The Bill of Rights: overview

This chapter explains:

  • the scope and legal status of the Bill of Rights, including the relationship between the Bill of Rights and other laws
  • the specific rights that the Bill of Rights protects
  • what you can do if your rights under the Bill of Rights are breached.

Overview of New Zealand’s Bill of Rights

The New Zealand Bill of Rights Act 1990 protects citizens from breaches of their civil and political rights by the government, the police and other public bodies and officials. The Act is commonly referred to simply as “the Bill of Rights”. It also reflects New Zealand’s commitment to the United Nations International Covenant on Civil and Political Rights on which the rights and freedoms it contains are based.

The Act protects a wide range of rights, which can be grouped into the following categories:

  • Life and security
  • Democratic and civil rights
  • Non-discrimination and minority rights
  • Search, arrest and detention
  • Criminal procedure
  • General justice rights.

Scope of the Bill of Rights

Who’s protected by the Bill of Rights?

The Bill of Rights protects individual people from the actions of the government. Organisations are protected only if they’re legally a “person” – for example, companies and incorporated societies but not unincorporated groups and associations.

Who the Bill of Rights protects you from

The Bill of Rights applies to things that are done by the New Zealand government and other state and public bodies listed below.

  • the executive (the government), which includes:
    • the Prime Minister, Cabinet and other government ministers
    • Government departments, such as the police, the Ministry of Justice and the Department of Child, Youth and Family Services
    • local councils.
  • the legislature (Parliament)
  • the judiciary (the courts and judges)
  • people acting with government authority or for the government – that is:
    • other bodies or individuals who get their authority to act from an Act of Parliament or the government, such as state-owned enterprises, district health boards and school boards
    • private companies and individuals if they’re carrying out a government policy or programme.

    Note: The Bill of Rights doesn’t protect you against things done by private organisations and individuals in their private capacity. However, even if it is essentially private in nature, an organisation can still perform a “public function, power or duty”. An organisation may be subject to the Bill of Rights Act on some occasions, but not others. For example, a school board of trustees may sometimes be performing functions traditionally associated with the commercial operations of a private company, and at other times may be performing more public functions. Also, actions by private parties who are not performing a public function, that are inconsistent with the Act, may still breach another law or constitute a crime. For example, keeping a person detained against their will may constitute the crime of kidnapping.

status of the Bill of Rights

Does the Bill of Rights override other laws?

No. The Act doesn’t have the status of supreme law – it doesn’t override other laws, Therefore the courts can’t refuse to enforce legislation that’s inconsistent with the Bill of Rights Act.

Note: In this respect New Zealand’s Bill of Rights is different from, for example, the US Bill of Rights. The US Supreme Court can strike down laws that are inconsistent with the Constitution, which includes the Bill of Rights.

However, as far as possible the courts must interpret other laws consistently with the Bill of Rights. The Court of Appeal has also hinted at a willingness to make formal declarations where legislation is found to be inconsistent with the Bill of Rights Act.

Further, when any new law is proposed, the Attorney-General must report to Parliament if the proposed law seems to be inconsistent with the Bill of Rights. This allows Parliament to debate whether the proposed restriction on the Bill of Rights is appropriate and justified.

Limitations on the Bill of Rights

Policies, rules and practices developed by government departments and other public bodies (such as district health boards and school boards), can place limitations on the rights in the Bill of Rights, but only if they’re “reasonable” limits that can be “demonstrably justified in a free and democratic society”. The limits must also be authorised, explicitly or implicitly, by an Act or regulations or by laws made by the courts.

Using this provision, a school rule banning students from wearing political slogans on their clothing could arguably be challenged in the courts on the ground that it is an unreasonable and unjustifiable limitation on the right to freedom of expression contained in the Bill of Rights.

The courts can also place reasonable and justified limits on the Bill of Rights when they’re deciding exactly what those rights require in a particular case.

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