Bill of Rights Act 1990

Question 1

what do it mean when we say BoRA is a minimalist rights regime?

Answer 1

The drafters were process theorists and avoided the inclusion of extensive substantive rights reasoning that the content and protection of substantive rights is properly found in responsible and representative government, i.e. substantive rights are best left to politics and the judiciary should protect those minimum standards for the participation in politics and government (i.e. procedural rights)

Question 2

What is the reason why process theorists prevailed in the construction of BoRA

Answer 2

in the political context of the late 80s the government was manouvering to appease two opposing forces - those that were arguing for a maximalist regime and those that were against having a rights regime on the argument that it was already protected by the common law. This approach was the best of both worlds

Question 3

What did Paul Rishworth mean by BoRA being a Bill of reasonable rights?

Answer 3

Not every right is in need of codification because under NZ’s unwritten constitution rights protection takes place across different statutory regimes. For example the substantive right to education is protected in s33 of the Education and training Act 2020

Question 4

What is the difference between a procedural right and a substantive right?

Answer 4

Procedural rights are the rights necessary to secure participation in the democratic and political process, for example the right to vote, the right to stand as a candidate for election, right to access the courts etc

Substantive rights are those rights that guarantee a material threshold or outcomes for example, the right to housing, the right to education, the right to work etc

Question 5

How does a positive right differ from a negative right and why is that important?

Answer 5

A example of a negative right is s 8 which provides that everyone has the right “not to be deprived of life”

An example of a positive right is article 11 of the South African constitution which provides that everyone has a “right to life”

The difference in language is an important demonstration of substantive rights and can be interpreted differently. For example South African jurisprudence on article 11 implies a series of standards included in the right such as the right to adequate housing, dignified work etc. The negative framing acts as a controlling mechanism

Question 6

What does section 3 of BoRA say?

Answer 6

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 or pursuant to law

Question 7

What is the function of s 3

Answer 7

it is a gateway provision to determine who the act applies to and whether the circumstances is one is which BoRA should apply to the act or omission

Question 8

What is the test to determine whether section 3(b) applies?

Answer 8

The Ransfield Test from Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC). Justice Randerson delivering the judgement

Question 9

What does the Ransfield test involve?

Answer 9

Looking at:
(1) was the act or ommission in the performance of a function, power or duty by any person or body?
(2) was it conferred or imposed on that person pursuant to law?
(3) was it public?

Question 10

What is the test for publicness under the third arm of the Ransfield test?

Answer 10

Involves looking at the following indicia
(1) whether the entity concerned is publicly or privately owned and exists for making a profit
(2) whether the source of the function, power or duty is statutory
(3) the extent and nature of any government control of the entity (which involves looking at the statutory scheme)
(4) whether and to what extent the entity is publicly funded in respect of the function in question
(5) whether the entity is effectively standing in the shoes of the government when exercising that function
(6) whether the function is being exercised in the broader public interest as opposed to being merely of benefit to the public
(7) whether coercive powers analogous to those of the state are conferred
(8) whether the entity is exercising function, powers, duties which affect the rights, powers, privileges, immunities, duties or liabilities of any person
(9) whether the entity is exercising extensive or monopolistic powers
(10) whether the entity is democratically accountable through the ballot box or in other ways

Question 11

What is an important note about the indicia?

Answer 11

Per Justice France in Malcom Bruce Moncrieff-Spittle v Regional Facilities Auckland Limited [2022] NZSC 138 - the indicia do not constitute a mechanical checklist and the application of section 3(b) will depend on an overall assessment i.e. a balancing exercise

Question 12

What does section 4 of BoRA say?

Answer 12

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

Question 13

What does section 4 of BoRA do?

Answer 13

Mandates the court to apply the legislation because the court cannot strike down legislation even if the court cannot find a way to repeal, revoke or stretch the legislation in the most BoRA consistent manner

Question 14

What does section 5 of BoRA say?

Answer 14

Justified Limitations
Subject to section4 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

Question 15

What does section 5 of BoRA do?

Answer 15

The rights and freedoms affirmed in the BoRA are subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

Question 16

What does section 6 of BoRA say?

Answer 16

Interpretation consistent with the BoRA preferred
wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning

Question 17

What does section 6 of BoRA do?

Answer 17

Requires the courts when interpreting statutes to prefer meanings that are consistent with the rights and freedoms affirmed by BoRA to meanings that are inconsistent

Question 18

What was the Hansen Case about?

Answer 18

R v Hansen [2007] NZSC 7
Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Hansen was convicted of posession with intent to supply cannabis under 6(6) of the Misuse of Drugs Act 1975

Question 19

What did section 6(6) of the Misuse of Drugs Act provide for?

Answer 19

if a defendant is found in possession of more than 28g of cannabis then until the contrary is proved by the defendant, they they are presumed to be in possession of that amount with the intention of supplying it

It is a reverse onus provision that requires the defendant to prove that they did not intend to supply and sell the cannabis

Question 20

What did Hansen argue about this section?

Answer 20

He challenged the conviction on the basis that the provision was inconsistent with the rights under section 25(c) of the Bill of rights act which provides that everyone who is charged with an offence has the minimum right of being presumed innocent until proven guilty

Question 21

What did the judgement focus on in Hansen?

Answer 21

per McGrath J - “argument requires this court to apply s 6 of the Bill of rights act in ascertaining the meaning of the provision in the 1975 act. That in turn requires that we consider the meaning of s 6 and its relationship with sections 4 and 5 and the manner in which these provisions are to be applied”

Question 22

What was the test handed down by the majority in Hansen?

Answer 22

(1) the court determines that an enactment is inconsistent with one or more rights contained in BoRA
(2) the court then assesses whether that limitation is demonstrably justified in a free and democratic society per the requirements of section 5 of BoRA
(3) Assuming the limitation under s 5 is not justified then the court looks to the availability of a rights consistent meaning as required under section 6
(4) if there is no rights consistent meaning then the court identifies that the enactment is inconsistent but it is obliged to uphold it under section 4 (the provision of last resort)

Question 23

What was the overall finding of the court in Hansen?

Answer 23

the reverse onus provision was not only in breach of section 25(c) of BoRA but moreover could not be justified in terms of s 5 of BoRA.

However although the wording of section 6(6) was not a justified limit on the rights guaranteed in BoRA, the court held that the provision could not be read down to avoid this breach. The provision clearly imposed on an accused a legal onus of proof on the balance of probabilities

Question 24

What was the dissenting opinion of Elias CJ in Hansen?

Answer 24

The courts should only engage with s4 and s 6 in its enquiry. She was opposed to engaging s 5 for two reasons
(1) reading s 5 into s 6 would mean consistency with rights reasonably limited by law which was inconsistent with the overall purpose of BoRA which was to promote and affirm fundamental rights
(2) per Canadian juriprudence (s 5 being modelled after s 1 of the canadian charter of rights and freedoms) the question of justifiability is an analytically distinct question from the interpretation of the right. the question of justified limitations is a distinct and later enquiry