New Zealand Bill of Rights Act
Encyclopedia
The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA or BORA) is a statute
of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand
as a Bill of rights
. It is part of New Zealand's uncodified constitution.
The Bill then went to the Justice and Law Reform Select Committee, which recommended that New Zealand was "not yet ready" for a Bill of Rights in the form proposed by the White Paper. 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.
In its current form, the Bill of Rights is similar to the Canadian Bill of Rights
, passed in 1960. The Act does create an atmosphere change in New Zealand law in that it provides judges the means to "interpret around" other acts to ensure enlarged liberty interests. The Bill of Rights has a liberty-maximising clause much like the Ninth Amendment to the United States Constitution
, and this provides many opportunities for creative interpretation in favour of liberties and rights.
Section 4 specifically denies the Act any 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 with any provision of this Bill of Rights.
Section 5 allows for "Justified Limitations" on the rights guaranteed by the Act which are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"."
Section 6 ensures that where an interpretation of an Act has a meaning that is consistent with the Act, that meaning shall be preferred to any other meaning.
See the list of bills reported as inconsistent with the New Zealand Bill of Rights Act 1990.
and security of the person, the Act guarantees everyone:
The Act sets out the electoral rights of New Zealanders. The Act guarantees that every New Zealand citizen who is of or over the age of 18 years has:
Furthermore, the Act guarantees everyone:
Freedom of Thought, Conscience, and Religion
Freedom of expression
Religion and Belief
Assembly
Association
Movement
The Act guarantees to every New Zealand citizen:
The Act guarantees everyone:
The Act also (Section 18(4)) ensures that non-New Zealand citizens lawfully in New Zealand shall not be required to leave except under a decision taken on grounds prescribed by law.
Everyone who is arrested or who is detained has the right to:
Everyone who is arrested for an offence has the right to be charged promptly or to be released.
Everyone who is arrested or detained for any offence or suspected offence shall have the right to:
Everyone deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the person (Section 23).
Criminal Justice
The Act requires that everyone who is charged with an offence:
Fair Trial
Everyone who is charged with an offence has the minimum right:
Double Jeopardy
Section 26 covers instances of double jeopardy
. The Act holds that:
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
as a Bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
. It is part of New Zealand's uncodified constitution.
History
In 1985 a White Paper entitled "A Bill of Rights for New Zealand", was tabled in Parliament by the then Minister of Justice, Hon Geoffrey Palmer. The paper proposed a number of controversial features, which sparked widespread debate:- The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75% majority vote in the House of Representatives or a simple majority in a public referendum;
- The Bill of Rights was to therefore have status as supreme law, thereby causing some erosion to the doctrine of Parliamentary sovereigntyParliamentary sovereigntyParliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
; - The Treaty of WaitangiTreaty of WaitangiThe Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
was to be wholly incorporated within the Bill of Rights thus elevating the Treaty's status to that of supreme law; - The Judiciary would have the power to invalidate any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights.
The Bill then went to the Justice and Law Reform Select Committee, which recommended that New Zealand was "not yet ready" for a Bill of Rights in the form proposed by the White Paper. 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.
In its current form, the Bill of Rights is similar to the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
, passed in 1960. The Act does create an atmosphere change in New Zealand law in that it provides judges the means to "interpret around" other acts to ensure enlarged liberty interests. The Bill of Rights has a liberty-maximising clause much like the Ninth Amendment to the United States Constitution
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
, and this provides many opportunities for creative interpretation in favour of liberties and rights.
Application of the Bill of Rights
The Act applies only to acts done by the three branches of government (the legislature, executive and judiciary) of New Zealand, or any body in the "performance of any public function, power, or duty" created by the law (Section 3).Section 4 specifically denies the Act any 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 with any provision of this Bill of Rights.
Section 5 allows for "Justified Limitations" on the rights guaranteed by the Act which are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society"."
Section 6 ensures that where an interpretation of an Act has a meaning that is consistent with the Act, that meaning shall be preferred to any other meaning.
Section 7 Reports
Section 7 of the Act requires the Attorney-General to draw to the attention of Parliament the introduction of any Bill that is inconsistent with the Act. The Ministry of Justice, which prepares this advice for the Attorney-General, requires a minimum of two weeks to review the draft legislation.See the list of bills reported as inconsistent with the New Zealand Bill of Rights Act 1990.
Civil and Political Rights
Part II of the Act covers a broad range of Civil and Political Rights.Life and the Security of the Person
As part of the right to lifeRight to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
and security of the person, the Act guarantees everyone:
- The right not to be deprived of life except in accordance with fundamental justiceFundamental justiceFundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
(Section 8) - The right not to be subjected to tortureTortureTorture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
or to cruel, degrading, or disproportionately severe treatment or punishmentCruel and unusual punishmentCruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
(Section 9) - The right not to be subjected to medical or scientific experimentation without consent (Section 10)
- The right to refuse to undergo any medical treatment (Section 11)
Democratic and Civil Rights
Electoral RightsThe Act sets out the electoral rights of New Zealanders. The Act guarantees that every New Zealand citizen who is of or over the age of 18 years has:
- The right to vote in elections of members of Parliament, which shall be held by equal suffrage and by secret ballotSecret ballotThe secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of...
(Section 12(a)) - Has the right to become a member of the House of Representatives (Section 12(b))
Furthermore, the Act guarantees everyone:
Freedom of Thought, Conscience, and Religion
- The right to freedom of thoughtFreedom of thoughtFreedom of thought is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints....
, conscience, religionFreedom of religionFreedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, and belief, including the right to adopt and hold opinions without interference (Section 13)
Freedom of expression
- The right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form (Section 14)
Religion and Belief
- The right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private (Section 15)
Assembly
- The right of peaceful assembly (Section 16)
Association
- The right to freedom of associationFreedom of associationFreedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
(Section 17)
Movement
- The right to freedom of movementFreedom of movementFreedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
and residence in New Zealand. (Section 18(1))
The Act guarantees to every New Zealand citizen:
- The right to enter New Zealand (Section 18(2))
The Act guarantees everyone:
- The right to leave New Zealand (Section 18(3))
The Act also (Section 18(4)) ensures that non-New Zealand citizens lawfully in New Zealand shall not be required to leave except under a decision taken on grounds prescribed by law.
Non-Discrimination and Minority Rights
Section 19 of the Act guarantees freedom from discrimination, on the grounds of discrimination set out in the Human Rights Act 1993.Search, Arrest, and Detention
The Act guarantees everyone:- The right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise (Section 21)
- The right not to be arbitrarily arrested or detained (Section 22)
Everyone who is arrested or who is detained has the right to:
- Be informed at the time of the arrest or detention of the reason for it; and
- Consult and instruct a lawyer without delay and to be informed of that right; and
- Have the validity of the arrest or detention determined without delay by way of habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and to be released if the arrest or detention is not lawful.
Everyone who is arrested for an offence has the right to be charged promptly or to be released.
Everyone who is arrested or detained for any offence or suspected offence shall have the right to:
- Refrain from making any statement and to be informed of that right.
Everyone deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the person (Section 23).
Criminal Justice
The Act requires that everyone who is charged with an offence:
- Shall be informed promptly and in detail of the nature and cause of the charge; and
- Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
- Shall have the right to consult and instruct a lawyer; and
- Shall have the right to adequate time and facilities to prepare a defence; and
- Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months; and
- Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
- Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court. (Section 24)
Fair Trial
Everyone who is charged with an offence has the minimum right:
- To a fair and public hearing by an independent and impartial court;
- To be tried without undue delay;
- To be presumed innocent until proved guilty according to law;
- Not to be compelled to be a witness or to confess guilt;
- To be present at the trial and to present a defence;
- To examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution;
- If convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty;
- If convicted of the offence, to appeal according to the law to a higher court against the conviction or against the sentence or against both:
- In the case of a child, to be dealt with in a manner that takes account of the child's age (Section 25)
Double Jeopardy
Section 26 covers instances of double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
. The Act holds that:
- No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.
- No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
Remedies
Section 27 of the Act guarantees everyone the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's right, obligations, or interests protected or recognised by law. 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.Important court cases
A large number of cases have been heard under the Act since it was passed in 1990, mostly pertaining to rights around arrest and detention.- Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439, the Court of Appeal held that section 66 of the Judicature Act 1908, which denied the right of appeal in extradition cases such as this one, was to be interpreted in light of section six of the Act. Nonetheless, the Court held in this case the Bill of Rights had not been breached, and the appeallant, Flickinger, had to return to Hong Kong to face charges.
- Simpson v. Attorney General, [1994] 3 NZLR 667 (also known as Baigent's case), the plaintiffs alleged that police officers had persisted in bad faith with the search of the late Mrs Baigent's house when they knew that her property had been mistakenly named in a search warrant issued for a drug dealers' house. The plaintiffs sued on the grounds the police breached section 21 of the Bill of Rights' Act, the right to be secure against unreasonable search and arrest. Four out of five of the Court of Appeal's bench held that:
- The fact that the Bill of Rights did not include a specific remedies section did not mean Parliament did not intend to compensate for breaches of the Act;
- The Bill of Rights had to be interpreted in light of New Zealand's obligations under the ICCPR;
- The Courts can award remedies for breaches of the Bill of Rights;
- The liability of breaches of the Act fell on the Crown.
- Hopkinson v. Police, [2004] 3 NZLR 704, in 2003, Paul Hopkinson, a Wellington schoolteacher, burned the Flag of New ZealandFlag of New ZealandThe flag of New Zealand is a defaced Blue Ensign with the Union Flag in the canton, and four red stars with white borders to the right. The stars represent the constellation of Crux, the Southern Cross....
as part of a protest in Parliament grounds at the New Zealand Government's hosting of the Prime Minister of AustraliaPrime Minister of AustraliaThe Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
, against the background of Australia's support of the United States in its war in Iraq. Hopkinson was initially convicted under Flags, Emblems, and Names Protection Act 1981 of destroying a New Zealand flag with intent to dishonour it, but appealed against his conviction. On appeal, his conviction was overturned on the grounds that the law had to be read consistently with the right to freedom of expression under the Bill of Rights. This meant that his actions were not unlawful because the word dishonour in the Flags, Emblems and Names Protection Act had many shades of meaning, and when the least restrictive meaning of that word was adopted Hopkinson's actions didn't meet that standard. This somewhat unusual result was due in part to the fact that the Bill of Rights does not overrule other laws (see Flag desecrationFlag desecrationFlag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
).