General policy statement
This Bill will strengthen the New Zealand Bill of Rights Act 1990 (the Bill of Rights) in order to better protect fundamental human rights and freedoms in New Zealand.
The key changes are strengthening the reporting processes in Parliament so that members are better informed about rights issues when considering Bills and a new remedy of a declaration of inconsistency which will be available through the courts if legislation is enacted which is inconsistent with the Bill of Rights.
Reports to Parliament on rights issues
At present under section 7 of the Bill of Rights the Attorney-General is required to advise Parliament if any provision in a Bill is inconsistent with the Bill of Rights. The Attorney-General's role in the Executive has meant that at times in the past this has proven to be an inadequate control. This has meant that on occasion Parliament has not been fully advised about human rights implications when debating Bills. A related process issue is that departmental ofﬁcials and the Attorney-General are not required to give reasons for their assessment of Bills which means that these may not available for debate either in the House or at select committee.
The amendments in this Bill will require a section 7 report, containing reasons for any opinion, to be presented to the House by the Attorney-General at or shortly after introduction of all Bills. Similar reports will also be required at later stages in the legislative process. It will be incumbent on select committees and members putting for- ward amendments to Bills to provide such a report if the amendments appear to limit any of the rights or freedoms in the Bill of Rights.
Through these measures Parliament will be more fully informed when it considers Bills which may place limits on fundamental rights and freedoms.
Remedy of declaration of inconsistency
This Bill also provides a remedy of a declaration of inconsistency which will be available through the courts. The lack of speciﬁc remedies in New Zealand's Bill of Rights has been the subject of some criticism both here and overseas. However, this remedy is not new to New Zealand as it has been available in the Human Rights Act 1993 since 2002, in relation to legislation which is discriminatory.
The Attorney-General will be required to table in the House any declarations made by the courts so that the House can remain fully appraised of these issues. Once any appeals are concluded, and if the declaration stands, the Government will be required to table a formal response in the House for its consideration.
The remedy of a declaration of inconsistency preserves the validity and enforceability of inconsistent legislation but will ensure that Parliament is informed about legislation which may need to be reconsidered because of its impact on rights and freedoms.
The Bill also speciﬁes, in relation to the justiﬁcation provision in section 5, that when assessing consistency with the Bill of Rights relevant factors include whether there are less restrictive means reasonably available to achieve the purpose that the limiting measure seeks to achieve. This will require policy makers to seriously consider other options for achieving policy objectives which have less impact on fundamental rights and freedoms.
Because the Bill of Rights is an Act of fundamental constitutional importance this Bill will also entrench its provisions so that these cannot be amended or repealed by a simple majority of the House.
Strengthening the Bill of Rights
This Bill simply strengthens the Bill of Rights and does not change its fundamental nature. The Bill of Rights is a statute of special constitutional importance and despite the fundamental nature of the rights enshrined in it and our international obligations in respect of these, legislation which is inconsistent with those rights can be passed and enforced. A recent analysis suggested that since 1991 more than 20 Bills have been passed without identiﬁed inconsistencies being removed. This does not include Bills which may have limited human rights but where departmental ofﬁcials or legal advisors have formed a view that the limit is justiﬁed under section 5.
The United Nations Human Rights Committee (UNHRC) recently said of New Zealand that it remains concerned that the Bill of Rights does not take precedence over ordinary law, despite its 2002 recommendation in this regard. Furthermore, the UNHRC said it remains concerned that laws adversely affecting the protection of human rights have been enacted in New Zealand, notwithstanding that they have been acknowledged by the Attorney-General as being inconsistent with the Bill of Rights (Concluding observations of the UNHRC on New Zealand's ﬁfth periodic report, 25 March 2010, CCPR/C/NZL/CO/5).
The UNHRC's recommendations include that New Zealand should strengthen the current mechanisms to ensure compatibility of domestic law with the International Covenant on Civil and Political Rights.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 is the commencement clause. The Bill will come into force on the day after the date on which it receives the Royal assent.
Clause 3 states that the Bill amends the New Zealand Bill of Rights Act 1990 (the principal Act).
Clause 4 repeals section 4 of the principal Act.
Clause 5 substitutes a new section 5 into the principal Act. The new section 5 is substantially the same as the provision being replaced but will in addition specify a particular matter which must be considered in deciding whether the legal test for justiﬁcation is met. This is whether there are less restrictive means reasonably available to achieve the purpose that the limiting measure seeks to achieve.
Clause 6 substitutesa new section7 into the principal Act which will require the Attorney-General to present to the House of Representatives a report on every Bill's consistency with the Bill of Rights.
Clause 7 inserts a new section 7A which will require select committees recommending amendments to Bills, and members proposing amendments to Bills during debate by a committee of the whole House, to report to Parliament on the consistency of amendments with the Bill of Rights. However, in contrast with the Attorney-General's obligation under new section 7 to report to the House on all Bills, the obligation under new section 7A will arise only where it appears that an amendment may limit a right or freedom in the Bill of Rights.
Clause 8 inserts a new section 7B which will provide a remedy of a declaration of inconsistency in respect of an enactment which a court ﬁnds is inconsistent with the Bill of Rights. Court decisions or judgments containing a declaration of inconsistency must be presented to the House of Representatives by the Attorney-General within a speciﬁed time frame.
Clause 9 insertsa new section 7C which will require the Government to respond within a speciﬁed time frame to any ﬁnal declaration of inconsistency made in respect of an enactment and to present that response to the House of Representatives. The response must include advice about what action the Government intends to take in response to the declaration and the reasons for that course of action.
Clause 10 inserts a new section 7D which entrenches the principal Act so that it cannot be amended or repealed except where the proposal for amendment or repeal—
• is passed by a majority of 75% of all the members of the House of Representatives; or
• has been carried by a majority of the valid votes cast at a poll of electors in both the General and Māori electoral districts.
New Zealand Bill of Rights Amendment Bill
The Parliament of New Zealand enacts as follows:
This Act is the New Zealand Bill of Rights Amendment Act 2012.
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Principal Act amended
This Act amends the New Zealand Bill of Rights Act 1990.
4 Section 4 repealed
Section 4 is repealed.
5 New section 5 substituted
Section 5 is repealed and the following section substituted: "5 Justiﬁed limitations
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, taking into account all relevant factors, including whether there are less restrictive means reasonably available to achieve the purpose that the limiting measure seeks to achieve."
6 New section 7 substituted
Section 7 is repealed and the following section substituted: "7 Attorney-General to report to Parliament on every Bill's consistency with Bill of Rights
"(1) Where any Bill is introduced into the House of Representatives, the Attorney-General must—
"(a) in the case of a Government Bill, on the introduction of that Bill; or
"(b) in any other case, as soon as practicable after the introduction of the Bill—
present to the House of Representatives a report stating whether or not, in the Attorney-General's opinion, the Bill is consistent with this Bill of Rights.
"(2) The report referred to in subsection (1) must include the reasons for the assessment, and if any provision in the Bill is considered not to be consistent with this Bill of Rights, an explanation of how it is not consistent."
7 New section 7A inserted
The following section is inserted after section 7:
"7A Select committees recommending and members proposing amendment must report to Parliament on amendment's consistency with Bill of Rights
"(1) Where any select committee (or majority of members of any select committee) of the House of Representatives recommends an amendment to any Bill which appears to limit any of the rights and freedoms in this Bill of Rights, the select committee (or the majority of its members) must state in the same document that outlines the amendment:
"(a) the committee's assessment of whether or not the amendment is consistent with this Bill of Rights, including the reasons for that assessment; and
"(b) if the amendment is considered not to be consistent, how it is not consistent.
"(2) Where any committee of the whole House considers an amendment to any Bill which appears to limit any of the rights and freedoms in this Bill of Rights, the member proposing the amendment must state in the same document that outlines the amendment:
"(a) the member's assessment of whether or not the amend- ment is consistent with this Bill of Rights, including the reasons for that assessment; and
"(b) if the amendment is considered not to be consistent, how it is not consistent."
8 New section 7B inserted
The following section is inserted after section 7A:
"7B Acts of Parliament not consistent with Bill of Rights
"(1) This section does not, affect in any way the validity, operation or enforcement of an enactment or provision of an enactment that is inconsistent with this Bill of Rights.
"(2) Wherever an enactment or provision in an enactment cannot be given a meaning that is consistent with this Bill of Rightsa court may make a declaration that the enactment or provision is not consistent with this Bill of Rights (a declaration of inconsistency).
"(3) A court may only make a declaration of inconsistency if the Attorney-General or another Minister of the Crown is a party to the proceedings, or the court is satisﬁed that notice of the proceedings has been given to the Attorney-General and the Attorney-General has had a reasonable opportunity to intervene in the proceedings.
"(4) If a court makes a declaration of inconsistency, including when deciding an appeal, the registrar of the court must promptly transmit a copy of the decision or judgment in which the declaration is made to the Attorney-General.
"(5) Within 6 sitting days of receiving a decision or judgment referred to in subsection (4) the Attorney-General must present a copy to the House of Representatives."
9 New section 7C inserted
The following section is inserted after section 7B:
"7C Government must respond to declaration of inconsistency
"(1) This section applies if the Attorney-General has received a decision or judgment in which a declaration of inconsistency has been made and—
"(a) the declaration is contained in a judgment of the Supreme Court; or
"(b) the time for bringing an appeal against the decision or judgment containing the declaration has expired and no appeal has been brought within that time; or
"(c) any appeal has been abandoned or otherwise disposed of.
"(2) Within 6 months from the date of any of the events described in subsections (1)(a), (1)(b) or (1)(c), either the Attorney-General or the Minister responsible for the enactment in respect of which a declaration of inconsistency has been made, must present to the House of Representatives a response to the declaration.
"(3) The response referred to in subsection (2) must contain advice about the action the Government intends to take in response to the declaration (if any) and the reasons for that course of action."
10 New section 7D inserted
The following section is inserted after section 7C: "7D Restriction on amendment or repeal
This Bill of Rights cannot be amended or repealed unless the proposal for amendment or repeal—
"(a) is passed by a majority of 75 per cent of all the members of the House of Representatives; or
"(b) has been carried by a majority of the valid votes cast at a poll of electors in both the General and Māori electoral districts."