Hon Simon Power
Minister of Justice

11 November 2010

Speech to
Bill of Rights Act Symposium
Wellington

Good morning and thank you for inviting me to speak today.

I welcome all participants especially my parliamentary colleagues, members of the judiciary, and those from outside Wellington.

As Minister of Justice, I am delighted to be the opening speaker at this symposium celebrating 20 years since the enactment of the New Zealand Bill of Rights Act 1990.

It's fair to say that when the Bill of Rights Act was passed, many commentators in New Zealand and overseas considered it would be a paper tiger.

It was criticised for lacking constitutional authority – for being just an ordinary, unentrenched statute that did not give the judiciary the power to strike down inconsistent legislation.

During the debates on the bill, it was characterised as ‘toothless’, ‘watered-down’ and a ‘Claytons Bill of Rights’.

Twenty years on, I see the legacy of the Bill of Rights differently.

Primarily, that legacy has been about creating a dialogue about human rights and ensuring their consideration forms part of the debate on the policies of successive governments.

The Act sets the benchmark against which policy, conduct, and law are measured.

It directly informs the interpretation of primary legislation, influences the development of the common law, and is a control and restraint on the policy and practice of governments.

The Bill of Rights Act was enacted to affirm, protect, and promote human rights and fundamental freedoms in New Zealand.

The Act also affirms New Zealand’s commitment to the International Covenant on Civil and Political Rights on which the rights and freedoms it contains are based.

In March this year, I travelled to New York to present New Zealand’s Fifth Period Report under that covenant to the Human Rights Committee.

The presentation provided an opportunity for the committee to engage with New Zealand representatives about the protection of civil and political rights in this country.

The committee took a keen interest in the place of the Bill of Rights Act in New Zealand law.

First, the committee expressed concern that the Bill of Rights Act does not include all covenants.

Though it's true that certain covenant rights are not directly reflected in the Act, those rights are given effect by other legislation and by common law.

For example, the rights in article 17 of the covenant against arbitrary or unlawful interference with privacy, family, home, or correspondence have no clear corollary in the Bill of Rights Act.

Nonetheless, the Privacy Act 1993, together with the common law tort of privacy, provides for rights of personal privacy.

These legislative provisions are complemented by the well-established principle of New Zealand law that, wherever possible, legislation is to be interpreted consistently with the covenant and other international human rights obligations.

But, despite this, it would be naïve to think that the range of rights and freedoms contained in the Bill of Rights Act would not benefit from a re-think.

The 20th anniversary of the Act provides an opportunity for us to start this discussion.
For instance, one right often discussed is the right not to be arbitrarily deprived of property.

The importance of property to human well-being has been recognised in a variety of international human rights treaties and national constitutions.

In particular, article 17 of the Universal Declaration of Human Rights affirms the right to own property and not to be arbitrarily deprived of that property.

It's often argued that the right not to be arbitrarily deprived of property is the basis on which all other human rights are enjoyed.

Recognising a right not to be arbitrarily deprived of property is an important restraint on State power.

It provides assurance to property holders that their property will be respected, and they will be deprived of it only after the payment of just compensation

There are also economic benefits associated with the protection of property rights.

A secure right to property gives people the confidence to invest in and look after that property, knowing they will enjoy the benefits of that hard work

The requirement to pay compensation ensures that no individual or group is forced to bear a disproportionately large share of the costs of a government programme.

Property rights in New Zealand are protected to an extent under the common law and certain Acts, such as the Public Works Act and the Resource Management Act.

However, a Member’s Bill in 2005 in the name of Gordon Copeland – the New Zealand Bill of Rights (Right to Property) Amendment Bill – highlighted public support for greater protection of property rights.

I expect the public dialogue on this issue to continue.

It's prudent to discuss on this anniversary whether the existing rights and freedoms contained in the Bill of Rights Act are appropriately framed.

One of those rights is the right to trial by jury.

The Bill of Rights Act gives accused people the benefit of a trial by jury where the possible punishment for the offence is imprisonment of three or more months.

The three-month threshold is considerably lower than that found in other jurisdictions where the right is protected.

For instance, in Canada the threshold is five years' imprisonment.

The interesting thing here is that the three-month threshold does not seem to be based on a concern for fundamental rights – it was the threshold set in the law at the time the Bill of Rights Act was enacted and was simply duplicated in that Act.

It's my intention to have Parliament re-consider the threshold at which jury trials are available, to align the threshold with comparable jurisdictions and to place it at a level that recognises that jury trials should be available only for more serious offences.

I look forward to engaging with my parliamentary colleagues, the legal community, and members of the public about this proposal as the bill progresses through the House.

The second matter the UN Human Rights Committee raised with respect to the Bill of Rights Act was that the Act does not take precedence over ordinary law.

It's fair to say that New Zealand's unique constitutional arrangements caused some consternation for the committee.
We have no written constitution and no supreme Bill of Rights, yet our record on human rights is among the best in the world.

The Act leaves it to Parliament, rather than the judiciary, to determine whether legislation limits a particular right or freedom and whether that limit is justified.

That does not mean the Bill of Rights Act has not made a substantial difference to law-making in the past 20 years.

In fact it's quite the reverse, and it does it in two key ways.

First, in the case of existing legislation, section 6 of the Act enables the courts to prefer rights-consistent interpretations where that is available.

And secondly, section 7 ensures that possible inconsistencies in proposed legislation are brought to the attention of Parliament.

Section 7 was not included in the draft Bill of Rights appended to the 1985 White Paper – it was added as a safeguard to counteract the fact that the Bill of Rights would not be supreme law.

The idea was that, if Parliament decided to limit fundamental rights and freedoms, then it must be fully informed about what it was doing.

Since New Zealand enacted the Bill of Rights Act other countries have looked to us as a model for pre-enactment scrutiny.

Examples of this can be found in the UK Human Rights Act, the Charter of Human Rights and Responsibilities Act in Victoria, Australia, and the Australian Capital Territory’s Human Rights Act 2004.

The Federal Government of Australia also introduced legislation into the Parliament this past June which would require that each new piece of legislation be accompanied with a statement of compatibility with human rights obligations

Third, and finally, the UN Human Rights Committee also expressed concern that legislation is enacted notwithstanding a report from the Attorney-General that it's inconsistent with the Bill of Rights Act.

The committee was interested to know the outcome of reports under section 7 and so was I.

You might be surprised to know that there have been 57 section 7 reports since 1990.

Of those, six bills are currently before the House.

Of the remaining 51:

• 21 have been withdrawn or defeated outright.
• 10 have been amended to address the inconsistency.

• 20 have been enacted unchanged.

Of the 20 that have been enacted unchanged, only one was a non-Government bill

This likely reflects the fact that Government bills have already been subject to pre-introduction scrutiny – and that the Government has already decided that the legislation is necessary and is prepared to defend it in the House

I have no doubt that this system could be improved.

A common topic of debate is whether changes made after a bill is introduced should be formally scrutinised for consistency with the Bill of Rights Act.

It's important to consider, however, whether the value of post-introduction scrutiny would outweigh the potential it has to delay the legislative process and so increase costs.

And it's necessary to acknowledge that possible inconsistencies can already be identified in a number of ways after a bill is introduced.

For example, select committee members don't wait to be told there is a problem.

From time to time, they ask the Attorney-General to make officials available to provide advice on the provisions of a bill as introduced or any proposed changes.

This occurred most recently in 2007 during consideration of the Wanganui District Council (Prohibition of Gang Insignia) Bill, and amendments were made by the select committee to that bill to address Bill of Rights concerns.

Legal advice is also available from the Office of the Clerk, and submitters will often express an opinion as to the consistency of a bill with fundamental rights.

We can spend an infinite amount of resources chasing that last possible inconsistency.

Ultimately, one of the greatest resources already available is public dialogue.

An example of that public dialogue in action can be seen in the Electoral Finance Act.

The Electoral Finance Bill back in 2007 was not subject to a report under section 7.

That resulted in court action in which the Court of Appeal found that the decision to issue a report was a matter for the Attorney-General and the courts would not interfere.

Ultimately, the New Zealand public did not consider that the limitations the Act placed on freedom of expression were justified.

This Government was elected with a strong mandate to repeal that Act and replace it with something that reflected the consensus necessary for electoral law to be legitimate and enduring.

That process is under way.

There is also a dialogue in the broader sense about the place of the Bill of Rights Act in our law and constitution.

It's a constantly evolving situation.

Over time, we may change our views about the relationship of the Act to other legislation, which additional rights need protection, entrenchment, and the role of the courts.

What will not change is our commitment to fundamental human rights and the rule of law.

Twenty years ago, the Bill of Rights Act was not universally accepted as a necessary step forward.

Now it is inconceivable that we would make do without such a document.

Its influence is pervasive and positive.

I believe it's something that we can continue to refine, and I believe I have identified some of those areas today.

I look forward to the developments that the next 20 years will bring.

Thank you.

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