation should also be considered.