Encouraging conversations about justified limitations on rights
Some thoughts on the NZ Bill of Rights Act 1990 at its 20th Anniversary
The New Zealand Bill of Rights Act 1990 (BoRA) is having its “ups and downs”. After the hopeful start of being conceived as “superior law”, providing a yardstick against which the courts could strike down legislation that was inconsistent with our civil rights and freedoms, the BoRA was enacted as an ordinary law. It is, of course, widely recognised as a “super statute”; a statute setting standards that Parliament ought take note of when passing legislation. On the “down swing” again, it appears that this ideal is loosing ground as Parliament legislates further limitations on the rights in the BoRA, by way of subsequent legislation.
Keith Locke’s New Zealand Bill of Rights Amendment Bill (PDF), currently waiting for the ballot as a private member’s bill, proposes some changes that I think are well worth considering. One of the changes is to entrench the BoRA. Such a measure would hopefully be a lasting “up swing” in status for the BoRA, increasing its profile as a constitutional statute.
Another change proposed in this Amendment Bill is a requirement for the tabling in Parliament of any declaration of inconsistency made by the courts relating to the BoRA. This ought to have the effect of requiring a “conversation” to take place between Parliament and the courts. Parliament then would have the opportunity to consider the advice given by the judges in the court’s judgement, and could amend the legislation found to be inconsistent, or confirm it, the objective being a respectful conversation between the courts and Parliament.
The New Zealand courts have already decided they can make findings of inconsistency. The change suggested would be likely to encourage the courts to exercise the power to make a declaration because there would be a clear point in doing so.
Justifying Limitations on Human Rights
The conversations about our rights and freedoms, and whether limitations are justified, need to happen. One of the places they ought to happen is at a select committee hearing on a bill that touches on the rights and freedoms. The test the courts have developed for whether a limitation is reasonable and can be demonstrably justified in a free and democratic society, is possibly neither well known, nor straightforward to argue. I set it out as:
- There must be a sufficiently important objective to justify curtailing a right;
- There must be a rational connection between the limitation proposed and the objective sought;
- The limitation must be no more than is reasonably necessary to sufficiently achieve the objective;
- The limitation must be in due proportion to the importance of the objective.
More could be done, possibly by the Human Rights Commission, and as part of the secondary school curriculum, to equip people in discussing what makes a limitation justified.
The New Zealand Law Society’s submission on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill 2010 provided a good example by setting out the test in relation to the proposed further limitation affecting prisoners’ rights to participate in general elections.
Property & Privacy
It has been suggested that the rights in the BoRA be extended to include a right to property. A right to personal privacy is another candidate for extending the rights. Myself, I disagree with both extensions. We already have a sophisticated framework of law to recognise and protect property rights, in their various forms, and this is the best way to continue to protect these rights. Likewise, personal privacy is promoted and protected through the range of rights in the Privacy Act 1993 and through the developing tort for breach of privacy.
I am suggesting we need to continue to focus on the types of rights in the current BoRA, particularly the criminal justice system rights that protect persons detained or accused of a crime. An example that gives cause for vigilance is the Courts (Remote Participation) Act 2010.
There is, rightly, sympathy for the victims of crime, but this ought not result in a diminution of the rights identified as being important to ensure persons detained are treated with dignity, and receive a fair trial.
One reason for a Bill of Rights is to set out the important civil and political rights and so create a more “rights aware” society. While certain segments of society argue that offenders have forfeited their rights, I say that people are more likely to recognise the rights of others when they have experienced the benefits of those rights for themselves.
It is important to be alert to limitations on the BoRA rights and freedoms, and engage in an informed conversation about whether such limitations, in whatever form they take, are indeed justified.