The New Zealand Bill of Rights Act 1990 (“BORA”) sets out some of the basic rights and freedoms that people are entitled to in New Zealand. In most cases, these rights apply to everyone. However, some rights are protected only for some people.

Note: In addition to the New Zealand Bill of Rights Act 1990, the Bill of Rights 1688, which provides for individual rights and limits the power of the executive, remains part of New Zealand law. The Bill of Rights 1688 was originally passed by the Parliament of England, although amendments since then mean that the text of the Act as in force in New Zealand is not exactly the same as the text of the Act as in force in England and Wales. For the avoidance of confusion, references to the “Bill of Rights Act” in this chapter should be read as references to the New Zealand Bill of Rights Act 1990, not as references to the Bill of Rights 1688.

The Bill of Rights Act doesn’t cover interactions between individual people. It only covers the things that the government does that can affect you as a person. Specifically, it is relevant:

• when the government wants to pass a new law, and

• when a government agency (or someone working on behalf of that agency) is acting with the authority given to them by the government.

The Bill of Rights Act protects you while you’re in New Zealand even if you are in the country unlawfully.

Note: As well as individuals, anything that is considered a “legal person” is entitled to the rights protected by the Bill of Rights Act. A “legal person” can include companies, incorporated association, and even some natural features.

New Zealand Bill of Rights 1990, ss 4-7B

Parliament has a general power to make laws and that power is not limited by the Bill of Rights Act. The Bill of Rights Act is not entrenched and does not have the status of supreme law – this means that it can be repealed by an ordinary Act of Parliament and that other laws remain valid, even if their provisions breach the Bill of Rights Act.

There are, however, provisions in the Bill of Rights Act that have the effect of drawing attention to proposed or current legislation that limits rights and which may encourage Parliament to take a different course:

• Before a suggested new law (called a “bill”) is introduced to Parliament by the government, the Attorney-General must review it and see if it limits rights and freedoms protected under the Bill of Rights Act. In the case of a private member’s bill, the Attorney-General, the Attorney-General must review it as soon as practicable. If the bill appears to limit rights or freedoms, the Attorney General will prepare a report that explains the issues with the Bill (called a “Section 7 report”). The Section 7 report may make recommendations to parliament about how the Bill could be changed so it was not longer inconsistent with the Bill of Rights Act. These are only recommendations – Parliament can choose to ignore them if it wants.
• Acts that have already been passed by Parliament can be reviewed by the courts through a process called judicial review (see: “Going to the courts: ‘Judicial review’”). If the judge decides that law is not consistent with the Bill of Rights Act, they can make a “declaration of inconsistency”.  Once any legal proceedings have ended, the Attorney-General must present a notice to the House of Representative, informing it of the declaration of inconsistency. The responsible government minister must then present a report to the House of Representatives, advising it of how the government will respond to it. Usually, this report must be presented within 6 months. A declaration of inconsistency doesn’t overturn the law that infringes on rights or compel parliament to change it, but it can draw public attention to the issue and place some moral pressure on politicians to change the law.

While the Bill of Rights Act does not override other laws that are inconsistent with it, it requires all laws to be interpreted in a way that is consistent with the rights and freedoms included in it wherever this is possible.

New Zealand Bill of Rights Act 1990, s 3

The Bill of Rights Act applies to the actions of the legislative, executive, and judicial branches of the New Zealand government and to anyone acting on behalf of the state. Examples of people whose actions are covered by the Bill of Rights Act include:

• judges working in the courts
• immigration officers making decisions about visas
• police arresting or questioning people
• Oranga Tamariki making decisions about childcare.

The human rights protected by Bill of Rights Act can be grouped into six categories.

Your life and security

New Zealand Bill of Rights 1990, ss 8, 9, 10, 11

You have a basic right to life, which means the government should not pass laws or take actions that would kill you. You can’t be severely mistreated by the government, even when you have been arrested or put in prison. It also means that if you have been convicted of a crime, the punishment (or sentence) you receive should not be more serious than the crime. You have the right to refuse medical treatment, and medical or scientific experiments.

Your democratic and civil rights

New Zealand Bill of Rights 1990, ss 12, 13, 14, 15, 16, 17, 18

You have basic rights around exercising your political opinions and voting in democratic elections. You have the right to vote and stand for parliament, and the right to think and believe in what you want, without interference from the government.

You have the right to express yourself freely, which includes “freedom of speech”. You have the right to gather and associate with the people you want to, and the right to protest (see: “Activism”).

There are rights relating to freedom of movement:

• Provided you are in New Zealand lawfully, you have the right to move around New Zealand as you choose.
• Everyone has the right to leave New Zealand.
• New Zealand citizens have a right to enter New Zealand.
• Non-citizens who are in New Zealand lawfully cannot be made to leave, except where a decision has been made in accordance with the law.

Protection from discrimination and rights of minority groups

New Zealand Bill of Rights 1990, s 19

You have the basic right to freedom from discrimination. This means the government can’t make laws that discriminate against anyone on the grounds set out in the Human Rights Act 1993. The Bill of Rights Act does let the government discriminate in some situations to make things more equal for people who have been, or are currently being, disadvantaged by discrimination – this is sometimes called “positive discrimination”.

Human rights which protect you from discrimination are also outlined in the Human Rights Act 1993. This is a key part of human rights law in New Zealand. For more information on the Human Rights Act, protection from discrimination, and the exceptions, see: “Discrimination”.

Your search, arrest, and detention rights

New Zealand Bill of Rights 1990, ss 21, 22, 23, 24

You have basic rights around any interactions you might have with law enforcement, including customs, border control and the police.

You have the right to not be subject to unreasonable searches of your property and from having your property taken from you in an unreasonable way. There has to be a good reason for you to be arrested or prevented from leaving (“detained”) by law enforcement agencies.

If you are arrested or detained, you have specific rights relating to your treatment. For more information about your rights when interacting with law enforcement, see: “Police powers”.

Your criminal procedure rights

New Zealand Bill of Rights 1990, ss 25, 26, 27

If you’ve been charged with a crime and are being taken to court, you have basic rights around the court process. This includes things like being considered innocent until, and unless, the court finds you guilty of a crime. For more information about your criminal procedure rights, see: “The criminal courts”.

Your rights to being treated fairly

New Zealand Bill of Rights 1990, ss 27 – 29

You have the right to be treated fairly and equally by the courts, tribunals, the government, or anyone acting with public power. This is called “natural justice”. You also have the right to apply for judicial review to ensure your rights are being respected by the government.

The Bill of Rights Act also specifically says that the government can’t breach your minimum rights that are found in other Acts or laws.

For more information about being treated fairly by those using public power, see: “Challenging decisions and conduct of government agencies”.

Limits on your rights

New Zealand Bill of Rights 1990, ss 4, 5, 6

Section 5 of the Bill of Rights Act states that the rights and freedoms included in it “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This is a recognition that rights are not always absolute and that a society will sometimes need to balance individuals’ competing rights.

To give an example, under the Bill of Rights Act, you have a right to freedom of expression, but a law that prohibited you from making threats to kill others would generally be considered justified in a free and democratic society.

While Section 5 is important in working out whether a law is inconsistent with the Bill of Rights Act, it does not, in any way, limit Parliament’s ability to restrict rights in ways that are unreasonable or that cannot be justified in a free and democratic society. Indeed, Section 4 of the Bill of Rights Act prohibits the courts from treating provisions in other laws as being repealed, ineffective, or invalid on the basis that they are inconsistent with the Bill of Rights Act.