INTRODUCTION PART 1

IS THE LEGISLATION CONSISTENT WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990?
4.1.1 Outline of issue
4.1.2 Comment
4.1.3 Guidelines

IS THE LEGISLATION CONSISTENT WITH THE HUMAN RIGHTS ACT 1993?
4.2.1 Outline of issue
4.2.2 Comment: Part 1A of the Human Rights Act: Government and public sector activity: The Bill of Rights Act non-discrimination standard
4.2.3 Guidelines

Background

The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) affirms a range of civil and political rights. It embodies New Zealand's commitment to the International Covenant on Civil and Political Rights.

The Bill of Rights Act applies to acts done by the three branches of Government, as well as by any person performing a public function, power or duty conferred by law.[90] These acts can include legislation, policies, practices and service delivery. As far as is possible the rights contained within the Bill of Rights Act apply to all legal persons. The Bill of Rights Act is not supreme law and cannot be used to override, or implicitly repeal or revoke, other legislation. However, section 6 of the Act requires legislation to be interpreted and applied in a manner consistent with the Bill of Rights Act where possible.

The Bill of Rights Act also contains a mechanism for alerting Parliament to inconsistencies with the Bill of Rights Act in draft legislation. Section 7 requires the Attorney-General to report to the House of Representatives on any provision of any bill introduced to the House that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights Act. However, section 5 of the Act accepts that the rights and freedoms contained within the Bill of Rights Act can be subject to reasonable and justified limitations.

The Human Rights Act 1993 (Human Rights Act) is an anti-discrimination statute that provides that discrimination against particular groups or individuals is unlawful if it occurs in certain areas of activity. The Human Rights Act applies (in different ways) to discrimination in both the government and public sector, and in the private, non-government sector. For the private sector, it contains a number of specific exemptions relating to particular types of behaviour.

All submissions for Cabinet Committees, prepared by government departments on policy and legislation, from May 2003, are required to include a statement of the proposal's compliance or non-compliance with both the Bill of Rights Act and the Human Rights Act.

Issues

The following issues are discussed in this Chapter:

Part 1: Is the legislation consistent with the New Zealand Bill of Rights Act 1990?

Part 2: Is the legislation consistent with the Human Rights Act 1993?

There are six main groups of rights and freedoms contained within the Bill of Rights Act.[91] These relate to:

• life and security of the person;
• democratic and civil rights;
• non-discrimination and minority rights;
• search, arrest and detention rights;
• criminal procedure rights; and
• rights to justice.

In addition to the compliance statements required in all submissions to Cabinet Committees, the Ministry of Justice, (and the Crown Law Office, in the case of bills in the name of the Minister of Justice or an Associate Minister of Justice), have developed procedures for checking that proposed legislation is consistent with the Bill of Rights Act, in order to advise the Attorney-General. This process is referred to as Bill of Rights Act vetting and is usually undertaken in consultation with the department sponsoring the legislation (and Parliamentary Counsel). Following consultation, the Attorney-General is advised whether the legislation[92] is consistent or inconsistent with the Bill of Rights Act. This advice will usually include information about any inconsistency that is considered to be justified in terms of section 5 of the Bill of Rights Act. If the legislation remains inconsistent, the Attorney-General will be advised accordingly and, in the ordinary course, on her or his instructions a report will be prepared for the purposes of section 7.

Legislation is vetted for compliance with the Bill of Rights Act in two separate stages. The first stage is to assess the provisions of the legislation for compliance with the rights and freedoms within the Bill of Rights Act. This involves:

• determining the likely interpretation and application of the apparently inconsistent provision;
• ascertaining the scope of the right apparently breached; and
• assessing the provision in light of the right itself to ascertain whether the provision in fact breaches the right.

If there is an inconsistency, the second stage is to ask: is this a "reasonable limit ... demonstrably justified in a free and democratic society" as required under section 5 of the Bill of Rights Act. In essence, the inquiry under section 5 is twofold.[93]

• First, does the limit have a significant and important objective? - the limitation should serve a significant and important function to warrant overriding a constitutionally protected right.
• Secondly, is the limit rational and proportional? - there should be a rational and proportionate connection between the law limiting the right and the reason for the limitation. The measures adopted should impair the right as little as possible.

Where the provision is inconsistent and is not a reasonable and justified limitation, a section 7 report is prepared.

Section 7 reports are "... designed to alert [Members of Parliament] to legislation which might give rise to an inconsistency and accordingly enable them to debate the proposals on that basis." These reports are prepared by the Ministry of Justice for all legislation, except for bills in the name of the Minister of Justice or an Associate Minister of Justice, in which case the reports are prepared by the Crown Law Office. The reports are tabled in the House by the Attorney-General upon the legislation's introduction. Once tabled, the reports are public documents and are published in the Appendices to the Journals of the House of Representatives.

In broad terms, the rights and freedoms contained in the Bill of Rights Act are as follows.[94]

Life and security of the person: These are the most basic of rights to be enjoyed by members of civilised societies: the right not to be deprived of life, not to be subjected to torture or cruel treatment, not to be subjected to medical experimentation and the right to refuse medical treatment.

Democratic and civil rights: The democratic system is based on the recognition of these inherent rights: the rights to freedom of expression (including the freedom not to say anything), peaceful assembly, association, thought, conscience and religious belief, movement, the right to practice ones' religion or beliefs and the right to vote and be a candidate for Parliament.

Non-discrimination and minority rights: The Bill of Rights Act includes a provision that affirms the right to be free from discrimination on the same grounds as are contained in section 21 of the Human Rights Act 1993. Minorities also have the right to profess and practise their religions and use their languages.

Search, arrest and detention rights: Everyone has the right not to be subjected to unreasonable search and seizure. There is also a right to be free from arbitrary detention. People who are arrested or detained have the right to a number of protections including, for example, the right to be told of the reason for their arrest and to consult and instruct a lawyer.

Criminal Procedure Rights: Everyone charged with an offence has the right to the minimum standard of criminal justice, including rights to:

• be tried without undue delay;
• not to be forced to be a witness or confess guilt;
• a fair trial and to attend his or her own trial;
• be presumed innocent until proved guilty according to law;
• present a defence and cross examine; and
• appeal.

People also have the right not to be liable for anything that was not an offence at the time it occurred, the "non-retroactivity principle". The common law principle of "double jeopardy" is also in the Bill of Rights Act, meaning that once convicted, pardoned or acquitted a person may not be tried or punished for the same offence again.

Rights to justice: If a person's rights may be affected by a decision of a tribunal or public authority, they have the right to the observance of the principles of natural justice in that process and to apply for judicial review of the decision. People also have the right to bring civil proceedings against, and defend proceedings brought by, the Crown in the same way as they may bring civil proceedings against individuals.

Stage One: Consistency with the rights and freedoms in the Bill of Rights Act

When developing policy, it is necessary to have a clear idea of the proposal the policy is seeking to achieve. Once the proposal is clear, it must be considered in light of the rights and freedoms contained within the Bill of Rights Act. Is the proposal consistent with these rights and freedoms? If the proposal is consistent, it is essential that any subsequent legislation produced also remains consistent. However, if the proposal is in some way inconsistent with the rights and freedoms in the Bill of Rights Act, officials should seek further guidance.

When developing policy, officials should consider the different legislative options available to achieve their proposal. Generally there will be a number of ways in which a provision can be worded with the same proposal in mind. It is necessary to choose the formulation that both achieves the objective of the legislation and is most consistent with the Bill of Rights Act.

For example, legislative proposals for an inspection regime may be either consistent or inconsistent with the right to be secure against unreasonable search and seizure, as provided by section 21 of the Bill of Rights Act. Consistency with section 21 will largely depend upon how the scheme is translated into legislation, the need and purpose for the regime, and whether there are sufficient thresholds and safeguards included (such as the requirement for search warrants before entry into private dwelling houses and whether the use of force is allowed).

It is clear that Parliament intends legislation to be consistent with the Bill of Rights Act where possible. (This is particularly evident in sections 6 and 7.) However, the Bill of Rights Act does not override inconsistent legislation, because of section 4. In some instances Parliament has enacted legislation even though the Attorney-General has drawn to its attention that to do so would be inconsistent with the Bill of Rights Act.

Section 5 of the Bill of Rights Act states that the rights and freedoms in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The effect of this section is that a legislative provision may be consistent with the Bill of Rights Act even where it limits a right or freedom affirmed by the Bill of Rights Act, if the limitation is justified in a free and democratic society.

Therefore, once it is established that the proposal sought is itself inconsistent with a right or freedom affirmed by the Bill of Rights Act, it should be determined whether the resulting legislation may be a "justified limitation" under section 5. It is for the agency sponsoring the policy and legislation to provide the information necessary to "demonstrably justify" such a limit - in other words, the Crown bears the onus of providing sufficient evidence to satisfy this inquiry.

Stage Two: Reasonable limits justifiable under section 5 of the Bill of Rights Act

In its decisions in Ministry of Transport v Noort and Moonen v Film and Literature Board of Review[95] the Court of Appeal has set out a process for inquiring whether a limit imposed on a right affirmed by the Bill of Rights Act is "justified" in terms of section 5. This process is similar to the inquiry established by the Canadian Supreme Court in R v Oakes.[96]

In Moonen, Justice Tipping set out the process in the following way:

[First] ... identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective.... The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective.

Essentially, the Moonen inquiry has two components that legislation should satisfy before it can be said to be a "justified limitation" in terms of section 5 of the Bill of Rights Act:

• Identification and assessment of the objective of the limit - The objective behind a limitation on a right should be "important" and "significant" enough to warrant the limitation of the protected right.
• Identification and assessment of the rational and proportionate connection between the objective and the limit - An inconsistent provision should be proportionate to the objective of the provision. In essence, this means that the provision should impair the right as little as possible.[97] As the Court noted in Moonen, a sledge hammer should not be used to crack a nut. The inconsistent provision should also be rationally linked to its objective, such that it is justifiable in light of the objective. A wide variety of evidence is able to be considered under the Moonen inquiry, including empirical evidence and research. The Court of Appeal has held that social, legal, moral, economic, administrative, ethical and other considerations may be relevant to the inquiry under section 5.

Regulations

The Bill of Rights Act also affects regulations. While section 7 of the Bill of Rights Act does not require the Attorney-General to report to Parliament on the consistency of regulations,[98] the Cabinet Office requires papers that accompany all proposed regulations to the Cabinet Legislation Committee to state the compliance or otherwise of the proposed regulations with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. This paper for the Cabinet Committee must also note any Parliamentary Counsel certification reservations, which can include Bill of Rights Act and Human Rights Act compliance issues.

Further, section 6 of the Bill of Rights Act requires that regulations be given a meaning that is consistent with the rights and freedoms affirmed by the Bill of Rights Act, where that is possible.

Section 6 also requires that regulation-making powers be interpreted consistently with the Bill of Rights Act, where possible. If a regulation-making power can be given a meaning consistent with the Bill of Rights Act, then regulations made under that Act that are inconsistent with the Bill of Rights Act can be considered ultra vires and struck down.[99] This striking down would be done because the inconsistent regulation was outside the scope of the regulation-making power, rather than because it was inconsistent with the Bill of Rights Act.[100]

See the diagram on the next page. When developing a policy, officials should first look to the proposal and decide whether it is consistent with the rights and freedoms affirmed by the Bill of Rights Act. If the policy or proposal is consistent, the proposed legislation should be developed in such a way as to ensure it is also consistent. If a provision is inconsistent with a right or freedom affirmed by the Bill of Rights Act, it should meet the requirements of the inquiry under Moonen to qualify as a justified limitation under section 5. If a provision satisfies the Moonen inquiry, the Ministry of Justice (or the Crown Law Office for Justice bills) will advise the Attorney-General that the provision is a justified limitation under section 5 and is therefore consistent with the Bill of Rights Act. The Ministry (or Crown Law Office) will therefore recommend that there should be no section 7 report produced.

The Human Rights Act deals with discrimination. This can be discrimination occurring in the government and public sector, and in the private, non-government sector.

There is no statutory obligation for legislation to comply with the Human Rights Act. However, the Government has made undertakings that all legislation and government policies, practices and regulations are to comply with the Act. As mentioned previously, all submissions on policy and legislation made to Cabinet Committees must indicate whether the proposals are consistent with both the Human Rights Act and the Bill of Rights Act and, if not, how any inconsistency may be addressed.

Under the Human Rights Act, for policies and/or legislation to give rise to discrimination it must, as a first step, differentiate between people on the basis of a personal characteristic that is a prohibited ground of discrimination. There are 13 grounds on which discrimination is prohibited, which are set out in section 21 of the Human Rights Act:[101]

• religious belief
• ethical belief
• colour
• race
• sex (which includes pregnancy and child birth)
• marital status
• political opinion
• employment status
• family status
• disability
• sexual orientation
• ethnic or national origins (which includes nationality and citizenship)
• age (which means any age commencing at 16 years).

Once this distinction on the basis of a personal characteristic has been identified, the Human Rights Act then deals with it in two different ways, depending upon whether the possible discrimination arises as a result of:

• government activity (where Part 1A of the Human Rights Act applies); or
• non-government activity (where Part II of the Human Rights Act applies).

Part 1A of the Human Rights Act applies to any discrimination in the majority of government and public sector activities. The only exceptions are discrimination in Government and public sector actions in respect of employment matters, racial disharmony, sexual harassment, racial harassment and victimisation. These exceptions are covered by Part II of the Human Rights Act, in recognition that for these (mostly employment-related) situations, there should be no difference between the legal obligations imposed on the private and public sectors.

Part 1A of the Human Rights Act imports into that Act the non-discrimination standard from the Bill of Rights Act, and applies that standard to most government and public sector activities. In effect, this standard means that under Part 1A an activity by a person or body in the government and public sector will be examined for consistency with sections 19 and 5 of the Bill of Rights Act. In other words, a public sector activity will be in breach of Part 1A of the Human Rights Act if it is inconsistent with section 19 of the Bill of Rights Act and cannot be demonstrably justified under section 5 of that Act.

Section 19 of the Bill of Rights Act - Imported into Part 1A of the Human Rights Act

Section 19(1) of the Bill of Rights Act provides that everyone has the right to be free from discrimination on the grounds set out in section 21 of the Human Rights Act. Section 19 of the Bill of Rights Act does not define "discrimination". However, the leading decisions of the New Zealand and Canadian courts on the meaning of "discrimination"[102] indicate that the key questions in assessing discrimination under our Bill of Rights Act are:

1. Is there a distinction based on one of the prohibited grounds of discrimination?
2. Does this distinction involve disadvantage to the person or group?

Discrimination identified under section 19 of the Bill of Rights Act is treated the same whether it arises directly or indirectly. (Direct discrimination arises when a decision is based on a personal characteristic, such as refusing to rent property to people who are not married. Indirect discrimination arises when an apparently neutral decision has a negative effect on a particular group of the population, for example height restrictions, which apply equally to all, may indirectly discriminate against women and Asians, as these groups tend to be shorter than European males of average height. A further example of indirect discrimination, this time on the basis of sexual orientation, arises where certain benefits are granted to married couples which will not be available to same-sex couples, as they are unable to marry.)

If a proposal is inconsistent with section 19, the next step is to consider whether the discrimination is justifiable under section 5 of the Bill of Rights Act.

Section 5 of the Bill of Rights Act - Imported into Part 1A of the Human Rights Act

Section 5 of the Bill of Rights Act provides that section 19 can be subjected to reasonable limits, provided these limits are prescribed by law and can be demonstrably justified in a free and democratic society. The inquiry to apply under section 5 of the Bill of Rights Act is set out above, under the heading "4.1.2 Comment: Stage Two: Reasonable limits justifiable under section 5 of the Bill of Rights Act".

The Bill of Rights Act non-discrimination standard, which has been read into Part 1A of the Human Rights Act, means that in practice if the Government and public sector seeks to limit the right to freedom from discrimination by differentiating on the basis of certain personal characteristics, then it will need to provide strong justifications for that discrimination. As outlined in paragraph 4.1.2 above, a wide variety of justificatory evidence is able to be considered.

The Bill of Rights Act non-discrimination standard requires the Government and public sector to justify its actions and demonstrate that it has discriminated as little as possible in order to achieve its objectives. This accords with basic principles that government decisions should be fair, reasonable, and more open to public scrutiny than decisions taken in the private sector.

Part II of the Human Rights Act 1993 applies to any discrimination in private, non-government activities which occurs in the following specified areas of public life:

• provision of goods, facilities and services
• employment
• access to public places, vehicles or facilities
• education, vocational training, qualifying bodies
• accommodation, land, housing.

Part II also applies to discrimination in government and public sector activities in the areas of employment, racial or sexual harassment, racial disharmony and victimisation.

As with Part 1A, Part II of the Human Rights Act 1993 does not define "discrimination". The first step in identifying discrimination is where a distinction is made on the basis of one of the prohibited grounds set out in section 21 of the Human Rights Act, in one of the specified areas, and it leads to disadvantage.

Part II of the Human Rights Act recognises disadvantage in two different ways - actual and assumed disadvantage. For most areas covered by Part II of the Act actual disadvantage must be established. For example, in a number of areas a complainant must show that a particular action subjected them to "less favourable treatment". However, in some areas covered by Part II, there is an assumption that some behaviour always leads to disadvantage. For example, section 22(1)(a) of the Act assumes that refusal to employ a qualified person on the basis of a prohibited ground will, in every case, disadvantage that person. This assumption is also apparent in section 44(1)(a) of the Act, relating to the refusal to provide goods and services on the basis of one of the prohibited grounds. Therefore, once you have established that your legislation or policy differentiates on a prohibited ground in an area covered by the Act, it is necessary to check Part II of the Human Rights Act to determine whether disadvantage must be established or whether it is assumed.

Part II of the Human Rights Act 1993 prohibits both direct and indirect discrimination, but (unlike Part 1A) it deals with direct and indirect discrimination differently. Part II applies to discrimination that arises directly, while section 65 of the Act applies specifically to discrimination arising indirectly (see the further discussion of section 65 below).

Exceptions and justifications

Once it is established that the legislation or policy amounts to discrimination in terms of Part II of the Human Rights Act, the next step is to determine whether that discrimination is lawful or unlawful.

Part II of the Act provides a number of exceptions and justifications which, once satisfied, legitimise (make lawful) otherwise "discriminatory" (and unlawful) behaviour. Courts have tended to give human rights legislation a broad interpretation, recognising the importance of human rights. For the same reason, courts tend to apply exceptions to the basic human rights principles restrictively. This should be considered when formulating policy and legislation.

These exceptions and justifications are as follows:

• Specific exceptions - these cover a range of situations including: preferential schemes for certain groups, matters of national security, citizenship, public safety considerations and areas where to provide for the disabled would require the taking of unreasonable measures.
• General exceptions - for example, "measures to ensure equality" and the exception for genuine occupational qualification or genuine justification.

There is also an exception built in to the definition of "indirect discrimination". Indirect discrimination will not be unlawful if there is a "good reason" for it. "Good reason" is not defined in the Act and is considered on a case by case basis. New Zealand courts have so far followed a test set down by the European Court in Bilka Kaufhause GmbH v Weber von Hartz [1987] ICR 110 which involves answering 3 questions:

• Does the policy meet a genuine need of the enterprise?
• Is the policy suitable for attaining the objective pursued by the enterprise?
• Is the policy necessary for that purpose?

It is important to remember that, because of the nature of human rights legislation, any "good reason" presented to the court would be rigorously examined.

See the diagrams of Parts 1A and II of the Human Rights Act on the next two pages. The diagrams set out broadly the process for considering whether a government or private activity raises an issue of discrimination.