What are my rights and freedoms? A step-by-step guide to the New Zealand Bill of Rights Act 1990 (BORA)
Section 2: Rights affirmed
The rights and freedoms contained in this Bill of Rights are affirmed.
We officially recognise in law that these rights belong to all of us as part of living in a free, democratic society.
The rights in BORA aren’t created or granted to us by the government, they already exist. The Act simply recognises and affirms them.
BORA declares rights that are understood to be fundamental in a free and democratic society. They reflect New Zealand’s commitment to international human rights obligations (such as the International Covenant on Civil and Political Rights).
It confirms that those rights also apply here in New Zealand. They are part of this country’s constitutional tradition and they are not something Parliament can simply choose to ignore.
It provides a moral and legal foundation for interpreting laws consistently with the declared rights. It signals that the rights remain even if Parliament passes legislation that is inconsistent with those rights.
Section 3: Application
This Bill of Rights applies only to acts done—
(a) by the legislative, executive, or judicial branches of the Government of New Zealand; or
(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
BORA applies to government – not private – actions.
What it applies to:
- Parliament (legislative) when making laws
- Government (executive) when running the country, for example if police stop and search you they must respect your right not to be unlawfully searched.
- Courts (judicial) when making decisions
- Individuals doing a public job or role, for example, a school board, local councils, or a private company working for the government
What it doesn’t apply to:
- people or private businesses acting in their own capacity. For example if your neighbour tells you not to walk on their lawn that’s private property rights, not a BORA issue.
Section 4: Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective;
or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
BORA doesn’t overrule other laws, those laws still have to be followed, even if they limit rights.
If a law (or ‘enactment’) conflicts with the Bill of Rights Act, the courts can’t just throw that law out, say it is invalid, or refuse to apply it.
This is because BORA is not what’s called ‘supreme law’, meaning it doesn’t sit above all other laws. Instead it’s meant to guide how other laws are interpreted and applied.
The courts will try to interpret such laws in a way that respects rights as much as possible. Failing that, they may declare the law to be inconsistent with BORA. This is called a ‘declaration of inconsistency’.
This approach keeps parliament as the highest lawmaker but still allows courts to highlight when certain laws breach rights.
Section 5: Justified limitations
Subject to section 4, 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.
BORA rights are strong, but not unlimited
Your rights can be limited, but only if:
- The limit is written in a law
- The limit is reasonable and can be clearly explained as necessary for a free and democratic country
For example, freedom of speech doesn’t allow you to threaten people. The law can reasonably stop that to keep others safe.
The courts use a step-by-step process to check if a limit is reasonable. Sometimes law is found to fail the “reasonable and justified limitation” test, and the court will make a ‘declaration of inconsistency’