Public Law Stream 3 2012 Course outline New Zealand Bill of Rights Act 1990 1.

The idea of a Bill of Rights Historical developments (a) Domestic Magna Carta (1215), Statute of Westminster (1354) Petition of Rights (1627) [all in force in NZ via Imperial Laws Application Act 1988 The United States Bill of Rights (the first 10 amendments to the Constitution, dating from 1791) (b) International developments A brief side show on international law (IL): IL evolves as a law between nations and rulers. Governs matters such as freedom of the seas, acquisition of territory (cession, discovery, conquest). Diplomatic relations etc. Not directly concerned with rights of citizens in a state. In New World period the international lawyers of the day addressed the rights of American native peoples (to have their hunting and gathering rights respected etc. but they were susceptible to claims of sovereignty by the European powers) ILO conventions from early 20th Century address rights of persons in that sphere World War 2 leads to UN ,to UDHR, then to CERD, ICCPR and ICESCR and subsequent specialised conventions. These only in place from the 1960s on. ECHR and ECtHR in Europe from 1953 and 1959 respectively. Treaties on human rights speak to rights of citizens against their state. (Most other treaties deal in matters between states, albeit often affecting individuals in them) Human Rights treaty mechanisms of enforcement: state v state complaints (rare); individual vs state (primary mechanism for ECHR, a matter for the optional protocol in relation to ICCPR), and (for the UN treaties) periodic reporting to a specialised committee (called a treaty body). The treaty body for the ICCPR is the Human Rights Committee. NZ adopts ICCPR in 1978, and OP in 1989. Adopts CERD in 1972. These dates explain why our Race Relations Act 1971 and Human Rights Commission Act 1977 came when they did. ICCPR not seen, in 1977, as demanding that there be a Bill of Rights for New Zealand, Why? For New Zealand cases to UN Human Rights Committee see: http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/humanrights/international-human-rights-instruments Follow links to get to a list of cases from New Zealand 2. New Zealand and the history of the Bill of Rights idea (a) The common law heritage Rights acknowledged to exist at common law (discernible for example in statutory interpretation presumptions, in administrative law principles, and most importantly as the basis for many discrete but fundamental rules.

(b) English law a system of remedies Early constitutional writers such as Dicey were sceptical of US style bills of rights and emphasised that (1) the availability of remedies for breach of common law rights and (2) the susceptibility of rulers to the ordinary law of the land were the effective guarantee of liberty in English law. (c) Comparative experience In US the Bill of Rights did not have much impact in protecting individual liberty until the mid-1960s, and then much of it was in the criminal law sphere (d) Abolition of Legislative Council 1950 Promise of constitutional reform to protect liberties (e) A proposal in 1963 for a New Zealand Bill of Rights Based on the Canadian Bill of Rights of 1960, but interestingly declawed (ie the potent clause that led to R v Drybones [1970] SCR 282 was omitted. Bill lapsed; no one spoke in favour. (f) The years of cynicism about bills of rights 1963 to 1984 (g) Geoffrey Palmer and the Labour Government 1984 to 1990. White Paper (1985); leads to debates, conferences, travelling select committee hearing. Abortion a key issue. Treaty of Waitangi another. New Zealanders seem generally opposed, to the extent they are interested. The Final Report of the Select Committee: recommends a statutory Bill of Rights only, with economic and social rights in it as well. (h) New Zealand Bill of Rights Act 1990 enacted in August 1990. It is the White Paper version, but removal of supremacy clause and insertion instead of ss 6 and 7, and then at the last minute of s 4. 3. A brief overview of the Bill of Rights (a) Provenance of the rights and freedoms: ICCPR and Canadian Charter of Rights and Freedoms are the major influences (b) What might it be expected to achieve? New constraints for legislative, executive and judicial branches, as well as for bodies exercising a judicial function (s 3), translating into: Reasons why actions might be unlawful in judicial review cases Reasons why evidence might be excluded in criminal cases Influences on statutory interpretation Perhaps affecting common law (c) Significance of the times The end of the Cold War and the collapse of the Berlin Wall 1989, the Vienna Convention 1993, South Africa and the new Constitution 1994; Human rights and the age of idealism (d) The rights revolution in UK public law (circa 1990 to present) The principle of legality rediscovered, the rule of law idea burgeoning, the idea of bringing rights home from Europe and the ECtHR; the Human Rights Act 1998 (UK). 4. The operational sections of the Bill of Rights (a) Preamble and s 2: why affirmed? The significance of a Parliamentary affirmation (b) Who gets the benefit? Everyone, every person, no-one (s 8), citizens (s 12) corporations (s 29). Foetuses? (c) Section 3: to whom does the burden of the Bill of Rights apply? Why is this an issue? The public/private sphere and its importance for determining legality etc.

The Legislature (is bound, but given s 4, to what end? See Geiringer The Dead Hand of the Bill of Rights (2007) 11 Otago Law Review 389-415. The Executive: Ministers and all ministries and departments by whatever name. Can be a difficult line to draw at the margins: what is government? A nature test, or a control test? The judiciary: does s 3 mean that every judicial order/pronouncement/lawmaking has to conform to the Bill of Rights, and if so does this mean that the ordinary citizen must observe the Bill of Rights, at least to the extent that he or she cannot expect the court to lend assistance to rights-infringing outcomes. This is the horizontality question. Verticality Bill of Rights applies between state and citizen Direct horizontality Bill of Rights is expressed to apply to citizens as well as the state Indirect horizontality New Zealand Bill of Rights Act 1990 applies to state (and judicial branch) but this has the effect that the law applying between citizens must conform to the Bill of Rights (strong indirect horizontality) or at least must conform to the basic values of the Bill of Rights (weak indirect horizontality: the Canadian position) Shelley v Kraemer 334 US 333 (1966) New York Times v Sullivan 376 US 254 (1964) Lange v Atkinson [1998] 3 NZLR 424 (CA); [2000] 1 NZLR 257 (PC); [2000] 3 NZLR 385 (CA, again) Hosking v Runting [2005] 1 NZLR 1 (CA)

Section 3 (b): what is a public function, conferred or imposed by or pursuant to law? Ransfield v The Radio Network Ltd [2005] 1 NZLR 233 (HC) Falun Dafa Association of New Zealand Inc v Auckland Children's Christmas Parade Trust Board (2008) 8 HRNZ 680; [2009] NZAR 122 (d) Sections 4, 5 and 6 The need to read these together, with a sense of their purpose and history The reasons for complication. (i) What is consistency? Does s 5 have a role (for judges, that is)? (ii) Do you start with working out what a statute means, and then ask whether that is consistent? If so, does consistency matter, since it will still mean what you started by saying it means? How it works, logically and in practice, in the courts. Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) [When the question is, what does the Transport Act 1962 say by implication as to whether detained motorists are entitled to be told of their right to a lawyer, the Bill of Rights requires that only reasonable limits be implied, not a complete ouster of the

right to a lawyer.] Rights must be read reasonably, and may then be accommodated. Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (CA) Hansen v R [2007] 3 NZLR 1 (SC) cb vol 2 p 3 That is: Step 1: start with what the reasonably claimed meaning is, then ask: Step 2: If it meant that, would it be reasonable in terms of s 5? And so, consistent. If so, no problem. Thats what it means. Step 3: If not, then can a consistent meaning be found? (apply s 6) If so, apply it. Step 4: If not, apply the inconsistent meaning (as required by s 4). (e) More on the approach to ss 4, 5 and 6: the need to define the right so that you know you have a Bill of Rights case. What, for example, counts as expression? As religion? As a search or a seizure? (f) The starting point: the claimed meaning (aka the natural meaning). The point here is that courts need to be aware of litigants stacking the cards by contending for their preferred meaning at step 1, so as to guide it through to their preferred outcome: TVNZ Ltd v Solicitor-General [2008] NZCA 519 (CA) Commerce Commission v Air New Zealand Ltd [2011] NZCA 64 Cf R (Williamson v Secretary of State for Education) [2005] 2 AC 246 (UKHL) This is the starting point, and the question now is whether this, or some other meaning, should be adopted. (g) Section 5 and determining consistency: the reasonable limits question The provenance of the idea of reasonable limits The ICCPR and ECHR; limits in the US Bill of Rights (strict scrutiny, clear and present danger, compelling state interest, undue burden etc.); the Canadian Charter of Rights and Freedoms R v Oakes [1986] 1 SCR 103 (SCC) Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) Hansen v R [2007] 3 NZLR 1 (SC). Proportionality in the United Kingdom and Europe The idea of a culture of justification: identifying objectives, analysing means for rationality and proportionality. Is there a role for judicial deference to choices within a band of reasonableness? (h) Section 6 and the question of how far a statute can be bent or strained to attain consistency Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 (CA) [CM Vol 2 p 32] Quilter v Attorney-General [1998] 1 NZLR 523 (CA) [CM Vol 2 p 121]

R v Poumako [2000] 2 NZLR 695 (CA) [CM Vol 1 p 69] R v Pora [2001] 2 NZLR 37 (CA) [CM Vol 1 p 84] Drew v Attorney-General [2002] 2 NZLR 58 (CA) [CM Vol 2 p 33] Hopkinson v Police [2004] 3 NZLR 704 (HC) [CM Vol 2 p 56] Section 3 of the United Kingdom Human Rights Act 1998
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights

R v A (No 2) [2002] 1 AC 45 (UKHL) Ghaidan v Godin-Mendoza [2004] 2 AC 557 (UKHL) Hansen v R [2007] 3 NZLR 1 (SC) [CM Vol 2 p 3] Re Application by AMM and KJO to adopt a child [2010 NZFLR 629 (FC) (i) Types of interpretation cases Real ambiguity: Hansen, AMM Reading down broad and vague powers Drew Reading down broad concepts Morse v Police [2012] 2 NZLR 1 (SC) CM Vol 2 p 73] Reading in side constraints (j) The Attorney-General Reporting Duty under s 7 Analogous to a supreme law constitutional Bill of Rights at this stage Practice and procedure: Crown Law and the Ministry of Justice See http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/humanrights Not a limit on legislative power: Mangawero Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 (HC) Boscawen v Attorney-General [2009] 2 NZLR 229 (CA) CM Vol 1 p 36 (k) Section 4 and its implications. A licence to legislate consistently; or a structural choice as to whose opinion on consistency counts (Parliaments or the judiciarys)? (l) Declarations of inconsistency with the Bill of Rights: Human Rights Act 1998 (UK), s 4 (declaration of incompatibility) Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) R v Poumako [2000] 2 NZLR 695 (CA) per Thomas J CM Vol 1 p 69 Hansen v The Queen [2007] 3 NZLR 1 (SC) Vol 2 p 3 Part 1A of the Human Rights Act 1993, ss 92J and 92K (for discrimination right only; see further below).

(m) Remedies for breach of the Bill of Rights

Evidence exclusion: see s 30 Evidence Act 2006 As a source of unlawfulness in judicial review or other contexts Striking down subordinate legislation Public law compensation Simpson v Attorney-General (Baigents Case) [1994] 3 NZLR 667 (CA) Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) Wilding v Attorney-General [2003] 3 NZLR 787 Udompun v Attorney-General [2005] 3 NZLR 204 (CA) Taunoa v Attorney-General [2008] 1 NZLR 429 (SC)