A Brief Reflection on the Bill of Rights

NZ lawyer, Kirsten Murfitt, has written this excellent reflection on the Bill Of Rights, understanding that, as it stands, our BOR is not in any way inviolable, which became crystal clear to us as our individual rights were cast aside during the whole Covid debacle - and still continue to be.

Kirsten has written this reflection in the hope of stimulating wide debate, a necessity for any democracy that values liberty.

Thank you Kirsten!

Olivia

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A Brief Reflection on the Bill of Rights
An Opinion Piece
By Kirsten Murfitt


Introduction

1. The New Zealand Bill of Rights (“BOR”) was a major development in New Zealand’s
constitutional history and was championed by Sir Geoffrey Palmer (“Sir Palmer”). Prior to the BOR’s being enacted in 1990 such rights and liberties had been contained with the common law and constitutional custom.[1]

2. The BOR was intended to limit the powers of parliament and protect fundamental freedoms in a democratic society as:

 (a) New Zealand does not have a formal constitution, unlike many other countries around the world. The BOR can be amended or repealed by a simple majority (51%) of
parliament. The Labour government currently holds the majority which means they could effectively amend or repeal provisions of the BOR should they wish to do so;

 (b) The New Zealand judiciary does not have the power to strike down provisions of an act. The judiciary’s role is to apply the provisions of the applicable act with its intended
purpose; and

 (c) In New Zealand, there is a notion of parliamentary sovereignty as the supreme law-
making body which can lead to abuse of power. Sir Palmer and others argue for a
softening of the doctrine of parliamentary sovereignty and note that other
commonwealth nations, being Australia and Canada, have entrenched constitutional laws to which all other statutes are subject.

Sir Palmer’s 25 Anniversary Review of the BOR

3. Sir Palmer reviewed the BOR twenty-five years[2] after it was enacted and stated that:

“... the status of the NZ Bill of Rights Act has meant that while the Bill of Rights has had positive achievements, it has not resulted in the transformational change that propelled the initial proposal for an entrenched, supreme law bill of rights in the 1980s.”

Under the current arrangements, where the executive continues to dominate the House of Representatives, the legal status of the NZ Bill of Rights Act needs to be raised and the rule of law needs to be strengthened. Building on the long tradition of the entrenched provisions of the Electoral Act going back to 1956, the article argues that the NZ Bill of Rights Act should be given greater weight, so that the courts have the power to declare provisions invalid if they infringe the Act, while allowing parliament to override the judicial decision by a special majority of 75 per cent or a referendum of the electors by a simple majority.”

4. In the 2016 article, Sir Palmer highlighted that there was a critical need for stronger bill of rights legislation:

“...due to the inroads being made into our democracy as result of an executive-dominated Parliament and weakness in the operation of critical checks and balances that underpin our law making process”.

5. Post 2020 many ordinary New Zealanders, who knew little about the BOR when Sir Palmer wrote the article back in 2016, now share Sir Palmer’s concerns about the inroads being made into our democracy.

Should we amend the BOR?

6. Sir Palmer argues for a softening of the doctrine of parliamentary sovereignty and notes:

“In constitutional terms, it is unsound to allow a parliamentary majority of one to prevail on every question where important constitutional principles are at stake... And it would be wise to do so in the absence of a second House.”

7. Politicians are busy and do not always get the time to properly reflect on proposed legislation. This is a cause for concern given we do not have the protections afforded by a second house.

8. A recent example of politicians having little time to reflect on the “unintended consequences” of legislation is highlighted by the COVID-19 Public Health Response Act 2020. This one piece of legislation has led to the erosion of fundamental freedoms, human rights, and democracy in New Zealand in a very short period.

9. It is also concerning when the process for other legislation is being truncated as it leads to the lack of proper scrutiny and public attention. Many New Zealanders have woken up and can name such legislation of recent years. The timeframe for public submissions on some proposed bills has been brief, to say the least, in recent years.

 Should we Entrench the BOR? 

10.  Sir Palmer had envisioned that the BOR would be entrenched when he put forward the bill of rights proposal back in 1985. However, the politicians sitting in the house at the time did not support limiting parliamentary sovereignty.

11.  If the BOR had been entrenched, it may have forced parliament to reflect on the provisions of various bills and put human rights at the forefront when legislating. While it is acknowledged that the Attorney-General can table a section 7 report when a proposed bill breaches the BOR, this approach seems to have resulted in a situation where politicians are relying on the Attorney-General to furnish such a report rather than always considering human rights when legislating.

12. Given the events of recent years, there is an argument for revisiting the entrenchment of the BOR as a breach of truly recognised rights and freedoms in the BOR undermines public confidence in the justice system.

13.  By way of summary, a rationale for entrenching the BOR is to:

 (a) Make it more difficult for Parliament to legislate against fundamental human rights
and freedoms rather than having to repeal legislation that is found to breach the BOR
due to “unintended consequences”;

 (b) Comply with our international obligations under the Universal Declaration of Human Rights (“UDHR”), the International Covenant on Civil and Political Rights (“ICCPR”) along with other international declarations and treaties.

14. Entrenching the BOR does not prevent amendments in the future. It means that a 75% majority (or some other majority) of Parliament would need to vote in favour of the amendment. The higher threshold to amend the BOR would:

 (a) Assist with safeguarding against the ruling party making amendments while still
allowing for the legislation to be amended for legitimate reasons; and

 (b) Elevate the significance of the BOR in the constitutional structure and restrict political overreach.

Should we Repeal Section 4?

15. It is established that where a fundamental common law right is at stake, the legislature must be clear that it intends to limit those rights and freedoms. Likewise, where the wording in an Act is ambiguous, a meaning consistent with international norms should be adopted.

16. Section 4 limits the rights set out in the BOR by stipulating that other enactments cannot be invalidated, impliedly repealed, or disapplied by reason only of inconsistency with the BOR. Notwithstanding section 4, section 6 goes on to state that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in BOR, that meaning shall be preferred to any other meaning by the judiciary.

17. In the recent Fitzgerald case, the Supreme Court recognised Parliament’s overreach and refused to enforce a breach of the BOR unless the language in the competing act shows that Parliament intended to breach the legislation. This approach is a departure from the well-established analysis of the BOR under the Hansen test and ushers in a new analysis of the BOR.

18. The above approach is encouraging but given the breaches of human rights and freedoms in recent years, I personally believe that robust protection of these rights and freedoms is necessary before Parliament further erodes the same.

19. We should consider repealing section 4 of the BOR to ensure that the rights and freedoms in the BOR are supreme to protect against the dilution of fundamental human rights and freedoms. We should also consider whether the BOR needs a new section that states that other legislation may be held invalid if it breaches the BOR. This may assist Parliament in complying with our international obligations under the UDHR and ICCPR along with other international declarations and treaties.

 Should we Repeal Section 5? 

20. As many New Zealanders are now aware, section 5 of the BOR places “justified limitations” on the rights and freedoms set out in the legislation. Section 5 is the key provision and reads as follows:

“Justified limitations Subject to section 4 of this Bill of Rights, the rights and freedoms
contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

21. Firstly, limits on rights are meant to be “reasonable”.  Secondly, to be reasonable the limit must be capable of being “demonstrably justified in a free and democratic society”.  The rights and freedoms of individuals must be balanced against the interests of the wider community. Child pornography is one example that most New Zealanders will agree that the interests of the wider community outweigh the rights and freedom of individuals.

22. However, as noted above, the laws generated by the Covid-19 pandemic breached fundamental human rights, and the various legal challenges during this period threw light on the deficiencies of the BOR. The judgments over the mandates revolved around sections 4 and 5 of the BOR and section 6 of the BOR did not provide a life raft for those impacted by the mandates.

23. Is it time that we consider repealing section 5 of the BOR to ensure that fundamental rights and freedoms are supreme and free from political influence?

24. If a limit is necessary for the benefit of the community, there is a good argument that the limit should be connected to specific rights and freedoms. This model is consistent with the ICCPR which provides a limitation clause to a particular right rather than using a general limitation clause. This approach would encourage Parliament and state agencies to be cautious when considering a breach of fundamental rights and freedoms.

25. Alternatively, we can maintain the status quo and rely on politicians to oppose and repeal any legislation that breaches the BOR. Do you believe relying on politicians who are `whipped’ into line will provide robust protection of fundamental rights and freedoms in New Zealand in the current environment? I will leave each of you to answer that question for yourselves.

26. If this brief reflection piece stimulates debate, then it is worth the paper it is written on so to speak. Let’s bring back debate into our democracy.

Disclaimer: This is an opinion piece in my personal capacity as a New Zealand citizen and does not constitute legal advice.



Annotations:
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1. New Zealand's Bill of Rights: A Provisional Assessment, Wayne Mapp, Agenda: A Journal of Policy Analysis and Reform,
Vol. 1, No. 1 (1994)

2. What the New Zealand Bill of Rights Act Aimed to Do, Why It Did Not Succeed and How It Can Be Repaired, Sir Geoffrey
Palmer (2016) 14 NZJPIL