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. The Act sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a bill of rights.
New Zealand's uncodified constitution heavily relies on parliamentary sovereignty with a unicameral parliament with few checks and balances due to the majority in parliament belonging to the government of the day. Following the Third National Government led by Robert Muldoon, New Zealand's constitutional arrangements became a major political issue and was a significant motivator for a Bill of Rights. As a result, the Bill of Rights was introduced in 1985 by Minister of Justice Geoffrey Palmer, originating from A Bill of Rights for New Zealand: A White Paper. It was originally proposed to be entrenched and supreme law, but following widespread controversy due to it granting the courts the ability to invalidate acts of parliament and contradicting parliamentary sovereignty, it was ultimately passed in 1990 as an ordinary act of parliament.
The Act applies to all acts done by the three branches of government, the executive, legislature and judiciary, and any other entity that is performing a public function. The rights guaranteed by the Act are also subject to "justified limitations", with limitations being consistent with the bill of rights if they can be "demonstrably justified in a free and democratic society". This limitation clause was included in the White Paper, with it recognising that "rights cannot be absolute". The Act also imposes a legal requirement on the attorney-general to provide a report to parliament whenever a bill is inconsistent with the Bill of Rights. There are many rights guaranteed by the Act across several different categories, which are: life and security of the person, democratic and civil rights, non-discrimination and the rights of minorities, search, arrest and detention, criminal procedure, fair trial, and double jeopardy and natural justice.
The Act does not provide a list of explicit legal remedies; as a result, remedies for breaches of rights within the Act have been developed by the courts since it was passed into law. Remedies developed by the courts include the exclusion of evidence, reduction in sentence, costs, damages and a declaration of inconsistency.
In present-day New Zealand, the Act is part of the public lexicon and has been used by many campaigns to initiate legal challenges, such as the Make It 16 campaign and on prisoners' voting rights. In 2013, a Constitutional Advisory Panel received submissions with concerns over the ineffectiveness of the Act and it allowing parliament to pass legislation that is inconsistent with the rights guaranteed by the Act. However, others also made submissions that they believed that the act was working satisfactorily and should be left as it is. 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. The UN Human Rights Committee has also criticised New Zealand for the lack of the court's power to provide a remedy by striking down legislation inconsistent with the Act, equating this lack of power with a lack of human rights protection.
History
Background
New Zealand's constitutional framework is uncodified, often referred to as "unwritten". It relies on strict parliamentary sovereignty, also known as legislative supremacy, where acts of parliament can override any other law, including regulations made by the executive and common law established by the judiciary. Dean Knight and Matthew Palmer have labelled New Zealand's constitutional arrangements as "a purer Westminster model than in Westminster".
The New Zealand Parliament is unicameral, with only the lower house known as the House of Representatives, having abolished its upper house, the Legislative Council in 1951. Governments require a majority in the House of Representatives to govern, as such, the government can exercise significant power with little checks and balances. New Zealand's law-making has also been described as the fastest in the Western world.
New Zealand's constitutional arrangements became a major political issue following the Third National Government led by prime minister Robert Muldoon, with multiple issues such as Fitzgerald v Muldoon, where Muldoon suspended an act of parliament by press release. Secondly, the 1984 constitutional crisis where Muldoon failed to adhere to constitutional convention by refusing to devalue the dollar on the advice of the incoming Fourth Labour Government. A significant political factor in the introduction of a New Zealand Bill of Rights was to prevent another instance of the authoritarian approach to government that occurred under Muldoon.
The Treaty of Waitangi is the founding document of New Zealand, and was an agreement between the British Crown and around 540 Māori rangatira (chiefs) which promised several rights to Māori but lacked legal protection. Due to parliamentary sovereignty, any of these commitments can be overridden by ordinary acts of parliament.
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 White 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 of 75% 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 to recognise and affirm their rights under the Treaty. Lastly, the judiciary would have the power to invalidate any act of parliament, common law rule or official action by the executive 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.
In 1986, a meeting of Māori tribal leaders argued that incorporating the Treaty of Waitangi into a Bill of Rights would diminish the status of the Treaty, and that it would enable parliament to amend the Treaty without the consent of Māori as the treaty partner, which resulted in it not being included in the Act from its introduction into parliament.
The Justice and Law Reform Select Committee considered the White Paper, and recommended that New Zealand was "not 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 supreme or entrenched law.
Parliamentary readings
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. An article in The Press referred to the bill two days after its first reading as "watered down" and a "Bill of Lesser Rights?".
+ Voting at first reading (10 October 1989) Party Voted for Voted against (56) 0 (40) 0 Tellers Margaret Austin and Richard Northey Robert Anderson and Robin Gray Totals 40 29
Second reading On 14 August 1990, the New Zealand Bill of Rights Act 1990 was debated and passed at its second reading. Geoffrey Palmer said in parliament that the months of scrutiny and discussion had not cleared up much off the misunderstanding of the Bill of Rights legislation, and spent most of his speech explaining what he said were misconceptions. He further stated that the Treaty of Waitangi was not referred to in the legislation and that many Māori people opposed its reference in the Bill of Rights, claiming that "this does not represent a back-down by the government but rather a sensible appreciation of the realities".
+ Voting at second reading (14 August 1990) Party Voted for Voted against (56) 0 (40) 0 Tellers Bill Dillon and Ralph Maxwell Jim Gerard and Roger McClay Totals 40 25
Third reading The 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.
+ Voting at third reading (24 August 1990) Party Voted for Voted against (56) 0 (40) 0 Tellers Jack Elder and Colin Moyle John Falloon and John Luxton Totals 32 24
Application of the Act The Act applies to acts done by any of the three branches of government in New Zealand.Dr A S Butler and Dr P Butler Laws of New Zealand Human Rights: Operation of the New Zealand Bill of Rights Act 1990 (online ed) at . Additionally, it also applies to any person or body in the "performance of any public function, power, or duty" imposed by the law; for example, council-controlled organisations.
Section 4 of the Act denies the Bill of Rights supremacy over other legislation. This does not lessen the scope of what the Act applies to; as the section states, it only means the courts cannot implicitly repeal or revoke, 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 the Bill of Rights. In effect, this means that the courts cannot strike down legislation, however, it may still issue a declaration of inconsistency. Section 6 states that where another act can be interpreted that is consistent with the Bill of Rights, the courts are obliged to use the most consistent interpretation.Dr A S Butler and Dr P Butler Laws of New Zealand Human Rights: Operation of the New Zealand Bill of Rights Act 1990 (online ed) at to .
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. This wording was intentionally copied, with the White Paper recognising that "rights cannot be absolute" and that the Canadian approach provided better regulated direction from the courts, allowing them to focus on whether a limit was reasonable and demonstrably justified than relying on the detailed exclusion clauses that are in the International Covenant on Civil and Political Rights.
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