This page provides an overview of how to identify and consider the impact on rights in the New Zealand Bill of Rights Act 1990 when developing policy and legislation. It is aimed primarily at policy and legal advisors.
Good policy development should consider how best to uphold fundamental human rights. Human rights law is one of the most important ways to affirm society’s values in terms of the relationship between the state and the people. The statutory framework of Aotearoa New Zealand’s human rights law is found in several Acts, including the New Zealand Bill of Rights Act 1990(external link) (Bill of Rights Act).
The Attorney-General must report to Parliament where draft legislation (a Bill) appears to be inconsistent with the Bill of Rights Act. The Ministry of Justice (the Ministry) and Crown Law Office (Crown Law) assess Bills for consistency with the Bill of Rights Act.
This page covers the following topics:
The Bill of Rights Act aims:
The Bill of Rights Act focuses on civil and political rights. Other fundamental human rights may be relevant to your policy and should be identified in policy advice to ministers.
The Bill of Rights Act protects both individuals and legal persons (such as corporations) from the actions of the state.
Some rights, such as the right to refuse medical treatment, may only be relevant to natural persons (real people). Other rights, such as the right to freedom of expression, may give more limited protection to legal persons than to natural persons.
The Bill of Rights Act applies to any acts done by:
Section 3 of the Bill of Rights Act(external link)
Aotearoa New Zealand has a long history of dedication to human rights values, including universal suffrage in 1893 and our role in drafting the Universal Declaration of Human Rights following World War II. Respect for human rights is part of Aotearoa New Zealand’s way of life.
Human rights are therefore relevant throughout the policy process. Considering human rights in all stages of policy development will help make the policy responsive to the needs of both the community and government. People feel more represented by policies that respect human rights, and these same policies are less vulnerable to legal challenge. In short, human rights make good policy.
The statutory framework of Aotearoa New Zealand’s human rights law is found in several Acts, particularly the Human Rights Act 1993 (the Human Rights Act) and the Bill of Rights Act, which affirms specific civil and political rights.
Rights in the Bill of Rights Act may be limited if the limit can be demonstrably, or shown to be, justified in a free and democratic society (section 5 of the Bill of Rights Act(external link)). Impacts on rights should be identified and addressed as soon as possible when developing policy to ensure that policy and legislation are consistent with the Bill of Rights Act.
The fact that a particular right is not included in the Bill of Rights Act does not mean that the right or freedom doesn’t exist or that it has been restricted in any way. Other sources of rights obligations should also be considered when developing policy, including:
The Cabinet guide, CabGuide, requires agencies to consult the Ministry about policy proposals leading to legislation. We recommend contacting the Ministry early in your policy development. Get in touch by emailing boravet@justice.govt.nz.
The Policy Group in the Ministry:
If you are developing policy proposals that introduce new offences or penalties or amend existing ones, you should also consult the offence and penalty vetting team by emailing offenceandpenaltyvet@justice.govt.nz.
If the proposed offence will carry a maximum penalty of two years’ imprisonment or more, you must also consult Crown Law. This category of offence triggers the right to elect trial by jury, and all jury trials are prosecuted by Crown Solicitors.
The process of assessing whether a bill is consistent with the Bill of Rights Act is called vetting.
Vetting takes place once you have a draft Bill nearly ready for introduction. The Attorney-General must notify the House of any provision in any Bill introduced into the House that appears to be inconsistent with the Bill of Rights Act.
The Ministry of Justice vets all Bills, except those developed by the Ministry of Justice or Te Arawhiti, which are vetted by Crown Law. Vetting advice is provided directly to the Attorney-General, not to the agency responsible for the Bill. If a Bill appears to be inconsistent with the Bill of Rights Act, the Attorney-General's report is tabled in Parliament and referred to the relevant select committee.
The CabGuide states that:
The Ministry prefers to receive draft Bills as soon as possible to help work through any Bill of Rights issues that may arise. Contact boravet@justice.govt.nz to arrange vetting.
In general, only draft Bills are vetted. Sometimes the Attorney-General will consider whether an amendment paper (previously known as a supplementary order paper or SOP) is consistent with the Bill of Rights Act.
The Ministry does not vet regulations, but these should still be consistent with the Bill of Rights Act. Agencies should consider the human rights implications of regulations as part of the policy process. Regulations that are inconsistent with the Bill of Rights Act risk being ultra vires (beyond the authority of the primary legislation). Regulations that are found to be ultra vires can be set aside by the courts.
The Ministry can help agencies consider human rights and the Bill of Rights Act when preparing amendment papers or regulations. Contact the Ministry at boravet@justice.govt.nz.
For more information, see:
The civil and political rights affirmed in sections 8 to 27 of the Bill of Rights Act fall into five groups:
Sections 8 to 11 set out rights that are essential to an individual’s personal wellbeing. These rights protect a person’s autonomy, human dignity and bodily integrity.
Section 8: Right not to be deprived of life
This provides that no one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
Section 8 relates only to loss of life. Measures which impact on a person’s quality of life will not engage the right.
Section 8 should be considered when developing policies that, for example:
Section 8 of the Bill of Rights Act(external link)
Section 9: Right not to be subjected to torture or cruel treatment
This provides that everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
Section 9 should be considered when developing policies that, for example:
Section 9 of the Bill of Rights Act(external link)
Section 10: Right not to be subjected to medical or scientific experimentation
This provides that every person has the right not to be subjected to medical or scientific experimentation without that person’s consent.
Sections 10 and 11 are similar, but distinct. Section 10 relates to medical experimentation. Section 11 relates to medical treatment without, for example, a component of research or information-gathering.
Section 10 should be considered when developing policies that, for example:
Section 10 of the Bill of Rights Act(external link)
Section 11: Right to refuse to undergo medical treatment
This provides that everyone has the right to refuse medical treatment. This right protects the concept of personal autonomy and bodily integrity.
This is similar to section 10, but relates to medical treatment, rather than experimental practices.
Section 11 should be considered when developing policies that, for example:
Section 11 of the Bill of Rights Act(external link)
Sections 12 to 18 of the Bill of Rights Act concern the fundamental rights and freedoms essential to a person’s effective representation and meaningful participation in the public life of a democratic society.
Section 12: Electoral rights
This says that every New Zealand citizen who is 18 years or older:
The Bill of Rights Act does not apply to voting in local body elections or referenda, although the ability to vote in these is covered by other legislation (the Local Electoral Act 2001, section 20; and the Referenda (Postal Voting) Act 2000, section 29).
Section 12 should be considered when developing policies that, for example:
Section 12 of the Bill of Rights Act(external link)
Section 13: Freedom of thought, conscience, and religion
This provides that everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
This provides broad protection that includes the freedom to choose to believe in or adhere to, or not to believe in or adhere to, any ideology, religion or other belief, and protects the right to form or hold opinions. It concerns what a person thinks as opposed to how a person acts on that belief, which is covered in section 15.
Section 13 should be considered when developing policies that, for example:
Section 13 of the Bill of Rights Act(external link)
Section 14: Freedom of expression
This says that everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Freedom of expression covers non-verbal and symbolic conduct as well as expression through speech and writing, provided that the conduct conveys, or attempts to convey, something to others. It includes the right to remain silent.
Section 14 should be considered when developing policies that, for example:
Section 14 of the Bill of Rights Act(external link)
Section 15: Manifestation of religion and belief
This provides that every person has 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. The section 15 right concerns how a person acts on their belief. It is likely that it also applies to religious groups (in addition to individuals) and their manifestation of their religion.
Section 15 should be considered when developing policies that, for example:
Section 15 of the Bill of Rights Act(external link)
Section 16: Freedom of peaceful assembly
This says that everyone has the right to freedom of peaceful assembly. It protects people’s right to come together and participate in group events, irrespective of the purpose of the assembly and whether it is public or private, and in the absence of violence. It is not limited to gatherings for protest; it includes gatherings for community matters. It complements other rights such as freedom of expression.
Section 16 should be considered when developing policies that, for example, relate to:
Section 16 of the Bill of Rights Act(external link)
Section 17: Freedom of association
This says that everyone has the right to freedom of association. It protects the right of individuals to create, join and participate in groups, rather than simply to associate as individuals. This right includes protection of the right not to associate.
Section 17 should be considered when developing policies that, for example:
Section 17 of the Bill of Rights Act(external link)
Section 18: Freedom of movement
This protects the right:
These rights are about people’s inherent liberty and their right to move about freely. The right extends beyond migration and allows people to determine where they wish to live or travel.
Section 18 should be considered when developing policies that, for example:
Section 18 of the Bill of Rights Act(external link)
Sections 19 and 20 relate to the right to be free from discrimination on a variety of grounds, and particularly protect the rights of minorities.
Section 19: Freedom from discrimination
This says that everyone has the right to freedom from discrimination on the grounds set out in the Human Rights Act. These grounds are:
Discrimination arises where an individual (or a group):
Determining the characteristics of an appropriate comparator group can sometimes be difficult. It should be carefully considered when determining whether discrimination arises.
Discrimination can be both direct (where the prohibited ground is clearly the basis for differential treatment) and indirect (where the stated reason for different treatment is not a protected ground, but it corresponds closely to the characteristics of a protected ground). It can be difficult to identify when a policy might be indirectly discriminatory.
Section 19(2) allows for measures taken in good faith to assist or advance individuals or groups of people disadvantaged because of discrimination that is unlawful under the Human Rights Act. This means a policy might not be discriminatory if it intends to assist people who have been socially, culturally or financially disadvantaged by discrimination, if it intends to diminish or eliminate conditions that might cause or help discrimination continue, or if it advances affirmative measures for one minority group or group that has been discriminated against but not for other such groups.
Section 19 should be considered if:
Section 19 of the Bill of Rights Act(external link)
Prohibited grounds of discrimination in the Human Rights Act(external link)
Section 20: Rights of minorities
This provides that a person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.
Section 20 should be considered when developing policies that, for example:
Section 20 of the Bill of Rights Act(external link)
Sections 21 to 26 are primarily concerned with protecting the rights of individuals during the different stages of investigating and prosecuting an offence.
These sections ensure that the liberty, privacy, and security of individuals are protected by providing that certain interests and rights may be infringed only in specific situations authorised and identified by law.
Section 21: Unreasonable search and seizure
This says that everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
A search is an examination of property or a person for something that is not immediately visible or apparent. This may include requiring a person to conduct a search themselves – for example, requiring a person to take a swab of their mouth. A seizure is a taking of the thing that is discovered. This can include electronic intrusions, such as searches of cell phones, devices and computers.
The right is focused on an individual’s reasonable expectation of privacy. While it may protect a person’s right to property where expectations of privacy are infringed, it is not a general right to property.
Section 21 should be considered when developing policies that, for example:
Section 21 of the Bill of Rights Act(external link)
Section 22: Liberty of the person
This says that everyone has the right not to be arbitrarily arrested or detained. This applies to all forms of detention, not just those carried out under the criminal justice system.
A person does not need to be physically deprived of their liberty in order to be detained. A person may be detained in circumstances where the:
A person is arrested if a law enforcement officer makes it clear that they are being detained on lawful authority.
Section 22 should be considered when developing policies that, for example:
Section 22 of the Bill of Rights Act(external link)
Section 23: Rights of persons arrested or detained
This preserves the rights of persons arrested or detained:
Section 23 prevents the state’s power to detain being used in a coercive manner. This preserves the integrity of the arrest and detention process, and any evidence gathered during that process. See section 22 for information on what amounts to detention or arrest.
Section 23 should be considered if a policy relates to arrest or detention. This may require careful consideration because the different subsections are engaged in different circumstances.
Section 23 of the Bill of Rights Act(external link)
Section 24: Rights of persons charged
This protects the rights of individuals charged with an offence. It requires everyone who is charged with an offence to:
Section 24 should be considered when a policy creates or amends offences or offence procedures. This includes infringement offences, as well as more serious criminal offences.
Section 24 of the Bill of Rights Act(external link)
Section 25: Minimum standards of criminal procedure
This provides that everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
These rights only affect what should happen once an individual has been charged. For information about rights that occur before this point, see section 23 (rights of persons arrested or detained) and section 24 (rights of persons charged).
Section 25 should be considered when developing policies that, for example:
Section 25 of the Bill of Rights Act(external link)
Section 26(1): Retroactive offences
This protects against retroactive penalties by providing that no one shall be liable to be convicted of any offence on account of any act or omission by that person which did not constitute an offence at the time it occurred.
An accused person’s conduct is judged by the law that was in force at the time they acted or failed to act. The law should not apply retroactively: a person must be able to foresee the consequences of their actions.
Section 26(1) should be considered when developing policies that, for example:
Section 26 of the Bill of Rights Act(external link)
Section 26(2): Double jeopardy
This protects the rule against double jeopardy by providing that no one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
The right not to be punished twice applies mainly in criminal proceedings. Section 26(2) recognises that there must be a finality to criminal proceedings, so that once a person has been finally acquitted, pardoned, or convicted and sentenced, they may move on.
Section 26(2) should be considered when developing policies that, for example:
Section 26 of the Bill of Rights Act(external link)
Section 27(1): The right to observance of the principles of natural justice
This provides that every person has the right to the observance of the principles of natural justice by any tribunal or other public authority that has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
This affirms common law principles and the requirement for decision-makers to act fairly and reasonably.
Section 27(1) should be considered when developing policies that, for example:
Section 27(2): The right to judicial review
This provides that every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
This section ensures that a person may challenge the lawfulness of any decision affecting them.
Section 27(2) should be considered when developing policies that, for example:
Section 27(3): Proceedings involving the Crown treated the same as proceedings between individuals
This provides that every person 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.
The section precludes the Crown from having any procedural advantage in legal proceedings between it and any person. Section 27(3) does not guarantee a cause of action against the Crown, nor does it restrict the legislature’s ability to determine the Crown’s substantive rights and obligations.
Section 27(3) should be considered when developing policies that, for example:
Section 27 of the Bill of Rights Act(external link)
If the policy you are working on limits a right or freedom, it may still be consistent with the Bill of Rights Act if it is a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society (section 5 of the Bill of Rights Act(external link)).
This recognises that human rights can sometimes be limited in situations where there is another important interest to be weighed. However, it is up to the agency developing a policy to clearly demonstrate that any limitation on rights is justified under section 5.
It is important to explain at the policy development stage why any limitations on rights appear to be justified, including any steps taken to avoid the inconsistency. The test from Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 can be a useful guide to help explain the justification.
To be a justified limitation on a right or freedom, the limit must meet the “proportionality” test in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1. This test is used to determine whether a limit is reasonably and demonstrably justified:
The policy agency should be able to clearly articulate the objective of the policy and why it is important. The objective requires more than a general goal, such as harm prevention. It requires a specific purpose so pressing and substantial that limiting a fundamental right is worthwhile to achieve it.
To help determine whether your policy addresses a substantial concern, first identify the problem that the policy is seeking to address, then demonstrate the need to limit a right. You can do this by collating information such as relevant social statistics, court decisions, research, and other similar information. This information can be persuasive.
The more context a policy agency can give about the importance of the objective, the easier it is to understand why the right is being limited.
If your purpose does not seem to be important enough, ask whether there are other ways to achieve the objective without limiting the right.
The policy agency should be able to show that the limit on rights is connected to achieving the objective. The simplest way of doing this is considering whether the policy will actually achieve the objective. Where there is a connection between the policy and achieving the objective, then there may be more of a justification to limit the right.
Evidence will be useful to show that the limit on rights will have the intended effect. For example, if you are developing an approach that is used overseas, international evidence that shows that the policy works will be useful. If the evidence shows that the policy has not been effective, it will be more difficult to show a rational connection.
A limitation on a right should interfere with the right as little as reasonably possible. Consider:
This question looks more broadly at the importance of the objective versus the importance of the right. It considers the importance and urgency of the objective being pursued, and weighs that against the rationale for the right and its importance, bearing in mind the extent of the limitation on rights that the proposal involves. For example, a significant intrusion on a fundamental right may not be justified to address a minor social policy objective.
The limit on a right must be prescribed by law. The Supreme Court has said that limitations must be set out in “an Act of Parliament, subordinate legislation or the common law” (Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1). This includes policies and practices that have some basis in law. To be “prescribed by law” the limit must also be accessible and sufficiently precise.
Section 5 is not relevant to all rights
The language used in some of the rights in the Bill of Rights Act contains built-in limitations. For example, section 21 protects against “unreasonable” search and seizure, not against all search and seizure. Similarly, section 22 protects against “arbitrary” detention rather than all detention. For these rights, consistency with the Bill of Rights Act is measured by the built-in qualifier rather than by using the “demonstrably justified” formulation under section 5.
Additionally, some rights cannot be justifiably limited under section 5. Any limits on the right to life (section 8) or freedom from torture (section 9) would be inconsistent with the nature of the right.
Where rights are expressed in such a way that the right is qualified by the language used to describe it, the policy agency still needs to be able to show that the policy is consistent with the relevant right: that is, that a new search or seizure power is “reasonable,” or a detention power is not “arbitrary”.
This can involve considering issues similar to the test in section 5, including the importance of the policy objective. For example, matters that may be relevant to determining whether a new search power is reasonable include the importance of the policy objective that makes the power necessary, alongside considerations such as:
The Attorney-General must notify the House of Representatives of any provision in any Bill introduced into the House that appears to be inconsistent with the Bill of Rights Act. The House of Representatives can then take this information into account when considering the Bill. Where a provision is intended to be inconsistent with the Bill of Rights Act, this needs to be expressly stated.
Please contact the Ministry as early as possible if you are working on policy or legislative change that may limit rights or freedoms in the Bill of Rights Act, whether or not these limitations appear to be justified. Get in touch by emailing boravet@justice.govt.nz.
When reviewing a Bill, the Ministry will advise the lead agency of any provisions that they consider appear to be an unjustified limitation on the rights or freedoms in the Bill of Rights Act.
Section 7 of the Bill of Rights Act(external link)
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