New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA) is a statute of the Parliament of New Zealand setting out the rights and fundamental freedoms of anyone subject to New Zealand law as a Bill of rights. It is part of New Zealand's uncodified constitution.
History.
In 1985 a White Paper entitled "A Bill of Rights for New Zealand", was tabled in Parliament by the then Minister of Justice, Hon Geoffrey Palmer. The paper proposed a number of controversial features, which sparked widespread debate:
The Bill then went to the Justice and Law Reform Select Committee, which recommended that New Zealand was "not yet ready" for a Bill of Rights in the form proposed by the White Paper. The Committee recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law.
In its current form, the Bill of Rights is similar to the Canadian Bill of Rights, passed in 1960. The Act does create an atmospheric change in New Zealand law in that it provides judges the means to "interpret around" other acts to ensure enlarged liberty interests. The Bill of Rights has a liberty-maximising clause much like the Ninth Amendment to the United States Constitution, and this provides many opportunities for creative interpretation in favour of liberties and rights.
Application of the Bill of Rights.
The Act applies only to acts done by the three branches of government (the legislature, executive and judiciary) of New Zealand, or by any person or body in the "performance of any public function, power, or duty" imposed by the law (Section 3).
Section 4 specifically denies the Act any supremacy over other legislation. The section states that Courts looking at cases under the Act cannot implicitly repeal or revoke, or make invalid or ineffective, or decline to apply any provision of any statute made by parliament, whether before or after the Act was passed because it is inconsistent with any provision of this Bill of Rights.
Section 5 allows for "Justified Limitations" on the rights guaranteed by the Act which are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", which is the same wording as contained in Canada's Charter of Rights and Freedoms. In July 2015 in "Taylor v Attorney-General" the Auckland High Court took the unprecedented step of issuing a formal declaration that an electoral law amendment stripping all prisoners of voting rights was an unjustifiable limit of section 12(a) of the Bill of Rights.
Section 6 ensures that where an interpretation of an Act has a meaning that is consistent with the Act, that meaning shall be preferred to any other meaning.
Section 7 Reports.
Section 7 of the Act requires the Attorney-General to draw to the attention of Parliament the introduction of any Bill that is inconsistent with the Act. The Ministry of Justice, which prepares this advice for the Attorney-General, requires a minimum of two weeks to review the draft legislation.
See the list of bills reported as inconsistent with the New Zealand Bill of Rights Act 1990.
Civil and Political Rights.
Part II of the Act covers a broad range of Civil and Political Rights.
Life and the Security of the Person.
As part of the right to life and security of the person, the Act guarantees everyone:
Democratic and Civil Rights.
Electoral Rights<br>
The Act sets out the electoral rights of New Zealanders. The Act guarantees that every New Zealand citizen who is of or over the age of 18 years has:
Furthermore, the Act guarantees everyone:
Freedom of Thought, Conscience, and Religion
Freedom of expression
Religion and Belief
Assembly
Association
Movement
The Act guarantees to every New Zealand citizen:
The Act guarantees everyone:
The Act also (Section 18(4)) ensures that non-New Zealand citizens lawfully in New Zealand shall not be required to leave except under a decision taken on grounds prescribed by law.
Non-Discrimination and Minority Rights.
Section 19 of the Act guarantees freedom from discrimination, on the grounds of discrimination set out in the Human Rights Act 1993. Section 20 provides protection for the culture, religion, and language of individuals who belong to ethnic, religious and linguistic minorities.
Search, Arrest, and Detention.
The Act guarantees everyone:
Everyone who is arrested or who is detained has the right to:
Everyone who is arrested for an offence has the right to be charged promptly or to be released. 
Everyone who is arrested or detained for any offence or suspected offence shall have the right to:
Everyone deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the person (Section 23).
Criminal Justice
The Act requires that everyone who is charged with an offence:
Fair Trial
Everyone who is charged with an offence has the minimum right:
Double Jeopardy
Section 26 covers instances of double jeopardy. The Act holds that:
Natural justice.
Section 27 of the Act guarantees everyone the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law. Every person also has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
Important court cases.
A large number of cases have been heard under the Act since it was passed in 1990, mostly pertaining to rights around arrest and detention.
Remedies under the Bill of Rights Act 1990.
The Bill of Rights Act 1990 does not provide express remedies for when one of the rights contained in the Act has been breached. Despite this, the New Zealand Court of Appeal has held on several occasions that it has the jurisdiction to develop remedies as it sees fit. The focus of Bill of Rights Act remedies is to provide vindication in such a way that upholds the importance of the right, rather than invokes punishment for its breach. As such, court decisions can often include a combination of remedies in order for the breached right to be properly vindicated.
Exclusion of evidence.
A common remedy to the Bill of Rights Act 1990 is that the evidence obtained through breaching a right is inadmissible in court. This initially developed in the courts as a presumption of exclusion but was subsequently lessened to a balancing exercise where various factors are weighed up to determine the admissibility of evidence tainted by a breach of the Bill of Rights Act 1990. This remedy is now reflected in section 30 of the Evidence Act 2006.
Reduction in sentence.
A reduction in sentence can be granted as a remedy in cases where s25(b) of the Bill of Rights Act 1990 has been breached: the right to be tried without undue delay. In "Williams v R" [2009] NZSC 41, the New Zealand Supreme Court held that a reduction in sentence was a more appropriate remedy than a stay of proceedings, except for extremely minor offending.
Costs.
The regular rule that costs will follow the event is not always the case under the Bill of Rights Act 1990. In some cases, the court can reduce costs for claims under the Act that were worthy, even if they were ultimately unsuccessful.
Compensation.
In "Simpson v Attorney-General (Baigent’s Case)" (1994) 1 HRNZ 42, the Court of Appeal awarded compensation under the Bill of Rights Act 1990. This was a new remedy under the Act. In this case, the plaintiffs were seeking damages for a search warrant executed on their place of residence that was obtained on the basis of incorrect information. The police were informed that the warrant was based on false information but they continued with the search nonetheless. The Court of Appeal held that the Court had an inherent jurisdiction to develop remedies under the Bill of Rights Act 1990, and that compensation was an appropriate remedy in this case. Cooke P stated that the court would “fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed.” The Court of Appeal thus held that there is a public law action available against the Crown for a breach of the Bill of Rights Act 1990. It is likely to only be available to those who do not attain a suitable alternative remedy for a breach of the Act. 
Compensation under NZBORA is discretionary and the Supreme Court of New Zealand has emphasised that it is just one of many public law remedies and that non-monetary remedies will often be more appropriate. Indeed, there are relatively few examples of where compensation for violations of NZBORA have been awarded. In "Udompun v Attorney General," Glazebrook J of the Court of Appeal stated that monetary compensation will not be awarded where a more suitable remedy exists. Most significantly, in "Taunoa v Attorney-General" the Supreme Court of New Zealand awarded compensatory damages for breaches of NZBORA by the Department of Corrections’ Behaviour Management Regime. 
Exemplary damages.
It is often cited that exemplary damages are an inappropriate remedy under the Act, because the focus should be on compensation rather than punishment. Exemplary damages were awarded in "Archbold v Attorney-General" [2003] NZAR 563, but William Young J qualified this remedy by stating that he would alternatively have awarded the same amount as public law compensation for the breach. Whether a court can award exemplary damages for a public claim of a breach of the Bill of Rights Act 1990 is therefore uncertain.
Declaration of inconsistency.
A declaration of inconsistency is a remedy in the form of a formal declaration by a court of law that legislation is inconsistent with a right contained in the Bill of Rights Act 1990. It was first made available as a remedy following the litigation in "Taylor v Attorney-General" [2015] 3 NZLR.
The first suggestion that a declaration of inconsistency could be available was in 1992. Following this, "Temese v Police" (1992) C CRNZ 425 and "Quilter v Attorney-General" (1998) 1 NZLR 153 both suggested that it could be available in the appropriate case, but fell short of making a declaration. In "Moonen v Film and Literature Board of Review" [2000] 2 NZLR 9, Tipping J stated that the courts had a duty to indicate when legislation was inconsistent with the Bill of Rights Act 1990, but it was unclear whether he meant a formal declaration of inconsistency or a mere indication of inconsistency contained within the judgment. In "R v Poumako" [2000] 2 NZLR 695, Thomas J dissented by making a formal declaration of inconsistency. It followed in "Zaoui v Attorney-General" [2005] 1 NZLR 577 that the Court held that "Moonen" and "Poumako" had established a jurisdiction for courts to issue a formal declaration of inconsistency. However, in "R v Hansen" [2007] NZSC 7, while the Court of Appeal established that courts could inquire into the consistency of legislation with the Bill of Rights Act 1990, they did not make a formal declaration of inconsistency. 
In 2016, Heath J in "Taylor v Attorney-General" [2015] 3 NZLR 791 issued a formal declaration of inconsistency between s80(1)(d) Electoral Act 1993 and s12(a) Bill of Rights Act 1990. This was the first declaration of inconsistency in New Zealand. It was appealed to the Court of Appeal which upheld the declaration of inconsistency. The Attorney-General argued that the Court had no jurisdiction to issue a declaration of inconsistency unless it was expressly authorised by legislation. The Court of Appeal called this a “bold argument” and concluded that “inconsistency between statutes is a question of interpretation…and it lies within the province of the courts." As such, declarations of inconsistency are an available remedy under the Bill of Rights Act 1990.
Other remedies.
Several other remedies were suggested to be available in "R v Taylor" (1996) 14 CRNZ 426. These included a reduction in the penalty, police disciplinary proceedings, criminal prosecution, a declaration, or future-looking relief. Other remedies have included special jury directions, and orders that witness testimony be disregarded. It can often depend on the nature of the right breached as to what remedy will be appropriate to vindicate that breach.
The future of bill of rights remedies.
Article 2(3) of the International Covenant on Civil and Political Rights requires parties to the treaty to ensure that any person whose rights and freedoms have been breached to have an effective remedy. It is often argued by New Zealand academics that the lack of express remedies in the Bill of Rights Act does not meet this requirement. One such express remedy is a judicial power to strike down legislation that is inconsistent with the Bill of Rights Act 1990. This is similar to the powers of the Court under the Canadian Charter of Rights and Freedoms.
It is an ongoing conversation amongst legal academics in New Zealand as to whether there should be an entrenched constitutional bill of rights that gives the court the power to strike down inconsistent legislation. This would provide a remedy to breaches of the Bill of Rights Act 1990 as the courts could uphold the right, rather than finding it to be subservient to the contradictory legislation under s4. The UN Human Rights Committee criticised New Zealand for the lack of court power to strike down legislation inconsistent with the Bill of Rights Act 1990. They equated this lack of power with a lack of human rights protection. Geoffrey Palmer and Andrew Butler published a book in 2016 entitled "A Constitution for Aotearoa New Zealand" that laid out a proposed entrenched bill of rights, including a judicial power of strike down. This was intended to start a conversation in New Zealand as to whether entrenching their bill of rights in a constitution was the way forward.
The resistance to an entrenched bill of rights in New Zealand is partly because the country is currently governed by parliamentary sovereignty. Giving the courts the power to strike down Parliament’s legislation would be contrary to the doctrine of parliamentary supremacy. There is also resistance because the protection of human rights is not regarded as the courts’ responsibility, but instead seen as requiring involvement by all branches of government.