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