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48-466: The New Zealand Bill of Rights Act 1990 (sometimes known by its acronym, NZBORA or simply BORA ) is a statute of the Parliament of New Zealand part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a bill of rights , and imposes a legal requirement on the attorney-general to provide a report to parliament whenever

96-574: A bill is inconsistent with the Bill of Rights. The High Court of New Zealand in Taylor v Attorney-General issued an unprecedented declaration that the restriction on prisoners voting rights was a limit on their right to vote in genuine periodic elections, and that it had not been justified under the Bill of Rights. On appeal, the Supreme Court later confirmed that senior courts had jurisdiction to make such

144-513: A decision taken on grounds prescribed by law. 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. The Act guarantees everyone: Everyone who is arrested or who is detained has

192-662: A declaration of inconsistency is made, and further that the responsible Minister must present a report to parliament that details the government's response to the declaration. On 21 November 2022, the Supreme Court in Make It 16 Incorporated v Attorney-General affirmed the jurisdiction confirmed by the court in Attorney-General v Taylor and noted the passing of the amendment act. Several other remedies were suggested to be available in R v Taylor (1996) 14 CRNZ 426. These included

240-566: A declaration, and in 2022 a law was passed to establish procedures to allow and require the New Zealand Government a reporting and response mechanism to inconsistency declarations. In 1985, Minister of Justice Geoffrey Palmer tabled in Parliament a document titled A Bill of Rights for New Zealand: A White Paper . The paper proposed the enactment of a law to protect certain rights and freedoms considered crucial for upholding liberty in

288-549: A democratic society. It sparked widespread debate due to its controversial features: 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,

336-539: A formal declaration of inconsistency that an electoral law amendment introduced by the Fifth National Government that removed the ability of inmates voting rights (section 80(1)(d) Electoral Act 1993) was an unjustified limitation under section 12(a) of the Bill of Rights, which prescribes voting rights to all citizens aged 18 years and over. This was the first declaration of inconsistency in New Zealand. This

384-723: A more suitable remedy exists. Most significantly, in Taunoa v Attorney-General the Supreme Court of New Zealand awarded compensatory damages for breaches of the Bill of Rights by the Department of Corrections' Behaviour Management Regime. 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

432-508: 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. Article 2(3) of the International Covenant on Civil and Political Rights requires parties to

480-471: 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

528-486: 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

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576-497: A wide variety of grounds, including: There are a significant number of caveats, including "genuine occupational qualification," "domestic employment in a private household," "to preserve reasonable standards of privacy," "national security" and "organised religion." The Act does not explicitly prohibit discrimination on the basis of gender identity , and the New Zealand Human Rights Commission , supported by

624-512: 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: 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

672-428: 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 the Bill of Rights have been awarded. In Udompun v Attorney General, Glazebrook J of the Court of Appeal stated that monetary compensation will not be awarded where

720-484: Is inconsistent with the Bill of Rights. The Ministry of Justice , which prepares this advice for the attorney-general, requires a minimum of two weeks to review the draft legislation. Part II of the Act covers a broad range of Civil and Political Rights. As part of the right to life and security of the person , the Act guarantees everyone: Electoral Rights The Act sets out the electoral rights of New Zealanders. The Act guarantees that every New Zealand citizen who

768-442: 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

816-665: The ICCPR . They further held that the courts could award remedies for breaches of the bill of right and determined the liability of breaches of the Bill of Rights fell on the Crown . In 2003, Paul Hopkinson, a Wellington schoolteacher, burned the Flag of New Zealand as part of a protest in Parliament grounds at the New Zealand Government's hosting of the Prime Minister of Australia , against

864-472: The Judicature Act 1908, which denied the right of appeal in extradition cases such as this one, was to be interpreted in light of section six of the Act. Nonetheless, the Court held in this case the Bill of Rights had not been breached, and the appellant, Flickinger, had to return to Hong Kong to face charges. In 1994, the Court of Appeal heard Simpson v Attorney-General (also known as Baigent's case ),

912-420: The Act was passed because it is inconsistent with any provision of this Bill of Rights. However, in contrast, where another Act can be interpreted that is consistent with the Bill of Rights, the courts are obliged to use the most consistent interpretation through section 6 of the Act. Further, in section 5, one of the core provisions in the Act allows for 'justified limitations' on the rights guaranteed throughout

960-546: The Bill of Rights Act 1990. This remedy is now reflected in section 30 of the Evidence Act 2006. 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 Supreme Court held that a reduction in sentence was a more appropriate remedy than a stay of proceedings , except for extremely minor offending. The regular rule that costs will follow

1008-686: 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. The Act applies only to acts done by

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1056-450: The Bill of Rights. It says that the rights 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 in Canada's Charter of Rights and Freedoms . Under section 7 of the Bill of Rights, the attorney-general legally required to draw to the attention of parliament the introduction of any bill that

1104-519: The Bill of Rights. This meant that his actions were not unlawful because the word dishonour in the Flags, Emblems and Names Protection Act had many shades of meaning and, when the least restrictive meaning of that word was adopted, Hopkinson's actions did not meet that standard. This somewhat unusual result was due in part to the fact that the Bill of Rights does not overrule other laws. The Bill of Rights Act 1990 does not provide express remedies for when one of

1152-556: 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 July 2015, Heath J at the High Court of Auckland in Taylor v Attorney-General issued

1200-481: The Court under the Canadian Charter of Rights and Freedoms . Statute The word "statute" is derived from the late Latin word "statutum", which means 'law', 'decree'. In virtually all countries, newly enacted statutes are published and distributed so that everyone can look up the statutory law. This can be done in the form of a government gazette which may include other kinds of legal notices released by

1248-550: The House David Carter in the case challenged the use of parliamentary proceedings in the High Court decision and argued that this was a breach of parliamentary privilege . In its ruling, concluded that no breach of parliamentary privilege occurred and that senior courts had the jurisdiction to make a declaration of inconsistency. This was then further appealed by the Attorney-General to the Supreme Court which dismissed

1296-647: The Statute of the International Court of Justice and the Rome Statute of the International Criminal Court . Statute is also another word for law. The term was adapted from England in about the 18th century. In the autonomous communities of Spain , an autonomy statute is a legal document similar to the constitution of a federated state , save that it is enacted by the national legislature, rather than

1344-473: The appeal and upheld the judgment by the Court of Appeal. As such, declarations of inconsistency are an available remedy under the Bill of Rights Act 1990. On 29 August 2022, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022 received Royal assent and commenced on the same day. The amendment act introduced a legal requirement for the Attorney-General to notify parliament when

1392-504: The autonomous community it governs. The autonomy statutes in Spain have the rank of ley orgánica (organic law), a category of special legislation reserved only for the main institutions and issues and mentioned in the constitution (the highest ranking legal instrument in Spain). Leyes orgánicas rank between the constitution and ordinary laws. The name was chosen, among others, to avoid confusion with

1440-588: The background of Australia's support of the United States in its war in Iraq . Hopkinson was initially convicted in Hopkinson v Police under Flags, Emblems, and Names Protection Act 1981 of destroying a New Zealand flag with intent to dishonour it but appealed against his conviction. On appeal, his conviction was overturned on the grounds that the law had to be read consistently with the right to freedom of expression under

1488-402: The breached right to be properly vindicated. 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

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1536-477: The code will thenceforth reflect the current cumulative state of the statutory law in that jurisdiction. In many nations statutory law is distinguished from and subordinate to constitutional law . The term statute is also used to refer to an International treaty that establishes an institution , such as the Statute of the European Central Bank , a protocol to the international courts as well, such as

1584-483: 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 Bill of Rights Act

1632-460: 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

1680-433: 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. 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

1728-508: The exigencies of the moment. Eventually, persons trying to find the law are forced to sort through an enormous number of statutes enacted at various points in time to determine which portions are still in effect. The solution adopted in many countries is to organize existing statutory law in topical arrangements (or "codified" ) within publications called codes , then ensure that new statutes are consistently drafted so that they add, amend, repeal or move various code sections. In turn, in theory,

1776-492: The government's legal office, has accepted complaints of discrimination based on gender identity on the ground of sex for many years. However, the decision to interpret the prohibition of discrimination on the ground of sex to cover discrimination based on gender identity is easily reversed. But an important dimension of the exercise undertaken by the Commission in New Zealand was toward the empowerment of trans people, referencing

1824-437: The government, or in the form of a series of books whose content is limited to legislative acts. In either form, statutes are traditionally published in chronological order based on date of enactment. A universal problem encountered by lawmakers throughout human history is how to organize published statutes. Such publications have a habit of starting small but growing rapidly over time, as new statutes are enacted in response to

1872-402: The plaintiffs represented by leading human rights barrister Antony Shaw alleged that police officers had persisted in bad faith with the search of the late Mrs Baigent's house when they knew that her property had been mistakenly named in a search warrant issued for a drug dealers' house. The plaintiffs sued on the grounds the police breached section 21 of the Bill of Rights Act which provides for

1920-399: The right to be secure against unreasonable search and arrest. In the case, four out of five of the Court of Appeal's benches held that the fact that the Bill of Rights did not include a specific remedies section did not mean parliament did not intend to compensate for breaches of the Act, and that for the case the Bill of Rights had to be interpreted in light of New Zealand's obligations under

1968-565: 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. 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. In 1993, the Court of Appeal held in the Flickinger v Crown Colony of Hong Kong case that section 66 of

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2016-412: 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

2064-431: The rights contained in the Act has been breached. Despite this, the 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

2112-406: 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. 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

2160-659: The term constitution (i.e. the Spanish constitution of 1978). New Zealand Human Rights Act 1993 The Human Rights Act 1993 is an Act of the Parliament of New Zealand that deals with discrimination . It was a consolidation and amendment of the Race Relations Act 1971 and the Human Rights Commission Act 1977. It came into force on 1 February 1994. The Act governs the work of the New Zealand Human Rights Commission . The act outlawed discrimination on

2208-524: 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. In section 4 of the Act, it explicitly denies the Bill of Rights 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

2256-405: 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

2304-402: Was appealed to the Court of Appeal by the Attorney-General who 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 said that "inconsistency between statutes is a question of interpretation...and it lies within the province of the courts." Furthermore Speaker of

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