Limitations on the government: your minimum rights
The Bill of Rights Act (BORA)
What BORA is and when it matters
What is the Bill of Rights Act (“BORA”)?
The Bill of Rights Act (“BORA”) sets out some of the basic rights and freedoms everyone in New Zealand is entitled to.
When do these rights apply?
BORA doesn’t cover interactions between individual people. BORA 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 (through a “public power”).
BORA protects you while you’re in New Zealand even if you’re not legally meant to be in the country.
Note: As well as individuals, anything that is considered a ‘legal person’ is entitled to the rights protected by BORA. In some cases, natural resources or organisations are considered “legal persons” with rights under BORA. For example, Te Urerewa and the Whanganui River have “legal personhood” under BORA (see: “Legal personality for maunga, awa and other natural features of the land”).
When the government passes a new law
Technically, parliament can create any new legislation they want to (even if the new law breaches BORA), as long as they follow the proper process. This power is called “parliamentary supremacy” – in other words, their decision is “supreme” over all other authorities, including the court system.
There are two main checks on this process, but neither of them have the power to change or revoke a new law:
- Before a suggested new law (called a “Bill”) is passed (at which point it becomes an “Act”), the Attorney-General will review it and see if it might breach BORA. If so, 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 doesn’t breach BORA. These are only recommendations – parliament can choose to ignore them if they want.
- Once an Act is passed, it 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 rights protected by BORA, they can make a statement about this, called a “declaration of inconsistency”. This doesn’t change the law, but it does send a strong message to parliament that the judge thinks the new law breaches human rights in a way that should not be allowed. In general, the judge will also try to interpret the law in a way that doesn’t breach BORA, if possible.
When a government official or agency breaches BORA
BORA also applies to the actions of government agencies and officials, and anyone acting on behalf of the government. This is referred to as “using public power”. Examples of people using public power include:
- judges working in the courts
- immigration officers making decisions about visas
- police arresting or questioning people
- Oranga Tamariki making decisions about childcare.
What are my rights in the Bill of Rights?
The human rights protected by BORA can be grouped into six categories.
Your life and security
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 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
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 rights 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 to protest (see: “Activism”).
You have the right to move around New Zealand as you choose, and to leave or enter New Zealand’s borders as you choose, as long as you’re following the law.
Protection from discrimination and rights of minority groups
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. BORA 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
You have basic rights around any interactions you might have with law enforcement, like customs, border control or 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
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
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 in order to ensure your rights are being respected by the government.
BORA 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
Section 5 of BORA says that there are times where the rights in the Act can be limited.
This is legally allowed, as long as those limits are “demonstrably justified in a free and democratic society.”
This means that the government can pass laws that breach BORA if they want to, and government agencies or officials may, in some circumstances, be allowed to breach these rights, too.
These limitations are there so that society can function properly, and so you don’t breach another person’s rights by exercising your own rights. This is always a balancing act – whether it is justified to breach BORA will depend on the circumstances.
Some examples of where a breach of BORA is seen to be justified and legal in New Zealand:
BORA says everyone over 18 has the right to vote in democratic elections. New Zealand law puts some limitations on this. For example, if you’ve been sentenced to prison for 3 or more years, you don’t have the right to vote. The government has said this is justified, because they consider this as a fair restriction for someone who has committed a serious crime.
BORA says everyone has the right to freedom of speech. New Zealand law puts some limitations on this. For example, you can’t make violent threats against people, or say racist things in public. The government has said this is justified, because doing those things would breach other people’s rights.
BORA says all New Zealanders have the right to leave and enter New Zealand. New Zealand law puts some limitations on this. For example, if you’ve been arrested and you’re on bail, you may not be able to leave the country. The government has said this is justified, because if you leave you may not come back to attend court.