New Zealand Bill of Rights Act 1990: options for reform

In December 2013, the final report of the Constitutional Advisory Panel—New Zealand’s Constitution: A Report on a Conversation—was released. The panel recommended that the New Zealand Bill of Rights Act 1990 (NZBORA/the Act) be reviewed to explore ways of amending the Act to improve its effectiveness. More specifically, the panel suggested a review consider

• adding economic, social and cultural rights, property rights, and environmental rights
• improving compliance by the Executive and Parliament with the standards in the Act
• giving the judiciary powers to assess legislation for consistency with the Act
• entrenching all or part of the Act.

This paper discusses some of the options for reform—consistent with the first two considerations— that have been put forward by members of Parliament and select committees.

Additional rights

The New Zealand Bill of Rights Act 1990 aims to affirm, protect, and promote human rights and fundamental freedoms in New Zealand—and to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights (ICCPR). The Act does not, however, contain all the rights set out in the ICCPR. (It does not secure a general right to privacy, for instance.)

New Zealand ratified the ICCPR on 28 December 1978, the same day it ratified the International Covenant on Economic, Social and Cultural Rights. However, economic, social, and cultural rights are not generally recognised in NZBORA. In 1988 the Justice and Law Reform Committee released its final report on A Bill of Rights for New Zealand: A White Paper, a document which set out a draft New Zealand Bill of Rights and which had been tabled in Parliament three years earlier “to initiate public debate”. The Justice and Law Reform Committee suggested the following social and economic rights also be included in a bill of rights enacted as an ordinary statute: the right to an adequate standard of living; the right to work and to just and favourable conditions of work; the right to education; the right to own property and the right not to be deprived of private property for public use without just compensation; and the right to participate in the cultural life of the community. All but one of these rights—the right to property—are recognised by the International Covenant on Economic, Social and Cultural Rights.

The New Zealand Parliament has considered two members’ bills proposing that NZBORA be amended to include property rights: the New Zealand Bill of Rights (Property Rights) Amendment Bill 1997 sponsored by Owen Jennings MP; and the New Zealand Bill of Rights (Private Property Rights) Amendment Bill 2005 sponsored by Gordon Copeland MP. Neither bill passed its second reading.

Improving compliance by Parliament

The New Zealand Bill of Rights Act applies to acts of the legislature, the Executive, and the judiciary and those performing a public function, power, or duty. To facilitate scrutiny by the legislature, section 7 of NZBORA requires the Attorney-General to notify the House of Representatives of any provision in a bill that appears to be inconsistent with the rights and freedoms contained in the Bill of Rights. These rights and freedoms are not absolute but—as provided by section 5 of the Act—are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Generally, therefore, “section 7” reports are made when the Attorney-General considers that a bill infringes a right or freedom in a way that cannot be justified as a reasonable limit. In a paper presented to a seminar in March 2014, the Attorney-General the Hon Christopher Finlayson noted that 62 bills comprising 30 Government bills and 32 non-Government bills had been brought to the attention of the House under section 7 of the Act. Of these bills, 36 were enacted, 22 were not enacted (including one Government bill) and 4 bills were still before the House.

Parliament’s Standing Orders Committee has considered ways of improving Parliament’s cognisance of Bill of Rights matters during the legislative process. In 2014, following a review of standing orders, the committee considered that reports presented by the Attorney-General under section 7 of NZBORA should receive detailed consideration by being referred automatically to select committees. The House should provide mechanisms, it stated, “so that the decision as to whether a limitation of rights is demonstrably justified is taken as a conscious exercise of the collective political and moral judgment of members.” On 30 July 2014, the House adopted the committee’s proposed amendments to standing orders. Section 7 reports are now to be referred to the most appropriate select committee for consideration.

The Attorney-General’s duty under NZBORA to alert Parliament arises only on the introduction of a Government bill, or as soon as practicable after the introduction of other types of bill. However, bills may be amended significantly as they progress through the House—following consideration by a select committee, for instance, or by means of a supplementary order paper (SOP) or other amendment moved in a committee of the whole House. In 2003, the Standing Orders Committee rejected suggestions that Bill of Rights reporting be extended to amendments to bills. In 2014, the Standing Orders Committee noted that the publication of disclosure statements on some substantive Government amendments—which indicate whether advice had been provided to the Attorney-General about possible NZBORA inconsistencies—“reflected” a previous committee’s recommendation that Cabinet guidelines should require Bill of Rights reporting on substantive SOPs.

Selected sources

Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005).

Joss Opie “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990” (2012) 43 VUWLR 471.

Alex MacBean, Research Services Analyst