Introduction to the Guidelines

The New Zealand Bill of Rights Act 1990 [1] affirms New Zealand's
obligations under the International Convention on Civil and Political Rights.
It also emphasises New Zealand's formal commitment to fundamental civil
and political rights.

What is the purpose of these guidelines?

These guidelines are intended to make the Bill of Rights Act more accessible
to the public sector.

Since its enactment, New Zealand courts have had to consider how the Bill of
Rights Act impacts on their role and on the functions of those agencies
subject to it. The courts have now provided a considerable amount of caselaw
on the Bill of Rights Act that we can use in the development of policies,
conduct of operational practices, and in service delivery. Our purpose in
publishing these guidelines is to bring this information to you in one easy-to-
use resource.

The guidelines are not intended to be a legal text on the Bill of Rights Act.
Rather, they are a practical resource to assist you in the process of integrating
human rights considerations into the development of your policy or practice.
They will help you:

 identify whether your organisation's existing and proposed legislation,

policies and practices may comply with the Bill of Rights Act;
 explore ways in which you can reach or improve your policy goals
while still complying with the Bill of Rights Act and human rights
principles;
 improve your level of awareness of the Bill of Rights Act and what
compliance with the Bill of Rights Act involves;
 identify areas of potential legal risk for your organisation.

The appendices to the guidelines contain a number of tools that can help you
with this.

As the guidelines give general guidance only, they cannot provide a

definitive view on whether your organisation's legislation, policies, or
practices are consistent with the Bill of Rights Act. If you have concerns
about whether the specific policy you are working on is consistent, you
should obtain advice from your legal section before contacting the Ministry
of Justice.

Who are these guidelines for?

These guidelines are written primarily for:

 policy and legal advisers;

 public sector managers and staff;
 advisers who service Cabinet, Cabinet Committees, Officials'
Committees, and Select Committees.

As the Bill of Rights Act applies to acts performed by a wide range of

agencies, individuals, and organisations, we hope these guidelines will help
shape the policies and practices of the wider public sector including:

 Crown entities;
 local government;
 private bodies performing public functions under contract (for
example, health screening, or security tasks).

Structure of the guidelines

As you move through these guidelines you will see cross-references to other
sections of the Bill of Rights Act. These will help you move through the
guidelines more easily, and find all the information you require.

The guidelines are organised into the following sections:

Part I will take you through a number of preliminary aspects of the Bill of
Rights Act focusing on the coverage of the Bill of Rights Act and its
relevance to public sector policy advisers and legal advisers.

Part II briefly discusses how to apply the Bill of Rights Act. This part
includes a discussion on how to determine whether a limitation on a right is
reasonable.

Part III contains the substantive discussion on each of the individual rights
and freedoms found in section 8 through section 27(3) of the Bill of Rights
Act. Part III also contains a discussion on applying limits to individual rights
and freedoms. Each section of the discussion on the individual rights and
freedoms is broken down as follows:

Policy triggers: do I need to consider section -- ?

This section is intended to alert you to the possibility that your policy or
practice may infringe on a particular right or freedom. The triggers are not
necessarily indicative of whether the policy infringes the right.

What every policy adviser needs to know about section --

This section gives a brief run-down on the scope of the right or freedom.

Measures to improve compliance

This section sets out options to guide you in the development of policies and
practices which will be consistent with the right or freedom.

Related rights and freedoms and freedoms

This section alerts you to other potential areas of inconsistency with other
provisions of the Bill of Rights Act that you might need to consider.

Further discussion on the meaning of section --

Each right and freedom is then discussed in some depth with the commentary
focusing mainly on New Zealand caselaw. The commentary may include
some discussion of developments overseas and internationally so that we can
paint a "fuller picture" of the scope of the right.

Key cases

The key cases that have discussed the right or freedom, in New Zealand and
other jurisdictions, are listed for further reference.

History of the section

The final part of the section provides an overview of the origins of the right,
including the proposal in the White Paper, and how the right compares with
the ICCPR and other constitutional models.

Part IV of the guidelines discusses the implications of, and the remedies
available for, a breach of the Bill of Rights.
The Appendices include practical information, such as model legislative
frameworks, which are designed to assist policy advisers in the process of
developing policies, legislation, and practices. Some of this information is in
the form of checklists that you may wish to fill out as you develop your
policy.

How do I find the information I need?

For many policy advisers and operational staff, the Bill of Rights Act will be
unchartered territory. In an attempt to assist you to find your way around
these guidelines and the Bill of Rights Act, we have provided you with a
Subject Matter Index. The Index contains signposts that will make your task
in identifying relevant Bill of Rights considerations easier. The Index is not
intended to be an exhaustive list of every subject that may trigger every right
but is designed to give you a sense of the type of subjects covered by the
right. The Index is at the back of the Handbook.

Note that in March 2002, the Ministry of Justice published The Non-
discrimination Standards for Government and the Public Sector: Guidelines
on how to apply the standards and who is covered. Although this publication
includes discussion on section 19 you should also refer to the Non-
discrimination Guidelines if your policy raises discrimination issues.

Human rights in policy development

What are human rights?

The United Nation's Universal Declaration of Human Rights states that

human rights are those inalienable rights that belong to all members of the
human family. They are fundamental to maintaining the inherent dignity and
worth of all individuals. Human rights are indivisible and interrelated: it is
insufficient to respect some human rights and not others. Human rights
provide a benchmark for a democratic society, and are a foundation for
freedom, justice, and peace in the world.

New Zealand's human rights law is delivered through a number of Acts,

particularly the Bill of Rights Act and the Human Rights Act 1993.

Why do I need to integrate human rights into the development of policy?

New Zealand as a society expects that human rights will be complied with.
At the same time, successive governments have moved to ensure that human
rights are given greater emphasis in policy development. Integrating human
rights into your policy will help ensure that the policies are responsive to the
needs of both the community at large and government. Building human rights
considerations into policy at an early stage of development will make this
process easier.

The Associate Minister of Justice, Hon Margaret Wilson, commissioned an

independent re-evaluation of human rights protections in New Zealand in
March 2000. The re-evaluation team's report, Re-evaluation of the Human
Rights Protections in New Zealand, stated that: [2]

If taken into account early in the policy making process, human rights tend to
generate policies that ensure reasonable social objectives are realised by fair
means. They contribute to social cohesion and, as the Treasury's Briefing to
the Incoming Government (1999) observes: 'Achieving and maintaining a
sense of social cohesion and inclusion is an important aspect of welfare in the
broadest sense ... Fairness to all parties involved extends both to the
processes by which things are done and to the outcomes themselves. Social
cohesion is low when individuals or groups feel marginalised.'

Policies which respect and reflect human rights are more likely to be
inclusive, equitable, robust, durable and of good quality. Critically, such
policies will also be less vulnerable to domestic and international legal
challenge.

In short, human rights make good policy.

So why give special consideration to the rights in the Bill of Rights Act?

The Bill of Rights Act has an impact on the work of policy and legal advisers
in the following areas.

Policy development

Section 3(a) of the Bill of Rights Act states that the Bill of Rights Act applies
in respect of all acts done by the legislative, executive, and judicial branches
of government. As Ministers and their departments form the core of the
Executive, the Bill of Rights Act will apply to most, if not all their activities,
whether that is in the form of legislative and policy development or in the
delivery of services.
Therefore, the Bill of Rights Act is a relevant factor that you should consider
when advising your Minister, developing policy proposals, or making
decisions that affect the interests of a private individual or organisation.

Policy advisers particularly need to be aware that the Cabinet Office requires
all Cabinet papers on policy proposals (including those papers which
accompany draft legislation) to include a Human Rights Implication
statement. [3] The statement describes the consistency of the proposals with
both the Bill of Rights Act and the Human Rights Act 1993, and advises
Ministers how any issues are to be resolved.

Delegation and contracting of public functions

Section 3(b) of the Bill of Rights Act states that the Act also applies to acts
done by any person or body in the performance of any public function,
power, or duty conferred or imposed by or pursuant to law.

The Bill of Rights Act is, therefore, relevant for non-public sector agencies or
individuals performing public functions. You will need to be conscious of
Bill of Rights Act implications when considering whether to delegate certain
functions to the private or non-government sector.

A more comprehensive discussion on the scope of section 3 of the Bill of

Rights Act is set out in Part II of these guidelines.

Legislation

The Bill of Rights Act further requires the Attorney-General to draw to the
attention of the House of Representatives the introduction of any Bill that is
inconsistent with the Bill of Rights Act. A more comprehensive discussion
on this function can also be found in Part II.

The courts have recently signalled that they are prepared to declare
legislation to be inconsistent with the Bill of Rights Act. [4] Section 92J of
the Human Rights Act 1993 provides that the Human Rights Review
Tribunal may issue a declaration of inconsistency if it finds an enactment to
be inconsistent with section 19(1) of the Bill of Rights Act (freedom from
discrimination). The courts have also made it clear that secondary legislation
(e.g. regulations or rules) that is inconsistent with the Bill of Rights Act will
be struck down as ultra vires (exceeds the powers of the empowering
legislation), unless the regulation- or rule-making power expressly or
necessarily authorises the inconsistency. [5]
Remedies for breach of the Bill of Rights Act

In Simpson v Attorney-General (Baigent's case) [6] the Court of Appeal held

that effective and appropriate remedies are available for breach of the Bill of
Rights Act. This is in spite of the Bill of Rights Act having no remedy
provision. Since Baigent's case, the courts have provided various remedies
for infringement of the rights and freedoms identified in the Act.

The Human Rights Act 1993 also provides for a publicly funded complaints
process in respect of breaches of section 19(1) of the Bill of Rights Act.

Individuals, who consider that their human rights have been breached
(including their rights under the International Covenant on Civil and Political
Rights), can lodge a complaint with the United Nations Human Rights
Committee.

The issue of remedies is discussed in Part IV of these guidelines.

Footnotes:

1. For ease of reference the New Zealand Bill of Rights Act 1990 will be
referred to as the Bill of Rights Act in these guidelines. You can also
find a copy of the New Zealand Bill of Rights Act in the appendices.
2. Re-evaluation of the Human Rights Protections in New Zealand (11
August 2000), at paragraphs 206 and 207.
3. The Cabinet Office requirements are set out in the Cabinet Manual,
and the Step By Step Guide.
4. Moonen v Film and Literature Board of Review [2000] 2 NZLR 9;
(1999) 5 HRNZ 224; 17 CRNZ 159 (CA). For further information on
declarations of inconsistency see the section in these guidelines on
remedies, and A S Butler, "Judicial Indications of Inconsistency - A
New Weapon in BORA Armoury?" [2000] NZ Law Review 43.
5. Drew v Attorney-General [2002] 1 NZLR 58.
6. [1994] 3 NZLR 667.
PART I: An Introduction to the Bill
of Rights Act
The Bill of Rights Act sets out to:

a. affirm, protect, and promote human rights and fundamental freedoms

in New Zealand; and
b. affirm New Zealand's commitment to the International Covenant on
Civil and Political Rights (ICCPR).

The Bill of Rights Act did not create any new rights but merely confirmed
existing common law rights. Section 28 of the Bill of Rights Act provides
that, just because a right or freedom is not expressly provided for in the Bill
of Rights Act, it does not mean that the right or freedom does not exist or is
otherwise restricted.

Contrary to popular perception, although the Bill of Rights Act "affirms" the
ICCPR, it is not a copy of the ICCPR. There are differences between the two.
For example, while the ICCPR contains a right to privacy, the Bill of Rights
Act does not. The New Zealand Government has also entered reservations
against four articles of the ICCPR, meaning that New Zealand is not obliged
to comply with those articles in full. However, as at late 2003 these
reservations were being reviewed.

What is the purpose behind the Bill of Rights Act?

The Bill of Rights Act restrains a government's ability to limit an individual's

rights. [7] The White Paper [8] promoted the idea of a Bill of Rights for New
Zealand on the basis that it would act as a "constitutional check" on the
power of the Executive branch of Government and Parliament itself. It was
hoped that such a law would improve New Zealand's system of government
and provide a safeguard for those fundamental rights and freedoms "vital to
the survival of New Zealand's democratic and multicultural society". [9] The
White Paper went on to express the view that the Bill of Rights would: [10]

provide a set of minimum standards to which public decision making must

conform. In that sense a Bill of Rights is a mechanism by which governments
are made more accountable by being held to a set of standards.

Who is subject to the Bill of Rights Act?

The Bill of Rights Act is designed to protect individuals and legal bodies
(such as corporations) from the actions of the state. [11] When considering
whether the actions done by you or your agency are subject to the Bill of
Rights Act, you first need to consider whether those activities fall within the
scope of section 3 of the Bill of Rights Act. Section 3 states that the Bill of
Rights Act applies to any acts done by:

a. the legislative, executive and judicial branches of government; or

b. a person or body performing a public function, power or duty
conferred or imposed by or pursuant to law.

'Branches of government' (section 3(a))

The key matter in considering whether an agency is bound by the Bill of

Rights Act is the nature of the activity performed by that agency, not the
form of the agency. In its broadest sense, all of the policy and operational
work carried out by central government agencies is likely to fall within the
scope of section 3(a) of the Bill of Rights Act. As mentioned previously, this
is because Ministers and their departments form the core of the Executive.

However, the devolution of some activities from central government to

agencies has not altered the fact that some functions remain the
responsibilities of the state, regardless of who performs them. The Gambling
Commission is an example of a statutory body that might be considered to be
an agency subject to section 3(a). Members of the Commission are all
appointed by the Governor-General on the recommendation of the Minister
to carry out certain functions, including the accreditation of Casinos, under
the Gambling Act 2003. The Commission is also subject to the Ombudsman
Act 1975.

There is an array of other activities that are potentially subject to the Bill of
Rights Act because of section 3(b) of the Bill of Rights Act. You should be
aware of the potential scope of section 3(b) so you can identify areas of
potential legal risk when it comes to implementing your policy or practice.

'Public function test' (section 3(b))

Section 3(b) provides that the Bill of Rights Act applies to non-government
bodies, but only in respect of their public functions.

At present the scope of section 3(b) is not completely certain, because the
courts have not settled the precise margins of the "public function" test.
However, the fact that a particular organisation is essentially private in nature
does not, by itself, mean that it is never performing a "public function, power
or duty". [12] For example, a privately-funded non-statutory industry self-
regulating body has been held to fall within the scope of public sector
activity because of the public nature of its functions. [13] An organisation
may be subject to the Bill of Rights Act on some occasions but not others.
For example, a school board of trustees may at times be performing functions
more traditionally associated with the commercial operations of a private
company, and at other times may make decisions relating to the delivery of
state-sponsored education programmes.

Relevant factors

Although the decisions of the courts vary, relevant factors in the "public
function" test include whether the organisation is:

 acting in the public interest;

 conferring a public benefit;
 acting to implement or in furtherance of government policy or strategy;
 under special obligations or responsibilities that other (private) bodies
do not have;
 receiving or involved with public funding (although this is not
determinative on its own);
 exercising powers under statute or regulation.

In applying these factors, it can be seen that organisations operating in

different spheres of activity may be subject to the Bill of Rights Act as a
result of applying the public function test. [14] Examples of these activities
may include (but are not limited to):

1. The administration of a public welfare regulatory framework:

Organisations that regulate the media (Press Council, Advertising Standards

Authority, Films and Videos Labelling Body) Organisations that administer
liquor licensing laws (Alcohol Liquor Advisory Council)

2. The delivery of social services/government programmes to the

community:

Organisations that deliver health or education services [15] (District Health

Boards, [16] School Boards of Trustees, [17] Tertiary Institutions)
 3. The regulation of professional bodies:

Professional bodies that have responsibility for regulating the professional

activities of members and for taking disciplinary action (Medical Council,
[18] District Law Societies [19])

So what does "conferred or imposed by or pursuant to law" mean?

Although an organisation may be performing a "public function", the Bill of

Rights Act may not apply if the function is not "conferred or imposed
pursuant to law". While this term has not received extensive consideration by
the courts, it is clear that section 3(b) applies in respect of a broader range of
activities than just those imposed by legislation. Section 3(b) applies where a
body voluntarily assumes obligations under a set of legal rules as well as an
organisation that operates under legal rules conferred or imposed on it.

Decisions of the European Court of Human Rights (and followed by the New
Zealand and Canadian courts) have indicated that expressions such as
"conferred or imposed by law", "pursuant to law", and "prescribed by law",
can to a large extent be treated the same. [20]

The Bill of Rights Act sets minimum standards for public decision
making

The Bill of Rights Act plays an important role in setting the "minimum
standards to which public decision making must conform" referred to in the
White Paper. It does so in five ways:

1. Section 7 requires the Attorney-General to notify the House of any

provision in any Bill introduced into the House that appears to be
inconsistent with the Bill of Rights Act. (Section 4, which provides that
no provision in any enactment can be held impliedly repealed or in any
way invalid or ineffective merely because the provision is inconsistent
with the Bill of Rights Act, plays no part in the Attorney-General's
consideration of a Bill under section 7).
2. Section 6 provides that legislation should be interpreted consistently
with the Bill of Rights Act wherever such an interpretation is possible.
3. Decision-makers must therefore act consistently with the Bill of Rights
Act unless the enactment clearly provides otherwise. For example, a
person exercising statutory discretion needs to exercise that authority
 in a way that is consistent with the Bill of Rights Act. The Bill of
Rights Act fetters their decision-making powers by preventing a
decision-maker from exercising his or her discretion in a way that
infringes a right.
4. The courts have recently signalled that they will declare legislation to
be inconsistent with the Bill of Rights Act.
5. The courts have also made it clear that secondary legislation (e.g.
regulations or rules) that is inconsistent with the Bill of Rights Act will
be struck down as ultra vires unless the regulation- or rule-making
power expressly or necessarily authorises the inconsistency. [21]

The Ministry of Justice's role in advising on consistency with the Bill of

Rights Act

The Ministry of Justice has two principal roles in relation to the Bill of
Rights Act:

1. advising departments on the consistency of policy proposals and

government bills with New Zealand's human rights laws; and
2. advising the Attorney-General on the consistency of a bill with the Bill
of Rights Act.

Advising departments

All submissions to Cabinet Committees on policy proposals and government

bills must include a statement on the consistency of the proposal or
legislation with both the Bill of Rights Act and the Human Rights Act 1993.

In addition, all papers seeking a priority on the Government's legislation

programme should include a statement about any inconsistencies with the
rights and freedoms contained in the Bill of Rights Act and the Human
Rights Act 1993. At the legislative bid stage, it is not always possible to
finally determine consistency. However, where possible, any potential areas
of inconsistency should be identified in the legislative bid.

Each government department has to make its own assessment and sign off on
human rights implications in the department's area of responsibility.
However, in carrying out this assessment, departments should, where
appropriate, consult agencies with an interest or experience in human rights
issues such as the Ministry of Justice (human rights policy and legal
assistance), and the Crown Law Office (legal advice).

Vetting and section 7 of the Bill of Rights Act

As indicated above, under section 7 of the Bill of Rights Act the Attorney-
General is required to notify the House of any provision in any Bill
introduced into the House that appears to be inconsistent with the Bill of
Rights Act.

Cabinet Office requires all final versions of government bills to be with the
Ministry of Justice (or with the Crown Law Office in the case of bills in the
name of the Minister of Justice or an Associate Minister of Justice) at least
two weeks before the Cabinet Legislation Committee's meeting on that bill.
This is to allow the Ministry of Justice or Crown Law Office to advise the
Attorney-General on the consistency of a bill with the Bill of Rights Act at
least a week before the Cabinet Legislation Committee's meeting where that
bill is considered.

In most cases, vetting a Bill involves members of the Ministry of Justice's

Bill of Rights team working closely with the sponsoring agency to ensure
that successive versions of the Bill comply with the Bill of Rights Act. If a
provision appears to raise issues of consistency with the Bill of Rights Act
you will be contacted to clarify the effect or purpose of that provision or
justifications for it. This involves a process of ongoing consultation and
negotiation between the agency and the Ministry. The Ministry may present
different options for achieving a specific objective, particularly if it considers
that the objective can be achieved in a way that does not give rise to Bill of
Rights Act issues. This process of negotiation may lead to changes being
made to the Bill to address particular concerns.

If you satisfy the Ministry that a proposal which appears to be inconsistent

with the Bill of Rights Act is justifiable, it is said that the Bill does not
appear to be inconsistent with the Bill of Rights Act. If the apparent
inconsistency cannot be justified, the Ministry is likely to help you explore
ways of amending the provision or to consider other means of achieving the
same objective that do not give rise to Bill of Rights issues. Failing that, the
Ministry will ask you to consider whether the provision can be omitted from
the Bill on the basis that the provision appears to be inconsistent with the Bill
of Rights Act.
Although the Ministry's primary aim is to assist government departments in
the process of developing legislation that is consistent with the Bill of Rights
Act, the Ministry does have to provide the Attorney-General with legal
advice if it considers a provision in the bill is inconsistent with the Bill of
Rights Act. The Attorney-General is then likely to table a "section 7" report
in the House on the Bill's introduction stating that the provision is
inconsistent with the Bill of Rights Act.

Even though a Select Committee is not required to consider the report, it may
take the report into account and hear public submissions on the issue. A
report by the Attorney-General may make the passage of the legislation more
problematic. [22]

You can avoid an adverse report by integrating human rights considerations

into your policy proposals at an early stage of the process. You can also
contact the Ministry to clarify whether your project raises potential human
rights issues and discuss ways of pursuing the policy consistently with the
Bill of Rights Act.

Appendix : Incorporating Bill of Rights

Considerations into Your Policy Development
Process
You should consider the Bill of Rights Act implications of you policy
early in the policy making process, well before you write the Cabinet
paper. The following indicates how you might do this at each stage of the
process:

1. Defining the Does your problem Consider discussing

policy problem definition raise any with in-house
Bill of Rights counsel and/or the
within the strategic issues? Ministry of Justice,
context including how to
rework the problem
definition so it does
not raise Bill of
Rights issues.
2. Identifying and Do any of the Seek the advice of
assessing options options that you your in-house
 to achieve the have identified counsel. Consider
policy objective have any Bill of seeking input from
Rights the Ministry of
implications? If so, Justice, including
how do you
propose to address  help with
those implications? identifying
Bill of Rights
implications;
 advice on
how to avoid
or minimise
those
implications.

3. Forming Do any of your Ensure the Ministry

recommendations recommendations of Justice is
raise any Bill of consulted and their
Rights issues? views considered.
4. Presenting your Does your advice Advise the Minister
advice to the have Bill of Rights of these
implications? implications and
Minister how they are to be
resolved / managed.
Be sure to include
the Ministry of
Justice's views.
5. Presenting your Does your advice Cabinet Office
advice to Cabinet have Bill of Rights requires all Cabinet
implications? policy papers to
include a Human
Rights Implication
statement
describing the
consistency of your
proposals with both
the Bill of Rights
Act and the Human
 Rights Act 1993,
and advising how
any issues are to be
resolved.
6. Implementation of Does your Cabinet Office
the policy - legislation have requires the Cabinet
Bill of Rights legislation paper to
legislation implications? include a statement
describing the
consistency of your
proposals with the
Bill of Rights Act
and the Human
Rights Act 1993
and advising how
any issues are to be
resolved.

The Bill of Rights

Act requires the
Attorney-General to
draw to the
attention of the
House the
introduction of any
Bill that is
inconsistent with
the Bill of Rights
Act. The Ministry
of Justice, which
prepares this advice
for the Attorney-
General, requires a
minimum of two
weeks to review the
draft legislation.
7. Implementation of Even if your policy Ensure your
the policy - or legislation does evaluation strategy
not raise Bill of for your policy
operational issues Rights issues, the includes
 way it is consideration of
implemented may Bill of Rights
do so. issues.

Footnotes:

7. Mendelssohn v Attorney-General [1999] 2 NZLR 268.

8. 1985 White Paper "A Bill of Rights for New Zealand", tabled in the
House of Representatives by the then Minister of Justice, Hon
Geoffrey Palmer (the "White Paper").
9. The White Paper, p 5.
10. The White Paper, p 5.
11. Section 29 of the Bill of Rights Act.
12. See Monica Carss-Frisk (2002) "Public Authorities: The
Developing Definition" (2002) European Human Rights Law Review,
Vol 3 pp 319-326.
13. Electoral Commission v Cameron & Ors [1997] 2 NZLR 421
(CA).
14. Further guidance may be obtained from the decision by the UK
Court of Appeal in Poplar Housing & Regeneration Community
Association Ltd v Donoghue [2001] EWCA Civ 595; [2001] 3 WLR
183 (CA) from paragraphs 58. These guidelines are referred to in
Carss-Frisk "Public Authorities: The Developing Definition", p 323-
324.
15. Andrew and Petra Butler have observed that "the education
sector is a field in which the application of public law values through
the New Zealand Bill of Rights Act 1990 is likely to be complex
because of the mixed education delivery systems in place, and the
diverse range of facilities offered by various educational institutions."
See Laws of New Zealand "Human Rights" Part I para 23.
16. S v Midcentral District Health Board Master Gendall
18/03/2003, HC Wellington, CP237/02.
17. In McGuin v Board of Trustees of Palmerston North Boys' High
School [1997] 2 NZLR 60 it was held that as student boarding was a
private commercial arrangement the Board of Trustees could not be
 regarded as exercising a public function or power conferred by or
pursuant to law.
18. Le Compte, Van Leuven and De Meyere v Belgium (1981) 4
EHRR 1 para. 64.
19. Lawn v Waikato Bay of Plenty District Law Society Master
Gambrill 30/03/2001, HC Auckland CP No 229-IM00 para 67;
Sheehan v Valuers Registration [1998] DCR 159.
20. The phrase "conferred or imposed pursuant to law" is discussed
in more detail in the part of the guidelines on section 5 of the Bill of
Rights Act headed "Prescribed by law".
21. Drew v Attorney-General [2002] 1 NZLR 58.
22. You also need to be aware that as a result of changes made to the
Human Rights Act, the Human Rights Review Tribunal may issue a
declaration of inconsistency if it considers that the legislation it has
been asked to rule on is discriminatory and therefore inconsistent with
the Bill of Rights Act. For more information see Part IV of these
guidelines on Remedies.
PART II: Initial Considerations
When Applying the Bill of Rights
Act
So I'm applying the Bill of Rights Act - What sort of approach should I
adopt?

Human rights legislation is generally given a broad, purposive interpretation.

This means that you should give effect to the purpose behind the right in
question, rather than taking a technical or minimalist approach to the wording
of a right. This approach is necessary because human rights are fundamental
to our democratic social system. It ensures that human rights are dynamic
and responsive to changes within our communities.

A good example of how the scope and application of a right may change over
time is the right to be secure against unreasonable search and seizure
affirmed in section 21 of the Bill of Rights Act.

The classic statement on any intrusion by the state onto private property
remains Entick v Carrington (1765) 19 State Tr 1029 in which Lord Camden
CJ held: "...our law holds the property of every man so sacred, that no man
can set his foot upon his neighbour's close without his leave; if he does he is
a trespasser, though he does no damage at all; if he will tread upon his
neighbour's ground, he must justify it by law."

Although time and technology have moved on since Lord Camden reiterated
these common law principles, the principles remain as valid as ever, even
though he was at the time concerned with physical intrusions by the state or
state actors.

In Kyllo v US (2001) 150 L Ed 2d 94 the US Supreme Court said that it

would be "...foolish to contend that the degree of privacy secured to citizens
by the [protection against unreasonable search and seizure] has been
unaffected by the advance of technology."

The Supreme Court in this case was considering the use of a thermal imaging
device to detect the presence of cannabis growing in a house. The majority
for the Court held that, even though the police did not enter the property of
the accused, using the device was a search. Using the device enabled officers
to "explore details of the home that would previously have been unknowable
without physical intrusion".

The Bill of Rights Act appears to have several groups of rights - is this
important?

In approaching the rights set out in the Bill of Rights Act, you need to be
aware that they complement each other - they coexist. Individual rights may
be read to strengthen and reinforce each other. For instance, it would be
difficult to give effect to the right to freedom to manifest one's religion or
belief in public without the corresponding right to freedom of movement,
expression, assembly, or association. How could street protests take place
without the right to the freedoms of expression, assembly, association, and
movement? The right to freedom of movement can therefore not only be seen
in its own context but also as a foundation through which an individual can
exercise a wide variety of civil and political rights.

You may need to consider the potential application of a number of rights,

even though they appear in different parts of the Bill of Rights Act.

What the courts have said

McEachern C.J.S.C in the British Columbia Supreme Court set out his
approach to applying the Canadian Charter of Rights and Freedoms [23] as
follows: [24]

...in my view each section and subsection [of the Bill of Rights Act] should
be regarded as complementary, assisting, and explaining each other, and
not in isolation...it is seldom a case raising Charter questions will be one-
dimensional... More often, the issues in Charter cases will be multi-faceted...
In such circumstances the Charter must be read and construed not narrowly,
with each section and subsection disembodied from the rest, but rather in the
larger sense I have mentioned.

What happens when the rights in the Bill of Rights Act are in conflict with
each other?

The courts have taken two different approaches to resolving the difficulty
when two rights appear to conflict with one another: definitional balancing
and ad hoc balancing.

The definitional balancing approach was used in Re J (An infant): Director-

General of Social Welfare v B and B. [25] The potential conflict in this case
was whether the parents of a child could refuse life-saving medical treatment.
The parents, who were Jehovah's Witnesses, claimed that a blood transfusion
was inconsistent with their right to manifest their religious belief in
accordance with section 15 of the Bill of Rights Act. The countervailing right
at issue was section 8 of the Bill of Rights Act, which affirmed the child's
right to life. If the court upheld the parents' right to practice their religion, the
state could have been seen to act in a way that was inconsistent with the
child's right to life. The Court of Appeal reconciled the issue by interpreting
section 15 so that the right of the parents did not extend to situations where
the manifestation of their religious belief placed other people's lives in
danger. In other words, it defined section 15 so that it could not override the
right in section 8. This definitional approach to balancing conflicting rights
meant the courts did not have to use section 5 of the Bill of Rights Act to
balance the respective merits of sections 8 and 15.

The second approach, ad hoc balancing, is used by the Canadian Supreme

Court. [26] Ad hoc balancing requires section 5 to be used to determine
whether a decision to restrict someone's right under the Bill of Rights Act is
reasonable. The value of other rights is considered in the process of
determining whether the limit on the infringed right is reasonable. So, in the
case of Re J (An infant), the court would have considered whether a court
order authorising the blood transfusion for the purpose of saving a child's life
was a reasonable limit on the parents' right to manifest their religion. This
approach would probably have achieved the same outcome, but would use a
decision-making process that was more consistent with human rights
principles. Ad hoc balancing ensures that rights continue to be defined
broadly and that limits on rights are not arbitrarily imposed. As Andrew
Butler suggests, the ad hoc balancing approach creates a more robust
justificatory process to ensure that where the state limits a particular right, it
adequately explains its justifications for doing so. [27]

Case study based on decision of Canadian Supreme Court in Keegstra

Scenario: The accused was charged under Canadian criminal law with
wilfully promoting hatred against an identifiable group by communicating
anti-semitic statements to his students. Mr Keegstra successfully appealed his
conviction on the basis that the criminal offence was an unjustifiable breach
of his right to freedom of expression.

Issue: How to resolve the right of Mr Keegstra to express his views while
protecting the interests of members of the community not to be exposed to
racial hatred.
Canadian Charter problem: The Canadian Charter protects both the right
to freedom of expression and the right to be free from discrimination on the
grounds of race. However, the Charter does not make it clear which right
takes precedence where there are competing rights.

Question posed to Canadian Supreme Court: Does the right to freedom of

expression extend to the public and wilful promotion of hatred against an
identifiable group, or should the right be read down to exclude statements
with content that promotes inequality?

The Court of Appeal in Alberta had held that the Canadian Charter's non-
discrimination and equality provisions did not prevent Canadians from
criticizing the values of equality and multiculturalism. In other words, the
non-discrimination and equality provisions could not be used to limit the
scope of the right to freedom of expression to the extent that the Canadian
criminal law did.

Answer: Although the Supreme Court was split as to whether the criminal
offence was a reasonable limit on the right to freedom of expression, the
Court was unanimous in holding that the scope of the right to freedom of
expression was not limited by the non-discrimination provisions of the
Charter. The Court emphasised the neutral content of the right to freedom of
expression. To read down the right to freedom of expression by reference to
the non-discrimination provisions of the Charter would run contrary to the
established principle that the right to freedom of expression applied no matter
how offensive or disagreeable the content of the expression was. Dickson CJ
stated that it was inappropriate to limit the scope of the right on the grounds
that a particular right so required. The large and liberal interpretation given to
freedom of expression suggests that the optimal approach is to balance the
contextual values and factors in section 5 of the Bill of Rights Act. Dickson
CJ considered that the use of this exercise was appropriate because section 5
guarantees and limits the rights by reference to principles fundamental in a
free and democratic society. [28]

SUMMARY

When interpreting or applying human rights legislation remember:

1. Human rights legislation is generally given a broad, purposive

interpretation.
2. Individual human rights should be read in a way that the rights are seen
to strengthen and reinforce each other.
 3. When seeking to limit the scope of a right, consider whether the
limitation on the application of the right is reasonable through the
global limitation provision, section 5.

Interpreting Enactments and Justified

Limitations - Sections 4, 5, and 6 of the Bill of
Rights Act
Sections 4, 5 and 6 of the Bill of Rights Act are your guide on interpreting
and applying the Bill of Rights Act.

Section 4: Status and Effect of the Bill of Rights Act

The White Paper was written on the assumption that a Bill of Rights Act for
New Zealand would have the status of supreme law. That is, the courts could
strike down as invalid any New Zealand law that was inconsistent with the
Bill of Rights.

Can the Courts strike down legislation that is inconsistent with the Bill of
Rights Act?

The Bill of Rights Act does not have the status of supreme law, so it cannot
be used to override other legislation. In fact section 4 of the Bill of Rights
Act states that:

4. 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.

Section 4 instructs judges on how to resolve situations where they consider

an enactment is inconsistent with the Bill of Rights Act. Section 4 requires
the enactment to be applied despite the inconsistency.
However, the Court of Appeal in Moonen [29] has said that section 4 comes
into play only if:

• the legislation cannot be given a meaning that is consistent with the

Bill of Rights Act by virtue of section 6 of the Bill of Rights Act; and
• any limitation on the right cannot be demonstrably justified in terms of
section 5.

Section 6: Consistent Interpretation

Section 6 of the Bill of Rights Act requires you to interpret any legislative
provision consistently with the Bill of Rights Act wherever possible. In other
words section 6 is designed to avoid a situation envisaged by section 4.

The Court of Appeal considered the application of section 6 in R v Pora. [30]

In her judgment, Elias CJ discussed the importance and significance of
section 6 and said: "[P]arliament must speak if it wishes to trench upon
fundamental rights. By s6 the New Zealand Parliament has adopted a general
principle of legality." [31] In other words, Parliament should be generally
regarded as wishing to comply with the law.

In Re Winnipeg School Division [32] the Supreme Court of Canada

considered whether the human rights legislation was impliedly repealed by
subsequent legislation that permitted discrimination. In the course of
delivering the judgment of the Court, McIntyre J emphasised that while
human rights legislation may be amended or repealed by the Legislature, it
cannot do so other than by way of a clear legislative pronouncement.
McIntyre J held that:

...To adopt and apply any theory of implied repeal by later statutory
enactment to legislation of this kind would be to rob it of its special nature
and give scant protection to the rights it proclaims.

Therefore, it seems to be well settled that if Parliament wishes to override

basic rights, it needs to do so by using clear and unambiguous language. [33]

Secondary legislation

The above judgments have implications for secondary legislation (e.g.

regulations or rules). Statutes often include powers to make secondary
legislation. The authority to make secondary legislation must be exercised
consistently with the empowering statute, taking into account the Bill of
Rights Act. If the empowering provision does not expressly allow for the
making of secondary legislation that is inconsistent with the Bill of Rights
Act, then the secondary legislation will where possible, be read consistently
with the Bill of Rights Act.

The courts have made it clear that secondary legislation that is inconsistent
with the Bill of Rights Act can be struck down as ultra vires unless the
regulation- or rule-making power expressly or necessarily authorises the
inconsistency. [34] The ability of the courts to use section 6 to limit the
application of section 4 is illustrated by the following case study.

Case study [35]

Scenario: An inmate at a corrections facility attended a disciplinary hearing

before the Superintendent charged with an offence under the Penal
Institutions Act. He appealed the Superintendent's decision to a Visiting
Justice.

Issue: Section 45(1)(19) of the Penal Institutions Act provides that the
Governor-General may make Regulations for "Ensuring the discipline of
inmates, including (without limitation) regulating the laying of complaints
relating to offences against discipline and prescribing the procedures for the
hearing of such complaints."

The Penal Institution Regulations prescribe the procedures for the hearing of
complaints against inmates in accordance with section 45(1)(19). Regulation
144 states: "An inmate whose case is referred by way of appeal to a Visiting
Justice under section 35 of the Act may, at his or her own expense, contact
his or her legal adviser for the purposes of assisting with the preparation of
the appeal, but the legal adviser may not represent the inmate at the appeal."

Bill of Rights problem: The Court of Appeal held that the prohibition on
legal representation at the appear was inconsistent with the inmate's right to
the observance of the principles of natural justice, so the regulations breached
section 27(1) of the Bill of Rights Act. Section 45(1)(19) of the Penal
Institutions Act did not explicitly authorise the making of regulations that
were inconsistent with the Bill of Rights Act.

Regulation 144 could not be read consistently with the Bill of Rights Act.
The Court did not go on to apply a section 5 (justified limitations) analysis
because they held that section 27(1) was a flexible standard. That is, an
assessment of whether the principles of natural justice had been observed
would depend on the context of the case before them.

Question: Does section 4 of the Bill of Rights Act mean that the Regulations
remain valid?

The Court of Appeal heard arguments that the regulations remain valid
unless they are invalid for reasons other than the Bill of Rights. It was
submitted that striking down regulation 144 because of the section 27
guarantee of a right to the observance of the principles of natural justice
would invalidate regulation 144 because of an inconsistency with the Bill of
Rights Act. Section 4 prevented the Courts taking such action.

Answer: The Court held that section 4 was not a relevant factor in holding
the regulation invalid. The Court considered the regulation to be invalid
because the empowering provision in the Penal Institutions Act needed to be
read in accordance with section 6 of the Bill of Rights. Section 45 of the
Penal Institutions Act did not authorise the making of a regulation that was
inconsistent with the Bill of Rights Act. The Court gave section 45 a meaning
that was consistent with the rights and freedoms contained in the Bill of
Rights Act.

The exercise of discretion

The implications of the judgments discussed above are significant for policy-
makers. Frequently, statutes confer discretions on decision-makers. When
faced with a discretion as to a course of action, the person exercising the
discretion needs to exercise that authority in a way that is consistent with the
Bill of Rights Act.

The Canadian Supreme Court expresses it this way: [36]

Parliament cannot have intended to authorize such an unreasonable use of the

discretion conferred by it. A discretion is never absolute, regardless of the
terms in which it is conferred.

...As the Constitution is the supreme law of all Canada...it is impossible to

interpret legislation conferring discretion as conferring a power to infringe
the Charter, unless of course that power is expressly conferred or necessarily
implied.

In Police v Beggs [37] the Full Bench of the High Court considered whether
the Speaker of the House of Representatives had invoked his powers under
the Trespass Act consistently with the Bill of Rights Act. Section 3(1) of the
Trespass Act 1980 states: "Every person commits an offence against this Act
who trespasses on any place and, after being warned to leave that place by
the occupier of that place, neglects or refuses to do so." The Court stated that
section 3(1) of the Trespass Act could be read consistently with section 16 of
the Bill of Rights Act (so section 4 was not relevant). Section 6 of the Bill of
Rights Act means that a decision-maker exercising a discretion as to whether
to issue a warning under the Trespass Act can exercise the discretion only
when it is reasonably necessary for him or her to do so. This is because the
act of warning limits rights and freedoms contained in the Bill of Rights Act.

Section 6 of the Bill of Rights Act does not prevent a decision-maker from
exercising his or her discretion. Section 6 simply requires the decision-maker
to take the Bill of Rights Act into account in the process of determining
whether or not to exercise a discretion.

SUMMARY

If you are developing or amending legislation that intends to override the Bill
of Rights Act, the legislation must do so clearly and expressly because:

1. Decision-makers are required to interpret legislation consistently with

the Bill of Rights Act wherever possible.
2. When exercising a discretionary decision-making power, the person
making the decision needs to exercise that authority - where possible -
in a way that is consistent with the Bill of Rights Act.
3. Any regulation or rule made under the authority of a statute that does
not purport to oust the Bill of Rights Act can be struck down by the
courts as invalid if the regulation or rule is itself inconsistent with the
Bill of Rights Act.
4. Section 4 of the Bill of Rights Act comes into play where -

• the legislation cannot be given a meaning that is consistent with

the Bill of Rights Act by virtue of section 6 of the Bill of Rights
Act; and
• any limitation on the right cannot be demonstrably justified in
terms of section 5.

Section 5: Justified Limitations

If the policy you are working on limits one of the rights and freedoms in the
Bill of Rights Act, it may still be consistent with the Bill of Rights Act if you
can justify it in accordance with section 5.

Section 5 of the Bill of Rights Act states:

Subject to section 4 of this Bill of Rights, 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.

What you need to know about section 5 of the Bill of Rights Act

Put simply, the section 5 test means that once you have decided there is
prima facie (on the face of it) infringement of a right, you must decide
whether that limitation on that right can be "demonstrably justified in a free
and democratic society". If it fails this test, then the legislative provision,
policy, practice, or service is inconsistent with the relevant section of the Bill
of Rights Act.

There are a number of matters you will need to take into consideration before
continuing with a policy that limits a right, including the following:

• The onus on proving that the limitation on any particular right is

reasonable lies with the agency or organisation imposing the limit.
• Whether a limit on a right is reasonable is going to depend on a
number of factors including:
o the significance of the objective of the proposal;
o the interests addressed by the particular right;
o the extent to which the proposal limits the rights;
o the proposal's effectiveness in achieving its objectives.
• The objective in limiting the right must be more than a general goal of
protection from harm common to legislation; it requires a specific
purpose so pressing and substantial that it warrants the imposition of a
limit.
• Economic considerations are unlikely, of themselves, to be considered
sufficient justification for limiting a right.
• Any limitation on the right:
o can be written or unwritten;
o must have some basis in domestic, that is, New Zealand law;
o must be adequately accessible;
 o must be expressed with sufficient precision.

There is some discussion as to whether all rights should be subject to a

section 5 analysis or whether it is possible to limit rights on their face. This is
because the language used in some of the rights appears to contain in-built
limitations. For example, section 21 of the Bill of Rights Act refers to the
right to be secure against unreasonable search and seizure. In such cases,
although section 5 may still be a relevant factor to be considered, it may not
play as prominent a role. Despite this we consider that the most prudent
approach for a policy adviser is to continue to define the right broadly and
then subject any limitation on the right to scrutiny in terms of section 5 of the
Bill of Rights Act. Such an approach will ensure that any limitation placed on
the right is subject to a robust justificatory process.

Further discussion on the meaning of section 5

What does "demonstrably justified" mean?

Where a legislative provision, policy, practice, or service appears to be

inconsistent with a right, it is up to you or your agency to establish how that
inconsistency is justified under section 5 of the Bill of Rights Act. [38] That
means justifying your policy or proposed law with evidence such as research,
empirical data, findings from consultation, reports, or the results of inquiries
or reviews. As with any good policy development, it is important not to act
on assumptions, but to provide a well-argued case - based on high-quality
analysis and research - that clearly establishes why a particular course of
action is necessary. You should avoid relying solely on comparable overseas
developments to justify your proposals. The social/political and cultural
context in those countries, which would go to demonstrating the justification
in their jurisdictions, may be significantly different to our own.

And "free and democratic society"?

The courts have also provided us with some guidance on what the phrase
"free and democratic society" means. For example, the Canadian Supreme
Court in R v Oakes, [39] interpreting a similar provision in the Canadian
Charter, said that some of the core principles and values of a free and
democratic society include:

• respect for the inherent dignity of the human person;

• commitment to social justice and equality;
• accommodation of a wide range of beliefs;
 • respect for cultural and group identity;
• faith in social and political institutions which enhance the participation
of individuals and groups in society.

When is something "prescribed by law"?

Section 5 provides that limitations must be "prescribed by law". In short, they

must be accessible and ascertainable for all. "Laws" in New Zealand can be
found in, for example, legislation, regulations, codes of practice, and
common law. However, "prescribed by law" does not mean just these
specific sources. For something to be "prescribed by law" it needs to have the
following four factors: [40]

1. The "law" can be written or unwritten.

2. It must have some basis in domestic, that is, New Zealand law.
3. It must be adequately accessible. In general, a person can only be
expected to comply with a law if they can find out what the law
actually is - what legal rules apply in a given situation. So you will
need to think about where the policy, regulation, or law is to be
published or publicised and just how available it will be to the public.
4. Be expressed with sufficient precision. A clear and well-defined law,
policy, or practice will make it easier for a person to comply with and
to foresee or to find out the consequences of their actions. It will also
help officials to know exactly what they are supposed to do. So you
will need to think about how detailed the law, policy, or practice
should be.

In other words, identifying limits "prescribed by law" under section 5 of the

Bill of Rights Act involves looking to the substance rather than the form of
the legislation, policy, practice, or service in question. Where the government
limits a right or freedom, it must do so on a clear and transparent basis.

Economic considerations

As a general rule, although it is reasonable to take into account economic

issues when conducting a section 5 analysis, you should not generally rely on
these factors as the sole justification for limiting a right. The New Zealand
Court of Appeal has not yet specifically considered whether an economic
argument is, of itself, sufficient at any stage in the section 5 justification
process under the Bill of Rights Act. It has, however, stated that economic
concerns are one of the several factors to take into account. In Moonen (No
1) [41] the Court held that social, legal, moral, economic, administrative,
ethical, and other considerations may all be relevant. The Canadian Supreme
Court has said that economic concerns are not, by themselves, sufficient to
justify a limitation on the rights and freedoms in the Canadian Charter of
Rights. [42]

Possible approaches to applying section 5 of the Bill of Rights Act

In Moonen v Film & Literature Review Board (No 2) [43] the Court of
Appeal stated that the steps in Moonen (No 1) were intended to be used as
guides and not prescriptive requirements. Therefore, although there are a
number of possible approaches to applying section 5 of the Bill of Rights
Act, we consider that either of the following approaches will provide you
with the analytical framework you need to apply section 5.

A. The Moonen test

In Moonen v Film & Literature Review Board (No 1) [44] the Court of
Appeal developed a set of guidelines for assisting in determining whether
any limitation imposed on a right or freedom affirmed by the Bill of Rights
Act is "demonstrably justified" in terms of section 5 of the Act:

• first identify the objective which the legislature was endeavouring to

achieve by the provision in question;
• assess the importance and significance of that objective;
• 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;
• in achieving the objective there must be as little interference as
possible with the right or freedom affected;
• the limitation involved must be justifiable in light of the objective.

The Ministry of Justice has distilled the inquiry under Moonen (No 1) into
what is essentially a two-step process:

1. First, whether the infringing provision, policy, practice, or service in

question serves an important and significant objective; and
 2. Second, whether there is a rational and proportionate connection
between that objective and the infringing provision, policy, practice, or
service, or whether the objective may be achieved in another way
which interferes less with the right or freedom affected. [45]

How do I know if my policy or service delivery serves an important and

significant objective?

To meet the first part of the steps in Moonen you should be able to show that
your infringing provision, policy, practice or service:

• achieves a clearly defined objective;

• from a common-sense standpoint - meets a pressing and substantial
concern [46] rather than one that is more than trivial;
• addresses a specific (rather than generalised) area of public and social
concern. [47]

To complete the first part of the section 5 analysis, you will need to be able
to clearly and precisely articulate your policy objective. If your objective
does not seem to be important or significant, you will need to think about
whether there are other ways to achieve the objective without limiting the
right.

If the goal/objective does appear to be important and significant, you can

proceed to the next question of the inquiry to be made under section 5 of the
Bill of Rights Act.

When is something rationally and proportionately connected to the

objective?

There are two questions that are at the heart of this element of section 5:

1. Does the measure achieve its objective effectively?

2. Is there another means of reasonably achieving the objective without
limiting the right or limiting it to a lesser extent? To put it in another
way, is the measure so broad that it unreasonably interferes with the
rights and interests of those it is not intended to affect?

B The Noort test

In Ministry of Transport v Noort [48] the Court of Appeal stated that any
inquiry as to whether an apparent limitation on a right can be justified
requires

consideration of all economic, administrative, and social implications. In the

end it is a matter of weighing:

1. the significance in the particular case of the values underlying

the Bill of Rights Act;
2. the importance in the public interest of the intrusion on the
particular right protected by the Bill of Rights Act;
3. the limits sought to be placed on the application of the Act
provision in the particular case; and
4. the effectiveness of the intrusion in protecting the interests put
forward to justify those limits.

Many of the points of analysis identified in the Moonen test will be brought
to bear.

A flexible standard

These tests are not simply a mechanical or mathematical exercise. The

balancing required by section 5 means that advisers and others working in the
public sector must exercise their judgement in weighing the various elements
of this test.

Although it was previously considered that any limit on a right should form
the least possible interference with the particular right, this no longer appears
to be the case. The Canadian courts now tend to favour the approach that the
policy or practice interferes with the right "as little as reasonably possible".
[49]

Section 5 is sufficiently flexible to accommodate different policy contexts.

However, sufficient justificatory material must be put forward to satisfy each
question in turn - in other words, it is very much a case of "[s]he who asserts
must prove". The Canadian Supreme Court has stated: [50]

[While] the impugned law must be considered in its social and economic
context, nothing in this jurisprudence suggests that the contextual approach
reduces the obligation on the state to meet the burden of demonstrating that
the limitation on rights imposed by the law is reasonable and justified.
Context is essential in determining legislative objective and proportionality,
but it cannot be carried to the extreme of treating the challenged law as a
unique socio-economic phenomenon, of which Parliament is deemed the best
judge.

In all cases where you are unsure, you should check with your legal advisers,
the Ministry of Justice, or Crown Law Office.

Section 6 as a check on limits

Section 6 of the Bill of Rights Act may also have a bearing on the application
of section 5 of the Bill of Rights Act, and the extent to which a limit on a
right may be construed as reasonable.

Section 6 of the Bill of Rights Act provides that wherever an enactment can
be given a meaning that is consistent with the rights and freedoms contained
in the Bill of Rights Act, that meaning it to be preferred over any other
meaning.

The courts have held that where a statutory provision places a limit on a
right, the limitation itself should be read consistently with the Bill of Rights
Act. The limitation should not be read so broadly that the right has no
application at all.

This point may be best illustrated by the decision of the Court of Appeal in
Sullivan v Ministry of Fisheries. [51] The question for the Court in this case
was the extent to which a person detained and questioned under Fisheries
legislation could rely on advice from his lawyer when answering questions
he was required to answer. The legislation provided that a person was
required to answer questions put to him or her even though the answers
might incriminate him or her. On the face of it, this provision raised issues of
consistency with section 23(4) of the Bill of Rights Act - the right to silence -
but would have been considered a reasonable limit. The Court stated: [52]

There are few statutory pre-emptions of the right to silence affirmed by the
Bill of Rights, and of the constraints on cross-examination of detainees. The
Fisheries Act is one such exception. But its limitations on fundamental rights
should not be construed expansively having regard to s 6 of the Bill of
Rights.
...Just because the Fisheries Act gives power to question, with a concomitant
implied power to detain for that purpose, and a duty to answer, it does not
mean that a person questioned is to be denied the right to legal consultation
and advice; nor that the person interrogated is obliged to answer effusively
rather than strictly correctly. Persons interviewed cannot be required to
promote the questioner's obvious or concealed motives, nor to facilitate their
own conviction, beyond compliance with a duty to give honest answers
which meet the question.

SUMMARY

If the policy or practice being developed appears to infringe the Bill of

Rights Act, you will need to be able to justify the limitation. In the process of
justifying the limitation you will need to consider:

• the significance of the objective of the proposal;

• the interests that the particular right is addressing;
• the need to promote a policy that limits the right (are there other ways
of achieving the objective?);
• the extent to which the proposal limits the rights;
• the effectiveness of the measure in achieving its objectives.

Other considerations

• The policy that you are developing should have a specific purpose that
is sufficiently pressing and substantial to warrant the imposition of a
limit.
• Economic considerations are unlikely to be considered sufficient
justification for limiting a right in the absence of other factors.

We have developed a number of resources to help you apply section 5 and to

understand the interaction between sections 4, 5, and 6 of the Bill of Rights
Act. A flow diagram showing the process that you should undertake in
applying section 5 appears overleaf. There is a checklist in the back of these
guidelines setting out the sorts of questions you should ask in assessing
whether you can demonstrably justify a particular policy or practice that
appears to be inconsistent with the rights and freedoms of the Bill of Rights
Act. A Fact Sheet on section 5 also appears at the back of these guidelines.

Section 5 flow diagram - applying section 5

Footnotes:

23. From this point the Canadian Charter of Rights and Freedoms
will be referred to as "the Charter".
24. Re MIA and Medical Services Commission of British Columbia
17 (4th) DLR 385 [emphasis added].
25. [1996] 2 NZLR 134.
26. R v Keegstra [1990] 3 SCR 697.
27. Butler 2002, Limiting Rights pp 6-9. The decision of the Court of
Appeal in Living Word Distributors v Human Rights Action Group
[2000] 3 NZLR 570 suggests that the Court may in the future adopt the
ad hoc balancing approach in resolving such issues.
28. McLachlin J in her dissenting judgment suggests a number of
persuasive reasons why it was inappropriate to use arguments based on
the non-discrimination provisions of the Charter. One of these reasons
was that using the non-discrimination provisions of the Charter to read
down the right to freedom of expression would involve choosing
between competing rights in an abstract sense. See pages 833-835 of
the judgment.
29. Moonen v Film & Literature Review Board [2000] 2 NZLR 9.
30. [2001] 2 NZLR 37; (2000) 18 CRNZ 270 (CA).
31. R v Pora [2001] 2 NZLR 37; (2000) 18 CRNZ 270 (CA), at
paragraphs 52-53 of the judgment of Elias J . See also para 121 of the
judgment of Thomas J in the same case.
32. (1985) 21 DLR (4th) 1, 6.
33. See also Te Waipoumanu Trust: Ngati Apa Ki Waipoumanu
Trust v R [2000] 2 NZLR 659.
34. Drew v Attorney-General [2002] 1 NZLR 58.
35. This case study is based on the decision of the Court of Appeal
in Drew v Attorney-General [2002] 1 NZLR 58.
36. Slaight Communications v Davidson 9 DLR (4th) 416 (SCC).
37. Police v Beggs [1999] 3 NZLR 615.
38. Solicitor-General v Radio NZ [1994] 1 NZLR 48
39. R v Oakes [1986] 15 CR 103.
40. As set out in the European Court of Human Rights decisions
Malone v United Kingdom 2 August 1984, Series A, No 82, 7 EHRR
17 at paragraph 66; The Sunday Times v United Kingdom 26 April
1979, Series A, No 30, 2 EHRR 245 at paragraphs 46, 47, and 49. See
also the following cases which uphold the ECHR approach: Canadian
Supreme Court decisions of R v Nova Scotia Pharmaceutical Society
 [1992] 2 SCR 606; R v Thomsen [1988] 1 SCR 640; R v Therens
[1985] 1 SCR 613; Slaight Communications Inc v Davidson [1989] 1
SCR 1038 (on "prescribed by law" in relation to statutory conferrals of
discretion); New Zealand Court of Appeal Ministry of Transport v
Noort [1992] 3 NZLR 260 (which held that the operational
requirements of the law are covered by the term "prescribed by law").
41. Moonen v Film & Literature Review Board (No 1) [2000] 2
NZLR 9, at 17. In Ministry of Transport v Noort [1992] 3 NZLR 260,
at 283, Richardson J (as he then was) of the Court of Appeal noted that
"section 5 will properly involve consideration of all economic,
administrative and social implications".
42. Singh et al v Minister of Employment and Immigration [1985] 1
SCR 177, at 218 to 220; R v Lee [1989] 2 SCR 1384 at 1420 Wilson J
dissenting. See also Hogg (1997) Constitutional Law of Canada (3rd
ed) Vol 2, at 35.9.
43. [2002] 2 NZLR 754, 760.
44. [2000] 2 NZLR 9.
45. Note that the question as to whether an objective may be
achieved in a way that interferes less with the right does not mean that
the limit has to form the "least" interference.
46. Zundel v R [1992] 2 SCR 731.
47. Zundel v R [1992] 2 SCR 731.
48. [1992] 3 NZLR 260.
49. R v Edwards Books and Art Ltd [1986] 2 SCR 713, 782.
50. RJR-MacDonald Ltd v Attorney General of Canada (1995) 127
DLR (4th) 1 per McLachlin J.
51. [2002] 3 NZLR 721 (CA),
52. Sullivan v Ministry of Fisheries [2002] 3 NZLR 721 (CA) at
paras 58 and 61
Part III: Rights and freedoms
affirmed by the Bill of Rights Act -
Introduction to Sections 8-11: Life
and Security of the Person
Sections 8 to 11 of the Bill of Rights Act concern the fundamental rights and
freedoms essential to an individual's personal well-being.

• Section 8 concerns a person's right not to be deprived of life, except on

such grounds established by law and consistent with the principles of
fundamental justice.
• Section 9 related to a person's right not to be subjected to torture, or
cruel, degrading or disproportionately severe treatment or punishment.
• Section 10 is about a person's right to be free from medical or scientific
experimentation without that person's consent.
• Section 11 concerns a person's right to refuse to undergo medical
treatment.

These rights are complementary and interdependent. The interaction of these

fundamental rights with other rights in the Bill of Rights Act is also
important. For example, considerations under section 8 and 9 may be
relevant to procedures under section 21-25 regarding custody arrangements
for those involved in the criminal justice process. The interplay between
rights guaranteed under sections 10 and 11 and section 15 and 20 might need
consideration in some cases.

Section 8 Right not to be deprived of life

Section 8 of the Bill of Rights Act is as follows:

Right not to be deprived of life

No one shall be deprived of life except on such grounds as are established by
law and are consistent with the principles of fundamental justice.

Policy triggers: do I need to consider section 8?

Are you developing policies or practices that:

• amend the law on suicide, euthanasia, or abortion in any respect?

• create or amend policy or practices permitting law enforcement
officers to use reasonable force including the use of weapons in the
course of their duties?
• are likely to amend the laws in relation to the defences of self defence,
provocation, or insanity?
• target the delivery of medical resources for acute patients?
• impact on the way in which essential medical or welfare services are
provided to vulnerable groups within the community?
• establish procedures for the management of individuals held in state
care?
• may lead to the extradition, removal or expulsion of individuals to
overseas countries?

If you answered 'yes' to any of these questions then you will need to consider
if your policy is consistent with section 8 of the Bill of Rights Act.

What every policy analyst needs to know about section 8

• A decision to deprive someone of life cannot be made arbitrarily.

• The right may apply in circumstances where the failure to provide
economic or social assistance is likely to lead to loss of life.
• The state has an obligation to protect life of a person in their care
because the person is in a vulnerable position where the state knows or
ought to know that there is a risk to that person's life.
• "No one" is likely to be interpreted as meaning natural persons
o The right not to be deprived of life in New Zealand is unlikely to
extend to corporations;
o New Zealand courts have not yet considered the issue of whether
the right not to be deprived of life extends to a foetus.
• Any procedure allowing for the deprivation of life must be established
by law.
• Fundamental justice requires that a fair balance be struck between the
interests of the state and those of the individual.
• The "principles of fundamental justice" are likely to be something
more than the "principles of natural justice" under section 27(1),
because of

i. the deliberate decision by Parliament to use the phrase

fundamental justice ahead of other options;
ii. the nature and purpose of section 8;
iii. the context within which section 8 appears, that is, sections 8 -11
are concerned with promoting the dignity and worth of the
person.

• The principles underpinning fundamental justice must be capable of

being identified with some precision and applied to situations in a
manner which yields an understandable result.
• The criteria governing circumstances under which a person is able to
be deprived of life should therefore be transparent and robust and
capable of being articulated with certainty.
• The principles of fundamental justice together with the obligation on
the state to protect a person's life may require the state to take steps to
protect an individual whose life is at risk from another's criminal acts,
where authorities knew or ought to have known at the time of a real
and immediate risk to the person's life.
• The state may also be under an obligation to actively investigate the
circumstances leading to a loss of life in circumstances where it was
informed of the possibility of a risk but was unaware of the immediacy
of the risk to a person's life.
• Decisions not to proceed with medical treatment should be built into
policy to ensure that:
o decisions have been made following a deliberative process, and
o that process is in line with well-settled medical procedures, and
o decisions have been made in a manner that is consistent with
objectively acceptable standards in the best interests of the
patient, and
o such decisions are not made arbitrarily.
• Section 8, in the context of New Zealand's international obligations,
means New Zealand has an obligation to ensure that it is not carrying
 out policies involving the extradition, removal or expulsion of an
individual in circumstances where that action may lead to the person
being sentenced to death or executed in another country without a fair
and public hearing or where the penalty is not proportionate to the
offence.

Measures to achieve compliance

When making policy decisions regarding medical resources and treatment,

ensure that:

• The criteria that is to be used for determining whether individual

patients are able to access certain treatment is based on sound clinical
reasons
• Clinicians have access to clear procedures that establish the means by
which a decision to terminate a life may be implemented.
• There are clear procedural safeguards to ensure that decisions are made
at an appropriate level and that there is sufficient oversight of those
decisions.
• There are safeguards to ensure that individuals and families affected by
the decision are adequately informed and consulted over the decision.

If you are developing policy about law enforcement, provide:

• The appropriate level of training required to ensure only adequately

trained and qualified law enforcement officers are authorised to use
force.
• The type of training that is necessary to ensure that law enforcement
officers are aware of a number of techniques that minimise the risk to
another individual.
• Clear procedural safeguards that make it clear to law enforcement
officers what steps they are required to take prior to using weapons.

If you are developing policies or practices relating to the management of

persons in the care of the state, establish:

• Best practice guidelines that promote the safety of individuals in the

care of state agencies
 • Procedures that enable those charged with the care of individuals to be
able to respond to concerns about the safety of individuals promptly
• Clear procedural safeguards to ensure that decisions are made about
the safety of individuals at an appropriate level and that there is
sufficient oversight of those decisions
• Regular reviews of these procedures.

If you are developing policies or practices relating to the extradition, removal

or expulsion of individuals, establish:

• Procedures and resources that enable those charged with the extradition
or removal of individuals to be able to independently verify whether
the safety of the individual's is or is not in jeopardy by reason of their
expulsion
• Guidelines that will provide the individual with sufficient opportunity
to alert authorities to the nature of the risks that he or she may face on
their return to the country of origin
• Guidelines that will alert individuals at risk of expulsion to their right
to seek legal assistance.

Related rights and freedoms

When considering whether your policy proposal or practice might give rise to
an issue under section 8, you should also consider whether the policy or
practice places restrictions on sections 9-11 of the Bill of Rights Act and:

• The right not to be arbitrarily arrested or detained (section 22)

• The right, when deprived of liberty, to be treated with humanity
(section 23(4))

Further discussion of the meaning of section 8

General considerations

The first of the civil and political rights in Part II of the Bill of Rights Act is
the right not to be deprived of life in section 8. The right not to be deprived
of life could be described as the fundamental right of human existence. [53]
The Court of Appeal in referring to the need to give full effect to the
fundamental rights affirmed in the Bill of Rights, noted:
when questions about the right to life are in issue the consideration of the
lawfulness of official action must call for the most anxious scrutiny". [54]

In Lawson, Williams J observed that it would be for the person claiming that
their rights under section 8 had been breached to show that the acts or
omissions of the state actor deprived the person of his or her life. [55] In
other words, the person would need to be able to demonstrate a clear and
unbroken link between the act or omission of the state and the "loss of life".
Williams J went on to add that:

...Whilst this Court should have regard to international human rights norms in
interpreting and applying the New Zealand Bill of Rights Act 1990, and
whilst a liberal interpretative approach is warranted, the Court is ultimately
constrained by the wording of s 8 itself. It requires an unduly strained
interpretation of s 8 itself to conclude that the right not to be deprived of life
encompasses a right not to be charged market rent for accommodation
without regard to affordability and impact on the tenant's living standards.
[56]

The decision in Lawson indicates that for section 8 to apply there would need
to be a demonstrated level of causality between the omission to provide
services and the death of a person. Although the courts in New Zealand have
still to fully consider this issue, section 8 may still apply in the context of
general economic and social considerations, where that linkage can be
established. For example, if a person dies because the state fails to provide a
person with the standard of health care they require then it may be possible to
establish that a person has been deprived of life for the purposes of section 8.

Does section 8 confer a right to life?

Although the objective of section 8 is directed at preventing the state from

taking life rather than requiring the state to protect or preserve life, there may
be occasions where the state is under an obligation to protect life. Although
the courts here have not considered this issue, the courts in some overseas
jurisdictions provide an indication of circumstances in which an obligation to
prevent deprivation of life may arise.

The United Nations Human Rights Committee has taken the view that the
right to life (as provided for by article 6 of the ICCPR) should not be
interpreted in an unduly restrictive manner and that member states should
take the requisite steps to reduce infant mortality and increase life
expectancy. [57] It may therefore be prudent to consider whether the
rationalisation of health and social services will negatively impact on the life
expectancy of vulnerable groups within society.

The European Court of Human Rights has held that where a person is under
the care of the state, the state has an obligation to protect that person's life
because the person is in a vulnerable position. [58] Therefore, according to
the European Court, if the authorities know of, or ought to know of the
existence of a real and immediate risk to that person's life, they must take
steps to alleviate that risk. [59]

Article 6 of the ICCPR and Article 2 of the European Convention appear

broader than section 8 of the Bill of Rights Act in that it recognises the right
to life whereas section 8 refers to the right not to be deprived of life.
Although the ICCPR and European Convention impose a requirement on the
state to take certain steps to protect life, it is not clear whether the difference
in language will lead to different conclusions. The courts in New Zealand
have not been asked to decide whether section 8 requires the state to take
positive steps under similar circumstances.

Despite the uncertainty about the scope of the obligation under section 8, the
right would not appear to confer the diametrically opposite right; namely a
right to die. [60] In an assisted suicide/euthanasia situation, section 8 would
come into play if the law/policy provided for termination in circumstances
that amounted to 'deprivation'. The fact that section 8 does not confer a 'right
to die' is relevant in that state-authorised termination procedures would
arguably need to be approached with greater caution than if a 'right to die'
was guaranteed.

Just who is "no one"?

New Zealand courts have not turned their minds as to who is or who is not
covered by the term "no one" in section 8. However, overseas case law
suggests that the scope of section 8 is likely to be restricted to natural
persons.

The Canadian Supreme Court in Irwin Toy Ltd v Quebec (Attorney-General)

[61] held that to extend the right to life in section 8 of the Charter to cover
corporations would "stretch the meaning of the right to life beyond
recognition." [62] The Court in this case went on to say that

...read as a whole, it appears to us that this section was intended to confer

protection on a singularly human level. A plain, common sense reading of the
phrase "Everyone has the right to life, liberty and security of the person"
serves to underline the human element involved; only human beings can
enjoy these rights. "Everyone" then, must be read in light of the rest of the
section and defined to exclude corporations and other artificial entities
incapable of enjoying life ...and include only human beings. [63]

New Zealand courts have not considered the issue of whether the right to life
in New Zealand will extend to a foetus. The courts in the United Kingdom
[64], United States [65] and Canada have held that the constitutional right to
life only extends to human beings. The position in Europe is less clear. The
European Commission of Human Rights has avoided deciding the issue of
whether the right to life extends to a foetus or whether there are implied
limitations on the right of life of the foetus. [66]

What are the principles of fundamental justice?

The meaning of the phrase "principles of fundamental justice" has not been
considered directly by the courts in New Zealand. The phrase involves a
conception of substantive, as opposed to procedural justice. Accordingly, it
would seem likely that the courts will take into consideration a number of
factors such as:

• the deliberate decision by Parliament to use the phrase fundamental

justice ahead of other options, such as "natural justice" (which has a
more procedural focus, see section 27)
• the nature and purpose of section 8 to prevent the arbitrary taking of
life
• the context within which section 8 appears; that is sections 8 -11 are
concerned with promoting the dignity and worth of the person.

Dickinson CJ in the Canadian Supreme Court [67] considered that the scope
of fundamental justice must necessarily be broader than natural justice on the
basis that:

For the narrower the meaning given to "principles of fundamental justice" the
greater will be the possibility that individuals will be deprived of these most
basic rights. This latter result is to be avoided given that ...the deprivation of
[life] "has the most severe consequences upon an individual" (R v Cadeddu
(1982) 40 OR (2d) 128 (HC) at p 139).
[To interpret fundamental justice as being synonymous with natural justice]
would strip the protected interests of much, if not most, of their content and
leave the "right to life...of the person" in a sorely emaciated state. [68]

According to Dickinson CJ the principles of fundamental justice are to be

found:

in the basic tenets of our legal system. They do not lie in the realm of general
public policy but in the inherent domain of the judiciary as guardian of the
justice system. [69]

This would appear to mean that the principles of fundamental justice must be
interpreted within the specific context within which the section is invoked.
[70] It is therefore a flexible concept.

The Canadian Supreme Court subsequently went on to add that the principles
of fundamental justice are inextricably bound to society's expectation of
justice. [71] The principles underpinning fundamental justice must be
capable of being identified with some precision and applied to situations in a
manner which yields an understandable result. They must also be legal
principles. To determine the principles of fundamental justice that are central
to a particular situation, it is helpful to review the common law and the
legislative history of the activity in question and, in particular, the motivation
behind the practice itself and the principles which underlie it. It is also
appropriate to consider the state interest. Fundamental justice requires that a
fair balance be struck between the interests of the state and those of the
individual. [72]

The standards allowing for the deprivation of life should therefore be

transparent and robust and capable of being articulated with certainty.

Preventive measures

The principles of fundamental justice together with the obligation on the state
to protect a person's life may require the state to take steps to protect an
individual who is being detained or being cared for by the state, particularly
where that person's life is at risk from criminal acts of another individual.
Such an obligation is likely to exist where authorities know or ought to know
of the existence of a real and immediate risk to the life of that individual and
fail to take steps to prevent that loss of life. [73]

The requirements of fundamental justice would also appear to require that the
state take active steps to investigate the circumstances leading to the loss of
life where it did not know, or could not have been expected to know of the
existence of the risk to life. [74] The requirement to investigate the cause of
death is directed at preventing similar acts occurring again.

Terminally ill patients

The New Zealand case law reflects a contextual approach when considering
the scope of section 8 in situations where medical intervention is needed to
prolong the life of terminally ill patients. Although the term "fundamental
justice" is not expressly discussed, it is clear from the judgment in Auckland
Healthcare Services Ltd v L as to what type of factors the courts may take
into account. In this case the Court held:

In all but the most exceptional case, the Court is required to take all
necessary steps to preserve human life. An exceptional case does not mean a
decision on whether to end life, but whether to prolong it by giving or
maintaining treatment, without which death would ensue from natural
causes. The decision whether to withdraw treatment must be taken in the best
interests of the patient having regard to established medical practice. The
continued and futile suffering of the patient will be a relevant factor. If the
case is an exceptional one and withdrawal of treatment is appropriate, there is
no breach of the Bill of Rights. [75]

Salmon J was more succinct in his reasoning in Shortland v Northland

Health Ltd:

The decision in this case made as it was in good faith and in accordance with
the doctor's best clinical judgment, was not a decision to deprive of life, but
rather, one to let life take its natural course. [76]

From these cases, some key elements regarding decisions not to proceed with
medical treatment that should be built into policy are to ensure that:

• decisions have been made following a deliberative process;

• that process is in line with well-settled medical procedures;
• decisions have been made in a manner that is consistent with
objectively acceptable standards in the best interests of the patient; and
• such decisions are not made arbitrarily.

Refugees/Extradition and Expulsion

The right in section 8 not to be deprived of life also needs to be considered in
the context of extradition hearings and attempts to remove persons seeking to
claim refugee status under the UN Convention on Refugees. In certain
circumstances the effect of extradition or removal may be to return the
person to a country that may carry out a death sentence. Although the New
Zealand government is not actually depriving the person of life, the effect of
the removal or extradition is the same. Consequently, New Zealand has an
obligation to ensure that it is not carrying out policies that may lead to the
violation of an individual's rights in another country. [77] Section 8 does not
prevent the extradition or removal of persons to countries that carry out the
death penalty in circumstances where the death penalty is imposed following
a fair and public hearing and where the penalty is proportionate to the
offence. [78]

Further considerations

The significance of the right not to be deprived of life in section 8 is given

further weight by the additional requirement that any procedure allowing for
the deprivation of life is required to be established by law. [79]

The courts have also noted that, where there is scope for a potential conflict
of rights such as where the interests of the parents may differ from the
clinicians regarding a child's health, those rights are to be defined in such a
way that the conflicts are reconciled and the rights made compatible.
Accordingly, the parental right to freedom of religion in section 15 cannot
extend to imperil the life or health of a child. [80] This is an example of
where the scope of one right may be read down because of the importance
attached to another right. See earlier discussion about 'competing rights' and
the role of section 5.

Key cases

Shortland v Northland Health Ltd [1998] 1 NZLR 433; Auckland Healthcare

Services Ltd v L (1998) 5 HRNZ 748; Re J (An Infant) B and B v Director-
General of Social Welfare [1996] 2 NZLR, 134; Irwin Toy Ltd v Quebec
(Attorney-General) [1989] 1 SCR 927; Reference re Section 94(2) of the
Motor Vehicle Act (1985), 23 CCC. 289, 24 DLR.(4th) 536, [1985] 2 SCR
486, 48 C.R 26 (3d) 289; Chiarelli v Canada (Minister of Employment and
Immigration) [1992] 1 SCR 711, 72 C.C.C. (3d) 214, 90 DLR (4th);
Rodriguez v British Columbia (Attorney-General) 3 SCR 519; Paul and
Audrey Edwards v United Kingdom Application No.46477/99, March 14,
2002; Osman v. United Kingdom 87/1997/871/1083.
History of the Section

The White Paper

The provision in the White Paper [81] was worded slightly differently from
the section that finally appeared in the Bill of Rights Act. The article as it
was originally worded read:

No one shall be deprived of life except on such grounds, and, where

applicable, in accordance with such procedures, as are established by law and
are consistent with the principles of fundamental justice.

Notably the words "and, where applicable, in accordance with such

procedures" were gone by the time of the introductory reading of the Bill in
October 1989 (a search of Hansard and the Select Committee Reports from
the time do not reveal why).

Section 8 origins in international treaties and overseas legislation

Article 6(1) of the International Covenant on Civil and Political Rights

(ICCPR) provides:

Every human being has the inherent right to life. This shall be protected by
law. No-one shall be arbitrarily deprived of his life.

Article 3 of the Universal Declaration of Human Rights (UDHR) states that:

Everyone has the right to life, liberty and security of person.

Article 2(1) of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on Human Rights)
provides:

Everyone's right to life shall be protected by law. No-one shall be deprived of

his life intentionally save in the execution of a sentence of a court following
his conviction of a crime for which this penalty is provided by law.

Section 7 of the Canadian Charter of Rights and Freedoms provides:

Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with principles of
fundamental justice.
Section 9 Torture, or cruel, degrading, or
disproportionately severe treatment
Section 9 of the Bill of Rights Act is as follows:

Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or
disproportionately severe treatment or punishment.

Policy triggers: do I need to consider section 9?

• Are you developing policy that proposes new offences and penalties or
increasing the size and/or range of penalties for offences?
• Are you developing policy or practices that affect the conditions under
which individuals may be detained?
• Does your policy authorise searches of persons?

If you answered 'yes' to any of these questions then you should read the
information below about section 9 of the Bill of Rights Act.

What every policy analyst needs to know about section 9

The following key factors can be highlighted about section 9:

• Section 9 is directed at two types of actions of the state: those that are
inherently barbaric and those where the state is responding to particular
conduct or activities in a grossly disproportionate manner.
• Section 9 is directed at treatment or punishment that is incompatible
with the dignity and worth of the human person.
• Torture involves the deliberate infliction of physical and/or mental
suffering and is an aggravated form of cruel or disproportionately
severe or degrading treatment or punishment.
• "Torture" can include not only acts that cause physical pain but also
acts that cause mental suffering.
• Where the state acts in a disciplinary or penal context, almost any act
designed to have a detrimental effect on the life, liberty, and security
interests of a person may be considered "treatment or punishment" for
the purposes of section 9. For example, in New Zealand "treatment"
has been held to include:
 o the forfeiture of property under the Proceeds of Crime Act 1991;
o a strip search;
o the wide-spread distribution of a photograph for publication of a
person suspected of having committed a crime.
• In order for the treatment or punishment to be "cruel" or
"disproportionately severe", the courts have consistently held that the
punishment or treatment must be excessive or grossly disproportionate
to what is considered appropriate in the circumstances.
• For the purposes of section 9, a form of punishment is cruel,
disproportionately severe if the treatment or punishment exceeds
society's expectation of what is appropriate in a particular
circumstances, having regard to
o the nature of the act;
o the context in which it is delivered; and
o the manner of its execution.
• A treatment or punishment may be considered "degrading" where it
humiliates or debases an individual and shows a lack of respect for, or
diminishing, his or her human dignity.
• An assessment of whether a form of punishment or treatment is
degrading or not will involve consideration of:
o the impact it has on the affected individual;
o the nature of the act;
o the context in which it is delivered; and
o the manner of its execution.

Measures to achieve compliance

When considering the appropriate offence and level of penalty:

• Consult the Legislation Advisory Committee Guidelines and research

the statute book to consider whether new offences are necessary and
whether the level of penalty is appropriate.
• Consider whether the offences and the penalty levels associated with
those offences are consistent with each other.
• Tailor the penalty level to the type of conduct you are seeking to
prohibit.
When considering other activities:

• Limit the range of persons who can exercise coercive powers to those
classes of individuals who are shown to possess the required skills,
training and experience.
• Develop practice guidelines to ensure that law enforcement officers are
familiar with basic procedural requirements.
• Consider providing guidelines that provide for the needs and individual
circumstances of persons who come under the control of the
legislation, so where practicable and to the extent possible, individuals
are not more seriously affected or disadvantaged by a policy.

The United States Supreme Court has developed guidelines that may assist
you in determining whether a proposed punishment or treatment is likely to
be grossly disproportionate or manifestly excessive. You should consider if
the punishment or treatment:

1. makes no measurable contribution to acceptable goals of punishment

and hence is nothing more than the purposeless and needless
imposition of pain and suffering;
2. is grossly out of proportion to the nature of the conduct;
3. is inconsistent with generally recognised and applied principles for
addressing the conduct;
4. is of such a character or duration as to outrage the public conscience;
5. goes beyond what is necessary for the achievement of a valid social
aim, having regard to the legitimate purposes of the treatment and the
adequacy of possible alternatives; or
6. is arbitrarily imposed in the sense that it is not applied in a rational
basis in accordance with ascertained or ascertainable standards.

Related rights and freedoms

When considering whether your policy proposal or practice might give rise to
an issue under section 9, you should also consider whether the policy or
practice places restrictions on the following rights and freedoms:

• the right not to be subject to medical or scientific experimentation

without consent (section 10);
• the right to refuse to undergo medical treatment (section 11);
 • the right to be secure against unreasonable search and seizure (section
21);
• the right not to be arbitrarily arrested or detained (section 22);
• the right, when deprived of liberty, to be treated with humanity and
with respect for the inherent dignity of the person (section 23(4));
• minimum standards of criminal procedure (section 25).

Further discussion on the meaning of section 9

The White Paper explains that the objective of section 9 is directed at

treatment or punishment that is incompatible with the dignity and worth of
the human person. [83] This principle is reflected in earlier caselaw from the
United States where the Supreme Court in Trop v. Dulles [84] held that that
"the existence of the death penalty is not a license to the Government to
devise any punishment short of death within the limit of its imagination."
[85]

The Court went on to say that a punishment must be examined ''in light of the
basic prohibition against inhuman treatment,'' and the Amendment was
intended to preserve the ''basic concept. . . [of] the dignity of man'' by
assuring that the power to impose punishment is ''exercised within the limits
of civilised standards." [86]

A question of degree

The modifying words in section 9 ("cruel, degrading, or disproportionately

severe") makes it clear that all these terms will involve questions of degree,
but so too torture. The European Court of Human Rights in Ireland v UK
[87] said:

...ill-treatment must attain a minimum level of severity if it is to fall within

the scope of [the right]. The assessment of this minimum is, in the nature of
things, relative; it depends on all the circumstances of the case, such as the
duration of the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim. [88]

Section 9 is directed at two actions of the state - those that are inherently
barbaric, and those where the state is responding to particular conduct or
activity in a grossly disproportionate manner.

What is torture?
The courts in New Zealand have not addressed the meaning of torture.
However, there are a number of judicial and legal statements on the term.
Torture has been described to be the deliberate infliction of physical or
mental suffering and differs from the merely cruel and severe in its intensity.
[89]

Torture has been defined to mean: [90]

... any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public official on a person
for such purposes as obtaining from him or a third person information or
confession, punishing him for an act he has committed or is suspected of
having committed, or intimidating him or other persons. It does not include
pain or suffering arising only from, inherent in or incidental to, lawful
sanctions to the extent consistent with the Standard Minimum Rules for the
Treatment of Prisoners.

Torture constitutes an aggravated and deliberate form of cruel, inhuman or

degrading treatment or punishment.

On a similar note, in the Report of the Special Rapporteur on the question of

torture and other cruel, inhuman or degrading treatment or punishment [91] it
was noted that the prohibition of torture relates not only to acts that cause
physical pain but also to acts that cause mental suffering of the victim or a
third person, such as intimidation and other forms of threats. [92]

Torture may be regarded as an extension of treatment or punishment that

would otherwise be cruel, degrading or disproportionately severe in a
particular context. At the same time not all "cruel, degrading, or
disproportionately severe" treatment will be "torture".

What is 'punishment'?

Again, the courts in New Zealand have not addressed the meaning of this
term in the context of section 9. However, we can assume from other
decisions that the term "punishment" is likely to be limited to situations
where there is a judicially imposed sentence in order to distinguish it from
"treatment". [93] The Canadians have construed punishment to mean "the
imposition of a penalty", and a penalty is, in a broad sense, a "disadvantage
of some kind imposed as a consequence of a misbehaviour which ... may
include a loss of reward." [94]

What is 'treatment', then?

The caselaw in New Zealand to date focuses on the threshold of
proportionality (etc). This emphasis indicates that the courts will accept that
most conduct will be treatment for the purposes of section 9. There is nothing
to suggest that it is limited to judicially imposed punishments. The court in
Bracey v Hawkins (No 2) [95] accepted the dictionary definition of treatment
and held that treatment was "conduct, behaviour; action or behaviour towards
a person". However, it is unlikely that section 9 would apply to any form of
"conduct, behaviour...".

As section 9 is primarily concerned with matters associated with the life,

liberty and security of the individual it is likely that the reach of the meaning
of the word treatment will be limited to these areas. It is therefore likely that
almost anything can be treatment for the purposes of section 9 where the
state has actively interacted with an individual in a disciplinary context or
exercised a form of control over the individual. [96]

"Treatment" has been held in New Zealand to include:

• the forfeiture of property under the Proceeds of Crime Act [97];

• a strip search [98];
• the wide-spread distribution of a photograph for publication of a
person suspected of having committed a crime [99].

What is 'cruel' or 'disproportionately severe' treatment or punishment?

In order for the treatment or punishment to be cruel or disproportionately

severe, the courts in New Zealand and overseas have consistently held that
the punishment or treatment must be excessive; [100] or so excessive as to
outrage standards of decency. [101]

The courts have indicated that a particular form of treatment or punishment

may be excessive for reasons other than the severity of the treatment or
punishment. For example, the imprisonment (as opposed to detention in a
medical facility) of an offender with a mental disability for sexual offences
may be excessive if imprisonment posed serious risks to his or her safety or
health. [102] Consideration will need to be given to the nature of the
treatment or punishment and the context within which it is applied. A
"combination of factors which, when considered in isolation, would not in
and of themselves amount to gross disproportionality" might be considered
excessive in certain cases. [103] The Supreme Court in the United States has
recently said that in looking to see what is excessive, the courts "must draw
its meaning from the evolving standards of decency that mark the progress of
a maturing society." [104]

What is 'degrading' treatment or punishment?

The notion that treatment or punishment should not be degrading is

concerned with the effect that the treatment or punishment is likely to have
on an individual. On "degrading" the European Court of Human Rights has
held: [105]

Where treatment humiliates or debases an individual showing a lack of

respect for, or diminishing, his or her human dignity or arouses feelings of
fear, anguish or inferiority capable of breaking the individual's moral and
physical resistance, it may be characterised as degrading.

Even though all forms of treatment or punishment are likely to have an

element of degradation [106] it is clear that the level of degradation must
exceed society's expectations of what is appropriate in a particular context.
For example, the Commissioner for Children has found that the action of
high school teachers in strip searching students was a degrading form of
treatment for the purposes of section 9. [107] The New Zealand courts have
not specifically addressed this issue.

The European Court has provided more assistance when it held that, when
considering whether a form of treatment or punishment is degrading,
consideration will be given to a number of factors including the nature of the
act, the context within which it is delivered, the manner of its execution, and
the impact it has on the victim. [108]

Key cases

Daniels v Thompson [1998] 3 NZLR 22; Lyall v Solicitor-General [1997] 2

NZLR 641; R v Callard (CA 266/97, 16 Sept 1997); R v Leitch [1998] 1
NZLR 420; Re Strip Search at Hasting Boys High School [1990-92] 1
NZBORR 480; Bracey v Hawkins (No 2) [1993] DCR 395; R v Smith[1987]
1 SCR 1045; Trop v. Dulles 356 US 86; 37 Atkins v Virginia 260 VA 375,
534 S.E. 2d 312 , reversed and remanded, 536 US _(2002) Tyrer v UK (1977-
78) 2 EHRR 1; Diane Pretty (Application No 2346/02).

History of the section

The White Paper

The wording of the article in the White Paper is unchanged from that which
appears in section 9.

Section 9 origins in international treaties and overseas legislation

ICCPR article 7 provides that:

No one shall be subjected to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent
to medical or scientific experimentation.

Article 5 of the Universal Declaration of Human Rights (UDHR) provides

that:

No person shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment

Canadian Charter section 12 provides:

Everyone has the right not to be subjected to any cruel and unusual treatment
or punishment.

Article 3 of the European Convention on Human Rights provides:

No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.

The Eighth Amendment to the Constitution of the United States provides:

Excessive bail ought not to be required, nor excessive fines imposed; nor
cruel and unusual punishments inflicted.

Section 10 No medical or scientific

experimentation
Section 10 of the Bill of Rights Act is as follows:

Right not to be subjected to medical or scientific experimentation

Every person has the right not to be subjected to medical or scientific
experimentation without that person's consent.

Policy triggers: do I need to consider section 10?

You may need to consider whether there are issues in terms of section 10, if
you are developing policies or regulations in the following areas:

• The regulation of medical practices that involve the use of alternative

therapeutic practices.
• Policies that seek to regulate the conduct of medical research.
• Policies or practices that seek to allow for the approval of forms of
medical experimentation that will involve the trialing of new
techniques on people.

What every policy analyst needs to know about section 10

The following key facts can be drawn out of the following discussion on
section 10:

• Medical and scientific experimentation is to be distinguished from

standard forms of medical treatment dealt with under section 11.
• A trial or experimentation concerns a medical intervention that aims to
lead to a new standard of treatment, whereas treatment is any medical
measure that is commonly used by physicians and specialists in
treating the particular illness.
• The Protection of Personal and Property Rights Act 1988, section 18,
provides that no Court can empower a welfare guardian to, and no
welfare guardian can, consent to a person's taking part in any medical
experiment other than for the purpose of saving that person's life or of
preventing serious damage to that person's health.
• A person's participation in medical or scientific experimentation should
be governed by the doctrine of informed consent and the Code of
Health and Disability Services Consumers' Rights, which requires that
consent be:
1. Voluntary
2. Specific
3. In some cases in writing
4. Competent
5. Informed.
• In order to give informed consent, the patient should receive full
information about the nature of the procedure including:
o an explanation of his or her condition;
 o an explanation of the options available, including risks, side
effects, benefits, and costs;
o advice of the estimated time within which services will be
provided;
o notification of any proposed participation in teaching or
research;
o any other information required by legal, professional, ethical,
and other relevant standards;
o results of tests; and
o results of procedures.
• Informed consent should be viewed as a process, rather than a one-off
event, with the essential elements of that process being:
o effective communication: In a form, language and manner that
enables the consumer to understand the information provided to
them; In an environment that enables both consumer and
provider to communicate openly, honestly and effectively; And,
where necessary and reasonably practicable, including the right
to an interpreter.
o full information: To give all relevant information to the
consumer including, for example, honest and accurate answers to
questions about services and the receipt of, on request, a written
summary of the information provided.
o freely given, competent consent.
• Any intrusion into this right would require explicit statutory
authorisation, which would be interpreted very strictly and wherever
possible consistently with the Bill of Rights Act.

Measures to achieve compliance

The issue of consent will be crucial when exploring ways in which you can
ensure that your policy or practice is consistent with section 10. In order to
achieve compliance, you should refer to international and domestic
guidelines on scientific and medical experimentation and develop the policy
or practice consistently with these standards. You should also ensure that if
any policy or practice requires individuals to participate in a medical
procedure, that this requirement be expressed in legislation.
There are also international standards governing the conditions under which
medical research is conducted. The Revised Helsinki Declaration on
Biomedical Experimentation has become universally accepted as providing a
standard for the conduct of such experiments. [109]

Related rights and freedoms

Section 10 recognises that the protection of bodily integrity and privacy are
amongst the most fundamental human rights and values. [110] When
considering whether your policy or practice gives rise to issues under section
10, you should also consider whether the following rights apply:

• the right not to be deprived of life (section 8);

• the right not to be subject to cruel, degrading or disproportionately
severe treatment (section 9);
• the right to refuse to undergo medical treatment (section 11);
• the right, when deprived of liberty, to be treated with humanity and
with respect for the inherent dignity of the person (section 23);
• the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 10

Treatment versus experimentation

Erwin Deutsch, a specialist in medico-legal matters, argues that:

Experimentation has to be distinguished from treatment. Treatment is never

to be regarded as experimental solely because doctor and patient are not sure
about the success ... medical trial ...has to be contrasted with standard
treatment. Standard treatment is any medical measure that is commonly used
by physicians and specialists in treating the particular illness. By contrast the
trial or experimentation concerns a medical intervention that aims to lead to a
new standard of treatment ... There can be treatment and trial working
together in the same medical measure. Sometimes both are of equal
importance; sometimes it is necessary to know whether the emphasis is on
treatment or experimentation. [111]

The distinctions between treatment and experimentation are reflected in the

Protection of Personal and Property Rights Act 1988, in particular section 18
of that Act. That section provides, amongst other things, that no Court can
empower a welfare guardian to, and no welfare guardian can, consent to a
person's taking part in any medical experiment other than for the purpose of
saving that person's life or of preventing serious damage to that person's
health.

In differentiating between treatment and experimentation, the German

Supreme Court [112] has considered whether the medical measure looks
towards the restoration of the health of the patient or looks more to research
purposes. [113]

Informed consent

Section 10 provides that "every person has the right not to be subjected to
medical or scientific experimentation without that person's consent." The
notion of bodily integrity is central to section 10. That is, section 10 protects
the idea that every individual to make choices has the right to determine for
themselves what they do or not do to their own body, free from restraint or
coercion.

The idea of informed consent is central to this autonomous decision-making

process. The doctrine of informed consent has particular significance for
medical practitioners and health care professionals as a person may elect to
undergo or not undergo a form of medical treatment in a situation where that
decision may be life-threatening.

The doctrine of informed consent for medical experiments first arose out of
the Nuremberg Trials following World War II. [114] Informed consent is a
medical ethics and legal doctrine developed by the courts over a number of
years. The doctrine requires that medical practitioners and other health care
practitioners provide a patient with all relevant information about a proposed
procedure or treatment prior to obtaining the consent of the patient. The issue
of medical experimentation and consent has arisen in New Zealand in the
context of the Committee of Inquiry into allegations concerning the treatment
of cervical cancer at National Women's Hospital. In the Committee's report
(the Cartwright Report) it was stated:

There are two fundamental rules ...which must be observed if patients are to
be included in clinical trials.

i. The patient must be given information which allows her to understand

what is involved in the trial, including its potential risks and benefits.
 She must know that refusing to enter a trial or leaving it at any time is
her choice and will not compromise future care.
ii. She must give her consent freely. She must not be in a dependent
relationship to the person seeking the consent, must not feel vulnerable
or under any obligation and must have a good grasp of English or have
adequate interpreting services. She must be given time to decide and to
consult whanau, family or friends. [115]

Further discussion of what is meant by informed consent is set out in the

discussion in these guidelines on the right to refuse medical treatment as
affirmed by section 11 of the Bill of Rights Act.

Key cases

Jeffcoat v Waetford (1999) 17 CRNZ 75; 5 HRNZ 466; Down v Van de

Wetering [1999] 2 NZLR 631; Suresh v. Canada (Minister of Citizenship and
Immigration) (C.A.), [2000] 2 F.C. 592

History of the section

The White Paper

The wording of the proposed provision in the White Paper was identical to
that now found in section 10, but it was considered to form part of the
broader right not to be subject to cruel, degrading or disproportionate
treatment as now set out in section 9 of the Bill of Rights Act.

Section 10 origins in international treaties and overseas legislation

Article 7 of the ICCPR provides:

No-one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment. In particular, no-one shall be subjected without his
free consent to medical or scientific experimentation

There is no equivalent provision in the Canadian Charter of Rights and

Freedoms or European Convention on Human Rights. However, the
principles found in section 10 of the Bill of Rights Act would appear to
correspond with section 7 of the Charter, which provides:
Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with principles of
fundamental justice.

Section 11 Right to refuse to undergo medical

treatment
Section 11 of the Bill of Rights Act is as follows:

Right to refuse to undergo medical treatment

Everyone has the right to refuse to undergo any medical treatment.

Policy triggers: do I need to consider section 11?

If the policy you are developing does any of the following, it may raise issues
in terms of section 11:

• any compulsory medical examination or treatment;

• provides organisations with a statutory authority to compel medical
examination, test, or some other form of medical practice; for example,
when a medical examination is a pre-requisite to the holding of a
particular type of transport license, professional registration, or a pre-
requisite to access to a service, or medical treatment that is required
before a professional registration is continued or reinstated;
• provides for the administration of compulsory assessment, examination
and treatment where it is considered that a person may be mentally
disordered;
• medical examination and/or medical treatment of children;
• medical examination and/or medical treatment practices in emergency
situations, including civil emergencies.

What every policy analyst needs to know about section 11

Section 11 of the Bill of Rights Act:

• extends to all forms of health care and medical intervention, including

compulsory medical examinations;
• the right to refuse to undergo medical treatment serves to maintain a
person's bodily integrity and autonomy, and human dignity;
• a person has a right to refuse treatment even though the decision may
be considered by objective standards to be medically unsound or
contrary to the patient's best interests;
• in order to give informed consent, the patient should receive full
information about the nature of the procedure including:
o an explanation of his or her condition;
o an explanation of the options available, including risks, side
effects, benefits, and costs;
o advice of the estimated time within which services will be
provided;
o notification of any proposed participation in teaching or
research;
o any other information required by legal, professional, ethical,
and other relevant standards;
o results of tests; and
o results of procedures.
• informed consent should be viewed as a process, rather than a one-off
event, with the essential elements of that process being:
o effective communication: In a form, language and manner that
enables the consumer to understand the information provided to
them; In an environment that enables both consumer and
provider to communicate openly, honestly and effectively; And,
where necessary and reasonably practicable, including the right
to an interpreter.
o full information: To give all relevant information to the
consumer including, for example, honest and accurate answers to
questions about services and the receipt of, on request, a written
summary of the information provided.
o freely given, competent consent.
• a person must be "competent" to grant informed consent to, or to
refuse, medical treatment - there are three general categories in which a
patient is considered not to be competent to give consent:

i. emergency situations
ii. by reason of age
iii. mental capacity
 • every person of diminished competence has the right to grant informed
consent to or to refuse treatment to the extent appropriate to the
person's level of competence;
• limitations to the application of section 11 should be set out explicitly
in statute and will be read strictly.

Measures to achieve compliance

If creating a requirement for medical examination or medical treatment:

• consider whether the medical examination/treatment can be made

optional
• provide safeguards for how the medical examination /treatment will be
done (eg, have a clear purpose for the treatment, set out in statute, and
include details of when, where, and by whom)
• where possible, avoid a punitive consequence or professional
disadvantage for a person who refuses the medical
examination/treatment
• develop your policy consistently with the Code of Health and
Disability Services Consumers' Rights (as developed by the Office of
the Health & Disability Commissioner).

Related rights and freedoms

Section 11 is similar to section 10 in that it recognises that the protection of

bodily integrity and privacy are amongst the most fundamental human rights
and values. [116] When considering whether your policy or practice gives
rise to issues under section 11, you should also consider whether the
following rights apply:

• the right not to be deprived of life (section 8);

• the right not to be subject to cruel, degrading or disproportionately
severe treatment (section 9);
• the right not to be subjected to medical or scientific experimentation
(section 10);
• the right to freedom of thought, conscience and religion (section 13);
• the right to manifest religion or belief (section 15);
• the right, when deprived of liberty, to be treated with humanity and
with respect for the inherent dignity of the person (section 23);
 • the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 11

The need for informed consent

Section 11 provides that "everyone has the right to refuse to undergo any
medical treatment." Like section 10, the notion of bodily integrity is central
to section 11. That is, section 11 protects the idea that every individual to
make choices has the right to determine for themselves what they do or not
do to their own body, free from restraint or coercion.

The idea of informed consent is central to this autonomous decision-making

process. The doctrine of informed consent has particular significance for
medical practitioners and health care professionals as a person may elect to
undergo or not undergo a form of medical treatment in a situation where that
decision may be life-threatening.

The doctrine of informed consent for medical treatment and experimentation

first arose out of the Nuremberg Trials following World War II. [117]
Informed consent is a medical ethics and legal doctrine developed by the
courts over a number of years. The doctrine requires that medical
practitioners and other health care practitioners provide a patient with all
relevant information about a proposed procedure or treatment prior to
obtaining the consent of the patient.

The Code of Consumers' Rights [118] requires that consent be:

• voluntary
• specific
• in some cases in writing
• competent
• informed

What is meant by "informed consent"?

Informed consent requires that a person who is considering whether to

participate in a medical or scientific experiment or undergo medical
treatment be fully informed about the experiment/treatment.
The Health and Disability Commissioner describes [119] informed consent
as a process, rather than a one-off event, with the essential elements of that
process being:

• Effective communication: In a form, language and manner that enables

the consumer to understand the information provided to them; In an
environment that enables both consumer and provider to communicate
openly, honestly and effectively; And, where necessary and reasonably
practicable, including the right to an interpreter.
• Full information: To give all relevant information to the consumer
including, for example, honest and accurate answers to questions about
services and the receipt of, on request, a written summary of the
information provided.
• Freely given, competent consent.

The Code of Health and Disability Services Consumers' Rights ("the Code of
Consumers' Rights") provides clear guidance as to the requirement for
consent to be obtained and the quality of that consent.

The Code of Consumers' Rights outlines what it means for a person to be

fully informed about a course of medical treatment [and by analogy medical
experimentation]. The consumer should receive full information about the
nature of the procedure including:

• an explanation of his or her condition;

• an explanation of the options available, including risks, side effects,
benefits, and costs;
• advice of the estimated time within which services will be provided;
• notification of any proposed participation in teaching or research;
• any other information required by legal, professional, ethical, and other
relevant standards;
• results of tests; and
• results of procedures. [120]

Consent should be voluntary

As the Code of Consumers' Rights notes, consent should be voluntary and

free from coercion. Coercion can appear in many forms and includes indirect
compulsion such as where a person's decision to refuse to undergo a medical
procedure may have serious adverse consequences for the person, either in
terms of criminal or disciplinary proceedings, their career or entitlement to
some benefit.

There are several examples of statutory provisions other than mental health
legislation that override the right of a person to refuse medical treatment.
These include provisions of the Health Act 1956 [121], the Children, Young
Persons and Their Families Act 1989 [122], the Land Transport Act 1998
[123], and the Criminal Investigations (Blood Samples) Act 1995. [124]

In a general sense, many of these provisions override the right to refuse

medical treatment in the interests of the safety of the public and/or the person
themselves. However, these procedures are also subject to appropriate checks
and balances to ensure that the powers are not exercised unreasonably. [125]

The courts have recognised the importance of adhering to these procedures,

as a person is unable to effectively exercise their right to informed consent.
In Down v Van de Wetering [126] the court said:

There can be little doubt that to compel a person, against his or her will, to
give a blood sample, if necessary by the use of force, is an infringement of
fundamental rights. This is implicit in provisions of the New Zealand Bill of
Rights Act such as s 10 ... and s11... Reference may also be made to R v T
[127] for the proposition (at p20) that it is inappropriate to adopt an
expansive construction of a statute which encroaches in a substantial way on
fundamental personal rights... Equally clearly, the Criminal Investigations
(Blood Samples) Act establishes a procedure, subject to various safeguards,
enabling orders to be made for the taking of blood samples by or under
compulsion. Parliament having made the policy decision to enact such
legislation, it is not for police officers to re-reason the desirability of such
legislation, nor to undermine its effect and intent...

What is meant by competent to consent

The courts have taken the view that where a person is competent, treatment
cannot be imposed on them without their consent. [128] Section 5 of the
Protection of Personal and Property Rights Act 1988 ("the PPPR Act")
creates the presumption that all persons are capable of giving informed
consent. The courts to date have held that "everyone" in section 11 means
"every person who is competent to consent." [129] This definition appears to
be an attempt to limit the scope of section 11 and has been subject to
criticism. [130] It is unclear whether such an approach would be taken in
respect of section 10.

The Code of Consumers' Rights [131] establishes a presumption of

competence in consumers, but does not define the meaning of competence
and nor is there any guidance as to how competence is to be determined. The
common law also recognises a presumption of competence. [132]

Although the courts here have not defined the meaning of competence, the
courts in the United Kingdom have provided some basic principles for
determining whether a person has capacity to consent. [133] The Court in Re
MB held that a person lacks capacity to consent:

[if] some impairment or disturbance of mental functioning renders the person

unable to make a decision whether to consent to, or to refuse, treatment. That
inability to make a decision will occur when: (a) the patient is unable to
comprehend and retain the information which is material to the decision...(b)
the patient is unable to use the information and weigh it in the balance as part
of the process of arriving at the decision. [134]

The Court recognised that a combination of factors - such as fatigue, shock,

fear or confusion - may temporarily inhibit a person's capacity to consent.
However, because of the transitory nature of these characteristics, decision-
makers need to be satisfied "that such factors are operating to such a degree
that the ability to decide is absent." [135] This needs to be distinguished from
the situation where a person makes what is regarded to be an irrational
decision. A person can make an irrational decision yet be competent for the
purposes of this discussion.

Degrees of competence

The Code of Consumers' Rights recognises that there are degrees of

competence. The Code of Consumers' Rights provides that where a consumer
has diminished competence, that person retains the right to make an informed
choice and give informed consent to the extent appropriate to the person's
level of competence. Such an approach is consistent with statements from the
United Nations Human Rights Committee. The Committee has observed that,
in the context of considering the validity of any consent, particular
consideration needs to be afforded to the quality of consent provided by
certain classes of individuals, such as prisoners or other detainees, minors,
and those suffering from mental illness or an intellectual disability. [136]
It is suggested that policy advisers adopt the same approach.

In New Zealand other legislation, such as the Children, Young Persons, and
Their Families Act 1989 and the Mental Health (Compulsory Assessment
and Treatment) Act 1992 provide guidelines for the treatment of minors and
adults with mental illness. [137] Section 6(1) of the PPPR Act also provides
for the appointment of welfare guardians in relation to incapacitated persons.
These welfare guardians have the power to consent to a person participating
in any medical experiment for the purpose of saving that person's life or of
preventing serious damage to that person's health. [138]

There are three general categories in which a patient is considered not to be

competent to give consent. However, even in such circumstances the extent
to which somebody may be subjected to medical treatment without their
consent is limited. In some cases, a person's inability to provide consent is
balanced by the ability of others to consent on their behalf. In other situations
the statutory framework authorising the treatment may establish tightly
prescribed procedures governing the administration of the treatment. In other
words, the interference is seen as being reasonable because it can satisfy a
section 5 analysis. The three grounds are set out briefly below

Emergency situations (life sustaining medical treatment)

The Code of Consumers' Rights gives recognition to the common law

doctrine of necessity. [139] This doctrine may apply where a medical
practitioner or health care provider considers that it is necessary to act, in the
best interests of the patient's life or physical or mental health, and:

1. it is not practicable to communicate with the patient; and

2. the action or treatment taken is treatment that a reasonable person
would in all the circumstances take, acting in the best interests of the
patient.

However, policy advisers need to take note of the limits to the doctrine. For
example, a health professional cannot justify treatment or intervention
without consent on the basis of necessity where:

1. there is an appropriate person, other than the patient, who is available

and willing to give consent to the proposed treatment and that consent
was not sought; or
 2. the proposed treatment was contrary to the known wishes of the
patient.

By reason of age

Although it may be considered that children do not have the understanding or

reasoning ability to enable them to make fully informed choices about
medical treatment, it is clear that children need to be involved in the
decision-making process. Although a child may not have the reasoning
ability of an adult, the child may still be able to make an informed choice.
And, as the Code of Consumers' Rights points out, the child is able to give
informed consent about a medical procedure to the extent appropriate to his
or her level of competence. The United Nations Convention on the Rights of
the Child also requires that children be actively involved in the process of
making decisions about their medical treatment. [140] However, this does not
mean that the views of the child will prevail where those views are not
considered to be in that child's best interest. In such cases, the parents' views
or the views of a court appointed guardian may be ascertained. [141]

By reason of mental capacity

The provisions of the Mental Health (Compulsory Assessment and

Treatment) Act have been held to prevail over section 11 of the Bill of Rights
Act by virtue of section 4 of the Bill of Rights Act. [142] Such a view
appears to be consistent with the approach of the United States Supreme
Court. [143] The Court has held the state can authorise the administration of
compulsory treatment of a person with a mental disorder if they are
extremely disabled or posed a serious threat to himself or others. [144]
However, an alternative approach would be to regard the provisions of this
Act as a reasonable limit on section 11. It is clear that the procedures for
making such an assessment have been sufficiently prescribed to take into
account the person's inability to consent.

Explicit statutory authorisation required

Because the purpose of section 10 and section 11 is to protect a fundamental

personal right of the person to preserve their bodily integrity from coercive
medical procedures, any intrusion into the right would require "explicit
statutory authorisation and even then the words actually used will be read
very strictly and wherever possible consistently with the Bill of Rights Act."
[145]
The United States Supreme Court, in Cruzan v Director Missouri
Department of Health [146], has stated that:

No right is held more sacred, or is more carefully guarded ... than the right of
every individual to the possession and control of his own person, free from
all restraint or interference of others, unless by clear and unquestionable
authority of law.

Is it medical treatment or medical examination?

Not all forms of medical intervention may be considered to be a form of

treatment that will result in the patient deriving benefit. For example, can a
test for blood pressure be considered to form a "treatment". On the face of it
the answer would appear to be in the negative. However, section 11
embodies the common law principle that, as a general rule, people can decide
for themselves what should be done with their bodies. [147] In terms of the
elements that this right is trying to protect, a medical examination may
potentially be as invasive of bodily integrity and human dignity as a medical
treatment. In some circumstances, one can lead almost seamlessly into the
other (consider, for example, a visit to a GP in this context). [148]

The principle of preserving bodily integrity also applies to a person's decision

whether or not to have a particular treatment even though the decision may
be considered by objective standards to be medically unsound or contrary to
the patient's best interests. The classic statement of this principle, and its
importance, is that of Cardozo J in Schloendorff v Society of New York: [149]

Every human being of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon who performs an
operation without his patient's consent commits an assault, for which he is
liable in damages.

On this basis, section 11 is as concerned with compelled medical

examinations as it is compelled medical treatment. [150] The caselaw to date
supports this approach. [151]

In R v B, [152] for instance, the Court of Appeal suggested that an order to

compel the complainant to undertake a second medical examination in a rape
trial may constitute a medical treatment within the scope of section 11 of the
Bill of Rights Act. The Court stated:
The complainant has a right to have her privacy, dignity and bodily integrity
protected from non-consensual medical procedure - a right which may be
wider than those assured by ss10 and 11 of the Bill of Rights... [153]

Key cases

R v B [1995] 2 NZLR 172; Jeffcoat v Waetford (1999) 17 CRNZ 75; 5

HRNZ 466; Down v Van der Wetering [1999] 2 NZLR 172; Re S [1992] 1
NZLR 363; Cruzan v Director Missouri Department of Health 497 US 261;
Schloendorff v Society of New York Hospital (1914) 105 NE 92; Washington
v Harper 494 US 210; Re MB (Medical Treatment)(Court of Appeal) [1997]
2 FLR 426; Ms B v An NHS Hospital Trust [2002] EWHC 429.

History of the section

The White Paper

Section 11 is identical to the proposed provision set out in the White Paper.

Section 11 origins in international treaties and overseas legislation

Although the White Paper [154] states that there is no equivalent provision in
the ICCPR nor in any other international human rights instrument, the right
to refuse to undergo medical treatment has been recognised as a fundamental
right elsewhere. It is worth noting for instance that aspects of the right have
been considered under section 7 of the Canadian Charter, which protects
"life, liberty and security of the person". [155] The European Court of
Human Rights regards the right to decide whether to undergo medical or
dental treatment as forming part of the right to respect for private life (Article
8 of the European Convention on Human Rights). [156]

Footnotes:

53. David Robertson (1997) A Dictionary of Human Rights, Europa.

54. Shortland v Northland Health Ltd [1998] 1 NZLR 433.
55. Lawson v Housing New Zealand [1997] 2 NZLR 474, 494.
56. Lawson v Housing New Zealand [1997] 2 NZLR 474, 494 - the
Court observed that the issue of whether section 8 applied in the
context of social and economic policy considerations was "far from
clear".
57. General Comment No 6 Adopted on 27 July 1982 A/37/40
(1982) Annex V (pp. 93-94); CCPR/C/21/Rev.1, (pp. 4-6)
58. Paul and Audrey Edwards v United Kingdom Application
No.46477/99, March 14, 2002.
59. Osman v. United Kingdom 87/1997/871/1083. See discussion
under fundamental justice at page of these guidelines
60. Dianne Pretty v United Kingdom Application No 2346/02.
61. Irwin Toy Ltd v Quebec (Attorney-General) [1989] 1 SCR 927,
1002-1004
62. Irwin Toy Ltd v Quebec (Attorney-General) [1989] 1 SCR 927,
1003
63. Irwin Toy Ltd v Quebec (Attorney-General) [1989] 1 SCR 927,
1004
64. Paton v. British Pregnancy Advisory Service Trustees [1978] 2
All ER 987. However, this case was decided prior to the United
Kingdom's Human Rights Act 1988.
65. Roe v Wade 410 US 113; Tremblay v Daigle [1989] 2 SCR 530.
66. See Brüggemen and Scheuten v Germany (1977) 3 EHRR 244.
67. Reference re Section 94(2) of the Motor Vehicle Act (1985), 23
C.C.C. 289, 24 D.L.R.(4th) 536, [1985] 2 S.C.R 486, 48 C.R 26 (3d)
289
68. Reference re Section 94(2) of the Motor Vehicle Act [1985] 2
SCR 486, 501.
69. Reference re Section 94(2) of the Motor Vehicle Act [1985] 2
SCR 486, 503. It should also be noted that Cooke J in the New Zealand
Court of Appeal has previously commented to the effect that "some
common law rights run so deep that even Parliament could not
overridethem", Taylor v New Zealand Poultry Board [1984] 1 NZLR
394,398.
70. Chiarelli v Canada (Minister of Employment and Immigration)
[1992] 1 SCR 711, 72 C.C.C. (3d) 214, 90 DLR (4th).
71. Rodriguez v British Columbia (Attorney-General) 3 SCR 519.
72. Rodriguez v British Columbia (Attorney-General) 3 SCR 519, pp
591-594 per Sopinka J.
73. Osman v. United Kingdom 87/1997/871/1083.
74. Barret v United Kingdom (1997) 23 EHRR CD 185.
75. Auckland Healthcare Services Ltd v L (1998) 5 HRNZ 748
[emphasis added].
76. Shortland v Northland Health Ltd [1998] 1 NZLR 433.
77. Kindler v Canada Communication No. 470/1991 18 November
1993, para 13.1.
78. Kindler v Canada Communication No. 470/1991 18 November
1993, para 13.
79. For an explanation of the meaning of "established by law" see
the discussion on prescribed by law under section 5 of these guidelines.
80. Re J (An Infant) B and B v Director-General of Social Welfare
[1996] 2 NZLR 134.
81. The White Paper para 10.84.
82. Coker v. Georgia, 433 US 584 (1977), 592; R v Smith[1987] 1
SCR 1045, 1074; Bracey v Hawkins (No 2) [1993] DCR 395, 414.
83. The White Paper para 10.162.
84. Trop v. Dulles 356 US 86.
85. Trop v. Dulles 356 US 86, 99.
86. Trop v. Dulles 356 US 86, 100.
87. Ireland v UK January 18 1978, Series A, No 25; 2 EHRR 25.
88. Ireland v UK January 18 1978, Series A, No 25; 2 EHRR 25
para 162.
89. Adams on Criminal Law Ch 10.5.11.
90. Article 1 of Resolution 3452 of the General Assembly of the
United Nations (9/12/75).
91. (A/56/156).
92. See the Crimes of Torture Act 1989 which defines what an act of
torture is. The definition has been held to be in accordance with Article
1 of the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
93. Daniels v Thompson [1998] 3 NZLR 22, Tyrer v UK (1977-78) 2
EHRR 1.
94. Knockaert v Canada (Commission of Corrections) [1987] 2 FCR
202 at 205, FCA.
95. Bracey v Hawkins (No 2) [1993] DCR 395.
96. Rodriguez v British Columbia (Attorney-General) [1993] 3 SCR
519.
97. Lyall v Solicitor-General [1997] 2 NZLR 641.
98. Re Strip Search at Hasting Boys High School [1990-92] 1
NZBORR 480.
99. Bracey v Hawkins (No 2) [1993] DCR 395.
100. Coker v. Georgia, 433 US 584 (1977).
101. R v Smith [1987] 1 SCR 1045, pp1072, 1088-1089; R v Leitch
[1998] 1 NZLR 420; (1997) 15 CRNZ 321 (CA), at p 431.
102. R v P T129/92 HC Auckland 25/06/1992.
103. R v Smith[1987] 1 SCR 1045, 1073.
104. Trop v. Dulles 356 US 86, 101 for a recent application of this
principle see Atkins v Virginia 260 VA 375, 534 S.E. 2d 312 , reversed
and remanded, 536 US _(2002).
105. Diane Pretty (Application No. 2346/02) para 52.
106. David Robertson(1997) A Dictionary of Human Rights, Europa,
p54.
107. Re Strip Search at Hasting Boys High School [1990-92] 1
NZBORR 480.
108. Tyrer v UK (1978-79) 2 EHRR, paras 30 -35.
109. World Medical Association Declaration of Helsinki: Ethical
principles for medical research involving human subjects Adopted by
the 18th WMA General Assembly Helsinki, Finland, June 1964 and
amended on the last occasion at the 52 General Assembly in October
2000.
110. Jeffcoat v Waetford (1999) 17 CRNZ 75; 5 HRNZ 466.
111. Deutsch E (1989) "Medical experimentation: International rules
and practice" in (1989) 19 VUWLR 1, 1.
112. BGHZ 20, 61.
113. Deutsch E (1989) "Medical experimentation: International rules
and practice" in (1989) 19 VUWLR 1, 1.
114. The War Crimes Tribunal at Nuremberg laid down the
Nuremberg Code, 10 standards to which physicians must conform
when carrying out experiments on human subjects, including the
requirement of voluntary informed consent of the human subject.
115. The Report of the Committee of Inquiry into Allegations
Concerning the Treatment of Cervical Cancer at National Women's
 Hospital and into Other Related Matters (1988), Government Print,
Auckland, p167.
116. Jeffcoat v Waetford (1999) 17 CRNZ 75; 5 HRNZ 466.
117. The War Crimes Tribunal at Nuremberg laid down the
Nuremberg Code, 10 standards to which physicians must conform
when carrying out experiments on human subjects, including the
requirement of voluntary informed consent of the human subject.
118. Health and Disability Commissioner (Code of Health and
Disability Services Consumers' Rights) Regulations 1996 (SR
1996/78), Schedule, cl 2, right 7.
119. Speeches, Health and Disability Commissioner,
www.hdc.org.nz.
120. Health and Disability Commissioner (Code of Health and
Disability Services Consumers' Rights) Regulations 1996 (SR
1996/78), Schedule, cl 2, right 6(1)(a) - (g).
121. Section 70(1)(e) - (h).
122. Sections 49 -52.
123. Section 73.
124. Section 13.
125. See page of the Guidelines on this point.
126. Down v Van de Wetering [1999] 2 NZLR 631.
127. R v T Court of Appeal, Wellington, CA 302/98, 2/11/9.
128. Re M [1993] DCR 153.
129. Re S [1992] 1 NZLR 363, 373.
130. P Rishworth, "The New Zealand Bill of Rights Act 1990: the
First Fifteen Months" in D Paciocco and P Rishworth (1992) Essays on
the New Zealand Bill of Rights Act 1990 Auckland, Legal Research
Foundation of University of Auckland p 29. Rishworth suggests that
"everyone" in s 11 meant literally everyone. Rishworth goes on to say
that any attempt to override the right to refuse medical treatment
should be considered in the process of applying section 5 of the Bill of
Rights Act.
131. Health and Disability Commissioner (Code of Health and
Disability Services Consumers' Rights) Regulations 1996 (SR
1996/78), Schedule, cl 2, ("the Code of Consumers' Rights").
132. For a statement of this position, see Re MB (Medical
Treatment)(Court of Appeal) [1997] 2 FLR 426, 436. The presumption
is rebuttable.
133. See Re MB 38 BMLR 175, [1997] Fam Law 542, [1997] 2 FCR
541. The Court of Appeal in Re MB emphasised that the principles are
not meant to be determinative in every case because the facts in each
case were to be given due regard.
134. Re MB 38 BMLR 175, [1997] Fam Law 542, [1997] 2 FCR 541,
at 184, 551, 550.
135. Re MB 38 BMLR 175, [1997] Fam Law 542, [1997] 2 FCR 541,
at 184, 551, 550 [emphasis added].
136. Suresh v. Canada (Minister of Citizenship and Immigration)
(C.A.), [2000] 2 F.C. 592.
137. See sections 52 - 56 of the CYPF Act and Part VI of the Mental
Health (Compulsory Assessment and Treatment) Act.
138. Section 18(1)(f) of the PPPR Act.
139. Health and Disability Commissioner (Code of Health and
Disability Services Consumers' Rights) Regulations 1996 (SR
1996/78), Schedule, cl 2, right 7(1).
140. See Article 12 United Nations Convention on the Rights of the
Child (20 November 1989; NZTS 1993, No3).
141. See section 25(3)(a) and section 8(1) of the Guardianship Act
respectively. Note also related provisions of the Care of Children Bill.
142. Re MP [1997] NZFLR 978, 989 cited in A Butler & P Butler
"Human Rights" in Laws of New Zealand para 101 footnote 1.
143. Washington v Harper 494 US 210.
144. Washington v Harper 494 US 210, 226.
145. Jeffcoat v Waetford (1999) 17 CRNZ 75; 5 HRNZ 466.
146. Cruzan v Director Missouri Department of Health 497 US 261.
147. For a discussion of these principles see Ms B v An NHS Hospital
Trust [2002] EWHC 429, paras 14 -21.
148. Medical treatment has been defined in the Injury Prevention,
Rehabilitation, and Compensation Act 2001 as being: "an examination
for the purpose of providing a certificate including the provision of the
certificate".
149. Schloendorff v Society of New York Hospital (1914) 105 NE 92,
at 93.
150. The White Paper para 10.167.
151. Down v Van der Wetering [1999] 2 NZLR 172, Pio v Police
(High Court, Rotorua, 13-2-95 TGA AP 43/94); Police v Onekawa
(High Court Auckland T293/97, 7 July 1998; NZ Police v McIsaac
(High Court Auckland M399/01, 3 May 2001).
152. R v B [1995] 2 NZLR 172.
153. R v B [1995] 2 NZLR 172, 177, per Cooke P.
154. The White Paper para 10.166.
155. Hogg, P (1997) Constitutional Law of Canada (3rd ed) Vol 2,
para 44.8.
156. See for example Herczegfalvy v Austria (1992) 15 EHRR 437.
See, too, the discussion at para 8.017 UK Human Rights Practice,
Sweet & Maxwell.
Introduction to sections 12-18:
Democratic and Civil Rights
Sections 12 - 18 of the Bill of Rights Act concern the fundamental rights and
freedoms that are essential to an individual's effective representation and
meaningful participation in the public life of a democratic society:

• Section 12 is about a person's right to vote for, and to be elected, a

member of Parliament.
• Section 13 concerns an individual's freedom of thought, conscience
and religion, while sections 14 and 15 concern a person's freedom to
express those thoughts or opinions and to practise their religion or
otherwise manifest their beliefs.
• Sections 16 - 17 relate to an individual's freedom to participate (and
not to participate) in private and public gatherings and demonstrations
about particular viewpoints.
• Sections 18 is about the right of an individual to enter, stay and move
freely within, and leave, New Zealand.

These rights are complementary and interdependent. For example, the United
Nations Human Rights Committee stated that the "freedom of expression,
assembly and association are essential conditions for the effective exercise of
the right to vote and must be fully protected." [157]

Section 12 Electoral Rights

Section 12 of the Bill of Rights Act is as follows:

Electoral rights
Every New Zealand citizen who is of or over the age of 18 years

a. Has the right to vote in genuine periodic elections of members of

the House of Representatives, which elections shall be by equal
suffrage and by secret ballot; and
b. Is qualified for membership of the House of Representatives.
Policy triggers: should I be considering section 12?

Are you working on a policy or developing a practice that:

• Limits the ability of classes of individuals to take part in general

elections?
• Requires individuals to meet certain conditions in order to be eligible
to participate in elections for Parliament?
• Regulates how individuals are able to vote in a general election?

If you answer "yes" to any of these questions, then you need to consider
whether your policy or practice is consistent with section 12 of the Bill of
Rights Act.

What every policy analyst need to know about section 12

• Section 12 should be read as providing the basic principles for the

conduct of periodic elections.
• Legislation governing the mechanics of the operation of an election
should be directed at facilitating the purpose of section 12.
• Section 12 should be read as imposing a duty on the state to put in
place measures that enable individuals to exercise their right to vote.
• The right to vote in section 12 does not extend to local body elections
or other elected statutory positions or to cover citizens initiated
referenda.

Measures to achieve compliance

You can increase the possibility that your policy or practice is consistent with
section 12 of the Bill of Rights Act by:

• Taking positive steps to increase participation in the electoral process.

o Consider removing physical or communication difficulties that
act as a barrier for persons with disabilities or persons from
different ethnicities.
o Consider ways in which you can target those sectors in the
community who are underrepresented on voting statistics.
 o Explore alternative means of voting other than through
attendance at polling stations (for example postal voting,
electronic voting).
• If you are establishing criteria for the establishment of electoral
boundaries, ensure that the criteria is reflective of the need to ensure
broad Parliamentary representation.

Related rights and freedoms

Because section 12 involves such a fundamental democratic right, it is clear

that when considering whether your policy proposal or practice might give
rise to an issue under section 12, you should also give consideration as to
whether the policy or practice places restrictions on the remaining democratic
and civil rights (sections 13 to 17) as well as the right to be free from
discrimination (section 19).

The United Nations Human Rights Committee has gone so far as to say that
the "freedom of expression, assembly and association are essential conditions
for the effective exercise of the right to vote and must be fully protected."
[158]

Further discussion on the meaning of section 12

The commentary in the White Paper suggests that section 12 is only

"concerned with basic principles and is not designed to entrench the present
law in its details." [159]

Section 12(a) - the right to vote

Section 12 requires that all New Zealand citizens aged 18 years and over are
provided with the opportunity to vote in "genuine and periodic" elections and
that the election shall be by "equal suffrage and secret ballot." The manner in
which this right is given effect to is left to the legislation governing the
conduct of the election. Section 12 simply acts as a benchmark against which
that legislation is measured. The entitlements provided for by electoral
legislation may and can exceed the requirements set out in section 12(a).
[160]

It would appear that, like in Canada and Europe, the right in section 12(a)
would not extend to local government elections or other elected statutory
positions. This is because such positions are creatures of statute and are
subordinate to Parliament. [161] It would also not appear to cover citizens
initiated referenda as such referenda are not binding on the Government.
[162] In Haig the majority held that

the purpose of s. 3 [the right to vote] is to grant every citizen of this country
the right to play a meaningful role in the selection of elected representatives.
Since a referendum is in no way such a selection -- a referendum is basically
a consultative process..."

Disqualification of certain voters

Despite the fact that section 12 appears to provide all New Zealand citizens
aged 18 years and over with the right to vote, section 80 of the Electoral Act
1993 does provide for some limitations on this right. [163]

In the only case to date in New Zealand directly concerning a restriction on

the right to vote, the High Court held that the provisions disqualifying certain
inmates from voting prevailed over section 12 by virtue of section 4 of the
Bill of Rights Act. [164] Although the court in this case did not consider
whether the restriction was a reasonable limit on the right to vote, the
Canadian courts have considered this issue on several occasions and held that
certain limits may be justifiable where there is no blanket restriction. [165]
Although blanket restrictions on the right of prisoners' right to vote might not
satisfy a section 5 analysis, restrictions based on the length of the sentence or
nature of the offence might be considered a reasonable limit. [166]

Genuine and periodic elections

If the value of the right to vote is to be maintained, elections need to be held

periodically and on a regular basis with a limited time span between
elections.

Although section 12 does not require a particular electoral system, form of

electoral system or result, it would appear to require that whatever system is
adopted, is meaningful. The electoral system should therefore ensure that the
outcome of the election, the form of the government and the make up of
Parliament is an accurate reflection of the will of the voters. As one example,
the ability of members of Parliament to resign from their parties while
remaining in Parliament between elections may have the effect of distorting
the effect of the election, particularly within a proportional voting system.
However, measures to address the distortion caused by resignations from
political parties need to take into consideration that member's right to
freedom of expression and freedom of association.
The requirement that an election is "genuine" goes to the substantive nature
of the right. Such a requirement appears to require the creation of measures
that enable people to vote in elections. Electoral officials should consider
what steps need to be undertaken to ensure that individuals are aware of their
right to vote and have opportunities to cast their vote.

Such considerations include whether a person has adequate opportunity to

cast their vote (including the casting of special votes), whether they have
reasonable access to a polling facility (including the provision of alternative
forms of voting) or assistance with casting a vote (translation of ballot form).

Equal suffrage

Section 12(a) does not appear intended to introduce the idea of absolute voter
parity. That is, the right to vote does not mean that every person's vote has
the same value. Other factors such as the size of the electorate or the shared
community within an electorate may be given weight. The Canadian
Supreme Court has held that the purpose of the right to vote is to guarantee
the right to effective representation. [167] The drawing of electoral
boundaries therefore needs to take into consideration a range of objective
criteria to ensure that Parliament is representative of a broad range of
interests.

Secret ballot

Any form of voting must meet the substance of the requirement in section
12(a) for a secret ballot.

Representation of Maori

As Rishworth has pointed out, the issue of Maori electoral seats or a person's
eligibility to enrol in Maori electorates is unlikely to turn on the
interpretation of section 12. [168] As this discussion pointed out earlier,
section 12 does not require any particular form of electoral system so long as
the requirements of the section are met. [169]

Section 12(b) -The right to candidacy

Section 12(b) provides that every New Zealand citizen is entitled to stand for
election to the House of Representatives. Again, restrictions on the
entitlement to stand for election must be considered in light of section 5 of
the Bill of Rights Act. [170]
The High Court has also considered whether section 12 prohibits parties
entering into an agreement restricting a person's ability to stand as a
candidate in an election if they were unsuccessful in obtaining a political
party's nomination as a candidate. [171] In this case the court held that the
Bill of Rights Act did not apply as a political party is not subject to the Bill
of Rights Act. [172] However, the Court did hold that such a requirement
was contrary to public policy.

The courts here have yet to rule on whether a member of Parliament can be
expelled from the House if he or she resigns from or is dismissed from the
political party whom they represent. The Canadian courts have considered
that the right to qualification for membership of the House does not apply in
circumstances where the House of Representatives seeks to expel a member.
It also does not require authorities to provide candidates with assistance such
as broadcast funding, even where this may be felt to be reasonably
indispensable. [174]

Key cases

Re Bennett (1993) 2 HRNZ 358; Sauve v Canada (Chief Electoral Officer)

(1999) 180 DLR (4th) 385; Haig v Canada (1993) 105 DLR (4th) 577;
Reference re Electoral Boundaries Commission Act, ss. 14, 20 (Sask) (1991)
81 DLR (4th) 16; Reform Party of Canada v Canada (Attorney-General)
[1993] 3 WWR 139.

History of the section

The White Paper

Section 12 is identical in terms to the proposed Article 5 of the White Paper.

Section 12 origins in international treaties and overseas legislation

The right to vote and participate in political life is recognised in international

law as a broad democratic right in article 25 of the ICCPR and article 5 of the
International Convention on the Elimination of All Forms of Racial
Discrimination. [175] Section 12 differs from both the ICCPR and CERD in
that section 12 is merely concerned with the right to vote and the right to
stand for membership of the House of Representatives. Articles 25 and 5
respectively provide for a broader right of participation in the public sphere,
including the judiciary and public sector.
The ICCPR and CERD also emphasise the non-discriminatory application of
that right as a means of obtaining substantive equality of democratic
participation.

Article 25 of the ICCPR states:

Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 [the prohibited grounds of discrimination]
and without reasonable restrictions:

a. To take part in the conduct of public affairs, directly or through

freely chosen representatives;
b. To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the
electors;
c. To have access, on general terms of equality, to public service in
his country. [176]

Article 5 of the International Convention on the Elimination of all Forms of

Racial Discrimination [177] provides:

In compliance with the fundamental obligations laid down in article 2 of this

Convention, State Parties undertake to prohibit and eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights:

... Political rights, in particular the rights to participate in elections - to vote

and to stand for election - on the basis of universal and equal suffrage, to take
part in the Government as well as in the conduct of public affairs at any level
and to have equal access to public service

Section 3 of the Canadian Charter provides that

Every citizen of Canada has the right to vote in an election of members of the
House of Commons of a legislative assembly and to be qualified for
membership therein.

The First Protocol Article 3 of the European Covention on Human Rights

provides that
The High Contracting Parties undertake to hold free elections at reasonable
intervals by secret ballot, under conditions which will ensure the free
expression of the opinion of the people in the choice of the legislature.

Section 13 - Freedom of Thought

Section 13 of the Bill of Rights Act is as follows:

Freedom of thought, conscience, and religion -

Everyone has the right to freedom of thought, conscience, religion and belief,
including the right to adopt and to hold opinions without interference.

Policy Triggers: do I need to consider section 13?

• Does your policy further a particular religion or set of beliefs?

• Does your policy restrict or interfere with a particular religion or set of
beliefs?
• Does your policy compel certain acts that may be inconsistent with a
religion or set of beliefs (for example, military service or reciting an
oath)?
• Does your policy impinge on or disadvantage a person because of the
person's opinions or thoughts on a matter?

What every policy analyst needs to know about section 13

• Section 13 is concerned with the internal element of thought,

conscience, religion, belief and opinion.
• It includes the freedom not to believe in or adhere to any ideology or
religion and to refuse to participate in activities or practice relating to
that ideology or religion.
• May be interpreted to include freedom from religion, that is, the
Government cannot be seen to take sides in matters of religion or belief
or opinion.
• While section 13 does not generally impose positive duties on the state,
in some circumstances the state may be obliged or consider it
necessary to intervene to protect religious or personal freedom against
private oppression or coercion (e.g., religious harassment).
 • It is likely to only extend to individuals, because the section is directed
at personally held beliefs, but may include groups that have been
formed as a consequence of the members holding similar thoughts,
beliefs or faith.
• Section 13 includes the right to change opinions, as well as not to be
compelled to change an opinion.

Measures to achieve compliance

• Consider whether an exemption to accommodate differing religious or

ethical beliefs is appropriate.
• Ensure your policy is neutral and objective on matters of religion or
ideology and is not promoting one set of beliefs.

Related rights and freedoms

Section 13 is regarded as the first of three sections dealing with the basic
liberal freedoms of thought, conscience, opinion, religion and expression.
[178] Whereas section 13 is concerned solely with the internal element of the
freedoms, sections 14 (freedom of expression) and 15 (freedom to manifest
religion or belief) cover the external manifestations of this internal element.
[179] As both sections 13 and 15 relate to the right to freedom of religious
belief, if the policy you are working on affects an individual's ability to
express their religious belief, you will need to consider whether the policy is
consistent with both provisions.

Sections 13 -15 are complemented by:

• the right to peaceful assembly (section 16);

• the right to freedom of association (section 17);
• the right to freedom from discrimination, including discrimination on
the grounds of religious belief and political opinion (section 19); and
• the rights of minorities to, amongst other things, profess and practice
their religion (section 20).
Further discussion on the meaning of section 13

General considerations

The right to freedom of thought, conscience and religion is said to form part
of the bedrock of our fundamental political and democratic rights. [180]

The protection in section 13 is far-reaching. The section is likely to include

"freedom of thought on all matters, personal conviction and the commitment
to religion or belief". [181] The freedom extends to thoughts and beliefs of
any kind including theistic, non-theistic and atheistic beliefs. [182]

Section 13 is likely to include freedom from religion - meaning the

Government cannot be seen to be taking sides in matters of religion or belief.
[183] This approach is consistent with the idea that the state cannot coerce or
subject an individual to a form of preferred religious observance. In Canada
certain legislation prohibiting Sunday trading [184] or providing religious
instruction in public schools [185] has been held to violate freedom of
religion.

Section 13 does not generally impose positive duties on the state. [186]
However, the Court of Appeal has recognised that in some circumstances the
state may be obliged, or consider it necessary, to intervene to protect
religious freedom against private oppression or coercion. [187] This
approach is consistent with the European Court of Human Rights which has
held that a state may need to intervene to protect against seriously offensive
attacks on religious sensitivities. [188] Such circumstances may include the
publication of offensive portrayals of religious worship, [189] or where
private individuals instigate a campaign of harassment against a church or
religious group. [190] In Otto-Preminger Institute v Austria, [191] the Court
found the state was justified in restricting freedom of expression of the
complainant in order to protect the religious freedom of others. The Court
stated:

... the manner in which religious beliefs and doctrines are opposed or denied
is a matter which may engage the responsibility of the state to ensure the
peaceful enjoyment of the right guaranteed under Article 9.

The freedoms in section 13 are likely to only extend to individuals and not
organisations or associations, on the basis that it is directed at personally held
beliefs. [192] The section may however extend to congregations who hold
similar thoughts and opinions as a consequence of their membership of a
faith. [193]

The Freedoms Defined

The terms "thought, conscience, religion and belief" are capable of

independent, although related meanings.

As Wilson J stated in R v Morgentaler: [194]

... in a free and democratic society "freedom of conscience and religion"

should be broadly construed to extend to conscientiously-held beliefs,
whether grounded in religion or in a secular morality. Indeed, as a matter of
statutory interpretation, "conscience" and "religion" should not be treated as
tautologous if capable of independent, although related, meaning.

Freedom of Thought

Section 13 protects the freedom to think freely. At this stage the scope of this
freedom is unclear. The freedom is likely to include political, philosophical
and social thought [195] and likely to protect against brainwashing or
indoctrination. [196]

The case of Moonen v Film and Literature Board of Review (No 1) [197]
illustrates the relationship between freedom of thought and censorship laws.
The High Court and the Court of Appeal dismissed the argument that
banning objectionable material breached the right to freedom of thought in
section 13. By banning the material, prospective recipients would not have
the opportunity to form thoughts on the material. However, the Court of
Appeal held:

The fact that the recipients are by the censorship deprived of the opportunity
of forming such thoughts is inherent in the concept of censorship, but it is not
the thoughts that are being censored.

Freedom of Conscience

Defining 'conscience'

"Conscience" is often bound up with religious belief, but the term goes
beyond religious belief to include personal morality that is not founded in
religion. In Canada "conscience" has been described as "self-judgment on the
moral quality of one's conduct or the lack of it". [198] The caselaw from
Europe also suggests "conscience" requires some philosophical basis. [199]

What does "freedom of conscience" involve?

The United States Supreme Court has said that freedom of conscience
"implies respect for an innate conviction of paramount duty". [200] Freedom
of conscience therefore signifies that a person may have views or beliefs that
go beyond those commonly shared by the community or espoused by the
state. An example of the application of this freedom is the Canadian decision
of Maurice v Canada (Attorney-General) [201], where it was found that the
Correction Service of Canada was obligated to provide a vegetarian diet to
accommodate an inmate's non-religious conscientious beliefs. [202]

The United Nations Human Rights Committee has observed that the right to
freedom of conscience contained in article 18 of the ICCPR does not imply
the right to refuse all obligations imposed by law, nor does it provide
immunity from criminal liability in respect of every such refusal. [203]
Nevertheless, the Committee has expressed the view that the right to
conscientious objection to military service can be derived from article 18.
[204]

Freedom of Religion and Belief

Defining 'religion' and 'belief'

The terms "religion" and "belief" are often used as analogous terms. For this
reason we have combined our analysis of the two terms.

The United Nations Human Rights Committee states that "religion" and
"belief" should be interpreted broadly to include theistic, non-theistic and
atheistic beliefs. [205] The US Supreme Court suggests the terms should
include moral, ethical or religious beliefs about what is right and wrong that
are held with the strength of traditional religious convictions. [206] The
terms should be considered in a non-technical sense and not be confined to
traditional or parochial concepts of religion or deities. [207]

There is some suggestion that the right in Europe would not only cover
traditional religious and non-religious beliefs but also minority views that
attain a certain level of cogency, seriousness and importance to the person.
[208]
For the purposes of determining whether a particular collection of ideas or
practices can be characterised as a religion, the following indicia may be
useful. [209] The indicia are objective guidelines only and should not be
thought of as a test for religion. They are:

i. A belief in the supernatural (ie. a belief that reality extends

beyond what is capable of perception by the senses);
ii. The ideas relate to the nature and place of humans in the
universe and their relation to things supernatural;
iii. The ideas are accepted by adherents as requiring or encouraging
them to observe particular standards or codes of conduct or to
participate in specific practices having supernatural significance;
iv. The adherents constitute an identifiable group or groups; and
v. The adherents themselves see the collection of ideas, beliefs and
practices as constituting a religion.

Sincerity of the belief held

If a religion or belief is found to be sincere, it is unlikely a court will inquire

into the validity of the belief itself. [210] However, the court may question
whether the belief is truly held. [211]

What does 'freedom of religion and belief' involve?

The essence of freedom of religion and belief is the right to entertain such
religious beliefs as a person chooses. [212] It also includes the freedom not to
believe in or adhere to any religion or to engage in any religious practices.
[213] This protection has been interpreted widely to include freedom from
being obliged to belong to a religious body or to submit to religious rites that
are contrary to a person's beliefs. For example, in Buscarini v San Marino
[214] an obligation on new Members of Parliament to take an oath on the
Holy Gospels was in breach of their religious freedom.

The Canadian guarantee of religious freedom has been defined to include

"freedom from religion". In R v Big M Drug Mart Ltd [215], the Supreme
Court found that an Act prohibiting Sunday trading was invalid because its
purpose was to compel observance of the Christian Sabbath. The Court found
the Act (by proclaiming the standards of the Christian faith) created a subtle
coercion that infringed the freedom of religion of persons of other faiths or
no faith. [216]
The Canadian courts will act to prevent the majority from imposing their
religion or beliefs on a minority. In Zylberg v Sudbury Board of Education
[217] a regulation requiring schools to open each day with religious exercises
was held to be unconstitutional. The regulation was found to impose a
compulsion to conform to the religious practices of the majority:

...the peer pressure and the class-room norms to which children are acutely
sensitive... are real and pervasive and operate to compel members of religious
minorities to conform with majority religious practices. [218]

As a result of Zylberberg and subsequent decisions [219], it is unclear

whether legislative exemptions designed to accommodate diverse beliefs will
save Canadian legislation from being declared unconstitutional. The Ontario
Court of Appeal has taken the view that the embarrassment of non-
conformity can be a significant barrier to a person exercising an exemption
clause. [220]

Following the reasoning of the Ontario Court of Appeal - religious exercises

or instruction in public schools are likely to be found to violate freedom of
religion. [221] However, education about religion (without promoting any
one religion or assuming the superiority of any one religion) is not
prohibited. [222]

Freedom to adopt and to hold opinions without interference

The freedom is closely connected to the freedom to express and disseminate

opinions without compulsion contained in section 14 (freedom of
expression). The freedom to adopt and hold opinions without interference
would also logically include the right to change opinions or not to be
compelled to change an opinion. [223]

Key cases

Mendelssohn v Attorney-General [1999] 2 NZLR 268; Moonen v Film and

Literature Board of Review [2000] 2 NZLR 9; R v Morgentaler [1988] 1
SCR 30; R v Big M Drug Mart Ltd [1985] 1 SCR 295; Otto-Preminger
Institute v Austria (1995) 19 EHRR 34; Application 7805/77 X and Church
of Scientology v Sweden 16 DR 68 (1979) EcomHR; Arrowsmith v United
Kingdom (Decision of 22/10/78, No 7050/75); Zylberg v Sudbury Board of
Education (1988) 65 OR (2d) 641 (CA); Paul Westerman v. The
Netherlands, 682/1996, 3 November 1999; Buscarini v San Marino
Judgment of 18/2/99, ECHR, 24645/94.
History of the Section

The White Paper

Section 13 remains unchanged from the White Paper proposal.

Section 13 origins in international instruments and overseas legislation

Section 13 is derived from Articles 18 and 19 of the International Covenant

on Civil and Political Rights (ICCPR).

Article 18 of the ICCPR states:

1. Everyone shall have the right to freedom of thought, conscience and

religion. This right shall include freedom to have or to adopt a religion
or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion
or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to
have or to adopt a religion or belief of his choice.

Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.

Article 18 of the Universal Declaration of Human Rights (UDHR) provides:

Everyone has the right to freedom of thought, conscience and religion: this
right includes freedom to change their religion or belief, and freedom, either
alone or in community with others and in public or in private, to manifest
their religion or belief in teaching, practice, worship and observance.

Article 9(1) of the European Convention of Human Rights provides:

Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or in private, to manifest his
religion or belief, in worship, teaching, practice and observance.

Sections 2(a) and 2(b) of the Canadian Charter provide:

a. Everyone has the freedom of conscience and religion;

 b. Everyone has the freedom of thought, belief, opinion and
expression, including freedom of the press and other media of
communication.

The First Amendment to the Constitution of the United States provides that:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.

Section 14 Freedom of expression

Section 14 of the Bill of Rights Act is as follows:

Freedom of expression
Everyone has the right to freedom of expression, including the freedom to
seek, receive, and impart information and opinions of any kind in any form.

Policy triggers: do I need to consider section 14?

Are you working on a policy or developing a practice that:

• Seeks to prohibit, regulate, or restrict the dissemination or expression

of any form of idea or opinion or information?
• Regulates or otherwise restricts or prohibits the ability of individuals to
gain access to information?
• Requires individuals, organisations, or companies to provide
enforcement agencies or any other statutory body with information and
documents?
• Requires individuals, organisations or companies to publicly
disseminate any ideas, opinions or information that may not be
consistent with their own views?

When developing policy, you will need to consider whether your policy or
practice limits the right to freedom of expression in any one or more of the
following ways:
Restraint on content

Legislation or practices may limit the right to freedom of expression if they:

• prevent the dissemination of certain forms of expression;

• require a person to obtain prior approval before taking part in some
form of expressive activity;
• regulate the contents of any publication, broadcast, or display or
promotion;
• restrict or control the ability of the media to cover news events or
issues that the public may have an interest in;
• require particular material to be reviewed or approved before it is
published.

Forms of prior restraint include: legislation governing the classification of

publications, regulation of media or the advertising of products; defamation
laws; requirements to obtain approval before staging public demonstrations,
protests, or events; court injunctions or restrictions on the media coverage of
particular events.

Time, manner and place

A wide array of laws including by-laws may limit expression by dictating the
time, manner or places in which that form of expression can occur.

Examples of this form of restriction include:

• the placement of restrictions on areas where or times when a

demonstration, picket or public event can take place;
• prohibitions on the placement of posters anywhere on public property;
• restricting the conditions or circumstances under which commercial
entities are able to advertise, promote or display their products, such as
restrictions on the display of tobacco products, or limitations on the
amount or duration of advertising during children's television
programmes. .
Criminal or civil proceeding after the event

Legal proceedings brought as a consequence of the publication of ideas,

opinions or information may also 'chill' free expression. Examples include
those laws governing:

• court processes, for example contempt of court; [224]

• prohibitions on the expression of opinions invoking racial disharmony;
• defamation;
• censorship;
• breaches of the peace.

As legal proceedings have the effect of penalising people for the expression
of those ideas or opinions, the threat may prevent them or others from
expressing or conveying similar information on subsequent occasions.

If you answer yes to any of these questions, then you need to consider
whether your policy or practice is consistent with section 14 of the Bill of
Rights Act.

What every policy analyst needs to know about section 14

• There are very few activities that will not be protected by the freedom
of expression because most human activity has an expressive element
(including political, artistic and commercial expression).
• Speech or an expression that is considered important to the ability of
individuals to participate in core democratic processes, for example in
elections, and political and social speech, is likely to enjoy a very high
degree of protection.
• A fundamental aspect of the right to freedom of expression is that it
extends to protecting all information and opinion, however unpopular,
offensive or distasteful.
• The right generally protects all expression that conveys or attempts to
convey meaning except expressive activity that takes the form of
violence.
• Even though the right extends to all types of opinions, certain
categories of expression (e.g., advertising, pornography or speech that
 incites racial violence) are more likely to be subject to reasonable
limitations than others (e.g., political and social speech).
• The scope of section 14 means that as all forms of expression except
those that take the form of violence are protected by the right, any
restriction on expressive activity will be considered in the context of
section 5 of the Bill of Rights Act.
• Freedom of expression includes the right to say nothing or the right not
to say certain things.
• The opinions or views do not have to be held by that individual - the
protection broadens out to include anyone else who subsequently
communicates or disseminates those ideas or opinions.
• The right to seek and receive information may involve consideration of
other statutory frameworks such as the Official Information Act 1982
or the Privacy Act 1993.

Measures to achieve compliance

If the policy or practice that you are working on seeks to justify restrictions
on the freedom of expression consider the nature of the harm that is being
addressed. There are some general questions that policy advisers might ask
themselves, for example:

• How significant is the harm that is sought to be addressed by the

measure?
• Is the measure concerned with protection of individuals from harm,
with the protection of community interests, or both?
• Are there options other than regulating expression for dealing with the
harm?
• Is compelled speech rather than prohibited speech an option (eg, a
requirement for product info and warnings rather than a ban on product
advertising)?

If the harm involves:

• The interests of national security - contemplate whether the restrictions

provide for a capacity to report unlawfulness or irregularity to those in
authority, challenge decision-makers, authorise the publication of any
information or permit proper disclosure. [225]
 • The interests of public safety - consider whether restrictions on these
grounds should be tied to certain objective assessable criteria and
whether a total prohibition is warranted.
• The prevention of disorder or crime - reflect on whether the restrictions
provide for sufficient opportunity for the media to accurately and
objectively record the events in question for wider public discussion.
Also, does your objective require a complete prohibition on the
dissemination or expression of certain opinions or are those views able
to be expressed in other ways? Are restrictions on the reporting of
events time-bound?
• The protection of health or principles [226] - reflect on the nature of
the restriction. Ask yourself whether the restriction is narrow enough to
address the specific harm or whether it is sufficiently broad to capture
certain ideas or opinions that others might find abhorrent or offensive.
[227]
• The protection of the reputation or the rights of others - consider
whether there are opportunities for those persons whose rights or
reputations may be affected or interested parties to publicly respond
(for example, do they have regular access to the media, is there a
publicly recognisable person with the jurisdiction to speak on these
issues, for example the Race Relations Commissioner or Children's
Commissioner).
• The preservation of the administration of justice - consider what the
competing interests are. Is the public interest in a free press
outweighed by the public interest in maintaining an effective court
system? Are you able to develop criteria that the courts should take
into account before making a decision as to whether certain
information should be revealed/suppressed? Are there alternative
means of disclosing discreet information to a party to proceedings that
provides adequate protection for the other party, for example through a
third disinterested party? Is it possible to limit the restriction to a
period of time? [228]

Related rights and freedoms

You may need to consider whether the right to freedom of expression

complements the other rights that you have identified in the course of
developing the policy or practice that you are working on, or potentially
limits it. This is because the scope and potential application of the right to
freedom of expression is so broad it intersects with a wide variety of rights.

For example, the right to a fair trial under section 25(a) and the right to be
presumed innocent under section 25(c) of the Bill of Rights Act may require
that information related to the proceedings (such as the name of the accused)
be suppressed to ensure that there is continuing public confidence in the
integrity of the trial process Solicitor General v Radio New Zealand. [229]
However, the right to a fair trial would also require that the court be provided
with all the necessary and relevant information needed to arrive at the correct
decision.

The right to freedom of expression also complements the following rights

under the Bill of Rights Act:

• the right to vote (section 12) and the rights to freedom of thought
(section 13), the right to peaceful assembly (section 16), movement
(section 18) and association (section 17);
• the right to manifest a person's religion or belief (section 15) and the
rights of minorities to profess and practice their religion (section 20);
• the right to silence (section 23(4)) and the right not to confess guilt
(section 25(d));
• the right to be secure against unreasonable search and seizure (section
21).

Further discussion on the meaning of section 14

The right to freedom of expression is well established in the common law

and has been recognised in all relevant international human rights treaties.
There are several rationales for the protection of freedom of expression,
which date back to periods before political philosophers such as John Stuart
Mill and John Milton.

The justifications for the importance of the right of freedom of expression

have been summarised by Lord Steyn in R v Secretary of State for the Home
Department, ex p Simms [230] as follows:

[Freedom of expression] serves a number of broad objectives. First it

promotes the self fulfilment of individuals in society. Secondly, in the
famous words of Holmes J (echoing John Stuart Mill) 'the best test of truth is
the power of the thought to get itself accepted in the competition of the
market.' [231] Thirdly, freedom of speech is the lifeblood of democracy. The
free flow of information and ideas informs political debate. It is a safety
valve: people are more ready to accept decisions that go against them if they
can in principle seek to influence them. It acts as a brake on the abuse of
power by public officials. It facilitates the exposure of errors in the
governance and administration of justice of the country. [232]

Expression of any kind and in any form?

The wording of section 14 gives an indication of the broad range of activities

that are protected by the right to freedom of expression. Section 14 protects
the right to seek, receive and impart information of 'any kind' and in 'any
form'. This right has been described as "...as wide as human thought and
imagination." [233] Accordingly "expression" encompasses political, artistic
and commercial expression. It includes written and oral communications,
television programmes, broadcasting, film, video, pictures, dress and images.
There are very few activities that will not be protected by the freedom of
expression because most human activity has an expressive element.

The New Zealand courts have generally adopted the Canadian approach to
the scope of the right stressing that the Bill of Rights generally protects all
expression that conveys or attempts to convey meaning except violence.
[234] Expressive activity that takes the form of violence is unlikely to be
protected by s.14. The courts in Canada have said that "...a murderer or rapist
cannot invoke freedom of expression in justification of the form of
expression he has chosen." [235]

Is hate speech protected by the right?

The courts in New Zealand have accepted the proposition that a fundamental
aspect of the right to freedom of expression is that it extends to protecting all
information and opinion, however unpopular, offensive or distasteful. [236]
Content neutrality has been highlighted as an important aspect of the right on
numerous occasions [237] because:

Freedom of expression constitutes one of the essential foundations of a

democratic society ...it is applicable not only to 'information' or 'ideas' that
are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock, or disturb; such are the
demands of that pluralism, tolerance, and broad-mindedness without which
there is no 'democratic society. [238]
In practice the courts weigh the value of the particular speech. The courts
consider that, political and social speech fall within the core of the right and
are therefore more deserving of the protection of the courts. Other forms of
expression on the other hand, such as advertising, pornography, [239] or
speech that incites racial violence form part of the periphery of the right and
in such cases the court may find it easier to find a limit justifiable.

There still appears to be some uncertainty as to whether threats of violence

fall within the meaning of "expression". The Canadian Supreme Court, in a
case concerning the promotion of hate speech, indicated that so long as the
form of the expression is violent, the right to freedom of expression will not
apply. However, where the content or meaning attributed to the expression is
violent, the right shall continue to apply [240] (subject to section 5). Dickson
C.J observed that "while the line between form and content is not always
easily drawn ...threats of violence can only be so classified by reference to
the content of their meaning." Essentially, this draws a distinction between
expression that takes the form of violence (not covered by section 14) and
expression that incites, promotes or encourages violence (covered by section
14 but limits may be justifiable under section 5). In the latter case, the role
that section 5 plays in assessing whether the limit is reasonable is important.

By way of contrast, the European Court has taken a divergent approach in

considering the relationship between the right to freedom of expression and
hate speech. [241] The difference between the two regions is significant in
that it highlights the importance of taking into consideration the political-
social context of the environment within which you are developing policy.
The recent European experience of racial hatred is arguably more traumatic
than that of Canada. [242]

It would therefore appear that the key factor is the nature of the message and
the extent to which it promotes violent acts. [243] It is also worth
remembering that section 5 may play a role in determining the extent to
which someone may rely on section 14 to disseminate particular ideas.

Compelled expression

The Courts in Canada and the United States have held that freedom of
expression necessarily entails the right to say nothing or the right not to say
certain things. [244] Part of the reasoning behind this position is that
individuals should not be portrayed as being aligned with particular opinions
that they do not believe in or forced to express deeply held personal beliefs.
The right not to say certain things appears to extend to written [245] as well
as oral [246] forms of communication. It is therefore likely to apply to
product warnings and other controls over commercial forms of expression.
[247] The United States Supreme Court [248] has also held that a mandatory
levy, collected for the purposes of advertising and promoting of a product or
service may constitute a form of compelled expression. This is particularly
the case where a person required to make a contribution is unable to
disassociate themselves from the message of the campaign. [249]

It remains unclear as to whether section 14 applies to a statutory requirement

to produce information or documents or provide reports on particular issues.
However, the plain language of section 14 ("information of any kind and in
any form") suggests that section 14 may extend that far, particularly where
the information is not purely factual. Where this requirement forms part of an
investigation into compliance with a regulatory framework, you should also
consider the right to be secure against unreasonable search and seizure and
the right to silence. [250]

Because of the potential breadth of the right to freedom of expression, you

should gather information in support of your policy even if you are uncertain
as to whether your policy limits the right.

What about the distribution of another person's ideas?

The right includes the right to seek, receive and impart information and
opinions. To impart simply refers to a person's right to communicate
information and opinions.

But note that the scope of the protection provided by section 14 is not
restricted to an individual being able to express his or her own views. That is,
the opinions or views do not have to be held by that individual - the
protection broadens out to include anyone else who subsequently
communicates or disseminates those ideas or opinions. [251]

What about the right to seek and receive information?

1. Although the extent of the right to receive information does not appear
to have been considered by the New Zealand courts, there is the
suggestion that the right ensures that a government cannot prevent a
person from receiving information that others wish to impart. [252]
The right is said to be "primarily a freedom of access to general
sources of information which may not be restricted by positive action
 of the authorities. [253] Some commentators [254] have said that the
caselaw on Article 10 of the European Convention indicates that this
Article does not provide a general right of access to information.

The European Court appears to take a deliberately narrow view of the scope
of this right. It remains to be seen whether the courts in New Zealand will
take a similarly narrow view. It is conceivable that the courts will take a
broader approach because any limitations on the approach to article 10 of the
European Convention are compensated for by article 8(1), which provides for
an expanded right of access to information. [255]

The right to seek and obtain information of different kinds is recognised to

various degrees by the Official Information Act 1982 and Privacy Act 1993.
You may need to give special consideration to the guiding principles of these
Acts when you are seeking to restrict access to information. However, you
should also be aware that if the statute or policy that you are working on
seeks to override or restrict either of these Acts, then you may need to
consider whether that decision is consistent with the Bill of Rights Act.

The media also play an important role in enabling individuals to seek out or
receive information - the dissemination of information, ideas and opinions to
the public is the core part of their role after all. Their role enables them to
gain access to information more readily than an individual and as such is
often able to publicly disclose information that others may wish to be kept
secret. Because the media plays an important role in making information that
is in the public interest public, the courts are more likely to uphold the right
to publish the information than suppress it.

Key cases

Moonen v Film and Literature Board of Review [2000] 2 NZLR; Solicitor

General v Radio New Zealand [1994] 1 NZLR 48; Newspapers Publishers
Association of New Zealand (Inc) v Family Court [1999] 2 NZLR 344;
Living Word Distributors v Human Rights Action Group Inc (Wellington)
[2000] 3 NZLR 570; Irwin Toy Ltd v Quebec [1989] 58 DLR (4th) 577;
Slaight Communications v Davidson 59 DLR (4th) 416; R v Keegstra [1990]
3 SCR 697; R v Sharpe [2001] 1 SCR 45; Lavigne v Ontario Public Service
Employees Union [1991] 2 SCR 211; Ashcroft v Free Speech Coalition
(2002) S. Ct 1389; National Socialist Party v Skokie 578 F.2d 1197 (7th Cir)
cert denied, 439 US 916 (1978); Wooley v Maynard 430 US 705 (1977);
United States v United Foods Inc 533 US 405 (2001) Abood v Detroit Board
of Education 431 US 209 (1977) Glickman v Wileman Bros & Elliot Inc 521
US 457 (1997); United States v United Foods Inc 533 US 405 (2001) R v
Secretary of State for the Home Department, ex p Simms [1999] 3 WLR 328;
R v Shayler [2002] UKHL 11; Jersild v Denmark September 23, 1994 Series
A No 298; Handyside v United Kingdom (1976) 1 EHRR 737; Gisborne
Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563; Goodwin v United
Kingdom March 27, 1996, R.J.D., 1996-II, No 7

History of the section

The White Paper

Section 14 appears in the same form as that proposed in the White Paper.
[256]

Section 14 origins in international treaties and overseas jurisdictions

The New Zealand freedom of expression provision is similar to that in article

19(2) of the ICCPR. Article 19(2) reads:

Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form
of art, or through any other media of his choice.

The right to freedom of expression is also found in:

Article 19 of the Universal Declaration of Human Rights (UDHR) provides

that:

Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of
frontiers.

Section 2(b) of the Canadian Charter is identical to section 14 as it provides:

Everyone has the right to freedom of expression, including the freedom to

seek, receive, and impart information and opinions of any kind in any form.

The First Amendment to the Constitution of the United States provides:

Congress shall make no law...abridging the freedom of speech, or of the press

...
Article 10(1) of the European Convention on Human Rights and Freedoms
states:

Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
Article does not prevent States from requiring the licensing of broadcasting,
television, or cinema enterprises.

Section 15 Manifestation of religion and belief

Section 15 of the Bill of Rights Act is as follows:

Manifestation of religion and belief

Every person has the right to manifest that person's religion or belief in
worship, observance, practice, or teaching, either individually or in
community with others, and either in public or in private.

Policy triggers: do I need to consider section 15?

• Will this policy affect an individual's ability to adhere to his/her

religion or belief?
• Is this policy attempting to regulate conduct that will affect some
aspect of a person's worship, observance, practice, or teaching of his or
her religion or belief?
• Does this policy compel certain types of conduct that may conflict with
an individual's religion or belief (eg. compulsory military service)?
• Does this policy set dress codes (possibly for safety or hygiene
reasons) that do not accommodate religious dress?
• Will conduct that is required or encouraged by an individual's religion
or belief be subject to criminal penalties or fines under this policy?
• Will this policy place an individual in a position where he/she must
choose between their belief or participating properly in society?

What every policy analyst needs to know about section 15

• The freedom to manifest one's religion or belief should be interpreted

broadly to include
o theistic, non-theistic and atheistic beliefs,
 o moral, ethical or religious beliefs about what is right and wrong
that are held with the strength of traditional religious
convictions,
o non-belief and refusals to participate in religious practice.
• The protection extends to all religions and beliefs, even those without
the established doctrines and customs of traditional religions.
• Unlike section 13 (freedom of thought, conscience and religion), the
freedom to manifest one's religion or belief does not include thought or
conscience.
• The freedom does not generally impose duties on the state to protect or
promote religious activities.
• In some circumstances the state may consider it desirable or be obliged
to intervene to protect religious freedom against private oppression or
coercion.
• The freedom to manifest religion or belief covers a broad range of acts
and has both individual and collective aspects.
• 'Worship' includes building places of worship, using ritual formulae
and objects, displaying symbols, and observing holidays and days of
rest.
• 'Observance' includes dietary regulations, wearing of distinctive
clothing, participation in rituals associated with certain stages of life,
and use of particular language customarily spoken by a group.
• 'Practice' and 'Teaching' include choosing religious leaders, priests and
teachers, establishing seminaries or religious schools, and preparing
and distributing religious texts or publications.
• There is a distinction between acts required to express one's religion or
belief and acts merely motivated by that belief. The former will be
protected under the right to freedom of religion, whereas the latter may
not.
• The right includes the ability of people to establish and attend places of
worship, disseminate their beliefs and teachings, and organise their
lifestyles in accordance with their beliefs.
• The right also includes the ability of parents to raise and educate their
children according to their beliefs but does not extend to decisions that
imperil the life or health of the child (such as decisions about the health
care or medical treatment).
Measures to achieve compliance

Ensure your policy is neutral and objective on matters of religion and is not
promoting one religion or set of beliefs.

Consider whether an exemption to accommodate religious practices is

appropriate.

Related rights and freedoms

As the introduction to this part of the guidelines noted, the rights in sections
12 to 18 are complementary and interdependent. If your policy gives rise to
issues of consistency with section 15 of the Bill of Rights Act, you should
also consider whether the policy gives rise to issues under these other
sections (with the exception perhaps of section 12). You will need to give
particular regard to section as sections 13 and 15 both concern religious
freedom.

You should also whether your policy gives rise to issues of consistency with

• the freedom from discrimination, including discrimination on the

grounds of religious belief (section 19); and
• the freedom of minorities to profess and practice their religion (section
20).

Further discussion on the meaning of section 15

The freedom to manifest religion or belief covers a broad range of acts and
has both individual and collective aspects. The terms "either individually or
in community with others and either in public or in private" recognises that
religion or belief may be practised in many forms. [257]

Section 15 does not generally impose duties on the State to protect or

promote religious activities. [258] The Court of Appeal has, however,
suggested that in some circumstances the State may consider it desirable or
be obliged to intervene to protect religious freedom against private
oppression or coercion. [259] This reasoning is consistent with the approach
of the European Court of Human Rights. [260]

How should I interpret the term 'religion or belief'?

The New Zealand courts have not discussed the scope of the meaning of the
terms religion or belief in the context of either sections 13 or 15 of the Bill of
Rights Act. However, the courts have considered the matter in a more general
legal context, and developed the following indicia, which may be useful.
[261] They are:

i. A belief in the supernatural (i.e., a belief that reality extends beyond

what is capable of perception by the senses);
ii. The ideas relate to the nature and place of humans in the universe and
their relation to things supernatural;
iii. The ideas are accepted by adherents as requiring or encouraging them
to observe particular standards or codes of conduct or to participate in
specific practices having supernatural significance;
iv. The adherents constitute an identifiable group or groups; and
v. The adherents themselves see the collection of ideas, beliefs and
practices as constituting a religion.

The United Nations Human Rights Committee states the terms "religion" and
"belief" should be interpreted broadly to include theistic, non-theistic and
atheistic beliefs. [262] The protection in section 15 extends beyond
obligatory doctrine and applies to all religions and beliefs, even those without
the established doctrines and customs of traditional religions. [263] No
individuals or religious communities should enjoy any less protection than
the major recognisable religions. [264]

The US Supreme Court suggests the terms should include moral, ethical or
religious beliefs about what is right and wrong that are held with the strength
of traditional religious convictions. [265] The term "religion or belief" should
be considered in a non-technical sense and not be confined to traditional or
parochial concepts of religion or deities. [266]

It is likely that a court will not inquire into the validity of a belief if a religion
or belief is found to be sincere. [267]

What types of activities are protected by section 15?

Worship

Worship is a central feature of most religions. The concept extends to ritual

and ceremonial acts giving direct expression to belief and includes practices
that are integral to such acts. [268] These practices may include: [269]

• building places of worship;

 • using ritual formulae and objects;
• displaying symbols; and
• observing holidays and days of rest.

An example of the application of this right is in Feau v Department of Social

Welfare [270] where a Seventh Day Adventist appealed his sentence of
periodic detention which required him to attend a programme on a Saturday
morning (his Sabbath). Although his religious beliefs would be affronted by
attending the programme, the Court held the limitation on his right was
reasonable within the meaning of section 5 of the Bill of Rights Act.

Observance

The observance of a religion or a belief may include not only ceremonial acts
but also such customs as: [271]

• the observance of dietary regulations;

• the wearing of distinctive clothing or headcoverings;
• participation in rituals associated with certain stages of life; and
• the use of particular language customarily spoken by a group.

Practice

The practice of a religion or belief strongly overlaps with the concepts of

"observance" and "teaching" also contained in section 15.

As a result, "practice" is likely to include acts covered by the concept of

observance, but may also include acts integral to the conduct by religious
groups of their basic affairs, such as the freedom to: [272]

• choose their religious leaders, priests and teachers;

• establish seminaries or religious schools; and
• prepare and distribute religious texts or publications.

It is clear that the term 'practice' does not cover every act that is motivated or
inspired by a religion or a belief. The New Zealand courts for instance were
unwilling to 'read in' exemptions to the criminal law in order to accommodate
religious acts. [273] The courts overseas have created a distinction between
acts required in order to express one's religion or belief and acts merely
motivated or influenced by that belief. The former will be protected under the
right to freedom of religion, whereas the latter may not.
The right to freedom of religion is likely to protect expressions and
manifestations of religious non-belief [274] and refusals to participate in
religious practice. [275]

Teaching

In a similar vein to the concept of "practice", the teaching of a religion or

belief may include acts such as: [276]

• choosing their religious leaders, priests and teachers;

• establishing seminaries or religious schools; and
• preparing and distributing religious texts or publications.

Section 15 includes the right of parents to bring up and educate their children
in their religion or belief until such time as their children are able to exercise
their own freedom of religion. [277] This parental right extends to decisions
on appropriate medical treatment or health care. [278] But the right to make
decisions on appropriate medical treatment or health care or the welfare of
the child does not extend to decisions that imperil the life or health of the
child. [279]

The European Court of Human Rights has held that the right to evangelise is
covered by the right to manifest one's religion or belief:

the freedom to manifest one's religion includes in principle the right to try to
convince one's neighbour, for example through 'teaching'. [280]

The Court has made a distinction between true evangelism and improper
proselytism. 'Improper proselytism' may occur where there is:

• the offering of activities offering material or social advantages with a

view to gaining new members for a Church;
• the exertion of inappropriate pressure on people in distress or in need;
• the use of violence or brainwashing; [281] or
• the abuse of a relationship of authority or trust. [282]

It would therefore appear that "improper proselytism" is not covered by the

right.
History of the section

The White Paper

Section 15 remains unchanged from the White Paper proposal.

Section 15 origins in international treaties and overseas legislation

Section 15 is derived from Article 18(3) of the International Covenant on

Civil and Political Rights (ICCPR) which states:

3. Everyone shall have the right to freedom of thought, conscience

and religion. This right shall include freedom to have or to adopt
a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest
his religion or belief in worship, observance, practice and
teaching.

Article 18 distinguishes matters of belief from action. The freedom to

manifest religion or belief is subject only to such limitations as are prescribed
by law and are necessary to protect public safety, order, health, or morals or
the fundamental rights and freedoms of others. [283]

Article 18 of the Universal Declaration of Human Rights provides:

Everyone has the right to freedom of thought, conscience and religion: this
right includes freedom to change their religion or belief, and freedom, either
alone or in community with others and in public or in private, to manifest
their religion or belief in teaching, practice, worship and observance.

Article 9(1) of the European Convention of Human Rights provides:

Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief, and freedom, either
alone or in community with others and in public or in private, to manifest his
religion or belief, in worship, teaching, practice and observance.

Section 2(a) of the Canadian Charter provides:

Everyone has the freedom of conscience and religion

The First Amendment to the Constitution of the United States provides that:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.

Section 16 of the Bill of Rights Act is as follows:

Freedom of peaceful assembly
Everyone has the right to freedom of peaceful assembly.

Policy Triggers: do I need to consider section 16?

Are you developing policies or practices that may:

• Limit the ability of a person or group of persons from being able to

exercise their right to peacefully protest (e.g., regulation of picketing in
an employment setting)?
• Limit the ability of an individual or group of individuals to hold or
participate in a public or private gathering?
• Limit the ability of a group of individuals to come together for a
common purpose?

What every policy analyst needs to know about section 16

• The focus of any discussion about the right will be on the

"peacefulness" of any assembly, in terms of both the actions of those
gathering and the impact of the gathering (however peaceful) on
others.
• Similar to the right to freedom of expression, peaceful assembly
applies to gatherings for any purpose - however unpopular, offensive
or distasteful - except violence.
• The right to assemble applies to private and public meetings.

Measures to achieve compliance

Restrictions on the right to assemble may be permissible if they:

• serve a legitimate interest,

• are no more than what is necessary to protect that interest, and
 • clearly contemplate the person's right to continue to assemble
peacefully where possible; that is, the restrictions must not effectively
negate the right if other options are available.

You should also state the reasons for any restrictions in your policy or
legislation.

Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections
12 to 18 are complementary and interdependent. If your policy gives rise to
issues of consistency with section 15 of the Bill of Rights Act, you should
also consider whether the policy gives rise to issues under these other
sections.

You should also consider whether your policy gives rise to issues of
consistency with the right to freedom from arbitrary arrest or detention
(section 22).

Further discussion of the meaning of section 16

It has been suggested that:

The decisive element for the determination of an 'assembly' - as opposed to a

more or less incidental gathering - obviously is the intention and the purpose
of the individuals coming together. [284]

The right to freedom of peaceful assembly is closely associated with the

series of fundamental democratic rights that it appears next to in the Bill of
Rights Act, such as the rights to freedom of expression, freedom of religion,
freedom of association, and freedom of movement. It is, in this way, most
clearly associated with an individual's participation in the public and private
[285] demonstration of particular viewpoints.

Peaceful assembly

The White Paper emphasised the operative phrase "peaceful". It goes on to

state that:

...obviously in many cases a balance has to be struck between the freedom -

an important one - and other interests, such as those of the public to pass
through the streets unimpeded, or of the wider community in the prevention
of disorder. [286]
The comparable right in the International Covenant on Civil and Political
Rights, Article 21, explicitly provides that restrictions on peaceful assembly
can be placed where the interest of national security or public safety, public
order (ordre public), the protection of public health or morals, or the
protection of the rights and freedoms of others are at risk.

Because of the requirement that the assembly be peaceful, the Courts at times
have acted in anticipation of what the likely impact of the assembly would
have on others. [287]

There may be instances, however, where the actions of the demonstrators or

protestors are peaceful, but their actions create disorder. In such cases there is
a clear conflict between the peaceful intentions of the protestors and the
public interest in keeping the peace. Under the common law [288] it was
clear that:

[t]he law has recognised, as a matter of principle, that the attentions of an

irate spectator can have the effect [of restricting the person's right to freedom
of assembly and freedom of expression]... While agreeing that any such
curtailment of liberty must be restricted, I cannot agree that the police should
never have the power to require law-abiding citizens to comply with
reasonable requests in order to avert a threatened breach of the peace. It must
always be a question of what is reasonable in the circumstances, having
regard to the test of a real possibility of a breach of the peace. [289]

In Bradford v Police [290] Robertson J made the point that:

...in any free society, the factor of protest is part of daily activity. It is a right
for everyone, whether their cause is attractive or unattractive and whether the
form of protest is attractive or unattractive. [291]

In this way the right to freedom of expression can be seen to complement the
right to freedom of peaceful assembly in that it applies to all forms of
expression - no matter how distasteful - except actual violence. [292]

The Bill of Rights Act makes it clear that if there is to be any interference
with [the right to peaceful assembly] it can only be to the least extent
necessary to preserve some other proper interest. [293] The law should also
specify the reasons for those restrictions. [294]
Reasonableness of the restriction

The exercise of a statutory power that limits the right [295] can be resorted to
only when reasonably necessary [296] and the measure taken must clearly
contemplate the individual's right to continue to assemble peacefully where
such options exist. [297]

The Justice and Electoral Select Committee endorsed Professor Joseph's

submission that protestors' rights to peaceful assembly and freedom of
expression were infringed in circumstances:

When the police concealed the protest from view, they did not, in effect,
subject the protestors' rights to any limits that could be justified under section
5 of the New Zealand Bill of Rights Act 1990. Rather, the police denied the
protestors their right to protest. A protest that is made ineffectual - one that
cannot be seen - is no protest at all. The right is negated, not limited. [298]

Such a possibility suggests that public authorities adopt measures that enable
lawful protests to take place where possible, without the participants being
subjected to physical violence or other threats. [299]

The Court in Police v Beggs [300] set out a framework to assist law
enforcement officers and public officials that we consider may be of value
when developing your policies regarding public assemblies. The Court
stated:

...what is reasonable is not to be determined only by an analysis of that

"which is disorderly, unlawful, or interferes with others in the exercise of
their rights and freedoms"... we think other relevant considerations might
include whether the assembly is unreasonably prolonged, the rights of the
occupier and the size of the assembly and its duration, and the observance of
ordinances in place to ensure the smooth functioning of gatherings and
demonstrations. [301]

Key cases

Police v Beggs [1999] 3 NZLR 615; Kapiti Coast DC v Raika [1997]

NZRMA 218; Bradford v Police [1995] 2 HRNZ 405; Minto v Police (1991)
7 CRNZ 38; Williams v Police (1986) CRNZ 131; Plattform 'Artze für das
Leben' v Austria A 139 (1988) 13 EHRR 204, E Ct HR.
History of the section

The White Paper

This section appears unchanged from that which was proposed in the White
Paper.

Section 16 origins in international treaties and overseas legislation

Article 21 of the International Covenant on Civil and Political Rights

provides that:

The right of peaceful assembly shall be recognised. No restrictions may be

placed on exercise of this right other than those imposed in conformity with
the law and which are necessary in democratic society in the interest of
national security or public safety, public order (ordre public), the protection
of public health or morals or the protection of the rights and freedoms of
others.

Article 20(1) of the Universal Declaration of Human Rights states:

(1) Everyone has the right to freedom of peaceful assembly and association.

Article 11(1) of the European Convention on Human Rights confirms that:

(1) Everyone has the right to freedom of peaceful assembly and to freedom
of association with others, including the right to form and join trade unions
for the protection of his interests.

Section 2(c) of the Canadian Charter provides that:

(c) Everyone has the freedom of peaceful assembly.

The First Amendment to the US Constitution provides that:

Congress shall make no law...abridging the...right of the people to peaceably

assemble.
Section 17 Freedom of association
Section 17 of the Bill of Rights Act is as follows:

Freedom of association
Everyone has the right to freedom of association.

Policy triggers: do I need to consider section 17?

• Does your policy treat people differently on the basis of their

membership of a group or association?
• Does your policy prohibit or create disincentives for membership in a
group or association (including in a penal or criminal justice context)?
• Does your policy require a person to disclose their membership in a
group or association?
• Does your policy compel an individual to belong to a professional
body or workplace association?
• Does your policy offer any form of inducement to individuals who
become members of a specific body or association?
• If your policies do offer inducements for membership, are the
inducements such that they amount to a practical compulsion to join an
association so as to obtain the relevant benefits?
• Does your policy confer some form of preferential treatment upon
individuals who are willing to associate with a particular body?
• Does your policy confer a preference in terms of obtaining or retaining
employment?
• Does your policy confer a preference in relation to employment terms
and conditions?

What every policy analyst needs to know about section 17

• The right to freedom of association protects the right of all persons to

join with others without interference by the state to attain a particular
end.
• A person's decision to join or refrain from joining an organistion
should be free from compulsion, intimidation, coercion, incentives or
disincentives of a magnitude that effectively removes the exercise of
choice.
 • The right does not protect the acts of the association itself.
• The right also encompasses the freedom not to associate with others.
• The right includes both initial membership and ongoing involvement.
• While freedom of association is regarded as an inherent right, the right
can be limited by statute in some circumstances, such as non-
association orders as part of the sentence of an offender convicted of
an offence punishable by imprisonment, if reasonably necessary to
ensure he or she does not commit further offences punishable by
imprisonment.

Measures to achieve compliance

If you are creating a new professional body or association, consider whether

it is possible to create exemptions for people who do not wish to be members
of that particular organisation or association.

Ask yourself:

• is membership required in order to achieve the objectives of the

policy?
• is the criteria for allowing an exemption practicable?
• will those persons obtaining exemption be significantly disadvantaged
by not being a member of the organisation?

If your policies offer inducements to persons who associate with certain

bodies, ensure that the inducements are not so great as to effectively compel
persons to join that body. For example, provided the benefits offered by your
body may be obtainable elsewhere you would not be deemed to be
compelling association. [302]

Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections
12 to 18 are complementary and interdependent. If your policy gives rise to
issues of consistency with section 15 of the Bill of Rights Act, you should
also consider whether the policy gives rise to issues under these other
sections.

Further discussion on the meaning of section 17

Section 17 recognises that persons should be free to enter into consensual
arrangements with others and to promote the common interest objects of the
associating group. [303] The right to freedom of association recognises the
basic human desire to unite in order to pursue or achieve a common purpose,
whether for political, religious, ideological, economic, commercial, labour,
social, sports, cultural, or professional objectives. [304] The right to freedom
of association therefore extends not only to the initial membership of an
association but also to the ongoing involvement with that association.

While freedom of association is regarded as an inherent right, the right can be

limited by statute in some circumstances. For example:

• section 28A of the Criminal Justice Act 1985 allows a court to make a
non-association order as part of the sentence of an offender convicted
of an offence punishable by imprisonment, if satisfied that the order is
reasonably necessary to ensure he or she does not commit further
offences punishable by imprisonment. Such an order prohibits the
offender from associating with a specified person, people, or class of
persons, for a specified period of up to 12 months;
• section 6A of the Summary Offences Act 1981 makes it an offence for
a person to habitually associate with a violent offender in
circumstances from which it can reasonably be inferred that the
association will lead to the commission of a crime involving violence
by that person or the violent offender. The section requires that the
person must have been warned previously by a constable on at least
three separate occasions that his or her continued association with that
violent offender could lead to such a charge, and the warning must
have been given within seven years after the date of the violent
offender's last conviction for crimes involving violence;
• sections 27 to 30 of the Commerce Act 1986 prohibit individuals or
organisations from entering into an arrangement or agreement with
others for the purposes of lessening competition in the marketplace.

Objectives of the group

Although the intention of the right is to enable individuals to join with others
for a common purpose without interference, the right concerns the ability to
associate - it does not extend to protecting achievement of the group's
purpose. The rationale for this differentiation appears to be that to extend the
right to include the right to fulfil the objectives would confer greater
entitlements on the individuals as a group than they have as individuals.

The Canadian Supreme Court in a series of industrial relations cases [305]

has taken the view that because the constitutional right to freedom of
association is a right exercised by an individual, the scope of that right
extends only to what an individual as an individual can perform. That is, if
the individual has no fundamental right to undertake an activity, then neither
does the organisation. The organisation can exercise only those rights that
individual members have on behalf of those members. The right to freedom
of association is not intended to protect activities that an association
undertakes, but the ability of individuals to gather for the purpose of pursuing
the collective exercise of constitutional rights. [306] For example, the right to
freedom of association does not confer on a trade union the right to strike,
but it does enable members of a trade union to collectively express their
opinion about workplace practices.

The ability of groups to act as a group to achieve specific objectives is

therefore dependent on the nature of specific legislative frameworks. The
objectives of the group are not of a kind anticipated by the fundamental
nature of the right to freedom of association.

There is some indication from overseas courts that suggests that this position
may be shifting to a point where the right to the freedom of association is
considered as being more purposive. [307]

The freedom not to associate

Like many civil and political rights, the right to freedom of association
carries with it the implication that a person should not be compelled to
associate. [308] There are two aspects to the freedom not to associate:

1. the right of a group, associated on behalf of its members, not to be

compelled to associate with any particular individual; and
2. the right of an individual not to be compelled to associate with a group
of persons.

The first aspect arises in circumstances where the freedom to associate (and
not to associate) may intersect with anti-discrimination values as expressed in
the prohibition on discrimination under section 19 of the Bill of Rights Act
and under the Human Rights Act 1993. For example, section 44 of the
Human Rights Act prohibits discrimination in the provision of goods and
services; however, this prohibition does not apply to access to membership of
a club or to the provision of services or facilities to members of a club.
Similarly, section 38 of the Human Rights Act prohibits discrimination by
industrial and professional associations, qualifying bodies, and vocational
training bodies, but provides an exception to allow for freedom of religion.
[309]

The second aspect highlights the need for an individual's membership of an

organisation to be based on informed consent. A person's decision to join or
refrain from joining an organisation should be free from intimidation or
coercion, or the existence of incentives or disincentives. In other words, the
exercise of that choice must be free from outside pressures of a magnitude
whereby they in effect remove the exercise of choice. [310]

Despite this, section 5 of the Bill of Rights Act may have some bearing on
whether the compulsory membership of a professional organisation infringes
the right to freedom of association. The courts in New Zealand have not
considered this matter, but in Europe the courts have held that where:

• a person practises a profession;

• the exercise of which affects the general interest;
• there is a requirement to belong to a regulated professional
organisation; and
• there is a public interest in maintaining professional standards,

then that requirement falls outside the scope of the freedom of association.
[311]

From a Bill of Rights Act standpoint, it is more likely that the requirement to
belong to such an organisation would be assessed from the perspective of
whether the compulsory membership was justifiable. However, the same
considerations are applicable.

The right to freedom of association could also extend to discriminatory

treatment based on an individual's association with another individual or
group. For example, a proposal that gang members who commit crimes
should receive harsher sentences than non-gang members may come within
this right. Further, if there is a possibility that a person may suffer
discrimination as a result of a particular association, then the right may also
extend to protection from compulsory disclosure of membership. [312]
Key cases

Air New Zealand Ltd v Trustees of the New Zealand Airline Pilots Mutual
Benefit Fund [2000] 1 NZLR 41; Dunmore v Ontario Attorney-General
[2001] 3 SCR 1016; Delisle v Canada (Deputy Attorney-General) [1999] 2
SCR 989; Reference re Public Service Employee Relations Act (Alta) [1987]
1 SCR 313; PSAC v Canada [1987] 1 SCR 424; RWDSU v Sask. [1987] 1
SCR 460.

History of the section

The White Paper

The White Paper originally contained a subclause that clarified the scope of
this section. It stated:

This right includes the right of every person to form and join trade unions for
the protection of that person's interests consistently with legislative measures
enacted to ensure effective trade union representation and to encourage
orderly industrial relations.

This was done to ensure consistency with New Zealand's reservation of

article 22 of the ICCPR (set out below). Despite this reservation, the Justice
and Electoral Select Committee determined that the subclause was an
unnecessary feature of this section and it was deleted. [313]

Section 17 origins in international treaties and overseas legislation

Article 22 of the International Covenant on Civil and Political Rights

(ICCPR) provides that:

1. Everyone shall have the right to freedom of association with others,

including the right to form and join trade unions for the protection of
his interests.
2. No restrictions may be placed on the exercise of this right other than
those which are prescribed by law and which are necessary in a
democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals or
the protection of the rights and freedoms of others. This article shall
not prevent the imposition of lawful restrictions on members of the
armed forces and of the police in their exercise of this right.
 3. Nothing in this article shall authorise States Parties to the International
Labour Organisation Convention of 1948 concerning Freedom of
Association.

New Zealand's reservation to Article 22 provides:

The Government of New Zealand reserves the right not to apply article 22 as
it relates to trade unions to the extent that existing legislative measures,
enacted to ensure effective trade union representation and encourage orderly
industrial relations, may not be fully compatible with that article.

Article 20 of the Universal Declaration of Human Rights provides that:

1. Everyone has the right to freedom of peaceful assembly and

association.
2. No-one may be compelled to belong to an association.

Article 11 of the European Convention states:

1. Everyone has the right to freedom of association with others, including

the right to form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these rights other than
such as are prescribed by law and are necessary in a democratic society
in the interests of national security or public safety, for the prevention
of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This article shall not
prevent the imposition of lawful restrictions on the exercise of these
rights by members of armed forces, or of the police or of the
administration of the State.

Section 2(d) of the Canadian Charter provides that:

Everyone has the following fundamental freedoms:

...
d) freedom of association.
Section 18 Freedom of Movement
Section 18 of the Bill of Rights Act is as follows:

Freedom of movement
(1) Everyone lawfully in New Zealand has the right to freedom of movement
and residence in New Zealand.
(2) Every New Zealand citizen has the right to enter New Zealand.
(3) Everyone has the right to leave New Zealand.
(4) No one who is not a New Zealand citizen and who is lawfully in New
Zealand shall be required to leave New Zealand except under a decision
taken on grounds prescribed by law.

Policy triggers: do I need to consider section 18?

Are you working on a policy or developing a practice that:

• limits the ability of individuals to move freely through, remain in, or

enter or depart from, any form of public space;
• places conditions on the ability of a person to live within the
community;
• enables the state to monitor or trace the movements of a person within
the community;
• limits the ability of any individual to choose where he or she wishes to
reside;
• requires persons to fulfil certain requirements before they are able to
leave and enter New Zealand at will; or,
• seeks to require an individual to leave New Zealand?

If you answer yes to any of these questions, then you need to consider
whether your policy or practice is consistent with section 18 of the Bill of
Rights Act.

What every policy analyst needs to know about section 18

• Section 18 recognises:
o the right to move freely within the country;
o the right to choose a place of residence within the country;
o the right to be free to leave and enter New Zealand (including the
right to obtain the necessary travel documents); and,
 o the right not to be expelled from the country except in
accordance with the law.
• The rights to freedom of movement and residence are subject to the
person being lawfully in New Zealand; that is, as long as they comply
with the conditions of their admission (as imposed by and under the
Immigration Act 1987).
• The rights set out in section 18 have more general application than just
immigration matters.
• Freedom of movement includes the right not to be forced to move to,
or from, a particular location.
• The right includes freedom from physical barriers and procedural
impediments (e.g., requirements for prior notification or authorisation
from a public authority before entering a public park or participating in
a public demonstration on a public thoroughfare; inability to enter or
depart New Zealand until a certain condition is met, or a prohibition on
particular forms of activity in public areas such as reserves).
• Restrictions on movements imposed by a Court as part of sentence or
release conditions may raise issues of freedom of movement, and may
also raise issues of arbitrary detention (section 22). This remains an
unsettled area in the European Courts.

Measures to achieve compliance

Restrictions on the exercise of these rights may be justifiable in certain

contexts where they can be shown to be necessary to, and are imposed only
to the extent necessary to achieve, the objectives of preserving:

• national security
• public safety
• public order, or
• public health.

The powers used to preserve such objectives must also be rational and
proportionate. If, for example, you are considering restricting open access to
a park or reserve for reasons of public order, consider: the period of time
during which the restriction is to remain in place, the criteria under which
persons are to be granted/denied access; and the extent of the area covered by
the restriction.
Related rights and freedoms

As the introduction to this part of the guidelines noted the rights in sections
12 to 18 are complementary and interdependent. If your policy gives rise to
issues of consistency with section 18 of the Bill of Rights Act, you should
also consider whether the policy gives rise to issues under these other
sections.

You should also whether your policy gives rise to issues of consistency with

• the right to freedom from arbitrary arrest or detention (section 22);

• the right of persons charged with an offence to release on reasonable
terms and conditions (section 24(b)).

Further discussion on the meaning of section 18

The commentary in the White Paper concentrates on common law principles

and the effect given to the right. The common law recognised the right to
freedom of movement to the extent that it applied to all movement unless
such movement is expressly prohibited or limited by law. [314] Although
there is the presumption that an individual can roam at will, the right to
freedom of movement is infringed on a regular basis by a range of laws that
govern where we reside or where we are able to move. These laws include,
for example:

• the law of trespass, which limits an individual's right to enter onto

private property;
• road transport laws which govern an individual's use of their motor
vehicle on the roads;
• planning and zoning laws that determine where we can reside or
conduct trade; and
• lawfully imposed sentences of imprisonment and bail.

The right to enter and move within New Zealand is not qualified in any way
other than by the fact that the person has to be lawfully in the country. This
requirement refers to domestic law, which may lay down the conditions to be
fulfilled. Overseas visitors who are provisionally allowed to remain in this
country can only be regarded as lawfully in the country as long as they
comply with the conditions of their admission. [315] The provision is also
not available to those whose residence permit has been revoked. [316]
The right to leave New Zealand carries with it the right to obtain the
necessary travel documents. [317] Any restrictions placed on the availability
of a passport would need to be considered in light of the restrictions that are
placed on the ability of a person to travel abroad. [318] The right to leave
New Zealand also exists independently of the individual's motivations for
leaving the country or his or her destination.

Is section 18 limited to immigration policy?

It appears the "freedom of movement" referred to in section 18(1) is not

coloured by issues of immigration that influence the remainder of section 18.
The District Court in Kerr v Attorney-General [319] was not inclined to find
that the reference to immigration matters limited the scope of the right to
freedom of movement. The Court found instead that the right to freedom of
movement also extended to the right to move freely down highways. [320]
The right to the freedom of movement would also appear to include the right
not to be forced to move to, or from, a particular location. In other words, the
right includes the right of an individual to move at any time he or she
chooses. [321]

This approach to section 18(1) is consistent with statements from the United
Nations Human Rights Committee which have said, in relation to article 12
of the ICCPR, that "[L]iberty of movement is an indispensable condition for
the free development of a person." It is also consistent with the approach of
the European Court of Human Rights (see below). Although the District
Court did not address the issue, the decision in Kerr appears to take into
account the relationship section 18(1) has with other rights in the Bill of
Rights Act. [322]

New Zealand caselaw appears to be broadly consistent with the approach

taken by the European Court.

The right to freedom of movement is also not restricted to physical barriers

preventing travel, but includes procedural impediments, such as prior
notification or prior authorisation. In addition, restrictions on movement, for
example limiting the ability of a person to enter particular areas, which are
imposed by a court as part of a sentence or conditions of release, may raise
issues of freedom of movement. Where the extent of restriction of movement
is severe, this is likely to also raise issues under section 22 (right not to be
arbitrarily arrested or detained). The following European Court cases
illustrate this point:
 • Guzzardi v Italy [323]
The Court in Guzzardi's case took the view that the confinement of an
individual in a small area, between set hours, over a prolonged period
during which he had to report to authorities at set times and could only
leave under strict supervision arrangements, was a deprivation of
liberty.
• Raimondo v Italy [324]
Restrictions requiring a person to report to authorities, remain at home
between set hours, and otherwise inform the authorities that they were
leaving their home, were held by the Court in this case to be a breach
of the freedom of movement.
• Van den Dungen v The Netherlands [325]
An injunction prohibiting an anti-abortionist campaigner from entering
an area within 250 metres of an abortion clinic has also been regarded
as an interference with the right to freedom of movement.

Key cases

Elika v Minister of Immigration [1996] NZFLR 257; [1996] 1 NZLR 741;

Amosa v Chief Executive of the Department of Labour 3/4/2000, Gendall J,
HC Wellington, AP 208-98; Kerr v Attorney-General [1996] DCR 951;
Police v Geiringer [1990-92] 1 NZBORR 331; Melser & Ors v Police [1967]
2 NZLR 437; Guzzardi v Italy November 6 1980, Series A, No. 314; 20
EHRR 301; Raimondo v Italy February 22, 1994, Series A No. 281-A; 18
EHRR 237; Van den Dungen v The Netherlands 22838/93 Netherlands,
(Dec) February 22, 1995, 80-A DR 147.

History of the section

The White Paper

Section 18 is identical to the right found in the White Paper.

Section 18 origins in international treaties and overseas legislation

The right to freedom of movement is recognised in international law.

Article 12 of the International Covenant on Civil and Political Rights

(ICCPR) provides that:
 1. Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or morals or
the rights and freedoms of others, and are consistent with the other
rights recognised in the present Covenant.
4. No-one shall be arbitrarily deprived of the right to enter his own
country.

Article 13 of the ICCPR provides that:

An alien lawfully in the territory of a State Party to the present Covenant may
be expelled therefrom only in pursuance of a decision reached in accordance
with law and shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against his expulsion and
to have his case reviewed by, and be represented for the purpose before, the
competent authority or a person or personally designated by the competent
authority.

Article 13 of the Universal Declaration of Human Rights provides that:

1. Everyone has the right to freedom of movement and residence within

the borders of each state.
2. Everyone has the right to leave any country, including their own, and
to return to their own country.

Article 2 of the Fourth Protocol of the European Convention on Human

Rights provides:

1. Everyone lawfully within the territory of a State shall, within

that territory, have the right to liberty of movement and freedom
to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights
other than such as are in accordance with law and are necessary
in a democratic society in the interests of national security or
 public safety, for the maintenance of ordre public, for the
prevention of crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.

The rights set forth in paragraph 1 may also be subject, in particular areas, to
restrictions imposed in accordance with law and justified by the public
interest in a democratic society.

Footnotes:

157. Human Rights Committee CCPR General Comment 25 para 12

12/07/96.
158. Human Rights Committee CCPR General Comment 25 para 12
12/07/96.
159. The White Paper at para 10.48.
160. For example, the Electoral Act extends the right to vote to all
permanent residents of New Zealand who have resided continuously
here for 12 months, whereas section 12 only refers to New Zealand
citizens.
161. Application 11391/85, (Dec) July 5 1985, 43 DR 236.
162. Haig v Canada (1993) 105 DLR (4th) 577.
163. A person may be denied the right to vote for example if they
have lived outside of NZ for the preceding 3 years, or if they are
detained under certain provisions of the Mental Health (Compulsory
Treatment and Assessment) Act 1993 - see section 80(1)(d) of the
Electoral Act.
164. Re Bennett (1993) 2 HRNZ 358.
165. Sauve v Canada (Chief Electoral Officer) (1999) 180 DLR (4th)
385.
166. See, for example, section 80 of the Electoral Act 1993.
167. Reference re Electoral Boundaries Commission Act, ss. 14, 20
(Sask) (1991) 81 DLR (4th) 16.
168. See Rishworth "Electoral Rights" in The New Zealand Bill of
Rights Act OUP Auckland pp 271-274.
169. This may fall for consideration under section 19 of the Bill of
Rights Act.
170. See section 47 of the Electoral Act.
171. Peters v Collinge [1993] 2 NZLR 554.
172. This case was decided prior to the introduction of the MMP
electoral system. Because political parties are required to play a more
significant role in determining the make up of the House (through the
creation of party lists) it remains to be seen whether political parties no
longer remain subject to the Bill of Rights Act.
173. MacLean v Attorney-General of Nova Scotia (1987) 35 DLR
(4th) 306.
174. Reform Party of Canada v Canada (Attorney-General) [1993] 3
WWR 139.
175. United Nations General Assembly Resolution 2106 A (XX) of
21 December 1965 (CERD).
176. Article 21 of the UDHR is expressed in broadly similar terms.
177. Note that article 7 of CEDAW is expressed in similar terms to
article 5 of CERD, but for the sake of conciseness, we have only
reproduced article 5 from CERD here.
178. The White Paper para 10.53.
179. Interim Report of the Justice and Law Reform Select Committee,
Inquiry into the White Paper- A Bill of Rights for New Zealand,
Appendix to the Journals of the House of Representatives (1986-87)
Vol X, I.8A, at 139.
180. See Wilson J in R v Morgentaler [1988] 1 SCR 30, 176-177.
181. UN General Comment 22-1.
182. UN General Comment 22-2.
183. P Rishworth (1995) "Coming Conflicts over Freedom of
Religion" in G Huscroft and P Rishworth (eds), Rights and Freedoms:
The New Zealand Bill of Rights Act 1990 and The Human Rights Act
1993 Wellington: Brookers, 230.
184. R v Big M Drug Mart Ltd [1985] 1 SCR 295.
185. Zylberg v Sudbury Board of Education (1988) 65 OR (2d) 641
(CA).
186. Mendelssohn v Attorney-General [1999] 2 NZLR 268, para 14.
187. Mendelssohn v Attorney-General [1999] 2 NZLR 268, para 20.
188. See Otto-Preminger Institut v Austria (1995) 19 EHRR 34.
189. Otto-Preminger Institute v Austria (1995) 19 EHRR 34.
190. Church of Scientology v Sweden (8282/78).
191. Otto-Preminger Institut v Austria (1995) 19 EHRR 34, para 47.
The Otto-Preminger decision was followed in Wingrove v United
Kingdom (1997) 24 EHRR 1.
192. Application 11308/84 Vereniging v Rechtswinkels Utrecht v
Netherlands 46 DR 200 (1986), ECom HR.
193. Application 7805/77 X and Church of Scientology v Sweden 16
DR 68 (1979) EComHR.
194. R v Morgentaler [1988] 1 SCR 30, 179.
195. Arrowsmith v United Kingdom (Decision of 22/10/78, No
7050/75).
196. Stanley Naismith "Religion and the European Convention on
Human Rights" in Human Rights and UK Practice 2001 2(1) p8, 9.
197. Moonen v Film and Literature Board of Review [2000] 2 NZLR
9.
198. Re MacKay v Government of Manitoba 24 DLR (4th) 587, 594.
The Manitobian Court of Appeal found a provision allowing financial
support to minority political candidates and parties did not restrict the
applicant's freedom of conscience.
199. Application 7050/75 Arrowsmith v United Kingdom 19 DR 5
(1980), EComHR.
200. Dissenting judgment of Hughes CJ in United States v MacIntosh
283 US 605 cited in United States v Seeger 380 US 163, 176.
201. Maurice v Canada (Attorney-General) (2002) 210 DLR (4th)
186.
202. See too the quote from Wilson J above from the decision in
Morgentaler.
203. Paul Westerman v. The Netherlands, 682/1996, 3 November
1999.
204. UN General Comment 22-11.
205. UN General Comment 22-2. For example, pacifism is considered
a belief for the purposes of Article 9 of the European Convention on
Human Rights. See Arrowsmith v United Kingdom (Decision of
22/10/78, No 7050/75).
206. Welsh v US 398 US 333 (1970) pp. 335-344.
207. See Welsh v US 398 US 333 (1970) at 339 and United States v
Seeger 380 US 163 (1965) pp. 173 -183.
208. Van Dijk and Van Hoof (1998), Theory and Practice of the
European Convention on Human Rights, (3rd ed), p548.
209. These 5 indicia were used in Centrepoint Community Growth
Trust v CIR [1985] 1 NZLR 673 and Re I C [1999] NZFLR 471.
Following the leading Australian decision Church of New Faith v
Commissioner for Pay-roll Tax (1984) 57 ALJR 785. The Court of
Appeal has not expressed a view as to its correctness.
210. The Canadian approach is the a court is not to inquire into the
validity of a sincerely held belief. See R. v. Lewis; Elizabeth Bagshaw
Society et al., Interveners 139 D.L.R. (4th) 480 1996.
211. US v Seeger 308 US 163 (1965) at 184.
212. R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 311.
213. R v Big M Drug Mart Ltd [1985] 1 SCR 295, para 123.
214. Buscarini v San Marino Judgment of 18/2/99, ECHR, 24645/94.
See also Stanley Naismith "Religion and the European Convention on
Human Rights" in Human Rights and UK Practice 2001 2(1), p8, 15
215. R v Big M Drug Mart Ltd 5 DLR (4th) 121.
216. P Rishworth (1995), "Coming Conflicts over Freedom of
Religion" in G Huscroft and P Rishworth (eds), Rights and Freedoms:
The New Zealand Bill of Rights Act 1990 and The Human Rights Act
1993 Wellington: Brookers, 238.
217. Zylberg v Sudbury Board of Education (1988) 65 OR (2d) 641
(CA).
218. Zylberg v Sudbury Board of Education (1988) 65 OR (2d) 641
(CA) at 655.
219. See also Canadian Civil Liberties Association v Ontario
(Minister of Education) (1990), 71 OR (2d) 341 (CA).
220. Peter W Hogg (1997) Constitutional Law of Canada (3rd ed)
Vol 2 at 39.10.
221. Peter W Hogg (1997) Constitutional Law of Canada (3rd ed)
Vol 239.10.
222. Canadian Civil Liberties Association v Ontario (Minister of
Education) (1990), 71 OR (2d) 341 (CA).
223. See Tshitenge Muteba v Zaire (124/1982) 24/7/1984.
224. Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR
563; Goodwin v United Kingdom March 27, 1996, R.J.D., 1996-II, No
7
225. R v Shayler [2002] UKHL 11.
226. For a discussion on the unintended and unforeseen consequences
of such policies in the context of prohibitions on hate speech, see N
Strossen (2001) "Liberty and Equality: Complementary, Not
Competing, Constitutional Commitments in Huscroft and Rishworth
(eds), Litigating Rights: Perspectives from Domestic and International
Law, Oxford, Hart Publishing.
227. Living Word Distributors v Human Rights Action Group Inc
(Wellington) [2000] 3 NZLR 570.
228. Newspapers Publishers Association of New Zealand (Inc) v
Family Court [1999] 2 NZLR 344.
229. Solicitor General v Radio New Zealand [1994] 1 NZLR 48.
230. R v Secretary of State for the Home Department, ex p Simms
[1999] 3 WLR 328.
231. Abrams v United States.
232. R v Secretary of State for the Home Department, ex p Simms
[1999] 3 WLR 328, 337. Also see R v Shayler [2002] UKHL 11, 27 per
Lord Bingham of Cornhill.
233. Tipping J, Moonen v Film and Literature Board of Review
[2000] 2 NZLR 9.
234. Solicitor General v Radio NZ Ltd [1994] 1 NZLR 59 relying on
Irwin Toy Ltd v Quebec [1989] 58 DLR(4th) 577.
235. Irwin Toy Ltd v Quebec [1989] 58 DLR (4th) 577, p 607.
236. See for example Thomas J in Living Word Film Distributors v
Human Rights Action Group. For an overview of the content neutrality
of the right see N Jayawickrama (2002), The Judicial Application of
Human Rights Law, Cambridge University Press, Cambridge, page
693.
237. For example, see R v Keegstra [1990] 3 S.C.R 697, 828.
238. Handyside v United Kingdom (1976) 1 EHRR 737 cited in Vogt
v Germany (1995) 21 EHRR 205; see also Redmond -Bate v DPP
(1999) 7 BHRC 375, 382, 393.
239. Compare the approach of the Canadian Supreme Court in R v
Sharpe [2001] 1 SCR 45 to that of the US Supreme Court in Ashcroft v
Free Speech Coalition (2002) S. Ct 1389 in cases concerning child
pornography.
240. R v Keegstra [1990] 3 S.C.R 697, 732.
241. See Lester A (1993) "Freedom of Expression" in Judicial
Colloquium on the Domestic Application of International Human
Rights Norms: Developing Human Rights Jurisprudence, Volume 6
Commonwealth Secretariat Interights, London.
242. For a discussion on the unintended and unforseen consequences
of policies prohibiting hate speech, see Strossen N (2001) "Liberty and
Equality: Complementary, Not Competing, Constitutional
Commitments" in Huscroft and Rishworth (eds) Litigating Rights:
Perspectives from Domestic and International Law, Oxford, Hart
Publishing.
243. For a United States perspective, see National Socialist Party v
Skokie 578 F.2d 1197 (7th Cir) cert denied, 439 US 916 (1978).
244. Slaight Communications v Davidson 59 DLR (4th) 416; Wooley
v Maynard 430 US 705 (1977).
245. Slaight Communications v Davidson 59 DLR (4th) 416; Wooley
v Maynard 430 US 705.
246. West Virginia State Board of Education v Barnette 319 US 624
(1943).
247. For a contrary view see Grant Huscroft (2003) "Freedom of
Expression" in The New Zealand Bill of Rights Act, Auckland, Oxford
University Press, p333.
248. United States v United Foods Inc 533 US 405 (2001); See also
Abood v Detroit Board of Education 431 US 209 (1977) cf Glickman v
Wileman Bros & Elliot Inc 521 US 457 (1997).
249. United States v United Foods Inc 533 US 405 (2001), 413 See
also Abood v Detroit Board of Education 431 US 209 (1977) and
Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211.
250. See sections 21 and 23(4) of the Bill of Rights Act respectively.
251. Jersild v Denmark September 23, 1994 Series A No 298.
252. Leander v Sweden Judgment of 26/03/1987, Series A no.116,
para 74.
253. Z v Austria, Application no. 10392/83, 56 DR 13, admissibility
decision 13/04/1988.
254. K Reid, (1998) A Practitioner's Guide to the European
Convention of Human Rights, London, Sweet &Maxwell, p 244.
255. Guerra and others v Italy February 19, 1998.
256. Article 7 of the proposed Bill of Rights Act. A discussion of the
right appears at paras 10.54 to 10.58 of the White Paper.
257. Ahmed v United Kingdom, European Commission (1981) 4
EHRR 128.
258. Mendelssohn v Attorney-General [1999] 2 NZLR 268, para 14.
259. Mendelssohn v Attorney-General [1999] 2 NZLR 268, para 20.
260. See Otto-Preminger Institut v Austria (1995) 19 EHRR 34.
261. These 5 indicia were used in Centrepoint Community Growth
Trust v CIR [1985] 1 NZLR 673 and Re I C [1999] NZFLR 471.
Following the leading Australian decision Church of New Faith v
Commissioner for Pay-roll Tax (1984) 57 ALJR 785. The Court of
Appeal has not expressed a view as to its correctness. The indicia are
objective guidelines only and should not be thought of as a test for
religion.
262. UN General Comment 22-2. For example, pacifism is considered
a belief for the purposes of Article 9 of the European Convention on
Human Rights. See Arrowsmith v United Kingdom (Decision of
22/10/78, No 7050/75).
263. UN General Comment 22, para 2.
264. R v Laws (1998) 165 DLR (4th) 301, 314.
265. Welsh v US 398 US 333 (1970) pp. 335-344.
266. See Welsh v US 398 US 333 (1970) at 339 and United States v
Seeger 380 US 163 (1965) pp. 173 -183.
267. US v Seeger 308 US 163 (1965) at 184; R. v. Lewis; Elizabeth
Bagshaw Society et al., Interveners 139 D.L.R. (4th) 480 1996.
268. UN General Comment 22-4.
269. UN General Comment 22-4.
270. Feau v Department of Social Welfare (1995) 2 HRNZ 528.
271. UN General Comment 22-4.
272. UN General Comment 22-4.
273. R v Lee 3/12/01, Paterson J, HC Auckland T10974.
274. Wilson J in R v Morgentaler [1988] 1 SCR 30.
275. R v Big M Drug Mart Ltd [1985] 1 SCR 295, para 123.
276. UN General Comment 22-4.
277. Re J (An Infant): B and B v Director-General of Social Welfare
[1996] 2 NZLR 134, 145 (CA).
278. Re J (An Infant): Director-General of Social Welfare v B and B
[1995] 3 NZLR 73 (HC).
279. Re J (An Infant): Director-General of Social Welfare v B and B
[1995] 3 NZLR 73 (HC).
280. Kokkinakis v Greece (judgment of 25/5/93, A260-A) para 31.
281. Kokkinakis v Greece (judgment of 25/5/93, A260-A) para 48.
282. Larissis & Others v Greece judgment of 24/2/98,
No140/1996/759/958-960.
283. UN General Comment 22-8.

284. Kivenmaa v Finland (412/990) Mr Hendl (dissenting).

285. For the idea that the right extends to private as well as public
meetings, see Application 8191/78 Rassamblement Jurrasien Unité v
Switzerland 17 DR 93 (1979), EComHR.
286. This is an area in which the power of local authorities to make
and administer by-laws may be critical. Unfettered powers to prevent
meetings or processions might be questioned because of the lack of
"limits prescribed by law" in terms of [section 5]. It may also seem that
in some cases the interest to be protected cannot be seen as justifying
the interference with an important freedom. See The White Paper para
10.62.
287. Kapiti Coast DC v Raika [1997] NZRMA 218. In this case the
Environment Court granted an interim enforcement order that
prohibited the respondents using certain residential premises as gang
headquarters without a resource consent. The Court found that this was
a reasonable limit on the respondents' right of assembly in light of the
potential danger to residents, the fear of many residents, and the
general disruptive effect upon the neighbourhood. On a similar note
see sections 86 and 87 of the Crimes Act 1961.
288. See, for example, Williams v Police (1986) 2 CRNZ 131.
289. Williams v Police (1986) 2 CRNZ 131, 136. See also Minto v
Police (1991) 7 CRNZ 38, 41.
290. Bradford v Police [1995] 2 HRNZ 405.
291. Bradford v Police [1995] 2 HRNZ 405.
292. As long as the assembly is lawful, see Bradford v Police [1995]
2 HRNZ 405
293. Bradford v Police [1999] 2 HRNZ 405; Director of Public
Prosecutions v Jones [1999] 2 WLR 625.
294. See pages 42-43 of "Inquiry into matters relating to the visit of
the President of China to New Zealand in 1999". Report of the Justice
and Electoral Committee New Zealand House of Representatives,
December 2000.
295. See, for example, section 23 of the Summary Offences Act 1981
which enables certain law enforcement officers to arrest a person
obstructing an officer in the course of their duties
296. Police v Beggs [1999] 3 NZLR 615, p 627.
297. See Minto v Police (1991) 7 CRNZ 38, 41 where the Court noted
that the decision by the police to move the protestors away from the
venue by some 50m did not prevent the protestors from being able to
maintain a presence or effectively voice their position.
298. Pages 37-39 of "Inquiry into matters relating to the visit of the
President of China to New Zealand in 1999". Report of the Justice and
Electoral Committee New Zealand House of Representatives,
December 2000 [italics in original, bold added].
299. Plattform 'Artze für das Leben' v Austria A 139 (1988) 13 EHRR
204, E Ct HR.
300. Police v Beggs [1999] 3 NZLR 615, p 629.
301. Police v Beggs [1999] 3 NZLR 615, p 630.
302. As per Randerson J, Air New Zealand Ltd v Trustees of the New
Zealand Airline Pilots Mutual Benefit Fund [2000] 1 NZLR 418.
303. Collymore v Attorey General [1970] AC 538, at p 548.
304. Nihal Jayawickrama (2002) The Judicial Application of Human
Rights Law: National, Regional and International Jurisprudence,
Cambridge, Cambridge University Press, p 738.
305. Reference re Public Service Employee Relations Act (Alta)
[1987] 1 SCR 313 per McIntyre J at p 407. This case should be read
 together with PSAC v Canada [1987] 1 SCR 424 and RWDSU v
Saskatchewan [1987] 1 SCR 460 (the Labour Trilogy). In each of these
cases the majority of the Court held that legislation that prevented a
workers' association from taking effective industrial action was not
inconsistent with the right to freedom of association.
306. For a European perspective see Schmidt and Dahlstrom v
Sweden February 6, 1976, Series A, No 20; 1 EHRR 632.
307. Dunmore v Ontario Attorney-General [2001] 3 SCR 1016;
Delisle v Canada (Deputy Attorney-General) [1999] 2 SCR 989. The
minority in the Labour Trilogy cases considered that the purpose of the
right to freedom of association is to protect the right of individuals to
act collectively in the pursuit of common interests. Workers have an
inherent interest in safe conditions in the workplace and are likely to
act in concert to secure these goals. Because an individual cannot
strike, workers necessarily must associate for the purpose of their
collective interests in the workplace; the right to take industrial action
(including a strike) is an inevitable corollary of this association.
308. Air New Zealand Ltd v Trustees of the New Zealand Airline
Pilots Mutual Benefit Fund [2000] 1 NZLR 418. See also, the
Canadian Supreme Court decision Lavigne v Ontario Public Service
Employees Union [1991] 2 SCR 211.
309. Section 39(1) states "Nothing in section 38 of this Act shall
apply where the authorisation or qualification is needed for, or
facilitates engagement in, a profession or calling for the purposes of an
organised religion and is limited to one sex or to persons of that
religious belief so as to comply with the doctrines or rules or
established customs of that religion."
310. Air New Zealand Ltd v Trustees of the New Zealand Airline
Pilots Mutual Benefit Fund [2000] 1 NZLR 418, 429; Chassagnou &
Ors v France Applications 25088/94 28331/95, and 28443/95,
29/04/1999.
311. Nihal Jayawickrama (2002) The Judicial Application of Human
Rights Law: National, Regional and International Jurisprudence,
Cambridge, Cambridge University Press, pp 745-748.
312. Paul Rishworth et al. (2003) The New Zealand Bill of Rights, p
359.
313. See Justice and Law Reform Select Committee, "Inquiry into the
White Paper- A Bill of Rights for New Zealand"
314. The White Paper pp 84-85.
315. Elika v Minister of Immigration [1996] NZFLR 257; [1996] 1
NZLR 741.
316. Amosa v Chief Executive of the Department of Labour 3/4/2000,
Gendall J, HC Wellington, AP 208-98.
317. United Nations Human Rights Committee General Comment 27
(1999)
318. On the issuing of passports, see Nihal Jayawickrama The
Judicial Application of Human Rights Law, pp 452-459.
319. Kerr v Attorney-General [1996] DCR 951.
320. There is Canadian case law that states that the right of an
individual to use the public highways is a right which comes within the
concept of the right to liberty. See Re Rowland and the Queen 10 DLR
(4th) 724, 13 CCC (3d) 367, 33 Alta LR (2d) 252; Re Gresham
Produce Co. Ltd and Motor Transport Board 14 DLR (4th) 722 varied,
22 DLR (4th) 520.
321. Police v Geiringer [1990-92] 1 NZBORR 331, 338. See, too, the
decision of the Supreme Court on appeal in Melser & Ors v Police
[1967] 2 NZLR 437. See Newberry, R. (1995) "From the District
Inspector's Office..." in Mental Health & the Law (5) August 1995 p58.
Newberry discusses the implications of the compulsory treatment
jurisdiction in the Mental Health (Compulsory Assessment and
Treatment) Act 1992.
322. It would be difficult, for example, to give effect to the right to
peaceful assembly, without giving effect to the right to freedom of
movement.
323. Guzzardi v Italy November 6 1980, Series A, No. 314; 20 EHRR
301. The European Court in Guzzardi held that there was a technical
distinction to be made between the deprivation of liberty and freedom
of movement and that the difference in application of the rights was
one of degree and intensity rather than substance or nature. Despite
this, the considerations remain similar.
324. Raimondo v Italy February 22, 1994, Series A No. 281-A; 18
EHRR 237.
325. Van den Dungen v The Netherlands 22838/93 Netherlands,
(Dec) February 22, 1995, 80-A DR 147. The infringement was held to
be justified for the protection of the rights of others having regard to
the limited area affected and duration of the measure.
Introduction to sections 19-20: Non-
Discrimination and Minority Rights
Sections 19 and 20 of the Bill of Rights Act concern the right to be free from
discrimination on a variety of grounds, and particularly provide protection of
rights for minorities.

• Section 19 concerns the right to be free from discrimination, on the

grounds contained in the Human Rights Act 1993. The section also
contains "affirmative action" provisions.
• Section 20 is about the rights of persons who belong to an ethnic,
religious, or linguistic minority in New Zealand. These include the
right to enjoy the culture, to profess and practice the religion, and to
use the language of that minority.

These rights are complementary. It is also important to be aware of how the

rights and freedoms contained in these two sections interact with other
sections of the Bill of Rights Act; for example, sections 10 and 11, and
sections 13-17.

The rights in section 19 must be read in conjunction with the Human Rights
Act 1993, which sets out the prohibited grounds of discrimination, namely:
sex, marital status, religious belief, ethical belief, colour, race, ethnic/national
origin, disability, age, political opinion, employment status, family status,
sexual orientation.

Section 19 Freedom from discrimination [326]

Section 19 of the Bill of Rights Act is as follows:

Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of
discrimination in the Human Rights Act 1993.
(2) Measures taken in good faith for the purpose of assisting or advancing
persons or groups of persons disadvantaged because of discrimination that is
unlawful by virtue of Part II of the Human Rights Act 1993 do not constitute
discrimination.
Policy triggers: do I need to consider section 19?

To determine whether your policy appears to be consistent with section 19

you need to ask the following questions:

• Does your policy draw distinctions between persons or groups based

on one or more of the following prohibited grounds of discrimination
in the Human Rights Act 1993, namely: sex, marital status, religious
belief, ethical belief, colour, race, ethnic/national origin, disability, age,
political opinion, employment status, family status, sexual orientation?
• Does the distinction involve disadvantage to the persons or group?
• Does the policy you are developing contain measures that are
attempting to assist persons who have been socially, culturally and/or
economically disadvantaged?
• Is the policy taking steps to diminish or eliminate conditions that have
caused on-going disadvantage for specific groups within society?

Some of the more specific questions to identify these distinctions that you
may wish to consider include, but are not limited to:

• Does your policy provide for the delivery of financial entitlements or

social services to some sectors of society and not to others? Does that
policy make distinctions based on an individual's age, marital status,
family status, race, ethnic or national origins, religious or ethical belief,
disability, sex, or sexual orientation?
• Does your policy set age bands that are expressed as protective
measures (e.g. consumption of alcohol), graduated entitlements (e.g.
driver licensing) or statements of legal capacity (e.g. voting)?
• Has your policy been developed to assist or recognise interests of
Maori and/or the interests of other ethnic groups?
• Do the requirements of your policy have a disproportionate impact on
some sectors of the community by reason of their age, sex, ethnic or
national origins, political opinion, race, disability, sexual orientation?

What every policy analyst needs to know about section 19

• Not every form of differential treatment is discriminatory.

• Legislation, policies, or practices give rise to a prima facie (on the face
of it) issue of "discrimination" under section 19(1) of the Bill of Rights
Act if the legislation, policy, or practice leads to groups or individuals
being treated differently on the basis of one of the prohibited grounds
of discrimination in the Human Rights Act, and that difference in
treatment disadvantages some groups or individuals.
• The groups or individuals being compared must be in a comparable or
similar position.
• It is immaterial whether this disadvantage has already occurred or
whether it is being assumed that it will occur in the future.
• Discrimination can arise on more than one ground. For example,
policies which consider persons under 20 years of age to be "minors"
and treat persons aged 16 to 19 years differently from adults unless the
minor is married, raise discrimination issues on the grounds of age and
marital status.
• Discrimination can also arise intra-ground; for example, the provision
of different services to people with disabilities based on the nature of
their disability.
• Discrimination may arise:
o directly; for example, a policy may discriminate on the basis of
age where it requires a person to be over a certain age to be a
judge; or
o indirectly - a requirement that is neutral on its face may impact
disproportionately on a particular group of people; for example,
a policy may discriminate on the basis of age where it requires a
person to have been admitted to the bar for a minimum number
of years to be a judge. The effect of the policy is potentially
discriminatory because it requires a person to be of a certain age
before they can reasonably be expected to qualify.
• Section 19(2) aims to clarify the fact that certain "affirmative action",
policies or programmes may not be discriminatory for the purposes of
the Bill of Rights Act.
• Affirmative action programmes are only non-discriminatory for the
period of time it takes to address the disadvantage experienced by the
targeted group.
 • The courts in New Zealand have not had an opportunity to apply
section 19(2) of the Bill of Rights Act - the application of section 19(2)
and relationship of section 19(2) with section 19(1) is therefore far
from clear.
• However, if you are able to demonstrate that a specific group within
the community are in need of specific short-term assistance which is
unavailable to others for the purposes of addressing or alleviating on-
going disadvantage related to their membership of that group, then it is
unlikely that such a measure will amount to discrimination.
• If the legislation, policy, practice, or service gives rise to a prima facie
issue of "discrimination" under section 19(1) of the Bill of Rights Act
(because there is different treatment resulting in disadvantage),
discrimination will only be found if it cannot be demonstrated that the
measure is a "justified limitation reasonably necessary in a free and
democratic society" in accordance with section 5 of the Bill of Rights
Act.

Measures to achieve compliance

There are a number of ways to increase compliance of your policy with

section 19 of the Bill of Rights Act. Some of the issues an agency should
consider are set out below.

• If your policy makes a distinction on one of the prohibited grounds of

discrimination, make sure it is inclusive and not exclusive in its effect.
For example:
o if your policy establishes an advisory committee comprised of
Maori, ensure that other sectors of the community have access to
decision-makers;
o if it is necessary to appoint persons to boards in order to provide
a wider cultural perspective, consider requiring selection based
on cultural knowledge rather than on ethnic or racial
background;
o if your policy is aimed at people living in relationships, be sure
to develop the policy so that it applies equally to married
couples, de facto couples, and same-sex couples.
 • If the policy or practice appears to be discriminatory, consider the
underlying purpose or reason for the distinction. Ask whether:
o the reason for the distinction is consistent with the objectives of
the policy;
o the objective of the policy is legitimate;
o the distinction is sufficiently prescribed to meet its purpose;
o the basis for the distinction is able to be supported by reliable
information.

In looking at whether a provision in legislation, a policy, practice, or service

is an affirmative action measure under the Bill of Rights Act, you will need
to consider the following questions:

• Is your legislation, policy, practice, or service shaped this way because

it is aimed at assisting or advancing persons or people who are
traditionally disadvantaged?
• What is the nature of the disadvantage suffered by the person or group?
• Is there any evidence to support the existence of that disadvantage?
• How will your legislation, policy, practice, or service assist in
addressing that disadvantage?
• Can you measure the results of your action? For example, can you
determine to date or will you be able to determine in the future whether
your action has been successful in assisting or advancing persons who
have been disadvantaged by discrimination?

If you can demonstrate that your legislation, policy, practice, or service is an

affirmative action measure, then it will not be discrimination under the Bill
of Rights Act.

However, due to the complexities in applying section 19(2), we suggest that

you always consult your legal adviser when considering whether section
19(2) might be applicable to your legislation, policy, practice, or service.

Related rights and freedoms

Section 19(1) complements many of the rights in the Bill of Rights Act as it
requires government departments and agencies to consider what the impacts
of their actions may have on all sectors of society. Section 19(1) will have a
more direct relationship with:
 • the right to freedom of thought and conscience (section 13);
• the right to freedom of expression (section 14) ;
• the right to freedom to manifest religion (section 15) ;
• the rights of minorities (section 20).

Further discussion on the meaning of section 19(1)

What is discrimination: a fuller analysis?

In Quilter v Attorney-General [327] Thomas J stated:

[t]he existence of discrimination or otherwise can only be determined by

'assessing the prejudicial effect of the distinction against...the fundamental
purpose of preventing the infringement of essential human dignity.' [328]

It is clear that not every form of treatment that differentiates between

individuals or groups of individuals on the basis of one or more of the
prohibited grounds of discrimination will constitute discrimination. [329]

It has been said that:

[D]iscrimination may be described as a distinction, whether intentional or not

but based on grounds relating to personal characteristics of the individual or
group, which has the effect of imposing burdens, obligations, or
disadvantages on such individual or group not imposed upon others, or which
withholds or limits access to opportunities, benefits, and advantages available
to other members of society. Distinctions based on personal characteristics
attributed to an individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on individual's
merits and capacities will rarely be so classed. [330]

The essence of discrimination lies in the different treatment of individuals or

groups of individuals in comparable situations, where one individual or
group of individuals is disadvantaged in circumstances where that
disadvantage is not able to be objectively justified. Tipping J in Quilter [331]
described the process of identifying discrimination as requiring two separate
questions: "What does the difference in treatment relate to and upon what
factor or factors is the difference based?" [332]

In answering these questions, one must seek to:

[g]ive substance to the principle of equality under the law and the law's
unwillingness to allow discrimination on any of the prohibited grounds
unless the reason for the discrimination serves a higher goal than the goal
which anti-discrimination laws are designed to achieve. [333]

The approach in Quilter

The leading New Zealand case on section 19 of the Bill of Rights Act
remains Quilter v Attorney General. [334] In this case, the five Judges were
unanimous in finding that the Marriage Act did not enable same-sex couples
to marry. However, the divergence in approaches of the Judges to applying
section 19 has meant that the law on section 19(1) remains unsettled. [335]

A number of key points can be taken from Quilter: [336]

1. Discrimination cannot be defined in precise terms.

2. Not all distinctions drawn between individuals and groups of
individuals are tantamount to discrimination.
3. By its very nature, what is (or is not) discrimination is dependent on
the environmental context - that context will be indicative of whether
difference in treatment is discriminatory.
4. Distinctions based on irrelevant personal characteristics are likely to be
discriminatory whereas distinctions based on an individual's merits and
capabilities are unlikely to be regarded as discriminatory. [337]

The Canadian Supreme Court has added a gloss to discrimination law by

suggesting that:

...the purpose of [the right to be free from discrimination] is to prevent the

violation of essential human dignity and freedom through the imposition of
disadvantage, stereotyping, or political or social prejudice, and to promote a
society in which all persons enjoy equal recognition at law as human beings
or as members of Canadian society, equally capable and equally deserving of
concern, respect and consideration. Legislation which effects differential
treatment between individuals or groups will violate this fundamental
purpose where those who are subject to differential treatment fall within one
or more enumerated or analogous grounds, and where the differential
treatment reflects the stereotypical application of presumed group or
personal characteristics, or otherwise has the effect of perpetuating or
promoting the view that the individual is less capable, or less worthy of
recognition or value as a human being or as a member of Canadian
society. Alternatively, differential treatment will not likely constitute
discrimination within the purpose of s. 15(1) where it does not violate the
human dignity or freedom of a person or group in this way, and in particular
where the differential treatment also assists in ameliorating the position of
the disadvantaged within Canadian society. [338]

There is no New Zealand caselaw to indicate that the courts here would take
a similar approach to discrimination law. It is therefore not essential for an
affected party to establish that their dignity has been lowered or that such
stereotypes or prejudices exist in order to show disadvantage. The dignity
approach is also problematic as it does not address all avenues of
discrimination. Some individuals or groups within the community, such as
widowed people or married couples, are unlikely to have experienced the
effects of prejudicial stereotyping, but may still suffer a disadvantage under
some policies or legislation. [339] An example of such a policy might be one
that confers an entitlement such as access to free child-care facilities for
single parents who are employed but not two parent households where both
parents are employed. Such a policy might be considered to disadvantage two
parent families, particularly where the families are in equivalent income
ranges, even though no-one's dignity would appear to have been infringed.

Section 19(1) - a suggested approach to non-discrimination law

The Ministry of Justice has considered the caselaw on discrimination issues

and, in an attempt to provide a practical way forward for agencies, has
developed the following guidelines.

The two key questions to ask when assessing whether discrimination under
section 19 exists are:

i. Does the policy or legislation draw a distinction based on one of the

prohibited grounds of discrimination?
ii. Does this distinction involve disadvantage to the person or group?

If the answer to both of these questions is "yes", then consideration needs to

be given as to whether the limit on the right to be free from discrimination is
reasonable in terms of section 5 of the Bill of Rights Act. If it is, then it
appears that the policy or practice does not amount to discrimination. The
policy or practice infringes section 19(1) only where it cannot be
demonstrably justified.
Can the distinction be drawn within one of the prohibited grounds of
discrimination?

It is likely that a New Zealand court would consider the merits of a claim of
intra-ground discrimination, even though intra-ground discrimination is not
expressly referred to in the Human Rights Act. Intra-ground discrimination
occurs when distinctions are made within the prohibited grounds of
discrimination. For example, intra-ground discrimination may occur if
individuals who have a particular disability are eligible for certain
entitlements of a quality not available to others with disabilities.

The Canadian Supreme Court has directly considered the issue of whether
there can be intra-ground discrimination and found it to be possible in
Granovsky v Minister of Employment and Immigration. [340]

Intra-ground discrimination may arise in a number of contexts and may be

based on a number of the prohibited grounds of discrimination. For example,
to date it seems more likely to arise more frequently in relation to the ground
of disability than to other grounds in the Act by virtue of the broad nature of
that particular ground of discrimination, but it may also arise in other
contexts. The Supreme Court in Lovelace v Ontario [341] for example, was
considering the issue in the context of different bands within the First Nation
people of Canada. In that case, the Canadian Government provided one band
was given assistance in developing a casino. This assistance was not
provided to others.

When is a person disadvantaged?

As not all forms of distinction or differences in treatment amount to

discrimination, consideration needs to be given to the nature of the
disadvantage. A person is disadvantaged if they are treated less favourably,
either because they are deprived of something from which they can derive a
benefit - such as access to services, or an opportunity to do something - or
because they have less choice available to them or have a burden imposed on
them. [342] The extent to which a person experiences different treatment is
likely to have a bearing on whether that difference amounts to
"disadvantage".

In order to identify disadvantage there needs to be some basis for assessing

the disadvantage. The European Court of Human Rights notes the analysis of
whether discrimination exists is only made meaningful if the basis for
comparison is reasonable; that is, the groups or individuals being compared
need to be in a comparable or similar position. [343] The courts in New
Zealand are likely to adopt an equivalent approach.

Not all policies or practices that treat groups or individuals in comparable

positions differently result in disadvantage. Consideration should be given to
the nature and the extent of the impact of the policy on both parties before an
assessment as to the existence of disadvantage can be made. The following
examples illustrate situations where it could be said that there is no
disadvantage.

Example 1: Different needs

At first glance car-parks that are reserved for persons with a disability may
"disadvantage" those who do not experience a disability because they do not
have access to these car parks and may have to walk further to access
services. However, a person who does not have a disability is not
disadvantaged in a meaningful way as they do not have the same need for the
car park.

Example 2: Different interests

A governance body has been established under legislation to make decisions

relating to the allocation of assets that have been provided to Maori as part of
a Treaty Settlement agreement. Only Maori are able to be appointed to the
Board. While on the one hand such an appointment criterion might appear to
be discriminatory, the use of this criterion in this situation is unlikely to cause
disadvantage as only Maori are likely to have an interest in the way in which
the assets are managed.

Example 3: Alternative services

A new government initiative results in a service provider receiving funding

to provide a particular range of social services that are necessary to meet the
needs of a specific ethnic community ("Group A"). Such an initiative might
be seen as not causing disadvantage if it could be shown that other ethnic
groups receive publicly-funded social services of a similar quality, and which
meet the needs of their community ("Group B"). Although the services
provided to Group A may differ from those provided to Group B, there may
be no disadvantage to either group if the quality of the services, the level of
the funding, and the quality of access is similar, and the benefits that accrue
to both groups is similar.
Because the law on discrimination continues to evolve, we would strongly
urge policy advisers against developing policies or practices that treat
groups in a comparable position differently without considering possible
justifications for the proposals. In other words, assume that such treatment
might constitute a prima facie infringement of section 19(1) and that you will
need to justify it in terms of section 5 of the Bill of Rights Act.

It is also conceivable for a form of treatment to disadvantage someone

indirectly. Unlike the Human Rights Act, section 19 of the Bill of Rights Act
does not differentiate between indirect and direct discrimination. Indirect
discrimination may occur where legislation, a practice, rule, policy, or
requirement that is neutral on its face may impact disproportionately on one
sector of the community in an unjustifiable way. An example of a policy that
may indirectly discriminate would be a requirement that all persons must
wear hard hats for certain jobs. This requirement may indirectly discriminate
against Sikhs and other ethnic groups whose religion or culture requires them
to wear certain headwear. [344]

Does this mean that people need to be treated the same?

Section 19 of the Bill of Rights Act does not require everyone to be treated
identically. It should be noted that there was a deliberate decision by
Parliament to omit the phrases "equality" and "equality before the law" from
section 19 despite its inclusion in section 15(1) of the Charter. The Justice
and Law Reform Select Committee endorsed the following views expressed
in the White Paper:

[t]he meaning of the phrase "equality before the law" is "elusive and its
significance difficult to discern." (paragraph 10.81)...the phrase "equal
protection of the law" should be excluded because of its openness and the
uncertainty of its application...it would enable the courts to enter into many
areas which would be seen in New Zealand as ones of substantive policy
(paragraph 10.82).

In reviewing European caselaw, Lord Lester of Herne Hill QC had this to

say:

The principle of equal treatment, viewed as a general principle of European

Community law, requires that similar situations must not be treated
differently and that different situations must not be treated in the same
manner unless such differentiation is objectively justified. [345]
It is clear that despite the divergence of approaches from the Court of Appeal
in Quilter and overseas caselaw, differential treatment will not necessarily in
itself amount to discrimination. The main questions will be whether the
treatment disadvantages the person or group and, if so, whether the
differentiation is justifiable in terms of section 5 of the Bill of Rights Act.

Affirmative action programmes

The New Zealand courts have not addressed the meaning or application of
section 19(2) of the Bill of Rights Act, or its relationship with section 19(1).
However, it would seem that if we apply the approach taken by the Canadian
courts to applying the affirmative action provision in the Canadian Charter,
the role of section 19(2) is to inform the scope of section 19(1). [346] That is,
a policy or practice that is in the form of an affirmative action programme
may not be discriminatory if it can be shown that sectors of society who do
not benefit from the programme are not disadvantaged or that the programme
is a reasonable limit on section 19(1) in terms of section 5 of the Bill of
Rights Act.

The reason for section 19(2) is that sometimes the effects of discrimination
require specific policies or programmes in order for those effects to be
addressed - for example, where discrimination has resulted in one group
being underrepresented in education out of proportion to their relative
population in New Zealand as a whole or in the particular local community.

The European Court of Human Rights has recognised that "certain legal
inequalities tend to correct factual inequalities" and are therefore compatible
with the right to be free from discrimination. [347] The European Court went
on to say:

The principle of equality of individuals under international law does not

require mere formal or mathematical equality but a substantial and genuine
equality in fact. [348]

Although the European Convention does not contain an affirmative action

provision the courts have considered whether such programmes are
consistent with the right to be free from discrimination found in Article 14.
The approach of the European Court has been that affirmative action
programmes are not discriminatory if the differentiation is reasonable and
objective - in other words, would it meet a test like that set down by section 5
of the Bill of Rights Act? [349] The European Court is said to interpret the
European Convention as a "living instrument, and requires the State to keep
the justification for the affirmative action measure under review in the light
of present day conditions." [350]

Affirmative action programmes are therefore, by definition, short-lived as

they only have legitimacy for the time that is required to address the effect of
previous disadvantage. [351]

Alternative approach to section 19(2)

The alternative approach to applying section 19(2) is to apply section 19(2)

as an exception to section 19(1). Under this approach, an agency seeking to
implement an affirmative action programme would first need to consider if
the subject of the policy or programme has experienced unlawful
discrimination on the grounds in the Human Rights Act and they have
experienced disadvantage because of that discrimination. In other words,
there is a requirement that the assisted group first be disadvantaged because
of unlawful discrimination.

A problem arises with applying section 19(2) in this way because it may not
always be possible to establish actual discrimination against this assisted
group, in other words, to match up the group who has suffered discrimination
with the group being targeted by the affirmative action measure. This might
be the case where, for example, a particular age bracket or ethnic group may
be under-represented in a certain activity by reason of general social
disadvantage, but that disadvantage may not be directly connected to specific
and identifiable discriminatory acts.

If you can demonstrate that your legislation, policy, practice, or service is an

affirmative action measure, then it will not be discrimination under the Bill
of Rights Act. However, due to the complexities in applying section 19(2),
we suggest that you always consult your legal adviser when considering
whether section 19(2) might be applicable to your legislation, policy,
practice, or service.

Key cases

Quilter v Attorney-General [1998] 1 NZLR 523; LSA Daniels & Ors v

Attorney General unreported M 1615- SW99, High Court Auckland, 3 April
2002; Northern Regional Health Authority v Human Rights Commission
[1998] 2 NZLR 218; Law v Canada (Minister of Employment and
Immigration) [1999] 1 SCR 497; Lovelace v Ontario [2000] SCC 37;
Granovsky v Minister of Employment and Immigration [2000] 1 SCR 703;
Karlheinz Schmidt v Germany Application 00013580/88, 18/07/1994; Singh
Bhinder v Canada United Nations Human Rights Committee Communication
no 208/1986; Marckx v Belgium, June 13, 1979, Series A, No 31, 2 EHRR
330; Belgian Linguistics Case (No 2) (1979-80) 1 EHRR 252, E Ct HR.

History of the section

The White Paper

Section 19(1) was originally drafted in identical terms to that which was
proposed in the White Paper. as follows:

Everyone has the right to freedom from discrimination on the ground of

colour, race, ethnic or national origins, sex, or religious or ethical belief.

Section 19(1) was amended so that from 1 February 1994 it would include all
the prohibited grounds of discrimination set out in section 21 of the Human
Rights Act 1993.

The White Paper did not include an affirmative action provision in its draft
proposals. However, the Select Committee considering the Bill of Rights Bill
inserted the following provision:

Measures taken in good faith for the purpose of assisting or advancing

persons or groups of persons disadvantaged because of colour, race, ethnic or
national origins, sex, marital status, or religious or ethical belief do not
constitute discrimination.

The Human Rights Act 1993 amended section 19(2) into its current form.
The provision inserted by the Select Committee could be applied to
affirmative action programmes that were targeted at general systemic
disadvantage as opposed to unlawful discrimination.

Section 19 origins in international treaties and overseas legislation

Articles 2(1), 3 and 26 of the ICCPR provide:

Article 2(1)
Each State party to the present Covenant undertakes to respect and to ensure
all individuals within its territory and subject to its jurisdiction the rights
recognised in the present Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Article 3
The States parties to the present Covenant undertake to ensure the equal right
of men and women to the enjoyment of all civil and political rights set forth
in the present Covenant.

Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.

Article 1 of the Convention on the Elimination of Discrimination Against

Women defines 'discrimination against women' as:

Article 1
Any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.

Article 1 of the Convention on the Elimination of All Forms of Racial

Discrimination ("CERD") defines the term 'racial discrimination' to mean:

Article 1
Any distinction, exclusion, restriction or preference... which has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise on
an equal footing of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.

Article 1(4) of CERD provides:

Special measures taken for the sole purpose of securing adequate

advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of rights and fundamental freedoms shall not be
deemed racial discrimination, provided, however, that such measures do not,
as a consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives for
which they were taken have been achieved.
Article 14 of the European Convention on Human Rights states:

Article 14 Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.

Section 15 of the Canadian Charter states that:

(1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental and
physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or
groups including those that are disadvantaged because of race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 20 - Rights of Minorities

Section 20 of the Bill of Rights Act is as follows:

Rights of minorities
A person who belongs to an ethnic, religious, or linguistic minority in New
Zealand shall not be denied the right, in community with other members of
that minority, to enjoy the culture, to profess and practise the religion, or to
use the language, of that minority.

Policy triggers: do I need to consider section 20?

Is the policy or practice that you are working on likely to:

• Limit the observance of religious practices other than those associated

with the main religions?
• Limit the ability of individuals to communicate in languages other than
English?
• Limit the ability of Maori, iwi, or hapu, or other ethnic groups to
continue to take part in distinct cultural practices?
 • Result in an agreement with one iwi that interferes with the distinct
cultural practices of another?
• Prohibit the use of any particular language?
• Impose or coerce individuals to do something that interferes with their
distinct cultural practices (e.g., wear clothes that differ from their
traditional cultural attire)?
• Prevent persons using their language in a community with others?

What every policy analyst needs to know about section 20

• The specific elements of this right are still uncertain and need to be
determined by the courts.
• The protection of the rights of minorities is directed towards ensuring
the survival and continued development of the cultural, religious and
social identity of the minorities concerned.
• The rights of minorities under section 20 are distinct from, and in
addition to, all other rights held as individuals in common with
everyone else.
• A minority is a group whose members:
o are numerically inferior to the rest of the population of a state;
o are in a non-dominant position;
o possess ethnic, religious, or linguistic characteristics differing
from those of the population;
o show a sense of solidarity directed towards preserving their
culture, traditions, religion, or language.
• To be considered a minority, the members of the group need not be
citizens of the State in which they live - the rights of migrants and even
visitors are also protected.
• Whether the minority a person belongs to is an "ethnic" minority is
likely to be determined by a mixture of subjective (the members of the
group have a subjective belief that they are alike and share a
historically determined social identity, belief, and customs) and
objective (recognised by others as distinguished in the community)
criteria.
• Most religions in New Zealand might qualify as a religious minority.
• It is likely that groups that use a language other than English will be
considered a linguistic minority.
 • For the purposes of section 20, cultural practices:
o are distinctive to the minority claiming their right to practice
them;
o are an essential element of the culture of an ethnic community;
o can be undertaken for economic gain, but not necessarily a
traditional means of livelihood.
• A "denial" of the right means a limit or restriction of the enjoyment of
the right - it does not require a total denial.

Measures to achieve compliance

Where your policies affect any specific minority groups, or impose any
burdens upon a minority that compromise their traditional activities, you
should engage in consultation and good faith discussions with those groups.
Ensure your agency is aware of, and has considered, their interests in the
process of developing that policy.

Create policy that promotes cultural diversity. In other words, try to ensure
your policy is culturally inclusive and not exclusive in its effect. Promote
practices that are fundamental to the existence of a culture (such as
language).

Related rights and freedoms

When considering section 20, it would be prudent to consider also sections

13, 15, and 19 of the Bill of Rights Act. The courts have often looked at
section 20 in the same context as other rights, such as the right to freedom of
religion (section 13) or the right to freedom from discrimination on the
ground of language (section 19). In the case of religious minorities, it can be
argued that section 20 does not necessarily add anything new; however,
linguistic and ethnic minorities do not have rights to language or culture
elsewhere in the Bill of Rights, so section 20 will be especially significant in
relation to them. [352]

Further discussion on the meaning of section 20

Section 20 is directed at the obligations of the state in respect of:

...the survival and continued development of the cultural, religious and social
identity of the minorities concerned thus enriching the fabric of society. [353]
The United Nations Human Rights Committee further observed that the
rights of minorities establish and recognise rights that are conferred on
individuals belonging to minority groups. These are distinct from, and
additional to, all other rights, which are held as individuals in common with
everyone else. [354] In essence, unlike most other protections accorded to
individuals by the Bill of Rights Act, this section protects specific classes of
individuals. [355]

There is very little caselaw in New Zealand that has specifically turned on
this section.

Positive or negative obligation

Section 20 does not require the state (or its agents) to take steps to promote a
minority's enjoyment of their culture, language, or religion. [356] However,
the United Nations Human Rights Committee has stated that Article 27 of the
ICCPR (which is equivalent to section 20) may require the state to act in
circumstances where an ethnic, religious, or linguistic minority is unable to
exercise their rights because of the actions of a third party. [357]

What is an ethnic minority, religious minority or linguistic minority?

The New Zealand courts have not defined who or what a minority is for the
purposes of section 20. We have therefore looked to how Article 27 of the
ICCPR has been interpreted to provide us with some guidance. A minority
for the purposes of section 20 may therefore be regarded as:

...a group numerically inferior to the rest of the population of a state, in a

non-dominant position, whose members...possess ethnic, religious, or
linguistic characteristics differing from those of the population, and show, if
only implicitly, a sense of solidarity, directed towards preserving their
culture, traditions, religion or language. [358]

The significance in this definition lies in the fact that the group needs to be
numerically inferior at a national level. A group may therefore be a minority
even though they are numerically superior in specific parts of the country. It
should also be recognised that as the Bill of Rights Act is not limited in its
application to just New Zealand citizens or permanent residents, the right in
section 20 equally applies to those who are here on a temporary basis. [359]

It is also apparent that a decision as to whether a group is an ethnic, religious,

or linguistic minority will be able to be established by objective criteria.
[360]
The following are some indicators that may assist agencies to identify
minorities.

Ethnic minority

The New Zealand courts have helpfully discussed the meaning of the term
"ethnic origins". In King-Ansell v Police [361] the New Zealand Court of
Appeal discussed the plain language meaning of "ethnic origins".
Woodhouse and Richardson JJ considered that the test for ethnic origins
should be a mixed subjective/objective test. Members of the group would
have to have a subjective belief that they were alike and shared a historically
determined social identity, beliefs, and customs. The objective part of the test
would be satisfied if the group was recognised by others as sufficiently
distinguished in the community.

This subjective/objective test was subsequently approved by the House of

Lords. [362] Lord Fraser set out a detailed test for characteristics of ethnic
origin, including in brief: a long shared history; a cultural tradition; a
common geographical origin or ancestors; a common language; literature; a
common religion; being a minority, oppressed, or dominant group within a
larger community. [363]

Religious minority

For the purposes of determining whether a particular collection of ideas or

practices can be characterised as a religion, the following indicia may be
useful. [364] The indicia are objective guidelines only and should not be
thought of as a test for religion. They are:

i. a belief in the supernatural (i.e. a belief that reality extends beyond

what is capable of perception by the senses);
ii. the ideas relate to the nature and place of humans in the universe and
their relation to things supernatural;
iii. the ideas are accepted by adherents as requiring or encouraging them to
observe particular standards or codes of conduct or to participate in
specific practices having supernatural significance;
iv. the adherents constitute an identifiable group or groups; and
v. the adherents themselves see the collection of ideas, beliefs and
practices as constituting a religion.
It would appear that because of the scope of a religious belief, most religions
in New Zealand might qualify as a religious minority - particularly if
denominations were counted separately.

Linguistic minority

A broad and liberal interpretation of section 20 also suggests it is likely that

groups that use a language other than English will be considered a linguistic
minority. On the same understanding we consider it likely that sign would be
regarded as a language. Thus it seems logical to consider that members of the
community who use sign language as their primary method of
communication are a linguistic minority.

Enjoyment of culture, religion, and language

Although an ability to enjoy one's culture may of necessity include the ability
to practice a religion or communicate in one's own language, these elements
of the right can also be exercised independently of each other. We have
therefore dealt with each element separately in order to assess their scope and
to provide some guidance in each case.

Culture

Because of the lack of New Zealand caselaw on the subject, we have again
looked overseas for additional guidance on what the identifiable aspects of a
culture are.

The United Nations Human Rights Committee has observed [365] that
culture:

...manifests itself in many forms, including a particular way of life associated

with land resources, especially in the case of indigenous peoples. That right
may include such traditional activities as fishing or hunting....

These observations have implications in respect of observing Maori

customary practices, such as fishing. In terms of Maori for example, the
courts have recognised that fishing is a distinctive part of their culture. [366]

The United Nations Human Rights Committee considers that certain

activities may be cultural even though they are undertaken for economic
gain. However, in order for such activities to be cultural, they must be "an
essential element of the culture of an ethnic community". [367] Maori
customary fishing practices have been held to form part of Maori culture.
[368] Significantly, though, the UN Committee has added that, in order for a
minority community to establish that the activity is an essential element of
the culture of their community, it is not necessary for them to show that this
is a traditional means of livelihood. Minorities are therefore able to use
modern technology to assist them in undertaking that activity. [369]

However, the practice must be distinctive to that minority for the purposes of
Article 27. In the case of Diergaardt et al. v Namibia [370] the Committee
held that the use of the pastoral lands in question for the purpose of cattle
grazing was not deemed distinctive to that particular culture. There was no
breach of Article 27.

An infringement of cultural rights may come about in other ways, such as

preventing individuals from wearing traditional dress.

Religion

The right of minority communities to practise their religion is likely to be

subject to the same considerations as those set out in the discussion in these
Guidelines of section 15 of the Bill of Rights Act; however, the focus of
section 15 is on the right of individuals as individuals to practice their
religion. The emphasis in section 20 is on the right of the individual to
practice their religion in community with others. As Rishworth suggests,
[371] this is unlikely to add any thing to the application of the section.

Language

Although the right of an individual to use, in community with others, the

language of that minority has not yet been addressed by the New Zealand
courts, the right would apply to members of minorities who wish to use their
language among themselves, in private, or in public. The right is seen as
being distinct from other language rights such as the right to freedom of
expression. [372]

Denial of the right to enjoy culture, religion, and language

Once you have identified that a minority exists, the next question to be
determined is whether these groups have been denied the opportunity to
enjoy their culture, religion and language. It would appear from a close
reading of the limited New Zealand caselaw and caselaw from the UN
Human Rights Committee, that the "denial" of the right need not be an
absolute restriction. It requires an interference with the enjoyment of the
right. However, the UN Human Rights Committee has also held that
measures that "have a certain limited impact on the way of life...will not
necessarily amount to a denial of the rights under article 27. [373]

In Te Runanga O Whare Kauri Rekoku Inc v Attorney General [374] the

High Court adopted a robust definition of what is meant by a "denial". In this
case the applicants were a number of tribes that were excluded from a Deed
of Settlement negotiated by the Crown and other iwi and Maori
organisations. The applicants argued that the Crown had breached their
cultural fishing rights by virtue of the fact the Settlement Deed purported to
compromise or settle their fisheries rights. The Court determined that
although the applicants' cultural fishing rights were limited, the plaintiffs
were by no means being deprived of their cultural entitlement. Those cultural
rights could be exercised in a variety of ways but were retained in a manner
consistent with promoting of the rights of Maori as a whole. The applicants
were being treated as Maori and will be treated in that respect in the future
under the statutory regime proposed. [375]

This approach is broadly consistent with that of the United Nations Human
Rights Committee, which heard the tribes' claim that the Settlement Deed
was a denial of the equivalent right in the ICCPR, Article 27. [376] The
Committee took the view that whether there is a denial of the right in Article
27 is a question of degree, requiring an assessment of the magnitude of the
interference. The Committee found that the iwi who brought this case were
not denied the right to enjoy their culture, because the State engaged in broad
consultation and paid specific attention to the sustainability of Maori fishing
activities. [377]

It remains unclear as to how broad or narrow an approach the New Zealand

courts will take to interpreting whether a limit is a "denial" and what role
section 5 of the Bill of Rights Act plays in defining the scope of the term. We
would suggest that you regard any interference with a minority's ability to
practice their religion, use their language, or engage in cultural practices as a
"denial" of their rights under section 20. You should then consider whether
such interference is reasonable for the purposes of section 5 of the Bill of
Rights Act.

Importance of meaningful consultation

The United Nations Human Rights Committee has observed [378] that:
The enjoyment of [minority] rights may require positive legal measures of
protection and measures to ensure the effective participation of members of
minority communities in decisions which affect them.

In some situations this may require the state to undertake meaningful

consultation with minorities to ensure that their interests are given sufficient
consideration in any decision-making process.

The obligation to consult with minority communities over cultural rights was
discussed by the UN Human Rights Committee in Mahuika v New Zealand.
[379] In this case 7 iwi alleged that the Treaty of Waitangi (Fisheries Claims)
Settlement Act 1992 confiscated their fishing resources, denied them their
right to freely determine their political status, and interfered with their right
to freely pursue their economic, social, and cultural development. The
Committee found that:

The State party has, by engaging itself in the process of broad consultation
before proceeding to legislate, and by paying specific attention to the
sustainability of Maori fishing activities, taken the necessary steps to ensure
that the Fisheries Settlement and its enactment through legislation...are
compatible with article 27.

In other words, even though there may be an obligation to consult with the
minority, consultation does not preclude the state from acting in a way that
may be seen to interfere with the interests of the minority.

Although meaningful consultation will be a significant consideration, it will

not, of itself, lead to a conclusion that there has been no denial of the right. In
Mahuika, other factors, such as the countervailing rights and interests of
other Maori may also be influential in reaching the conclusion that there had
been no denial. [380]

Other considerations

It has become apparent that there is some overlap between the Treaty of
Waitangi and section 20. Although the Treaty may deal with constitutional
issues relating to the relationship between the Crown and Maori, both section
20 and the Treaty protect Maori culture, religion, and language in some way.
[381] As previously stated, international jurisprudence on the rights of
minorities suggests that states have an obligation under section 20 to ensure
effective participation of members of minority groups in decisions that affect
them. As Maori are an ethnic minority, the benefit of this obligation extends
to them. The Treaty also obliges the Crown to consult with Maori.

The nature of the obligations in section 20 of the Bill of Rights Act and the
Treaty can perhaps be best illustrated by the decisions of the New Zealand
High Court and Court of Appeal in the Te Runanga O Whare Kauri Rekoku
Inc cases and the decision of the United Nations Human Rights Committee in
the Mahuika case. These decisions arose out of the Sealords Deal. [382] The
actions of the state in engaging in a broad process of consultation with Maori,
in fulfilment of their obligations under the Treaty and section 20, were
regarded as a significant factor. Both the High Court and the UN Human
Rights Committee have taken the view that meaningful consultation with
minorities will be strongly suggestive of the fact that the state has complied
with its obligations to minorities as required by the Treaty, the Bill of Rights
Act, and the ICCPR.

The significance of this for policy advisers is that the obligation to consult
with Maori should be seen to transcend obligations under the Treaty.
Currently, the Treaty has no legal status unless it is incorporated into statute,
and then only to the extent specified in that statute. For this reason, the rights
in section 20 may have a special significance as they form part of general
human rights law and are universally applicable. Rishworth puts it this way:

In the end, exploring the human rights dimensions of the Treaty of Waitangi
may assist in understanding the Treaty itself. The exercise focuses attention
on the sorts of commitments that the Crown owes Maori as human beings
[and indigenous peoples], and not simply as a contract partner.... Ultimately,
this may remind us that we would probably be having much of the same sorts
of debates in New Zealand even if there were no Treaty of Waitangi. They
would arise under the rubric of human rights. That does not make it any
easier to work out what should be done, but it does take some of the
emphasis off the words of the Treaty itself.... If the human rights dimensions
of the Treaty are identified, they must then be accommodated within the
overall framework of human rights. [383]

Key cases

Mendelssohn v Attorney General [1999] 2 NZLR 268; Mandla v Dowell Lee

[1983] 2 AC 548; Te Runanga O Whare Kauri Rekoku Inc v Attorney
General HC Wellington, 12/10/92 CP 682/92; Mahuika v New Zealand
Comm 547/1993: New Zealand 15/11/2000; Länsman v Finland Comm
547/1993: Finland 8 November 2000; Diergaardt et al. v Namibia
Communication No 760/1997 Namibia 6 September 2000.

History of the section

The White Paper

The White Paper states that: [384]

What [section 20] is aimed at is oppressive government action which would

pursue a policy of cultural conformity by removing the rights of minorities to
enjoy those things which go to the heart of their very identity - their
language, culture, and their religion. It should be noted too that [section 20]
together with [section 15] not only guarantees the right of members of a
minority group to practice etc. their religion, or belief individually and in
private, but also in community with other members of the group and in
public.

Section 20 origins in international treaties and overseas legislation

Article 27 of the ICCPR states:

In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own culture,
to profess and practice their own religion, or to use their own language.

Footnotes:

326. Section 19 of the Bill of Rights Act has also been incorporated in
the Human Rights Act 1993, as section 20L. Section 20L(1) of that Act
states:
An act or omission to which Part 1A of the Act applies [i.e., an act or
omission by a person or body covered by section 3 of the Bill of Rights
Act], breaches that part of the Act if it is inconsistent with section 19 of
the Bill of Rights Act.
327. Quilter v Attorney-General [1998] 1 NZLR 523.
328. Quilter v Attorney-General [1998] 1 NZLR 523 at 532.
329. For an overview see: UN General comment 18, Non-
discrimination, paragraph 13; Quilter v Attorney-General [1998] 1
NZLR 523, The White Paper, para 10.80; Egan v Canada (1995) 124
DLR (4th) 609; Marckx v Belgium, June 13, 1979, Series A, No 31, 2
EHRR 330.
330. Law Society of British Columbia et al v Andrews [1989] 1 SCR
143, 174-175 per McIntyre J.
331. Quilter v Attorney-General [1998] 1 NZLR 523, 573.
332. Quilter v Attorney-General [1998] 1 NZLR 523, 573.
333. Quilter v Attorney-General [1998] 1 NZLR 523, 573.
334. Quilter v Attorney-General [1998] 1 NZLR 523. Some debate
has centred on the decision of LSA Daniels & Ors v Attorney General
unreported M 1615- SW99, High Court Auckland, 3 April 2002.
Baragwanath J of the High Court took an approach that differs from
the approach taken by our Court of Appeal in Quilter. Essentially,
Baragwanath J observed that discrimination in the Bill of Rights Act
and Human Rights Act 1993 meant "failure to treat the same". The
Court of Appeal did not address the issue of discrimination when it
heard the appeal, and it appears that the comments by Baragwanath J
form part of New Zealand law.
335. This case was brought before the United Nations Human Rights
Committee - see Joslin et al. v New Zealand, United Nations Human
Rights Committee Communication no 902/1999.
336. See generally Quilter v Attorney-General [1998] 1 NZLR 523 at
pp 530 -536.
337. On this last point see Law Society of British Columbia et al v
Andrews [1989] 1 SCR 143, 174-175 per McIntyre J.
338. Law v Canada (Minister of Employment and Immigration)
[1999] 1 SCR 497, para 51. See also M v H (1999) 171 DLR (4th) 577;
Corbiere v Canada [1999] 2 SCR 203; Granovsky v Minister of
Employment and Immigration [2000] 1 SCR 703.
339. The addition of the element "human dignity" has been subject to
criticism by at least one leading commentator. Hogg considers that the
element of dignity is vague, burdensome, and confusing and is
unpredictable in its application. See PW Hogg Constitutional Law of
Canada (3rd ed ), p52-26.
340. Granovsky v Minister of Employment and Immigration [2000] 1
SCR 703.
341. Lovelace v Ontario [2000] SCC 37. The decision in Lovelace
may have special significance for a policy analyst in the context of
giving effect to the Treaty of Waitangi. Intra-ground discrimination
may arise in the context of iwi/iwi and iwi/urban Maori authority
differentiation.
342. Karlheinz Schmidt v Germany Application 00013580/88,
18/07/1994; Law Society of British Columbia et al v Andrews [1989] 1
SCR 143, 174 per McIntyre J.
343. Marckx v Belgium, June 13, 1979, Series A, No 31, 2 EHRR
330.
344. See Singh Bhinder v Canada United Nations Human Rights
Committee Communication no 208/1986.
345. Lord Lester of Herne Hill QC (1995) "Non-discrimination in
International Human Rights Law" in Developing Human Rights
Jurisprudence, Volume 6: Sixth Judicial Colloquium on the Domestic
Application of International Human Rights Norms, Commonwealth
Secretariat, London.
346. Lovelace v Ontario [2000] SCC 37.
347. Belgian Linguistics Case (No 2) (1979-80), 1 EHRR 252, E Ct
HR, para 9.
348. Belgian Linguistics Case (No 2) (1979-80), 1 EHRR 252, E Ct
HR.
349. In spite of section 15(2) of the Canadian Charter, this appears to
be the preferred approach of the Canadian courts as well, see Lovelace
v Ontario [2000] SCC 37.
350. Lord Lester of Herne Hill QC (1995) "Non-discrimination in
International Human Rights Law" in Developing Human Rights
Jurisprudence, Volume 6: Sixth Judicial Colloquium on the Domestic
Application of International Human Rights Norms, Commonwealth
Secretariat, London p14 [emphasis added].
351. United Nations Human Rights Committee General Comment 18
para 10.
352. Rishworth P, (2003), "Minority Rights", in The New Zealand Bill
of Rights, OUP, p 401.
353. UN General Comment 23, paragraph 9.
354. UN General Comment 23, para 1.
355. Rishworth Paul, (2003) "Minority Rights", New Zealand Bill of
Rights, OUP, p 398.
356. Mendelssohn v Attorney General [1999] 2 NZLR 268.
357. UN General Comment 23, para 6.1. On this issue see Paul
Rishworth (2003), "Minority Rights", New Zealand Bill of Rights,
OUP, pp 403-404.
358. F Caporti (Special Raporteur) "Study on the Rights of Persons
Belonging to Ethnic, Religious, and Linguistic Minorities" UN Doc
E/CN.4/Sub.2/384/Rev 1 (1979), para 568, cited in Paul Rishworth,
(2003) "Minority Rights", New Zealand Bill of Rights, OUP, p 405.
359. UN General Comment 23, para 5.1-5.2.
360. UN General Comment 23, para 5.1-5.2.
361. Mendelssohn v Attorney General [1999] 2 NZLR 268.
362. Mandla v Dowell Lee [1983] 2 AC 548.
363. Mandla v Dowell Lee [1983] 2 AC 548, 562.
364. These 5 indicia were used in Centrepoint Community Growth
Trust v CIR [1985] 1 NZLR 673 and Re I C [1999] NZFLR 471.
Following the leading Australian decision Church of New Faith v
Commissioner for Pay-roll Tax (1984) 57 ALJR 785. The Court of
Appeal has not expressed a view as to its correctness.
365. UN General Comment 23, The Rights of Minorities para 3.2.
366. Te Runanga O Whare Kauri Rekoku Inc v Attorney General HC
Wellington, 12/10/92 CP 682/92.
367. See for example Mahuika v New Zealand Comm 547/1993: New
Zealand 15/11/2000.
368. Mahuika v New Zealand Comm 547/1993: New Zealand
15/11/2000.
369. Länsman v Finland Comm 547/1993: Finland 8 November 1995.
370. Diergaardt et al. v Namibia Comm 760/1997: Namibia 6
September 2000.
371. Paul Rishworth (2003) "Minority Rights", New Zealand Bill of
Rights, OUP, p 408.
372. UN General Comment 23, The Rights of Minorities, para. 5.3.
373. Länsman v Finland (No 2) Comm 671/1995, 1997.
374. Te Runanga O Whare Kauri Rekoku Inc v Attorney General HC
Wellington, 12/10/92 CP 682/92.
375. Te Runanga O Whare Kauri Rekoku Inc v Attorney General HC
Wellington, 12/10/92 CP 682/92 per Heron J, p 40.
376. Mahuika v New Zealand Comm 547/1993: New Zealand
15/11/2000.
377. Mahuika v New Zealand Comm 547/1993: New Zealand
15/11/2000.
378. UN General Comment 23, The Rights of Minorities para 3.2.
379. Mahuika v New Zealand Comm 547/1993: New Zealand
15/11/2000.
380. The countervailing interests of other members of a minority has
also been influential in the Committee finding that there was no denial
of the right in Kitok v Sweden Comm 197/85.
381. Rishworth P (2003) "Minority Rights", New Zealand Bill of
Rights, OUP, p 415.
382. The background to these decisions is covered in more depth by
Paul Rishworth (2003) "Minority Rights", in New Zealand Bill of
Rights, OUP, p 410 -417.
383. Rishworth P, 'Human Rights' [2003] New Zealand Law Review p
261, 279.
384. The White Paper, para 10.83.
Introduction to sections 21-22:
Search, Arrest and Detention
Sections 21 to 26 of the Bill of Rights Act are primarily concerned with
ensuring compliance with the law at different stages of a sequential process
relating to the investigation and prosecution of offences. The sequence of
provisions shows a proportionate increase in the likelihood that a person's
liberty, privacy and security interests may be in jeopardy at each stage of the
process.

At all stages of this process, individuals come into contact with the coercive
powers of the state. The rights in sections 21 to 26 address the inherent
imbalance in power between the individual and the state. More specifically,
these rights are designed to ensure that the liberty, privacy and security
interests of individuals are maintained except in situations authorised and
identified by law. This means interference with these interests must accord
with appropriate procedures set out in law subject to substantive checks on
the state's actions. The checks and procedures must be proportionate to the
threat to the person's interests at each stage of the process.

 Section 21 addresses the initial stage of the process, where law

enforcement officers are ascertaining compliance with the law, or
attempting to uncover evidence of breaches of the law.
 Section 22 applies to situations in which individuals have come into
contact with law enforcement officers, who may wish to prevent the
individual from leaving the vicinity until a preliminary assessment of
the person has been completed.
 Section 23 comes into play where an individual has been arrested or
detained by the authorities in relation to specific allegations about
activities that might breach the law. As there is an escalation in the
extent to which a person's liberty is at risk, there is a corresponding
increase in the individual's rights.
 Section 24 represents that stage of the process in which the state has
signalled that it believes the law has been breached and it wishes to
take steps to punish the individual. Section 24 ensures that those
charged with an offence have access to the resources needed to prepare
their defence.
  Section 25 sets out minimum standards of criminal procedure, to
ensure individuals have the opportunity and means to challenge the
case against them. In so doing, it ensures that individuals' liberty
interests are not unfairly jeopardised by the state.
 Section 26 represents the final stages of the process, in which a person
has either been deprived of liberty or the state has not made its case.
Section 26 ensures that these persons continue to be dealt with in a fair
manner and are not subject to ongoing disadvantage.

Section 21 Security against unreasonable search

and seizure
Section 21 of the Bill of Rights Act is as follows:

Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure,
whether of the person, property, or correspondence or otherwise.

Policy triggers: do I need to consider section 21?

You will need to consider section 21 if you are developing policies or

practices that:

 authorise the entry of officials from government agencies or law

enforcement officers onto commercial and/or residential property;
 authorise law enforcement officers to conduct searches of a person or
personal belongings, whether or not that person is in custody;
 require individuals or companies to create and/or disclose documents,
records and other forms of information;
 authorise enforcement officers or inspectors to take samples, analyse
data, take copies of documents, make recordings or take photographs;
 authorise the taking of property that has been discovered as a result of
a serach;
 authorise law enforcement officers to stop vehicles and question
occupants;
 authorise the taking of fingerprints, blood samples and samples of
bodily tissue;
  authorise law enforcement officers to intercept electronic
communications.

What every policy analyst needs to know about section 21

 Consideration of section 21 involves an assessment of the

reasonableness of the powers of the state to intrude into the lives of its
citizens. Such an assessment requires a consideration as to whether:
o the power authorising the exercise of the search and seizure is
unreasonable; or
o the search or seizure is carried out in an unreasonable manner.
 Section 21 is commonly associated with law enforcement - both in
terms of investigating offences and carrying out powers of inspection.
 Section 21 does not of itself guarantee property rights (rights to own,
use or enjoy property).
 The privacy values underlying the section 21 guarantee are those held
by the community at large. They are not merely the subjective
expectations of privacy a particular owner or occupier may have and
may demonstrate by signs or barricades.
 Reasonable expectations of privacy are lower in public places than on
private property. The expectation of privacy is greatest in relation to a
person's body.
 The nature of the activities carried on, particularly if involving public
wellbeing or governmental control, may affect reasonable expectations
of privacy.

What does the concept of a search involve?

 A "search" is not confined to physical intrusion. Section 21 is relevant

to developing technologies and new forms of law enforcement devices,
such as electronic surveillance, that do not require law enforcement
officers to physically enter a property. The courts have previously
considered that a search for the purposes of section 21 includes:

 looking through windows or cracks in the walls of a building;

[385]
 checking the contents of a vehicle; [386]
  climbing over a locked gate to see if the occupant or owner is in
the backyard; [387]
 electronically recording (by audio or visual methods) a
conversation or activity; [388]
 requiring a person to remove items of clothing or to empty out
his or her pockets; [389]
 demanding under statutory authority that a person provide
documents and records. [390]

Exercising search powers:

 The starting point when establishing search powers for obtaining

evidence for criminal proceedings is that:
o the search power is expressly authorised by statute; and
o the search is authorised by a warrant signed by a judicial officer
on being persuaded that there are reasonable grounds for
believing that an offence has been or is being committed.
 The purpose of the search needs to be apparent from the empowering
legislation. A statute should also be clear on its face as to what
enforcement officers can or cannot do (e.g. using force to effect entry).
 The presumption that a search should be undertaken only under the
authority of a warrant may be overridden in certain circumstances, but
only on limited grounds.
 A search may be unlawful if it is not authorised by law or if it is
carried out contrary to law.
 Even though a search may be unlawful, the courts have held that it may
still be reasonable for the purposes of section 21 of the Bill of Rights
Act. Similarly, a lawful search may be unreasonable in certain
circumstances.

What does the concept of seizure involve?

 A search is an examination of a person or property for something that

is not immediately apparent or visible. A seizure, on the other hand, is
the "taking of that which is discovered".
 A seizure is likely to involve the compulsory or non-consensual
removal of property from an individual or organisation.
  A seizure may extend to the circumstances of retention or continued
deprivation of property following its initial taking.
 For the purposes of section 21 an item is seized for as long as that
person or organisation retains a reasonable expectation of privacy.

Measures to achieve compliance

If you are developing policies or practices that raise issues of consistency

with section 21, you will need to consider:

 the primary purpose of the power (for instance, is it to monitor for

compliance with a regulatory regime or is it to gather evidence for the
purpose of taking criminal proceedings?); and
 the powers necessary to achieve that policy objective.

If search powers are necessary to achieve your policy objective, you will
need to address a number of issues in developing the search powers:

 who will be authorised to exercise the power?

 what is the purpose behind the exercise of this power?
 will enforcement officers require a warrant before exercising the
power?
 what actions must an enforcement officer take prior to executing the
power?
 what powers can an enforcement officer employ in the course of
exercising a power of entry?
 what other powers can an enforcement officer have to execute the
power of entry?

See the diagram 'Developing a statutory power of entry' in the appendices for
further guidance on these issues.

There are a number of issues to factor in to the development of operational

policy. For instance, does the policy establish processes for ensuring:

i. there are no deficiencies in the warrant?

ii. there are reasonable grounds to undertake a statutory search?
iii. that the statutory code is complied with?
When developing operational policies on search powers, include best practice
guidelines requiring those exercising the power to:

 show the authority to search or inspect;

 carry identification;
 consider whether it is necessary to remove items of property from the
premises which have been searched;
 record the items removed from the premises and provide the owner
with a list of things removed;
 retain those things taken from the property only for as long as
necessary to achieve the purpose for which they were removed;
 maintain, care for, and secure the property for the period which it is
seized. [391]

The guidelines might also include information on the circumstances in

which:

 it might be appropriate to exercise or utilise certain powers associated

with powers of entry (e.g strip searches) [392]
 the use of force or use of dogs may be considered necessary, rather
than expedient, [393]
 it may be considered necessary for enforcement officers to obtain a
warrant before embarking on a search, [394]
 it may be considered appropriate to conduct particular forms of search
so as to maximise the privacy interests of the individual. [395]

Related rights and freedoms

Because section 21 is often considered in the context of law enforcement and

the investigation and detection of offences, you should consider whether your
policy or practice affects the rights provided for in the Bill or Rights Act in
those contexts, for example:

 the right not to be compelled to say anything (section 14): do you

intend to create a power requiring a person to answer questions put to
them by a law enforcement officer?
 the right to be free from discrimination (section 19(1)): does the policy
or practice target, directly or otherwise, particular sectors of the
community?
  in the case of personal searches, the right not to be subject to degrading
treatment or punishment (section 9) and the right to be treated with
humanity and dignity (section 23(5)).
 the right to the observance of the principles of natural justice (section
27(1): does your policy allow for the forfeiture or confiscation of
property? If so, does it provide for a procedure allowing the affected
party to challenge that decision?

Further discussion on the meaning of section 21

In the leading case on section 21, the New Zealand Court of Appeal held that
the intention of section 21 is: [396]

...to ensure that governmental power is not exercised unreasonably... The

guarantee under section 21 to be free from unreasonable search and seizure
reflects an amalgam of values. A search of premises is an invasion of
property rights and an intrusion on privacy. It may also involve a restraint on
individual liberty and an affront to dignity.

Security interests of the individual

The exercise of the powers of search and seizure are connected with a
coercive power of state. As section 21 is in practice often linked to law
enforcement, both in terms of investigating offences and carrying out powers
of inspection, the right in section 21 focuses on the ability of the state to enter
private property and intrude on the privacy of its citizens.

The starting point for any intrusion by the state onto private property remains
Entick v Carrington in which Lord Camden CJ held: [397]

...our law holds the property of every man so sacred, that no man can set his
foot upon his neighbour's close without his leave; if he does he is a
trespasser, though he does no damage at all; if he will tread upon his
neighbour's ground, he must justify it by law.

A right to privacy

The following considerations influence the right to privacy for the purposes
of search and seizure laws:

i. Every person has the right to determine when, how, and to what extent
they will release personal information about themselves. [398]
 ii. Privacy values underlying the section 21 guarantee are those held by
the community at large. They are not merely the subjective
expectations of privacy which a particular owner or occupier may have
and may demonstrate by signs or barricades. [399]
iii. Reasonable expectations of privacy are lower in public places than in
private property. They are higher in the home than in the surrounding
land, farmland or land not used for residential purposes. [400]

Many activities and industries are subject to a high degree of regulatory

control and oversight by government agencies. Because there is an element
of consent involved in such activities, persons participating in them have a
lesser expectation of privacy than they might expect if they are in a private
dwelling.

Does section 21 confer a property right?

Despite the reference in section 21 to "seizure...of property", the provision

does not confer a right to property, or protection from the state seizing
property. The meaning of the word seizure is influenced by its close
proximity to the word search. The context within which section 21 appears is
also important. McGechan J in Westco Lagan v Attorney-General put it this
way: [401]

The portion of the Act in which s 21 occurs goes on to deal with liberty of
the person, rights of persons arrested or detained, rights of persons charged,
minimum standards of criminal procedure, retroactive penalties and double
jeopardy, and right to justice. These ... all focus plainly on prosecution and
judicial process. It would be distinctly odd if the legislature had plonked a
provision intended to deal in a general way with seizure of property without
compensation into such a matrix.

However, as we shall see, the courts will consider how enforcement agencies
treat property that has been seized in the context of exercising their law
enforcement functions. [402]

What is a search?

The New Zealand courts have analysed what is meant by a search. In R v

Fraser, the Court said: [403]

in broad terms a search is an examination of a person or property. Though

sometimes broader, in usage to search means to endeavour to find something
not readily at hand or available. The general connotation is of investigation
or scrutiny in order to expose or uncover; going beyond or penetrating some
degree of concealment.

As one of the objectives in upholding section 21 is to protect the individual's

reasonable expectation of privacy, a search involves looking for something
that is not immediately apparent or visible. [404] That is, there is no
expectation of privacy in respect of a thing that is in plain view.

The courts have previously considered that a search for the purposes of
section 21 includes:

 looking through windows or cracks in the walls of a building; [405]

 checking the contents of a vehicle; [406]
 climbing over a locked gate to see if the occupant or owner is in the
backyard; [407]
 electronically recording (by audio or visual methods) a conversation or
activity; [408]
 requiring a person to remove items of clothing or empty out his or her
pockets [409]
 demanding under statutory authority that a person provide documents
and records. [410]

Because of the common links between section 21 and law enforcement, a

search is often principally undertaken for one of the following purposes:

i. Monitoring for compliance: an examination of a commercial property

and the inspection of documentation or goods for the purposes of
determining whether the owner or occupier is complying with the
statutory regulatory framework (for example, registration requirements
in the Animal Products Act 1999, workplace safety in the Health and
Safety in Employment Act 1992, or the controls on gambling
establishments under the Responsible Gaming Act 2003);
ii. Examining information for the purpose of gathering evidence: a search
undertaken where there are reasonable grounds to believe that an
individual or organisation is committing a criminal offence and it is
necessary to collate information to substantiate that belief and to use as
evidence in proceedings; and
iii. A combination of (i) and (ii) where the objective is to gain compliance
with the law, and the information can be used for purposes other than
criminal proceedings but sanctions exist (for example the maintenance
of discipline at schools or maintaining the integrity of sport).

Is electronic surveillance a search?

The White Paper envisaged that section 21 would take into account
developing technologies and new forms of law enforcement devices that
would not require law enforcement officers to physically enter a property.
The concept of a search would therefore extend to the interception of mail,
the electronic interception of private conversations, and other forms of
surveillance. [411] To date New Zealand courts have taken an approach
which suggests that forms of electronic surveillance may constitute a search
for the purposes of section 21 but no firm guidance has been provided. [412]

Elsewhere, the courts have adopted an approach consistent with the meaning
given to the word search in Fraser [413], on the understanding that there has
been an interference with the right to privacy. The US Supreme Court, for
example, has previously concluded that police use of a thermal imaging
device to detect the presence of cannabis growing in a house is a search.
[414] The majority for the Court said that it would be "foolish to contend that
the degree of privacy secured to citizens by the [protection against
unreasonable search and seizure] has been unaffected by the advance of
technology." [415] The Court went on to add:

Where . . . the Government uses a [sense-enhancing] device, not in general

public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a 'search' and is
presumptively unreasonable without a warrant. [416]

The US Supreme Court emphasised the community's long-held and existing

interest in the privacy of the home, and, significantly, pointed out that as
everything in the home has the quality of intimacy, the whole house can be
regarded as private.

The New Zealand Court of Appeal, in the case of R v Gardiner, [417] took a
different view on the issue of expectations of privacy in the home. The Court
acknowledged that the circumstances of the case were somewhat unusual
[418] and the issue of whether the power was reasonable to be borderline.
However, on the facts before it, the Court took of the view that: [419]
Although the camera was intended to pick up images from within the
building, it was not trained on a bedroom or bathroom or other area of
particular privacy. The area under observation was, as the police suspected, a
part of the house which was being used for purposes of drug dealing; and
judging by their own conduct the occupants had a less than complete
expectation of privacy in that place.

The Court of Appeal in Gardiner concentrated their discussion on the

reasonableness of the actions of law enforcement officers in training a video
camera on a part of the house. The Court did not expressly consider whether
the use of camera amounted to a search. Given the privacy principles
underlying section 21, you should assume that:

i. the use of electronic surveillance is considered to be a search; and

ii. all parts of a private dwelling should be considered private with the
occupiers assumed to have a high expectation of privacy.

Production of documents

A requirement to produce, create, or copy documents is likely to be

considered a search for the purposes of section 21, especially where failure to
provide the documents results in possible sanction. While the New Zealand
courts have not directly addressed this point, the Privy Council, in
considering an appeal from New Zealand, [420] accepted such an approach
based on Canadian caselaw. [421]

A requirement to produce documents is less intrusive than other search

powers, and can be exercised as part of an agency's inspection or audit
functions. Requesting documents can be used by itself or in combination with
other search powers - for example, a requirement to produce documents can
be issued, and if the required information isn't forthcoming a warrant can be
obtained. [422]

The power to require the production of documents raises issues of

consistency with other rights, particularly the right to silence and the
privilege against self-incrimination. [423] The Canadian courts have taken
the view that a proper balance between the interests of the individual and the
state can be struck if the requirement to produce documents is subject to
appropriate terms and conditions, including those designed to protect the
interests of the person compelled to provide the documents. [424]
Seizure of property

While a search is an examination of a person or property, a seizure is the

"taking of that which is discovered." [425] A seizure for the purposes of
section 21 is likely to involve the compulsory or non-consensual removal of
property from an individual or organisation for as long as that person or
organisation retains a reasonable expectation of privacy. [426] A seizure may
include the taking of body and fluid samples, [427] or the taking of
photographs and fingerprints. [428]

The High Court has stated that seizure includes both the initial taking
possession of property, and any continuing detention of that property. [429]
Williams J in Wilson v New Zealand Customs Service indicated that:

...even if there was reasonable cause for seizure at the time possession was
first taken, circumstances and further investigations may later demonstrate
that there is no reasonable cause for the continued detention of the goods and
the seizure should accordingly be disallowed and the goods returned.

Because a seizure extends beyond the initial taking possession of property,

the state must assume a responsibility for the safe and proper storage of the
thing seized. A seizure may be unreasonable if, for example, the property is
damaged by enforcement officers. [430]

'Unreasonable' searches and seizures

Section 21 does not affirm the right to be secure against all searches and
seizures, just those that are unreasonable. A power of search and seizure may
be considered unreasonable if:

 the power authorising the exercise of the search and seizure is

unreasonable; or
 the search or seizure is carried out in an unreasonable manner.

Section 21 requires that certain procedural safeguards be established around

the powers before they can be considered reasonable.

Creating the right balance

The Court of Appeal in R v Grayson & Taylor [431] indicated that a

balancing exercise has to be performed when determining whether a search
or seizure is unreasonable in terms of section 21. The balance is between the
legitimate interests of the state in law enforcement and the privacy interests
of the individual. The court held that what is reasonable is subject to
changing community values, but that contemporary society attaches a high
value to privacy and to the security of personal privacy against arbitrary
intrusions by those in authority. What is likely to be considered reasonable is
largely dependent on where the search takes place, for what reason, and the
method of the search (for example, electronic surveillance as opposed to a
search of the person).

Ask the right questions

When developing legislation with potential search powers, there are three
essential issues to address: [432]

Is the power necessary?

The most important issue is whether the power is necessary. Examples of

purposes that are likely to be considered necessary include:

 to obtain or secure evidence of offending;

 to ensure that regulatory responsibilities are complied with;
 to recover property or to render it available for eventual forfeiture;
 to prevent or deter offending.

What powers are required?

The second question concerns the type of powers that are reasonably
necessary to achieve the policy objective. Does the policy require a power of
entry or can the information be obtained from other sources or in another
way - such as a requirement to produce information? As the objective of
section 21 is to preserve an individual's reasonable expectation of privacy, a
requirement to produce documentation is generally considered to be less
intrusive on a person's privacy than entry onto premises. At the same time, a
demand to produce documents or information can raise other issues, as
discussed above.

How is the search to be exercised?

The third questions concerns the authorisation to carry out the search,
specifically: how is the search going to be carried out, by whom, under
whose authority, and for what purpose?

In considering these issues, ask yourself:

  What should an officer be able to do by way of search?
 Who should be able to exercise the powers?
 Should the powers be exercisable at any time or only at certain times?
 If an officer needs to enter onto private property, is the use of force
appropriate?

The purpose of the search will influence the answers to these questions. As
regulatory inspections generally take place in areas which have lower
expectations of privacy than searches carried out for the purpose of detecting
criminal offending, the levels of protection are likely to be less. However,
regulatory powers of inspection are not as extensive as search powers
associated with criminal investigations (see examples of model legislation in
the appendices to Guidelines). In addition, enforcement officers cannot use a
regulatory power of inspection to gather evidence when that officer is acting
on a suspicion that an offence has been committed. [433]

The purpose of the search must be apparent from the empowering legislation.
A statute should be clear on its face as to what enforcement officers can and
cannot do, and should not authorise officers to undertake acts that amount to
fishing expeditions. [434]

Is a search warrant required?

The starting point when developing proposals to allow enforcement officers,

or agents of the state carrying out a law enforcement function, to execute a
power of entry and search is that:

 the power be expressly authorised by statute; [435] and

 the search be authorised by a warrant signed by a judicial officer on
being persuaded that there are reasonable grounds for believing an
offence has been or is being committed.

Obtaining prior authorisation for a search by obtaining a warrant enables

enforcement officers to intrude on the privacy interests of individuals only in
circumstances where a demonstrable justification is seen to exist. [436]

Search warrants are not, however, required in all situations. Regulatory

inspections are a case in point. These inspections are not premised on the
suspicion that an offence has been committed. There is little value to be
gained by requiring an inspector to obtain a warrant. Warrantless searches
may also be reasonable in situations where:
  obtaining a warrant would be impossible (in emergency situations, for
instance);
 the delay in obtaining a warrant may cause a dangerous situation (civil
aviation and health and safety legislation, for instance);
 there are reasonable grounds to believe that evidence may be destroyed
or removed (border control situations, for instance).

In the absence of a warrant an enforcement officer may enter private

premises or conduct a personal search with the consent of the
occupier/person so long as the consent is informed and freely obtained. [437]
Where an occupier has given consent to search premises, the entry onto those
premises is not invalidated by another occupier subsequently seeking to
exclude the officers from the premises. [438] The issue of freely obtained,
informed consent is also relevant in situations where bodily samples are
taken from individuals.

Similarly, there may be an implied license for enforcement officers to enter

private property, but generally speaking that license comes to an end on
reaching a dwelling house. [439] The purpose of the implied license is to
enable persons, including law enforcement officers, to come onto a property
to conveniently communicate with the occupier. New Zealand's Court of
Appeal in Bradley has held that the scope of an implied license for police
officers must necessarily be broader than that of ordinary members of the
public and others because of the nature and scale of their duties and the
public interest in law enforcement. [440] An enforcement officer's implied
license extends only to those parts of the premises normally associated with
access. An implied license is therefore revoked in circumstances where gates
or barriers are in place that are designed to prevent persons other than the
occupier from gaining entry to certain parts of the property. [441]

Does an enforcement officer carrying out an inspection power require a

warrant?

The High Court has recently made the distinction between a "search" and an
"inspection" for the purposes of section 21. The court held that a search
involves looking for specific information, whereas an inspection is a more
general examination. [442] The court relied on case law from overseas to
make the point that the purpose behind the entry is significant.

Commercial organisations that operate within a regulated industry are subject

to certain scrutiny to ensure compliance with the law. This is particularly the
case where the law requires the organisation to be licensed in order to carry
out certain activities. The state has an interest in enforcing the terms of
licences, and inspections may be required as part of that enforcement role.
However, the scope of the inspection powers must be limited to those
necessary to monitor compliance. The powers would therefore be less than
those authorised by search warrants. For example, the power may not extend
to all parts of premises, such as an employee's locker.

In most cases agencies need to obtain a warrant in order to gather evidence

for the purposes of taking proceedings. [443] However, it is less clear
whether an enforcement officer, when carrying out an inspection, is able to
gather documents and other information to be used as evidence where
reasonable grounds for believing that an offence has been committed exist.
The intention of the inspectors in entering premises and gathering evidence is
crucial. [444] The Canadian Supreme Court, in the context of tax law, has
drawn a distinction between monitoring for compliance and an investigation.
[445] The court set down the following guidelines:

1. Inspectors are not required to obtain a warrant if the primary purpose

of the inspection is to monitor for compliance.
2. However, the primary purpose of the inquiry shifts if, in the course of
conducting an inspection, an inspector develops a suspicion that an
offence has been, or is being, committed.
3. Once the primary purpose of the inquiry becomes an investigation into
the commission of an offence, any further production of documents
requires a warrant.
4. Documents obtained during the inspection phase may be used in
evidence, but once the investigation phase commences no new material
can be gathered except under the authorisation of a warrant.

The Canadian Supreme Court acknowledged that it may be difficult for

regulatory officers to establish when the nature of the inquiry shifts from an
inspection to an investigation. Courts are likely to look at a range of factors,
including the regulatory context, the extent of the inquiry, and the conduct of
the inspector.

What about the case of searching persons?

There is greater expectation of privacy for searches of a person as opposed to

searches of property. Generally speaking, the more intrusive the search, the
more tightly constrained the circumstances in which the search can take place
will be. In addition, for more intrusive searches there will be a greater
requirement for procedural protections, both in terms of the authorising
power and procedure as well as the manner of its execution.

The manner and extent in which a search of a person is carried out may have
a bearing on the extent to which the search intrudes on their reasonable
expectations of privacy. [446] For example, as a search by a scanner is less
intrusive than a strip search it is more likely to be seen as a reasonable
exercise of a personal search power in certain contexts.

A search of a person may be undertaken without consent or a warrant in

situations where the person has a diminished expectation of privacy. This
could be because of where the person is at the time the search is conducted,
[447] or because the person has been lawfully arrested or there is a concern
that the evidence may be destroyed or removed. Prior to conducting the
search, an enforcement officer would have to believe on reasonable grounds
that the person possessed illicit property - an officer could not conduct a
search in a random manner in an effort to find unlawful items. [448]

Operational issues

Exercise of the search power - operational guidelines

From a best policy perspective and as a risk limitation exercise, we strongly

recommend that agencies with law enforcement functions develop sound
practice guidelines for operational groups or enforcement agencies to ensure
that all searches are undertaken lawfully and reasonably. When developing
operational guidelines there are a number of areas to focus on, including:

i. Establishing a process for carrying out inspections. Ensure that officers

carrying out inspections are clear about:

 the specific purpose for the inspection;

 the extent of the powers that can be exercised; and
 the procedures to be followed when, in the course of an inspection, the
officer forms the view that an offence has been, or is being, committed.
[449]
 ii. Establishing a process for ensuring that there are no deficiencies in the
warrant. A warrant can be deficient for a number of reasons, either
because:

 the information in the affidavit supporting a warrant application is

insufficient to justify the authorisation of the warrant (and there is no
additional information to draw on); [450]
 the information on the warrant is inaccurate; or
 the information on the warrant is too general.

iii. Establishing a process to ensure that there are reasonable grounds for
undertaking a statutory search power. Reasonable grounds may not
exist where:

 there is no means of testing the objectivity of the information relied on;

[451]
 the nature of the information gives rise to nothing more than a mere
suspicion; [452] or
 the search is speculative. [453]

iv. Establishing a process for ensuring that the statutory code is complied
with. This includes ensuring that:

 the statutory provisions detailing the procedures that need to be

followed are strictly complied with; and
 the purpose of the search is consistent with the statutory scheme.
Officers should not conduct a search for reasons other than those under
which the search was authorised. [454]

Reasonable searches - operational policy development

The wording of section 21 indicates that the emphasis of any power of search
should be on the reasonableness of that power or the exercise of that power
rather than its legality. Although a search may be unlawful, it can still be
reasonable for the purposes of section 21 of the Bill of Rights Act. [455]
Similarly, a lawful search may be unreasonable in certain circumstances.
[456] In such cases the manner in which a search authorised under statute or
warrant is carried out will be relevant. Whether an otherwise lawful search or
seizure is unreasonable "depends on both the subject-matter and the
particular time, place and circumstance." [457] The circumstance of the
search enables the courts to consider the conduct of officers in carrying out
their powers.

To help ensure that searches are carried out reasonably, officers should
consider the merits of exercising particular powers in situations before them,
rather than exercising all powers as a matter of routine. [458] Relevant
considerations include:

 whether the use of force or use of dogs in particular circumstances was

necessary, rather than expedient; [459]
 whether there was sufficient time and opportunity for enforcement
officers to obtain a warrant before embarking on a warrantless search;
[460]
 whether the search could have been carried in an alternative way so as
to maximise the privacy interests of the individual. [461]

Key cases

R v Grayson and Taylor [1997] 1 NZLR 399; ; R v Jefferies [1994] 1 NZLR

290; (1993) 10 CRNZ 202; R v T [1999] 2 NZLR 602; R v Koroheke 7/9/00,
CA 193/00; Wilson v Maihi (1991) 7 CRNZ 178 (CA);Wilson v New Zealand
Customs Service [1999] 5 HRNZ 134; Waikato Regional Council v
Wellington City Council & Ors 25/06/03, Venning J HC Auckland AP18-
SW03 ; R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA); R v Gardiner
(1997) 15 CRNZ 131; Choudry v Attorney-General [1999] 2 NZLR 582; R v
Bradley (1997) 15 CRNZ 363; R v Ratima (1999) 17 CRNZ 227 (CA);
Police v Fonoti [2001] 2 NZLR 394; Westco Lagan v Attorney-General
[2001] 1 NZLR 40; R v Wojcik (1994) 11 CRNZ 463; R v Laugalis (1993) 10
CRNZ 350; Duarte v R (1990) 65 DLR (4th) 240(SCC); R v Simmons [1988]
2 SCR 872; Thomson Newspapers v Canada [1990] 1 SCR 425; R v Arp
(1988) 166 DLR (4th) 296; 129 CCC (3d) 321 (SCC); R v Mellenthin (1992)
76 CCC (3d) 481; Comité Paritaire de l'Industrie de la Chemise et al. v.
Potash 115 D.L.R. (4th) 702 R v Inco Ltd 54 OR (3d) 495 (Ont CA); Kyllo v
US (2001) 150 L Ed 2d 94; R v Jarvis 219 DLR (4th) 233.
History of the section

The White Paper

The current wording of section 21 is identical to the proposed wording in the

White Paper.

Section 21 origins in international treaties and overseas legislation

Article 17 of the International Covenant on Civil and Political Rights

(ICCPR) states:

1. No one shall be subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to unlawful attacks on
his honor and reputation.
2. Everyone has the right to the protection of the law against such
interference or attacks.

Article 8 of the European Convention of Human Rights provides:

1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety
or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health and morals, or for the
protection of the rights and freedoms of others.

Section 8 of the Canadian Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

Fourth Amendment of the US Constitution provides

The right of the people to be secure in their persons, houses, paper, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be search, and the
persons or things to be seized.
Section 22 Liberty of the person
Section 22 of the Bill of Rights Act is as follows:

Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

Policy triggers: do I need to consider section 22?

You will need to consider section 22 if the policy or practice you are
developing:

 permits the police or other officials to detain individuals, whether or

not they are suspected of committing an offence;
 authorises the committal of psychiatric patients to a mental health
facility in order to protect public safety;
 allows the detention of persons in order to control the spread of a
contagious disease;
 gives the police, customs or prison authorities the right to detain a
person for the purposes of asking the person further questions or
conducting a search of that person;
 makes it an offence for a person to fail to remain at a place for further
questioning or conducting a search of that person by health,
conservation, customs or immigration officers, or law enforcement
officers.

What every policy analyst needs to know about section 22

 Section 22 applies to all forms of detention, including detention carried

out for purposes of customs, criminal justice, immigration and military
discipline, as well as enforced detention for medical and psychiatric
treatment.
 The application of section 22 involves two considerations. Firstly, has
a person been arrested or detained? Secondly, was the arrest or
detention arbitrary?
Detention

 A person is said to be detained where he or she has a reasonably held

belief, induced by the conduct of officials, that he or she is not free to
leave.
 A person may be considered to be in detention for the purposes of
section 22 when:
o deprived of liberty by physical means;
o required by law to attend or remain at a particular place (usually
accompanied by penalty for failure to comply); or
o words or conduct by a state official make it clear that the person
is not free to go.
 A detention must be substantial - that is, something more than a
"temporary check, hindrance, or intrusion on the citizen's liberty".
[462]

Arrest

 The New Zealand courts have stated that an arrest for the purposes of
the Bill of Rights Act will be deemed to have occurred where there has
been:

1. a clear and unequivocal statement or action by a law

enforcement officer that makes it clear that he or she wishes to
detain the individual; and
2. the law enforcement officer is seen to be acting or purporting to
act under legal authority. [463]

When an arrest or detention is arbitrary

 The courts have said that an arrest or detention is arbitrary when it is

not "in accordance with the law or which is not in accordance with the
principles which the law regards as appropriate for a discretion to be
operated within". [464]
 The exercise of a discretionary power to detain or arrest someone may
be arbitrary where "it is capricious, unreasoned, without reasonable
cause: if it is made without reference to an adequate determining
principle or without following proper procedures". [465]
  For this reason "arbitrariness" is not to be equated with "against the
law", but must be interpreted more broadly to include elements of
inappropriateness, injustice, and lack of predictability.
 An arrest or detention that was lawful may become arbitrary if it
continues beyond the period for which the state can provide
appropriate justification.

Measures to achieve compliance

When working on a policy or developing a practice that involves the arrest or

detention of individuals, consider developing the policy in such a way that its
implementation is:

i. principled;
ii. predictable;
iii. consistent with the principles that the law regards as just.

In essence, you need to clearly set out the circumstances in which the power
may be used and who may effect the arrest or detention. Ensure that the
discretion to arrest or detain is prescribed in terms that are consistent with the
objective of the policy. Ask whether there are clearly defined, express,
criteria for determining when such individuals can be detained.

It is also vital that officers receive adequate training as to the circumstances

where the power can be used. Practice guidelines governing the exercise of
the powers should also be prepared and given to those exercising the powers.

You should assess your policy against the following criteria:

 Are the grounds for the arrest or detention prescribed by law?

 Will the arrest or detention be made in accordance with proper
procedures?
 Is the arrest or detention necessary and reasonable in the circumstances
(that is, to prevent flight, prevent the rapid spread of disease, avoid
interference with evidence, or prevent the recurrence of crime)?
 Is the length of time that the person may be arrested or detained for
justifiable?
Related rights and freedoms

Section 22 aims to ensure that persons are not deprived of their liberty in an
arbitrary manner. The right not to be deprived of liberty is also important
with respect to section 18, which guarantees an individual's freedom of
movement.

Section 22 of the Bill of Rights Act also complements section 23. Section 23
guarantees various rights to persons who are arrested and detained, ranging
from the right to be informed of the reason for the arrest or detention to the
right to be treated with respect and dignity whilst in custody. These rights
will be discussed in more detail in the following chapter.

Further discussion on the meaning of section 22

The right to be free from arbitrary arrest or detention applies in situations

where the state places a person in custody, requires them to remain in a place
for a period of time, prevents them from leaving a location, or requires them
to attend a particular location (for example, a facility for the treatment of a
contagious disease). Section 22 applies to all forms of detention, not just
detention for the purposes of criminal justice. It therefore extends to acts of a
number of officers who carry out regulatory powers in the areas of
conservation, fisheries, bio-security, commerce and health. It also applies to
forms of detention for the purposes of customs, immigration, and military
discipline, as well as enforced detention for medical and psychiatric
treatment.

The application of section 22 involves two considerations - firstly, has a

person been arrested or detained? Secondly, was the arrest or detention
arbitrary?

When is someone considered to be "under arrest"?

The New Zealand courts have stated that for the purposes of the Bill of
Rights Act an arrest will be deemed to have occurred where there has been:
[466]

1. a clear and unequivocal statement or action by a law enforcement

officer that makes it clear that he or she wishes to detain the individual;
and
2. the law enforcement officer is seen to be acting or purporting to act
under legal authority.
The courts have taken a cautious approach to finding whether an arrest has
taken place. However, you need to be mindful of the overall purpose of
section 22 - it seeks to promote the freedom of individuals to move freely
without interference from the state. Even though a policy does not provide a
power of arrest, any significant interference with the liberty of an individual
may still constitute a form of detention for the purposes of section 22.

What is the meaning of detention for the purposes of section 22 of the Bill
of Rights Act?

A person may be considered to be in detention for the purposes of section 22

where:

 they are deprived of liberty by physical means;

 the law requires them to attend or remain at a particular place (usually
accompanied by penalty for failure to comply); or
 words or conduct by a state official make it clear that a person is not
free to go.

The New Zealand courts have demonstrated a willingness to examine

whether anything was said or done by the alleged detainer which would
cause a person to reasonably believe that he or she was not free to depart.
This test, which is a mixed objective/subjective test, is as follows: [467]

[...] does the suspect have a reasonably held belief, induced by police
conduct, that he or she is not free to leave?

If the answer to this question is "yes", then it is likely that the person is
detained for the purposes of section 22 (and section 23). [468]

The courts have attempted to provide a common-sense approach to the

meaning of detention for the purposes of section 22. In Police v Smith and
Herewini, Richardson J stated that a restriction on a person's liberty had to be
substantial in order for it to be a form of detention. [469] Restrictions on a
person's movement that are fleeting or transitory, such as breath screening
tests, do not amount to detention and therefore fall outside the scope of
section 22. [470]

Determining the actual moment when an individual is detained will therefore

be a question of degree. For instance, compliance with routine customs
formalities upon entering the country does not necessarily amount to
detention. However, a passenger may be detained in circumstances where a
customs official requires them to answer further questions. The passenger
would have no choice but to comply with the request: failure to do so would
result in criminal liability. A certain threshold of compulsion needs to be
crossed if the concept of detention is to come into play.

Questioning by law enforcement officers

A statutory requirement to answer questions may cause a person to be

detained if the questioning amounts to a sufficient restraint on a person's
liberty. If you are developing policy that authorises law enforcement officers
to question a person, you should carefully consider the purpose for requiring
the person to answer questions, the context within which the person is
expected to answer questions and the extent of the questioning.

What is meant by "arbitrary"?

In R v Hufsky the Supreme Court held that "a discretion is arbitrary if there
are no criteria, express or implied, which govern its existence." [471] The
New Zealand courts have interpreted this statement to mean that an arrest or
detention is arbitrary: [472]

if it is capricious, unreasoned, without reasonable cause: if it is made without

reference to an adequate determining principle or without following proper
procedures.

When is an arrest or detention considered to be arbitrary?

Section 22 requires that a person may be lawfully deprived of their liberty

only if the arrest or detention is consistent with procedures established by
law.

In Re M, Gallen J held that the exercise of the discretion to arrest or detain

may be arbitrary when: [473]

it is not in accordance with the law or is not in accordance with the principles
which the law regards as appropriate for a discretion to be operated within.

A policy may therefore provide for arbitrary detention or arrest powers where
it confers too broad a discretion on enforcement officers or where the scope
of the power is broader than the objective of the policy.

An arrest or detention that is unlawful is likely to be arbitrary. [474] For

example:
  Where an arrest is made in order to achieve an unlawful purpose, the
resulting detention will be arbitrary. [475]
 An arrest or form of detention may be unlawful (and thereby arbitrary)
even though it is carried out in consequence of a statutory power.
 The exercise of a statutory power may be considered unlawful (and
thereby arbitrary) where it is carried out pursuant to a mandatory
requirement without regard to the merits of the case. [476]
 Where law enforcement officers carry out an arrest that is unwarranted
in the individual circumstances, the arrest or detention may be arbitrary
because the decision to arrest was irrational and therefore unlawful.
[477]

There are therefore a number of ways in which an otherwise valid power of

arrest or detention may be considered arbitrary:

1. Continuation of detention - although the initial power to detain a

person may be valid, the detention may become arbitrary if there are
insufficient procedures to ensure that the reasons for continuing to
detain the person are legitimate. [478] An individual should not be kept
in detention as a matter of convenience.
2. Improper exercise of power - although law enforcement officials have
the statutory power to detain a person, the detention may be arbitrary if
it is not carried out for a valid reason or where there is insufficient
cause to detain an individual.
3. Illegitimate purpose - a person who has been apprehended and
subsequently confined in a police cell for the sole purpose of
questioning will be considered to have been arbitrarily arrested and
detained. [479]

The New Zealand caselaw on what makes an arrest or detention "arbitrary" is

consistent with the approach taken elsewhere. International human rights
judicial institutions have held that the prohibition of "arbitrary" deprivations
of liberty goes further than the prohibition of "unlawful" deprivations, as
arbitrariness is a principle above rather than within the law. For instance, in
Van Alphen v The Netherlands, [480] the UN Human Rights Committee -
interpreting Article 9(1) of the ICCPR - held that: "'arbitrariness' is not to be
equated with 'against the law', but must be interpreted more broadly to
include elements of inappropriateness, injustice and lack of predictability."
This meant, in the Committee's opinion, that:

[...] remand in custody pursuant to lawful arrest must not only be lawful but
reasonable in all the circumstances. Further, remand in custody must be
necessary in all the circumstances, for example, to prevent flight, interference
with evidence or the recurrence of crime.

The Committee also considers an arrest or detention that is previously lawful

may become arbitrary if it continues beyond the period for which the state
can provide appropriate justification. [481]

Under the European system for the protection of human rights, a deprivation
of liberty will only be considered to be lawful if it is in accordance with the
applicable municipal law and the ECHR, including the general principles of
the latter, and is not "arbitrary". The European Court of Human Rights has
considered a detention to be arbitrary if it is not in conformity with the
purpose of one of the permissible grounds of detention, as set out in Article
5(1) the ECHR. For example, detention ostensibly for the purpose of
deportation that is really aimed at illegal extradition would be "arbitrary".

Key cases

R v Goodwin [1993] 2 NZLR 153; R v Goodwin (No 2) [1993] 2 NZLR 390;

R v Te Kira [1993] 3 NZLR 257; Police v. Smith and Herewini [1994] 2
NZLR 306, 316; (1993) 11 CRNZ 78; R v Lauvao 15/4/1997, Salmon J, HC
Auckland T12/96; R v M [1995] 1 NZLR 242; R v Ihaka CA 71/02, 17 June
2002;Re M [1992] 1 NZLR 29; Attorney-General v Hewitt [2000] 2 NZLR
110; Neilsen v A-G [2001] 3 NZLR 433 R v Moran (1987) 36 CCC (3d) 225
(Ont CA); R v Hufsky [1988] 1 S.C.R. 621; Van Alphen v The Netherlands
305/88; Spakmo v Norway 631/95.

History of the section

The White Paper

Section 22 is identical to the provision that was proposed in the White Paper.

The Select Committee Reports on the Bill of Rights Bill

In its consideration of the right not to be arbitrarily arrested or detained, the

Select Committee spent considerable time discussing the manner in which
the Canadian Courts had interpreted the equivalent provision of the Canadian
Charter. The Committee noted that the principal matter that needed to be
determined was whether the alleged infringement amounted to an "arbitrary"
arrest or detention. Given the uncertainty of the qualifier, "arbitrary", the
Committee suggested, as an alternative, that this right could be redrafted
along the following lines:

No one shall be arrested or detained except on such grounds, and in

accordance with such procedures, as are established by law and are consistent
with the principles of fundamental justice.

Section 22 origins in international treaties and overseas legislation

Article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.

Article 3 of the Universal Declaration of Human Rights states that:

Everyone has the right to life, liberty and security of person.

Article 5(1) of the European Convention of Human Rights provides:

Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law: the lawful detention of a person after
conviction by a competent court; the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law; the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so; the detention of a minor by lawful
order for the purpose of educational supervision or his lawful detention for
the purpose of bringing him before the competent legal authority; the lawful
detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
Footnotes:

385. R v Holford [2001] 1 NZLR 385 (CA) and R v Halford (2000) 6

HRNZ (CA).
386. R v Bainbridge (1999) 5 HRNZ 317 (CA). Compare to: R v
Jefferies [1994] 1 NZLR 290.
387. R v Ratima (1999) 17 CRNZ 227 (CA).
388. R v Smith (Malcolm) [2000] 3 NZLR 656 (CA); R v Gardiner
(1997) 4 HRNZ 7; and R v Fraser [1997] 1 NZLR 442.
389. Everitt v Attorney-General [2002] 1 NZLR 82.
390. Thomson Newspapers v Canada [1990] 1 SCR 425.
391. See Appendices for further examples.
392. See for example, the discussion by Thomas J on the exercise of
strip-search powers in Everitt v A-G [2002] 1 NZLR 82.
393. On the use of dogs in association with searches, see Wilson v
Maihi (1991) 7 CRNZ 178 (CA).
394. R v Laugalis (1993) 10 CRNZ 350.
395. R v Pratt (1994) 11 CRNZ 392; 1 HRNZ 323 (CA).
396. R v Grayson and Taylor [1997] 1 NZLR 399, 406.
397. (1765) 19 State Tr 1029.
398. Duarte v R (1990) 65 DLR (4th) 240, 252 (SCC).
399. R v Grayson and Taylor [1997] 1 NZLR 399, 406.
400. The courts in Canada, for example have said that personal
searches at borders are not of themselves unreasonable because a
person's expectations of privacy in such a location is low. See R v
Simmons [1988] 2 SCR 872.
401. Westco Lagan v Attorney-General [2001] 1 NZLR 40, para 58.
402. See Wilson v New Zealand Customs Service [1999] 5 HRNZ
134,139.
403. R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA) at p 53; pp
739, 740.
404. R v Gardiner (1997) 15 CRNZ 131.
405. R v Holford [2001] 1 NZLR 385 (CA); and R v Halford (2000) 6
HRNZ (CA).
406. R v Bainbridge (1999) 5 HRNZ 317 (CA). Compare to: R v
Jefferies [1994] 1 NZLR 290.
407. R v Ratima (1999) 17 CRNZ 227 (CA).
408. R v Smith (Malcolm) [2000] 3 NZLR 656 (CA); R v Gardiner
(1997) 4 HRNZ 7; and R v Fraser [1997] 1 NZLR 442.
409. Everitt v Attorney-General [2002] 1 NZLR 82.
410. Thomson Newspapers v Canada [1990] 1 SCR 425.
411. The White Paper para 10.152.
412. For an overview of the various approaches, see R v Davis
(reported as R v A [1994] 1 NZLR 429); R v Barlow (1995) 14 CRNZ
9 (CA); and R v Fraser [1997] 1 NZLR 442. There is some academic
discussion on this point too. See Scott Optican 'What is a "Search"
under section 21 of the New Zealand Bill of Rights Act 1990? An
Analysis, Critique and Tripartite Approach', [2001], Part III New
Zealand Law Review, pp 239-275. In his concluding remarks, Optican
makes a plea for the courts to provide some guidance on the matter so
as to assist policy makers and enforcement officers. The advantage of
defining what is and isn't a search is that it avoids difficulties in
determining what is and isn't reasonable.
413. R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA).
414. Kyllo v US (2001) 150 L Ed 2d 94.
415. Kyllo v US (2001) 150 L Ed 2d 94, 98.
416. Kyllo v US (2001) 150 L Ed 2d 94, 102.
417. (1997) 15 CRNZ 131.
418. The case concerned a police operation which took place over
more than 6 months. The police placed a video camera with a zoom
lens on an adjacent property and trained it onto the kitchen of the
accused's house. The accused was suspected of committing "serious
drug offences". The Court was cognisant of the privacy issues but also
the extent to which the accused and other persons using the house took
steps to avoid detection. The decision to use video surveillance only
took place after other evidence had been obtained and other
surveillance techniques considered.
419. R v Gardiner (1997) 15 CRNZ 131, 137.
420. NZ Stock Exchange v CIR [1991] 3 WLR 221; [1991] 4 All ER
443 (PC).
421. McKinlay Transport Ltd v R (1990) 68 DLR (4th) 568 (SCC);
Thomson Newspapers v Canada [1990] 1 SCR 425.
422. The Court of Appeal in Tranz Rail Ltd v Wellington District
Court [2002] 3 NZLR 580 discusses the procedures that should be
followed before a warrant can be obtained (the discussion is, however,
specific to the procedural requirements of the Commerce Act 1987).
423. R v Jarvis 219 DLR (4th) 233.
424. United Kingdom v Hrynyk 135 DLR (4th) 693, 702.
425. R v Grayson and Taylor [1997] 1 NZLR 399, 406 (CA).
426. R v Arp (1988) 166 DLR (4th) 296; 129 CCC (3d) 321 (SCC).
427. Police v Fonoti [2001] 2 NZLR 394.
428. R v Feeney [1997] 2 SCR 13 (SCC).
429. Wilson v New Zealand Customs Service (1999) 5 HRNZ 134,
p139 and p142.
430. Bliss v Attorney-General HC Napier CP62/92 6/6/2000 Young J.
431. R v Grayson & Taylor [1997] 1 NZLR 399.
432. See also chapter 14 of the LAC Guidelines, available at
www.justice.govt.nz/lac/
433. Baron v Canada [1993] 1 SCR 627.
434. Choudry v Attorney-General [1999] 2 NZLR 582, 592.
435. For a recent statement of this principle, see Choudry v Attorney-
General [1999] 2 NZLR 582.
436. See Hunter v Southam [1984] 2 SCR 145 where Dickson J held
that justifications after the event do not preserve the privacy interests
of the individual citizen from intrusions by the state.
437. R v Allen 19/12/96 CA 88/94.
438. Bell v Police 27/6/01, Panckhurst J, HC Dunedin AP10/01.
439. R v Bradley (1997) 15 CRNZ 363.
440. R v Bradley (1997) 15 CRNZ 363, 368.
441. R v Ratima (1999) 17 CRNZ 227 (CA), 230.
442. Waikato Regional Council v Wellington City Council & Ors
25/06/03, Venning J HC Auckland AP18-SW03.
443. Comité Paritaire de l'Industrie de la Chemise et al. v. Potash;
Comite Paritaire de l'Industrie de la Chemise et al. v. Sélection Milton
115 D.L.R. (4th) 702; R v Inco Ltd 54 OR (3d) 495 (Ont CA).
444. See Baron v Canada [1993] 1 SCR 627.
445. R v Jarvis 219 DLR (4th) 233.
446. Everitt v Attorney-General [2002)] 1 NZLR 82 (CA).
447. For example, a border control area R v Simmons [1988] 2 SCR
495
448. Police v Fowlie 15/02/02 Gittos J Auckland District Court For a
discussion of issues arising in the context of these types of searches,
see Lawrence Lustgarten 'The Future of Stop and Search' in Criminal
Law Review [2002] 603 and Gross and Livingstone (2002) 'Racial
Profiling under Attack' in Columbia Law Review Vol 102 p1413.
449. R v Jarvis 219 DLR (4th) 233.
450. R v Reid 30/7/98 CA 108/98.
451. R v Laugalis (1993) 10 CRNZ 350, 355.
452. Mangels v Police (1994) 11 CRNZ 361.
453. Police v Fowlie 15/02/02 Gittos J Auckland District Court.
454. R v Mellenthin (1992) 76 CCC (3d) 481; R v Koroheke 7/9/00,
CA 193/00.
455. Note that the courts in North America take the view that an
unlawful search is unreasonable. Hart Schwartz sets out a number of
policy reasons for why unlawful searches are of their very nature
unreasonable in "The Short Happy Life and Tragic Death of the New
Zealand Bill of Rights Act" [1998] New Zealand Law Review, pp 259 -
311, pp 271 - 275.
456. R v Jefferies [1994] 1 NZLR 290; (1993) 10 CRNZ 202.
457. R v Grayson and Taylor [1997] 1 NZLR 399, 406 (CA).
458. See, for example, the discussion by Thomas J of the exercise of
strip-search powers in Everitt v A-G [2002] 1 NZLR 82.
459. On the use of dogs in association with searches, see Wilson v
Maihi (1991) 7 CRNZ 178 (CA).
460. R v Laugalis (1993) 10 CRNZ 350.
461. R v Pratt (1994) 11 CRNZ 392; 1 HRNZ 323 (CA).
462. Police v Smith and Herewini [1994] 2 NZLR 306.
463. R v P [1996] 3 NZLR 132.
464. Re M [1992] 1 NZLR 29.
465. Neilsen v A-G [2001] 3 NZLR 433.
466. R v P [1996] 3 NZLR 132.
467. R v M [1995] 1 NZLR 242, 245.
468. See the decision of the Ontario Court of Appeal in R v Moran
(1987) 36 CCC (3d) 225 (Ont CA).
469. Police v Smith and Herewini [1994] 2 NZLR 306, 315.
470. Police v Smith and Herewini [1994] 2 NZLR 306, 315 (see
Adams 10.9.07(3)).
471. R v Hufsky [1988] 1 SCR 621, 632.
472. Neilsen v A-G [2001] 3 NZLR 433.
473. Re M [1992] 1 NZLR 29.
474. See R v Goodwin (No2) [1993] 2 NZLR 390 where the Court of
Appeal left this possibility open.
475. The New Zealand courts have held that the burden of showing,
on the balance of probabilities, that the arrest or detention of a suspect
has not breached section 22 of the Bill of Rights Act rests with the
Crown R v Te Kira [1993] 3 NZLR 257.
476. Attorney-General v Hewitt [2000] 2 NZLR 110.
477. Neilsen v Attorney-General [2001] 3 NZLR 433.
478. R v Ihaka CA 71/02, 17 June 2002.
479. On this point, see R Mahoney (2003), "Arbitrary Arrest and
Detention" in the New Zealand Bill of Rights Act, Oxford University
Press, p 523.
480. Van Alphen v The Netherlands 305/88.
481. Spakmo v Norway 631/95.
Introduction to sections 21-22:
Search, Arrest and Detention
Sections 21 to 26 of the Bill of Rights Act are primarily concerned with
ensuring compliance with the law at different stages of a sequential process
relating to the investigation and prosecution of offences. The sequence of
provisions shows a proportionate increase in the likelihood that a person's
liberty, privacy and security interests may be in jeopardy at each stage of the
process.

At all stages of this process, individuals come into contact with the coercive
powers of the state. The rights in sections 21 to 26 address the inherent
imbalance in power between the individual and the state. More specifically,
these rights are designed to ensure that the liberty, privacy and security
interests of individuals are maintained except in situations authorised and
identified by law. This means interference with these interests must accord
with appropriate procedures set out in law subject to substantive checks on
the state's actions. The checks and procedures must be proportionate to the
threat to the person's interests at each stage of the process.

 Section 21 addresses the initial stage of the process, where law

enforcement officers are ascertaining compliance with the law, or
attempting to uncover evidence of breaches of the law.
 Section 22 applies to situations in which individuals have come into
contact with law enforcement officers, who may wish to prevent the
individual from leaving the vicinity until a preliminary assessment of
the person has been completed.
 Section 23 comes into play where an individual has been arrested or
detained by the authorities in relation to specific allegations about
activities that might breach the law. As there is an escalation in the
extent to which a person's liberty is at risk, there is a corresponding
increase in the individual's rights.
 Section 24 represents that stage of the process in which the state has
signalled that it believes the law has been breached and it wishes to
take steps to punish the individual. Section 24 ensures that those
charged with an offence have access to the resources needed to prepare
their defence.
  Section 25 sets out minimum standards of criminal procedure, to
ensure individuals have the opportunity and means to challenge the
case against them. In so doing, it ensures that individuals' liberty
interests are not unfairly jeopardised by the state.
 Section 26 represents the final stages of the process, in which a person
has either been deprived of liberty or the state has not made its case.
Section 26 ensures that these persons continue to be dealt with in a fair
manner and are not subject to ongoing disadvantage.

Section 21 Security against unreasonable search

and seizure
Section 21 of the Bill of Rights Act is as follows:

Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure,
whether of the person, property, or correspondence or otherwise.

Policy triggers: do I need to consider section 21?

You will need to consider section 21 if you are developing policies or

practices that:

 authorise the entry of officials from government agencies or law

enforcement officers onto commercial and/or residential property;
 authorise law enforcement officers to conduct searches of a person or
personal belongings, whether or not that person is in custody;
 require individuals or companies to create and/or disclose documents,
records and other forms of information;
 authorise enforcement officers or inspectors to take samples, analyse
data, take copies of documents, make recordings or take photographs;
 authorise the taking of property that has been discovered as a result of
a serach;
 authorise law enforcement officers to stop vehicles and question
occupants;
 authorise the taking of fingerprints, blood samples and samples of
bodily tissue;
  authorise law enforcement officers to intercept electronic
communications.

What every policy analyst needs to know about section 21

 Consideration of section 21 involves an assessment of the

reasonableness of the powers of the state to intrude into the lives of its
citizens. Such an assessment requires a consideration as to whether:
o the power authorising the exercise of the search and seizure is
unreasonable; or
o the search or seizure is carried out in an unreasonable manner.
 Section 21 is commonly associated with law enforcement - both in
terms of investigating offences and carrying out powers of inspection.
 Section 21 does not of itself guarantee property rights (rights to own,
use or enjoy property).
 The privacy values underlying the section 21 guarantee are those held
by the community at large. They are not merely the subjective
expectations of privacy a particular owner or occupier may have and
may demonstrate by signs or barricades.
 Reasonable expectations of privacy are lower in public places than on
private property. The expectation of privacy is greatest in relation to a
person's body.
 The nature of the activities carried on, particularly if involving public
wellbeing or governmental control, may affect reasonable expectations
of privacy.

What does the concept of a search involve?

 A "search" is not confined to physical intrusion. Section 21 is relevant

to developing technologies and new forms of law enforcement devices,
such as electronic surveillance, that do not require law enforcement
officers to physically enter a property. The courts have previously
considered that a search for the purposes of section 21 includes:

 looking through windows or cracks in the walls of a building;

[385]
 checking the contents of a vehicle; [386]
  climbing over a locked gate to see if the occupant or owner is in
the backyard; [387]
 electronically recording (by audio or visual methods) a
conversation or activity; [388]
 requiring a person to remove items of clothing or to empty out
his or her pockets; [389]
 demanding under statutory authority that a person provide
documents and records. [390]

Exercising search powers:

 The starting point when establishing search powers for obtaining

evidence for criminal proceedings is that:
o the search power is expressly authorised by statute; and
o the search is authorised by a warrant signed by a judicial officer
on being persuaded that there are reasonable grounds for
believing that an offence has been or is being committed.
 The purpose of the search needs to be apparent from the empowering
legislation. A statute should also be clear on its face as to what
enforcement officers can or cannot do (e.g. using force to effect entry).
 The presumption that a search should be undertaken only under the
authority of a warrant may be overridden in certain circumstances, but
only on limited grounds.
 A search may be unlawful if it is not authorised by law or if it is
carried out contrary to law.
 Even though a search may be unlawful, the courts have held that it may
still be reasonable for the purposes of section 21 of the Bill of Rights
Act. Similarly, a lawful search may be unreasonable in certain
circumstances.

What does the concept of seizure involve?

 A search is an examination of a person or property for something that

is not immediately apparent or visible. A seizure, on the other hand, is
the "taking of that which is discovered".
 A seizure is likely to involve the compulsory or non-consensual
removal of property from an individual or organisation.
  A seizure may extend to the circumstances of retention or continued
deprivation of property following its initial taking.
 For the purposes of section 21 an item is seized for as long as that
person or organisation retains a reasonable expectation of privacy.

Measures to achieve compliance

If you are developing policies or practices that raise issues of consistency

with section 21, you will need to consider:

 the primary purpose of the power (for instance, is it to monitor for

compliance with a regulatory regime or is it to gather evidence for the
purpose of taking criminal proceedings?); and
 the powers necessary to achieve that policy objective.

If search powers are necessary to achieve your policy objective, you will
need to address a number of issues in developing the search powers:

 who will be authorised to exercise the power?

 what is the purpose behind the exercise of this power?
 will enforcement officers require a warrant before exercising the
power?
 what actions must an enforcement officer take prior to executing the
power?
 what powers can an enforcement officer employ in the course of
exercising a power of entry?
 what other powers can an enforcement officer have to execute the
power of entry?

See the diagram 'Developing a statutory power of entry' in the appendices for
further guidance on these issues.

There are a number of issues to factor in to the development of operational

policy. For instance, does the policy establish processes for ensuring:

i. there are no deficiencies in the warrant?

ii. there are reasonable grounds to undertake a statutory search?
iii. that the statutory code is complied with?
When developing operational policies on search powers, include best practice
guidelines requiring those exercising the power to:

 show the authority to search or inspect;

 carry identification;
 consider whether it is necessary to remove items of property from the
premises which have been searched;
 record the items removed from the premises and provide the owner
with a list of things removed;
 retain those things taken from the property only for as long as
necessary to achieve the purpose for which they were removed;
 maintain, care for, and secure the property for the period which it is
seized. [391]

The guidelines might also include information on the circumstances in

which:

 it might be appropriate to exercise or utilise certain powers associated

with powers of entry (e.g strip searches) [392]
 the use of force or use of dogs may be considered necessary, rather
than expedient, [393]
 it may be considered necessary for enforcement officers to obtain a
warrant before embarking on a search, [394]
 it may be considered appropriate to conduct particular forms of search
so as to maximise the privacy interests of the individual. [395]

Related rights and freedoms

Because section 21 is often considered in the context of law enforcement and

the investigation and detection of offences, you should consider whether your
policy or practice affects the rights provided for in the Bill or Rights Act in
those contexts, for example:

 the right not to be compelled to say anything (section 14): do you

intend to create a power requiring a person to answer questions put to
them by a law enforcement officer?
 the right to be free from discrimination (section 19(1)): does the policy
or practice target, directly or otherwise, particular sectors of the
community?
  in the case of personal searches, the right not to be subject to degrading
treatment or punishment (section 9) and the right to be treated with
humanity and dignity (section 23(5)).
 the right to the observance of the principles of natural justice (section
27(1): does your policy allow for the forfeiture or confiscation of
property? If so, does it provide for a procedure allowing the affected
party to challenge that decision?

Further discussion on the meaning of section 21

In the leading case on section 21, the New Zealand Court of Appeal held that
the intention of section 21 is: [396]

...to ensure that governmental power is not exercised unreasonably... The

guarantee under section 21 to be free from unreasonable search and seizure
reflects an amalgam of values. A search of premises is an invasion of
property rights and an intrusion on privacy. It may also involve a restraint on
individual liberty and an affront to dignity.

Security interests of the individual

The exercise of the powers of search and seizure are connected with a
coercive power of state. As section 21 is in practice often linked to law
enforcement, both in terms of investigating offences and carrying out powers
of inspection, the right in section 21 focuses on the ability of the state to enter
private property and intrude on the privacy of its citizens.

The starting point for any intrusion by the state onto private property remains
Entick v Carrington in which Lord Camden CJ held: [397]

...our law holds the property of every man so sacred, that no man can set his
foot upon his neighbour's close without his leave; if he does he is a
trespasser, though he does no damage at all; if he will tread upon his
neighbour's ground, he must justify it by law.

A right to privacy

The following considerations influence the right to privacy for the purposes
of search and seizure laws:

i. Every person has the right to determine when, how, and to what extent
they will release personal information about themselves. [398]
 ii. Privacy values underlying the section 21 guarantee are those held by
the community at large. They are not merely the subjective
expectations of privacy which a particular owner or occupier may have
and may demonstrate by signs or barricades. [399]
iii. Reasonable expectations of privacy are lower in public places than in
private property. They are higher in the home than in the surrounding
land, farmland or land not used for residential purposes. [400]

Many activities and industries are subject to a high degree of regulatory

control and oversight by government agencies. Because there is an element
of consent involved in such activities, persons participating in them have a
lesser expectation of privacy than they might expect if they are in a private
dwelling.

Does section 21 confer a property right?

Despite the reference in section 21 to "seizure...of property", the provision

does not confer a right to property, or protection from the state seizing
property. The meaning of the word seizure is influenced by its close
proximity to the word search. The context within which section 21 appears is
also important. McGechan J in Westco Lagan v Attorney-General put it this
way: [401]

The portion of the Act in which s 21 occurs goes on to deal with liberty of
the person, rights of persons arrested or detained, rights of persons charged,
minimum standards of criminal procedure, retroactive penalties and double
jeopardy, and right to justice. These ... all focus plainly on prosecution and
judicial process. It would be distinctly odd if the legislature had plonked a
provision intended to deal in a general way with seizure of property without
compensation into such a matrix.

However, as we shall see, the courts will consider how enforcement agencies
treat property that has been seized in the context of exercising their law
enforcement functions. [402]

What is a search?

The New Zealand courts have analysed what is meant by a search. In R v

Fraser, the Court said: [403]

in broad terms a search is an examination of a person or property. Though

sometimes broader, in usage to search means to endeavour to find something
not readily at hand or available. The general connotation is of investigation
or scrutiny in order to expose or uncover; going beyond or penetrating some
degree of concealment.

As one of the objectives in upholding section 21 is to protect the individual's

reasonable expectation of privacy, a search involves looking for something
that is not immediately apparent or visible. [404] That is, there is no
expectation of privacy in respect of a thing that is in plain view.

The courts have previously considered that a search for the purposes of
section 21 includes:

 looking through windows or cracks in the walls of a building; [405]

 checking the contents of a vehicle; [406]
 climbing over a locked gate to see if the occupant or owner is in the
backyard; [407]
 electronically recording (by audio or visual methods) a conversation or
activity; [408]
 requiring a person to remove items of clothing or empty out his or her
pockets [409]
 demanding under statutory authority that a person provide documents
and records. [410]

Because of the common links between section 21 and law enforcement, a

search is often principally undertaken for one of the following purposes:

i. Monitoring for compliance: an examination of a commercial property

and the inspection of documentation or goods for the purposes of
determining whether the owner or occupier is complying with the
statutory regulatory framework (for example, registration requirements
in the Animal Products Act 1999, workplace safety in the Health and
Safety in Employment Act 1992, or the controls on gambling
establishments under the Responsible Gaming Act 2003);
ii. Examining information for the purpose of gathering evidence: a search
undertaken where there are reasonable grounds to believe that an
individual or organisation is committing a criminal offence and it is
necessary to collate information to substantiate that belief and to use as
evidence in proceedings; and
iii. A combination of (i) and (ii) where the objective is to gain compliance
with the law, and the information can be used for purposes other than
criminal proceedings but sanctions exist (for example the maintenance
of discipline at schools or maintaining the integrity of sport).

Is electronic surveillance a search?

The White Paper envisaged that section 21 would take into account
developing technologies and new forms of law enforcement devices that
would not require law enforcement officers to physically enter a property.
The concept of a search would therefore extend to the interception of mail,
the electronic interception of private conversations, and other forms of
surveillance. [411] To date New Zealand courts have taken an approach
which suggests that forms of electronic surveillance may constitute a search
for the purposes of section 21 but no firm guidance has been provided. [412]

Elsewhere, the courts have adopted an approach consistent with the meaning
given to the word search in Fraser [413], on the understanding that there has
been an interference with the right to privacy. The US Supreme Court, for
example, has previously concluded that police use of a thermal imaging
device to detect the presence of cannabis growing in a house is a search.
[414] The majority for the Court said that it would be "foolish to contend that
the degree of privacy secured to citizens by the [protection against
unreasonable search and seizure] has been unaffected by the advance of
technology." [415] The Court went on to add:

Where . . . the Government uses a [sense-enhancing] device, not in general

public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a 'search' and is
presumptively unreasonable without a warrant. [416]

The US Supreme Court emphasised the community's long-held and existing

interest in the privacy of the home, and, significantly, pointed out that as
everything in the home has the quality of intimacy, the whole house can be
regarded as private.

The New Zealand Court of Appeal, in the case of R v Gardiner, [417] took a
different view on the issue of expectations of privacy in the home. The Court
acknowledged that the circumstances of the case were somewhat unusual
[418] and the issue of whether the power was reasonable to be borderline.
However, on the facts before it, the Court took of the view that: [419]
Although the camera was intended to pick up images from within the
building, it was not trained on a bedroom or bathroom or other area of
particular privacy. The area under observation was, as the police suspected, a
part of the house which was being used for purposes of drug dealing; and
judging by their own conduct the occupants had a less than complete
expectation of privacy in that place.

The Court of Appeal in Gardiner concentrated their discussion on the

reasonableness of the actions of law enforcement officers in training a video
camera on a part of the house. The Court did not expressly consider whether
the use of camera amounted to a search. Given the privacy principles
underlying section 21, you should assume that:

i. the use of electronic surveillance is considered to be a search; and

ii. all parts of a private dwelling should be considered private with the
occupiers assumed to have a high expectation of privacy.

Production of documents

A requirement to produce, create, or copy documents is likely to be

considered a search for the purposes of section 21, especially where failure to
provide the documents results in possible sanction. While the New Zealand
courts have not directly addressed this point, the Privy Council, in
considering an appeal from New Zealand, [420] accepted such an approach
based on Canadian caselaw. [421]

A requirement to produce documents is less intrusive than other search

powers, and can be exercised as part of an agency's inspection or audit
functions. Requesting documents can be used by itself or in combination with
other search powers - for example, a requirement to produce documents can
be issued, and if the required information isn't forthcoming a warrant can be
obtained. [422]

The power to require the production of documents raises issues of

consistency with other rights, particularly the right to silence and the
privilege against self-incrimination. [423] The Canadian courts have taken
the view that a proper balance between the interests of the individual and the
state can be struck if the requirement to produce documents is subject to
appropriate terms and conditions, including those designed to protect the
interests of the person compelled to provide the documents. [424]
Seizure of property

While a search is an examination of a person or property, a seizure is the

"taking of that which is discovered." [425] A seizure for the purposes of
section 21 is likely to involve the compulsory or non-consensual removal of
property from an individual or organisation for as long as that person or
organisation retains a reasonable expectation of privacy. [426] A seizure may
include the taking of body and fluid samples, [427] or the taking of
photographs and fingerprints. [428]

The High Court has stated that seizure includes both the initial taking
possession of property, and any continuing detention of that property. [429]
Williams J in Wilson v New Zealand Customs Service indicated that:

...even if there was reasonable cause for seizure at the time possession was
first taken, circumstances and further investigations may later demonstrate
that there is no reasonable cause for the continued detention of the goods and
the seizure should accordingly be disallowed and the goods returned.

Because a seizure extends beyond the initial taking possession of property,

the state must assume a responsibility for the safe and proper storage of the
thing seized. A seizure may be unreasonable if, for example, the property is
damaged by enforcement officers. [430]

'Unreasonable' searches and seizures

Section 21 does not affirm the right to be secure against all searches and
seizures, just those that are unreasonable. A power of search and seizure may
be considered unreasonable if:

 the power authorising the exercise of the search and seizure is

unreasonable; or
 the search or seizure is carried out in an unreasonable manner.

Section 21 requires that certain procedural safeguards be established around

the powers before they can be considered reasonable.

Creating the right balance

The Court of Appeal in R v Grayson & Taylor [431] indicated that a

balancing exercise has to be performed when determining whether a search
or seizure is unreasonable in terms of section 21. The balance is between the
legitimate interests of the state in law enforcement and the privacy interests
of the individual. The court held that what is reasonable is subject to
changing community values, but that contemporary society attaches a high
value to privacy and to the security of personal privacy against arbitrary
intrusions by those in authority. What is likely to be considered reasonable is
largely dependent on where the search takes place, for what reason, and the
method of the search (for example, electronic surveillance as opposed to a
search of the person).

Ask the right questions

When developing legislation with potential search powers, there are three
essential issues to address: [432]

Is the power necessary?

The most important issue is whether the power is necessary. Examples of

purposes that are likely to be considered necessary include:

 to obtain or secure evidence of offending;

 to ensure that regulatory responsibilities are complied with;
 to recover property or to render it available for eventual forfeiture;
 to prevent or deter offending.

What powers are required?

The second question concerns the type of powers that are reasonably
necessary to achieve the policy objective. Does the policy require a power of
entry or can the information be obtained from other sources or in another
way - such as a requirement to produce information? As the objective of
section 21 is to preserve an individual's reasonable expectation of privacy, a
requirement to produce documentation is generally considered to be less
intrusive on a person's privacy than entry onto premises. At the same time, a
demand to produce documents or information can raise other issues, as
discussed above.

How is the search to be exercised?

The third questions concerns the authorisation to carry out the search,
specifically: how is the search going to be carried out, by whom, under
whose authority, and for what purpose?

In considering these issues, ask yourself:

  What should an officer be able to do by way of search?
 Who should be able to exercise the powers?
 Should the powers be exercisable at any time or only at certain times?
 If an officer needs to enter onto private property, is the use of force
appropriate?

The purpose of the search will influence the answers to these questions. As
regulatory inspections generally take place in areas which have lower
expectations of privacy than searches carried out for the purpose of detecting
criminal offending, the levels of protection are likely to be less. However,
regulatory powers of inspection are not as extensive as search powers
associated with criminal investigations (see examples of model legislation in
the appendices to Guidelines). In addition, enforcement officers cannot use a
regulatory power of inspection to gather evidence when that officer is acting
on a suspicion that an offence has been committed. [433]

The purpose of the search must be apparent from the empowering legislation.
A statute should be clear on its face as to what enforcement officers can and
cannot do, and should not authorise officers to undertake acts that amount to
fishing expeditions. [434]

Is a search warrant required?

The starting point when developing proposals to allow enforcement officers,

or agents of the state carrying out a law enforcement function, to execute a
power of entry and search is that:

 the power be expressly authorised by statute; [435] and

 the search be authorised by a warrant signed by a judicial officer on
being persuaded that there are reasonable grounds for believing an
offence has been or is being committed.

Obtaining prior authorisation for a search by obtaining a warrant enables

enforcement officers to intrude on the privacy interests of individuals only in
circumstances where a demonstrable justification is seen to exist. [436]

Search warrants are not, however, required in all situations. Regulatory

inspections are a case in point. These inspections are not premised on the
suspicion that an offence has been committed. There is little value to be
gained by requiring an inspector to obtain a warrant. Warrantless searches
may also be reasonable in situations where:
  obtaining a warrant would be impossible (in emergency situations, for
instance);
 the delay in obtaining a warrant may cause a dangerous situation (civil
aviation and health and safety legislation, for instance);
 there are reasonable grounds to believe that evidence may be destroyed
or removed (border control situations, for instance).

In the absence of a warrant an enforcement officer may enter private

premises or conduct a personal search with the consent of the
occupier/person so long as the consent is informed and freely obtained. [437]
Where an occupier has given consent to search premises, the entry onto those
premises is not invalidated by another occupier subsequently seeking to
exclude the officers from the premises. [438] The issue of freely obtained,
informed consent is also relevant in situations where bodily samples are
taken from individuals.

Similarly, there may be an implied license for enforcement officers to enter

private property, but generally speaking that license comes to an end on
reaching a dwelling house. [439] The purpose of the implied license is to
enable persons, including law enforcement officers, to come onto a property
to conveniently communicate with the occupier. New Zealand's Court of
Appeal in Bradley has held that the scope of an implied license for police
officers must necessarily be broader than that of ordinary members of the
public and others because of the nature and scale of their duties and the
public interest in law enforcement. [440] An enforcement officer's implied
license extends only to those parts of the premises normally associated with
access. An implied license is therefore revoked in circumstances where gates
or barriers are in place that are designed to prevent persons other than the
occupier from gaining entry to certain parts of the property. [441]

Does an enforcement officer carrying out an inspection power require a

warrant?

The High Court has recently made the distinction between a "search" and an
"inspection" for the purposes of section 21. The court held that a search
involves looking for specific information, whereas an inspection is a more
general examination. [442] The court relied on case law from overseas to
make the point that the purpose behind the entry is significant.

Commercial organisations that operate within a regulated industry are subject

to certain scrutiny to ensure compliance with the law. This is particularly the
case where the law requires the organisation to be licensed in order to carry
out certain activities. The state has an interest in enforcing the terms of
licences, and inspections may be required as part of that enforcement role.
However, the scope of the inspection powers must be limited to those
necessary to monitor compliance. The powers would therefore be less than
those authorised by search warrants. For example, the power may not extend
to all parts of premises, such as an employee's locker.

In most cases agencies need to obtain a warrant in order to gather evidence

for the purposes of taking proceedings. [443] However, it is less clear
whether an enforcement officer, when carrying out an inspection, is able to
gather documents and other information to be used as evidence where
reasonable grounds for believing that an offence has been committed exist.
The intention of the inspectors in entering premises and gathering evidence is
crucial. [444] The Canadian Supreme Court, in the context of tax law, has
drawn a distinction between monitoring for compliance and an investigation.
[445] The court set down the following guidelines:

1. Inspectors are not required to obtain a warrant if the primary purpose

of the inspection is to monitor for compliance.
2. However, the primary purpose of the inquiry shifts if, in the course of
conducting an inspection, an inspector develops a suspicion that an
offence has been, or is being, committed.
3. Once the primary purpose of the inquiry becomes an investigation into
the commission of an offence, any further production of documents
requires a warrant.
4. Documents obtained during the inspection phase may be used in
evidence, but once the investigation phase commences no new material
can be gathered except under the authorisation of a warrant.

The Canadian Supreme Court acknowledged that it may be difficult for

regulatory officers to establish when the nature of the inquiry shifts from an
inspection to an investigation. Courts are likely to look at a range of factors,
including the regulatory context, the extent of the inquiry, and the conduct of
the inspector.

What about the case of searching persons?

There is greater expectation of privacy for searches of a person as opposed to

searches of property. Generally speaking, the more intrusive the search, the
more tightly constrained the circumstances in which the search can take place
will be. In addition, for more intrusive searches there will be a greater
requirement for procedural protections, both in terms of the authorising
power and procedure as well as the manner of its execution.

The manner and extent in which a search of a person is carried out may have
a bearing on the extent to which the search intrudes on their reasonable
expectations of privacy. [446] For example, as a search by a scanner is less
intrusive than a strip search it is more likely to be seen as a reasonable
exercise of a personal search power in certain contexts.

A search of a person may be undertaken without consent or a warrant in

situations where the person has a diminished expectation of privacy. This
could be because of where the person is at the time the search is conducted,
[447] or because the person has been lawfully arrested or there is a concern
that the evidence may be destroyed or removed. Prior to conducting the
search, an enforcement officer would have to believe on reasonable grounds
that the person possessed illicit property - an officer could not conduct a
search in a random manner in an effort to find unlawful items. [448]

Operational issues

Exercise of the search power - operational guidelines

From a best policy perspective and as a risk limitation exercise, we strongly

recommend that agencies with law enforcement functions develop sound
practice guidelines for operational groups or enforcement agencies to ensure
that all searches are undertaken lawfully and reasonably. When developing
operational guidelines there are a number of areas to focus on, including:

i. Establishing a process for carrying out inspections. Ensure that officers

carrying out inspections are clear about:

 the specific purpose for the inspection;

 the extent of the powers that can be exercised; and
 the procedures to be followed when, in the course of an inspection, the
officer forms the view that an offence has been, or is being, committed.
[449]
 ii. Establishing a process for ensuring that there are no deficiencies in the
warrant. A warrant can be deficient for a number of reasons, either
because:

 the information in the affidavit supporting a warrant application is

insufficient to justify the authorisation of the warrant (and there is no
additional information to draw on); [450]
 the information on the warrant is inaccurate; or
 the information on the warrant is too general.

iii. Establishing a process to ensure that there are reasonable grounds for
undertaking a statutory search power. Reasonable grounds may not
exist where:

 there is no means of testing the objectivity of the information relied on;

[451]
 the nature of the information gives rise to nothing more than a mere
suspicion; [452] or
 the search is speculative. [453]

iv. Establishing a process for ensuring that the statutory code is complied
with. This includes ensuring that:

 the statutory provisions detailing the procedures that need to be

followed are strictly complied with; and
 the purpose of the search is consistent with the statutory scheme.
Officers should not conduct a search for reasons other than those under
which the search was authorised. [454]

Reasonable searches - operational policy development

The wording of section 21 indicates that the emphasis of any power of search
should be on the reasonableness of that power or the exercise of that power
rather than its legality. Although a search may be unlawful, it can still be
reasonable for the purposes of section 21 of the Bill of Rights Act. [455]
Similarly, a lawful search may be unreasonable in certain circumstances.
[456] In such cases the manner in which a search authorised under statute or
warrant is carried out will be relevant. Whether an otherwise lawful search or
seizure is unreasonable "depends on both the subject-matter and the
particular time, place and circumstance." [457] The circumstance of the
search enables the courts to consider the conduct of officers in carrying out
their powers.

To help ensure that searches are carried out reasonably, officers should
consider the merits of exercising particular powers in situations before them,
rather than exercising all powers as a matter of routine. [458] Relevant
considerations include:

 whether the use of force or use of dogs in particular circumstances was

necessary, rather than expedient; [459]
 whether there was sufficient time and opportunity for enforcement
officers to obtain a warrant before embarking on a warrantless search;
[460]
 whether the search could have been carried in an alternative way so as
to maximise the privacy interests of the individual. [461]

Key cases

R v Grayson and Taylor [1997] 1 NZLR 399; ; R v Jefferies [1994] 1 NZLR

290; (1993) 10 CRNZ 202; R v T [1999] 2 NZLR 602; R v Koroheke 7/9/00,
CA 193/00; Wilson v Maihi (1991) 7 CRNZ 178 (CA);Wilson v New Zealand
Customs Service [1999] 5 HRNZ 134; Waikato Regional Council v
Wellington City Council & Ors 25/06/03, Venning J HC Auckland AP18-
SW03 ; R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA); R v Gardiner
(1997) 15 CRNZ 131; Choudry v Attorney-General [1999] 2 NZLR 582; R v
Bradley (1997) 15 CRNZ 363; R v Ratima (1999) 17 CRNZ 227 (CA);
Police v Fonoti [2001] 2 NZLR 394; Westco Lagan v Attorney-General
[2001] 1 NZLR 40; R v Wojcik (1994) 11 CRNZ 463; R v Laugalis (1993) 10
CRNZ 350; Duarte v R (1990) 65 DLR (4th) 240(SCC); R v Simmons [1988]
2 SCR 872; Thomson Newspapers v Canada [1990] 1 SCR 425; R v Arp
(1988) 166 DLR (4th) 296; 129 CCC (3d) 321 (SCC); R v Mellenthin (1992)
76 CCC (3d) 481; Comité Paritaire de l'Industrie de la Chemise et al. v.
Potash 115 D.L.R. (4th) 702 R v Inco Ltd 54 OR (3d) 495 (Ont CA); Kyllo v
US (2001) 150 L Ed 2d 94; R v Jarvis 219 DLR (4th) 233.
History of the section

The White Paper

The current wording of section 21 is identical to the proposed wording in the

White Paper.

Section 21 origins in international treaties and overseas legislation

Article 17 of the International Covenant on Civil and Political Rights

(ICCPR) states:

1. No one shall be subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to unlawful attacks on
his honor and reputation.
2. Everyone has the right to the protection of the law against such
interference or attacks.

Article 8 of the European Convention of Human Rights provides:

1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety
or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health and morals, or for the
protection of the rights and freedoms of others.

Section 8 of the Canadian Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

Fourth Amendment of the US Constitution provides

The right of the people to be secure in their persons, houses, paper, and
effects, against unreasonable searches and seizures, shall not be violated, and
no warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be search, and the
persons or things to be seized.
Section 22 Liberty of the person
Section 22 of the Bill of Rights Act is as follows:

Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

Policy triggers: do I need to consider section 22?

You will need to consider section 22 if the policy or practice you are
developing:

 permits the police or other officials to detain individuals, whether or

not they are suspected of committing an offence;
 authorises the committal of psychiatric patients to a mental health
facility in order to protect public safety;
 allows the detention of persons in order to control the spread of a
contagious disease;
 gives the police, customs or prison authorities the right to detain a
person for the purposes of asking the person further questions or
conducting a search of that person;
 makes it an offence for a person to fail to remain at a place for further
questioning or conducting a search of that person by health,
conservation, customs or immigration officers, or law enforcement
officers.

What every policy analyst needs to know about section 22

 Section 22 applies to all forms of detention, including detention carried

out for purposes of customs, criminal justice, immigration and military
discipline, as well as enforced detention for medical and psychiatric
treatment.
 The application of section 22 involves two considerations. Firstly, has
a person been arrested or detained? Secondly, was the arrest or
detention arbitrary?
Detention

 A person is said to be detained where he or she has a reasonably held

belief, induced by the conduct of officials, that he or she is not free to
leave.
 A person may be considered to be in detention for the purposes of
section 22 when:
o deprived of liberty by physical means;
o required by law to attend or remain at a particular place (usually
accompanied by penalty for failure to comply); or
o words or conduct by a state official make it clear that the person
is not free to go.
 A detention must be substantial - that is, something more than a
"temporary check, hindrance, or intrusion on the citizen's liberty".
[462]

Arrest

 The New Zealand courts have stated that an arrest for the purposes of
the Bill of Rights Act will be deemed to have occurred where there has
been:

1. a clear and unequivocal statement or action by a law

enforcement officer that makes it clear that he or she wishes to
detain the individual; and
2. the law enforcement officer is seen to be acting or purporting to
act under legal authority. [463]

When an arrest or detention is arbitrary

 The courts have said that an arrest or detention is arbitrary when it is

not "in accordance with the law or which is not in accordance with the
principles which the law regards as appropriate for a discretion to be
operated within". [464]
 The exercise of a discretionary power to detain or arrest someone may
be arbitrary where "it is capricious, unreasoned, without reasonable
cause: if it is made without reference to an adequate determining
principle or without following proper procedures". [465]
  For this reason "arbitrariness" is not to be equated with "against the
law", but must be interpreted more broadly to include elements of
inappropriateness, injustice, and lack of predictability.
 An arrest or detention that was lawful may become arbitrary if it
continues beyond the period for which the state can provide
appropriate justification.

Measures to achieve compliance

When working on a policy or developing a practice that involves the arrest or

detention of individuals, consider developing the policy in such a way that its
implementation is:

i. principled;
ii. predictable;
iii. consistent with the principles that the law regards as just.

In essence, you need to clearly set out the circumstances in which the power
may be used and who may effect the arrest or detention. Ensure that the
discretion to arrest or detain is prescribed in terms that are consistent with the
objective of the policy. Ask whether there are clearly defined, express,
criteria for determining when such individuals can be detained.

It is also vital that officers receive adequate training as to the circumstances

where the power can be used. Practice guidelines governing the exercise of
the powers should also be prepared and given to those exercising the powers.

You should assess your policy against the following criteria:

 Are the grounds for the arrest or detention prescribed by law?

 Will the arrest or detention be made in accordance with proper
procedures?
 Is the arrest or detention necessary and reasonable in the circumstances
(that is, to prevent flight, prevent the rapid spread of disease, avoid
interference with evidence, or prevent the recurrence of crime)?
 Is the length of time that the person may be arrested or detained for
justifiable?
Related rights and freedoms

Section 22 aims to ensure that persons are not deprived of their liberty in an
arbitrary manner. The right not to be deprived of liberty is also important
with respect to section 18, which guarantees an individual's freedom of
movement.

Section 22 of the Bill of Rights Act also complements section 23. Section 23
guarantees various rights to persons who are arrested and detained, ranging
from the right to be informed of the reason for the arrest or detention to the
right to be treated with respect and dignity whilst in custody. These rights
will be discussed in more detail in the following chapter.

Further discussion on the meaning of section 22

The right to be free from arbitrary arrest or detention applies in situations

where the state places a person in custody, requires them to remain in a place
for a period of time, prevents them from leaving a location, or requires them
to attend a particular location (for example, a facility for the treatment of a
contagious disease). Section 22 applies to all forms of detention, not just
detention for the purposes of criminal justice. It therefore extends to acts of a
number of officers who carry out regulatory powers in the areas of
conservation, fisheries, bio-security, commerce and health. It also applies to
forms of detention for the purposes of customs, immigration, and military
discipline, as well as enforced detention for medical and psychiatric
treatment.

The application of section 22 involves two considerations - firstly, has a

person been arrested or detained? Secondly, was the arrest or detention
arbitrary?

When is someone considered to be "under arrest"?

The New Zealand courts have stated that for the purposes of the Bill of
Rights Act an arrest will be deemed to have occurred where there has been:
[466]

1. a clear and unequivocal statement or action by a law enforcement

officer that makes it clear that he or she wishes to detain the individual;
and
2. the law enforcement officer is seen to be acting or purporting to act
under legal authority.
The courts have taken a cautious approach to finding whether an arrest has
taken place. However, you need to be mindful of the overall purpose of
section 22 - it seeks to promote the freedom of individuals to move freely
without interference from the state. Even though a policy does not provide a
power of arrest, any significant interference with the liberty of an individual
may still constitute a form of detention for the purposes of section 22.

What is the meaning of detention for the purposes of section 22 of the Bill
of Rights Act?

A person may be considered to be in detention for the purposes of section 22

where:

 they are deprived of liberty by physical means;

 the law requires them to attend or remain at a particular place (usually
accompanied by penalty for failure to comply); or
 words or conduct by a state official make it clear that a person is not
free to go.

The New Zealand courts have demonstrated a willingness to examine

whether anything was said or done by the alleged detainer which would
cause a person to reasonably believe that he or she was not free to depart.
This test, which is a mixed objective/subjective test, is as follows: [467]

[...] does the suspect have a reasonably held belief, induced by police
conduct, that he or she is not free to leave?

If the answer to this question is "yes", then it is likely that the person is
detained for the purposes of section 22 (and section 23). [468]

The courts have attempted to provide a common-sense approach to the

meaning of detention for the purposes of section 22. In Police v Smith and
Herewini, Richardson J stated that a restriction on a person's liberty had to be
substantial in order for it to be a form of detention. [469] Restrictions on a
person's movement that are fleeting or transitory, such as breath screening
tests, do not amount to detention and therefore fall outside the scope of
section 22. [470]

Determining the actual moment when an individual is detained will therefore

be a question of degree. For instance, compliance with routine customs
formalities upon entering the country does not necessarily amount to
detention. However, a passenger may be detained in circumstances where a
customs official requires them to answer further questions. The passenger
would have no choice but to comply with the request: failure to do so would
result in criminal liability. A certain threshold of compulsion needs to be
crossed if the concept of detention is to come into play.

Questioning by law enforcement officers

A statutory requirement to answer questions may cause a person to be

detained if the questioning amounts to a sufficient restraint on a person's
liberty. If you are developing policy that authorises law enforcement officers
to question a person, you should carefully consider the purpose for requiring
the person to answer questions, the context within which the person is
expected to answer questions and the extent of the questioning.

What is meant by "arbitrary"?

In R v Hufsky the Supreme Court held that "a discretion is arbitrary if there
are no criteria, express or implied, which govern its existence." [471] The
New Zealand courts have interpreted this statement to mean that an arrest or
detention is arbitrary: [472]

if it is capricious, unreasoned, without reasonable cause: if it is made without

reference to an adequate determining principle or without following proper
procedures.

When is an arrest or detention considered to be arbitrary?

Section 22 requires that a person may be lawfully deprived of their liberty

only if the arrest or detention is consistent with procedures established by
law.

In Re M, Gallen J held that the exercise of the discretion to arrest or detain

may be arbitrary when: [473]

it is not in accordance with the law or is not in accordance with the principles
which the law regards as appropriate for a discretion to be operated within.

A policy may therefore provide for arbitrary detention or arrest powers where
it confers too broad a discretion on enforcement officers or where the scope
of the power is broader than the objective of the policy.

An arrest or detention that is unlawful is likely to be arbitrary. [474] For

example:
  Where an arrest is made in order to achieve an unlawful purpose, the
resulting detention will be arbitrary. [475]
 An arrest or form of detention may be unlawful (and thereby arbitrary)
even though it is carried out in consequence of a statutory power.
 The exercise of a statutory power may be considered unlawful (and
thereby arbitrary) where it is carried out pursuant to a mandatory
requirement without regard to the merits of the case. [476]
 Where law enforcement officers carry out an arrest that is unwarranted
in the individual circumstances, the arrest or detention may be arbitrary
because the decision to arrest was irrational and therefore unlawful.
[477]

There are therefore a number of ways in which an otherwise valid power of

arrest or detention may be considered arbitrary:

1. Continuation of detention - although the initial power to detain a

person may be valid, the detention may become arbitrary if there are
insufficient procedures to ensure that the reasons for continuing to
detain the person are legitimate. [478] An individual should not be kept
in detention as a matter of convenience.
2. Improper exercise of power - although law enforcement officials have
the statutory power to detain a person, the detention may be arbitrary if
it is not carried out for a valid reason or where there is insufficient
cause to detain an individual.
3. Illegitimate purpose - a person who has been apprehended and
subsequently confined in a police cell for the sole purpose of
questioning will be considered to have been arbitrarily arrested and
detained. [479]

The New Zealand caselaw on what makes an arrest or detention "arbitrary" is

consistent with the approach taken elsewhere. International human rights
judicial institutions have held that the prohibition of "arbitrary" deprivations
of liberty goes further than the prohibition of "unlawful" deprivations, as
arbitrariness is a principle above rather than within the law. For instance, in
Van Alphen v The Netherlands, [480] the UN Human Rights Committee -
interpreting Article 9(1) of the ICCPR - held that: "'arbitrariness' is not to be
equated with 'against the law', but must be interpreted more broadly to
include elements of inappropriateness, injustice and lack of predictability."
This meant, in the Committee's opinion, that:

[...] remand in custody pursuant to lawful arrest must not only be lawful but
reasonable in all the circumstances. Further, remand in custody must be
necessary in all the circumstances, for example, to prevent flight, interference
with evidence or the recurrence of crime.

The Committee also considers an arrest or detention that is previously lawful

may become arbitrary if it continues beyond the period for which the state
can provide appropriate justification. [481]

Under the European system for the protection of human rights, a deprivation
of liberty will only be considered to be lawful if it is in accordance with the
applicable municipal law and the ECHR, including the general principles of
the latter, and is not "arbitrary". The European Court of Human Rights has
considered a detention to be arbitrary if it is not in conformity with the
purpose of one of the permissible grounds of detention, as set out in Article
5(1) the ECHR. For example, detention ostensibly for the purpose of
deportation that is really aimed at illegal extradition would be "arbitrary".

Key cases

R v Goodwin [1993] 2 NZLR 153; R v Goodwin (No 2) [1993] 2 NZLR 390;

R v Te Kira [1993] 3 NZLR 257; Police v. Smith and Herewini [1994] 2
NZLR 306, 316; (1993) 11 CRNZ 78; R v Lauvao 15/4/1997, Salmon J, HC
Auckland T12/96; R v M [1995] 1 NZLR 242; R v Ihaka CA 71/02, 17 June
2002;Re M [1992] 1 NZLR 29; Attorney-General v Hewitt [2000] 2 NZLR
110; Neilsen v A-G [2001] 3 NZLR 433 R v Moran (1987) 36 CCC (3d) 225
(Ont CA); R v Hufsky [1988] 1 S.C.R. 621; Van Alphen v The Netherlands
305/88; Spakmo v Norway 631/95.

History of the section

The White Paper

Section 22 is identical to the provision that was proposed in the White Paper.

The Select Committee Reports on the Bill of Rights Bill

In its consideration of the right not to be arbitrarily arrested or detained, the

Select Committee spent considerable time discussing the manner in which
the Canadian Courts had interpreted the equivalent provision of the Canadian
Charter. The Committee noted that the principal matter that needed to be
determined was whether the alleged infringement amounted to an "arbitrary"
arrest or detention. Given the uncertainty of the qualifier, "arbitrary", the
Committee suggested, as an alternative, that this right could be redrafted
along the following lines:

No one shall be arrested or detained except on such grounds, and in

accordance with such procedures, as are established by law and are consistent
with the principles of fundamental justice.

Section 22 origins in international treaties and overseas legislation

Article 9(1) of the ICCPR provides:

Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.

Article 3 of the Universal Declaration of Human Rights states that:

Everyone has the right to life, liberty and security of person.

Article 5(1) of the European Convention of Human Rights provides:

Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law: the lawful detention of a person after
conviction by a competent court; the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law; the lawful arrest or detention
of a person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so; the detention of a minor by lawful
order for the purpose of educational supervision or his lawful detention for
the purpose of bringing him before the competent legal authority; the lawful
detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.
Footnotes:

385. R v Holford [2001] 1 NZLR 385 (CA) and R v Halford (2000) 6

HRNZ (CA).
386. R v Bainbridge (1999) 5 HRNZ 317 (CA). Compare to: R v
Jefferies [1994] 1 NZLR 290.
387. R v Ratima (1999) 17 CRNZ 227 (CA).
388. R v Smith (Malcolm) [2000] 3 NZLR 656 (CA); R v Gardiner
(1997) 4 HRNZ 7; and R v Fraser [1997] 1 NZLR 442.
389. Everitt v Attorney-General [2002] 1 NZLR 82.
390. Thomson Newspapers v Canada [1990] 1 SCR 425.
391. See Appendices for further examples.
392. See for example, the discussion by Thomas J on the exercise of
strip-search powers in Everitt v A-G [2002] 1 NZLR 82.
393. On the use of dogs in association with searches, see Wilson v
Maihi (1991) 7 CRNZ 178 (CA).
394. R v Laugalis (1993) 10 CRNZ 350.
395. R v Pratt (1994) 11 CRNZ 392; 1 HRNZ 323 (CA).
396. R v Grayson and Taylor [1997] 1 NZLR 399, 406.
397. (1765) 19 State Tr 1029.
398. Duarte v R (1990) 65 DLR (4th) 240, 252 (SCC).
399. R v Grayson and Taylor [1997] 1 NZLR 399, 406.
400. The courts in Canada, for example have said that personal
searches at borders are not of themselves unreasonable because a
person's expectations of privacy in such a location is low. See R v
Simmons [1988] 2 SCR 872.
401. Westco Lagan v Attorney-General [2001] 1 NZLR 40, para 58.
402. See Wilson v New Zealand Customs Service [1999] 5 HRNZ
134,139.
403. R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA) at p 53; pp
739, 740.
404. R v Gardiner (1997) 15 CRNZ 131.
405. R v Holford [2001] 1 NZLR 385 (CA); and R v Halford (2000) 6
HRNZ (CA).
406. R v Bainbridge (1999) 5 HRNZ 317 (CA). Compare to: R v
Jefferies [1994] 1 NZLR 290.
407. R v Ratima (1999) 17 CRNZ 227 (CA).
408. R v Smith (Malcolm) [2000] 3 NZLR 656 (CA); R v Gardiner
(1997) 4 HRNZ 7; and R v Fraser [1997] 1 NZLR 442.
409. Everitt v Attorney-General [2002] 1 NZLR 82.
410. Thomson Newspapers v Canada [1990] 1 SCR 425.
411. The White Paper para 10.152.
412. For an overview of the various approaches, see R v Davis
(reported as R v A [1994] 1 NZLR 429); R v Barlow (1995) 14 CRNZ
9 (CA); and R v Fraser [1997] 1 NZLR 442. There is some academic
discussion on this point too. See Scott Optican 'What is a "Search"
under section 21 of the New Zealand Bill of Rights Act 1990? An
Analysis, Critique and Tripartite Approach', [2001], Part III New
Zealand Law Review, pp 239-275. In his concluding remarks, Optican
makes a plea for the courts to provide some guidance on the matter so
as to assist policy makers and enforcement officers. The advantage of
defining what is and isn't a search is that it avoids difficulties in
determining what is and isn't reasonable.
413. R v Fraser (1997) 15 CRNZ 44; 3 HRNZ 731 (CA).
414. Kyllo v US (2001) 150 L Ed 2d 94.
415. Kyllo v US (2001) 150 L Ed 2d 94, 98.
416. Kyllo v US (2001) 150 L Ed 2d 94, 102.
417. (1997) 15 CRNZ 131.
418. The case concerned a police operation which took place over
more than 6 months. The police placed a video camera with a zoom
lens on an adjacent property and trained it onto the kitchen of the
accused's house. The accused was suspected of committing "serious
drug offences". The Court was cognisant of the privacy issues but also
the extent to which the accused and other persons using the house took
steps to avoid detection. The decision to use video surveillance only
took place after other evidence had been obtained and other
surveillance techniques considered.
419. R v Gardiner (1997) 15 CRNZ 131, 137.
420. NZ Stock Exchange v CIR [1991] 3 WLR 221; [1991] 4 All ER
443 (PC).
421. McKinlay Transport Ltd v R (1990) 68 DLR (4th) 568 (SCC);
Thomson Newspapers v Canada [1990] 1 SCR 425.
422. The Court of Appeal in Tranz Rail Ltd v Wellington District
Court [2002] 3 NZLR 580 discusses the procedures that should be
followed before a warrant can be obtained (the discussion is, however,
specific to the procedural requirements of the Commerce Act 1987).
423. R v Jarvis 219 DLR (4th) 233.
424. United Kingdom v Hrynyk 135 DLR (4th) 693, 702.
425. R v Grayson and Taylor [1997] 1 NZLR 399, 406 (CA).
426. R v Arp (1988) 166 DLR (4th) 296; 129 CCC (3d) 321 (SCC).
427. Police v Fonoti [2001] 2 NZLR 394.
428. R v Feeney [1997] 2 SCR 13 (SCC).
429. Wilson v New Zealand Customs Service (1999) 5 HRNZ 134,
p139 and p142.
430. Bliss v Attorney-General HC Napier CP62/92 6/6/2000 Young J.
431. R v Grayson & Taylor [1997] 1 NZLR 399.
432. See also chapter 14 of the LAC Guidelines, available at
www.justice.govt.nz/lac/
433. Baron v Canada [1993] 1 SCR 627.
434. Choudry v Attorney-General [1999] 2 NZLR 582, 592.
435. For a recent statement of this principle, see Choudry v Attorney-
General [1999] 2 NZLR 582.
436. See Hunter v Southam [1984] 2 SCR 145 where Dickson J held
that justifications after the event do not preserve the privacy interests
of the individual citizen from intrusions by the state.
437. R v Allen 19/12/96 CA 88/94.
438. Bell v Police 27/6/01, Panckhurst J, HC Dunedin AP10/01.
439. R v Bradley (1997) 15 CRNZ 363.
440. R v Bradley (1997) 15 CRNZ 363, 368.
441. R v Ratima (1999) 17 CRNZ 227 (CA), 230.
442. Waikato Regional Council v Wellington City Council & Ors
25/06/03, Venning J HC Auckland AP18-SW03.
443. Comité Paritaire de l'Industrie de la Chemise et al. v. Potash;
Comite Paritaire de l'Industrie de la Chemise et al. v. Sélection Milton
115 D.L.R. (4th) 702; R v Inco Ltd 54 OR (3d) 495 (Ont CA).
444. See Baron v Canada [1993] 1 SCR 627.
445. R v Jarvis 219 DLR (4th) 233.
446. Everitt v Attorney-General [2002)] 1 NZLR 82 (CA).
447. For example, a border control area R v Simmons [1988] 2 SCR
495
448. Police v Fowlie 15/02/02 Gittos J Auckland District Court For a
discussion of issues arising in the context of these types of searches,
see Lawrence Lustgarten 'The Future of Stop and Search' in Criminal
Law Review [2002] 603 and Gross and Livingstone (2002) 'Racial
Profiling under Attack' in Columbia Law Review Vol 102 p1413.
449. R v Jarvis 219 DLR (4th) 233.
450. R v Reid 30/7/98 CA 108/98.
451. R v Laugalis (1993) 10 CRNZ 350, 355.
452. Mangels v Police (1994) 11 CRNZ 361.
453. Police v Fowlie 15/02/02 Gittos J Auckland District Court.
454. R v Mellenthin (1992) 76 CCC (3d) 481; R v Koroheke 7/9/00,
CA 193/00.
455. Note that the courts in North America take the view that an
unlawful search is unreasonable. Hart Schwartz sets out a number of
policy reasons for why unlawful searches are of their very nature
unreasonable in "The Short Happy Life and Tragic Death of the New
Zealand Bill of Rights Act" [1998] New Zealand Law Review, pp 259 -
311, pp 271 - 275.
456. R v Jefferies [1994] 1 NZLR 290; (1993) 10 CRNZ 202.
457. R v Grayson and Taylor [1997] 1 NZLR 399, 406 (CA).
458. See, for example, the discussion by Thomas J of the exercise of
strip-search powers in Everitt v A-G [2002] 1 NZLR 82.
459. On the use of dogs in association with searches, see Wilson v
Maihi (1991) 7 CRNZ 178 (CA).
460. R v Laugalis (1993) 10 CRNZ 350.
461. R v Pratt (1994) 11 CRNZ 392; 1 HRNZ 323 (CA).
462. Police v Smith and Herewini [1994] 2 NZLR 306.
463. R v P [1996] 3 NZLR 132.
464. Re M [1992] 1 NZLR 29.
465. Neilsen v A-G [2001] 3 NZLR 433.
466. R v P [1996] 3 NZLR 132.
467. R v M [1995] 1 NZLR 242, 245.
468. See the decision of the Ontario Court of Appeal in R v Moran
(1987) 36 CCC (3d) 225 (Ont CA).
469. Police v Smith and Herewini [1994] 2 NZLR 306, 315.
470. Police v Smith and Herewini [1994] 2 NZLR 306, 315 (see
Adams 10.9.07(3)).
471. R v Hufsky [1988] 1 SCR 621, 632.
472. Neilsen v A-G [2001] 3 NZLR 433.
473. Re M [1992] 1 NZLR 29.
474. See R v Goodwin (No2) [1993] 2 NZLR 390 where the Court of
Appeal left this possibility open.
475. The New Zealand courts have held that the burden of showing,
on the balance of probabilities, that the arrest or detention of a suspect
has not breached section 22 of the Bill of Rights Act rests with the
Crown R v Te Kira [1993] 3 NZLR 257.
476. Attorney-General v Hewitt [2000] 2 NZLR 110.
477. Neilsen v Attorney-General [2001] 3 NZLR 433.
478. R v Ihaka CA 71/02, 17 June 2002.
479. On this point, see R Mahoney (2003), "Arbitrary Arrest and
Detention" in the New Zealand Bill of Rights Act, Oxford University
Press, p 523.
480. Van Alphen v The Netherlands 305/88.
481. Spakmo v Norway 631/95.
Part III: Section 23 – Rights of
persons arrested or detained
Section 23 Rights of persons arrested or detained
Section 23 of the Bill of Rights Act states that:

1. Everyone who is arrested or who is detained under any enactment:

a. Shall be informed at the time of the arrest or detention of the

reason for it; and
b. Shall have the right to counsel and instruct a lawyer without
delay and to be informed of that right; and
c. Shall have the right to have the validity of the arrest and
detention determined without delay by way of habeas corpus and
to be released if the arrest or detention is not lawful.

2. Everyone who is arrested for an offence has the right to be charged

promptly or to be released.
3. Everyone who is arrested for an offence and is not released shall be
brought as soon as possible before a court or competent tribunal.
4. Everyone who is

a. Arrested; or
b. Detained under any enactment for any offence or suspected
offence shall have the right to refrain from making any statement
and to be informed of that right.

5. Everyone deprived of liberty shall be treated with humanity and with

respect for the inherent dignity of the person.

Policy Triggers: do I need to consider section 23?

Is your agency or department working on a policy or developing a practice

that will enable a law enforcement officer to exercise a statutory power to
detain or arrest? If so, you will need to establish procedures and guidelines
to:
  ensure the enforcement officer gives the arrested or detained person
(the "detainee") sufficient information about the reasons for the arrest
or detention;
 ensure the enforcement officer informs the detainee that he or she may
consult and instruct a lawyer;
 ensure that detainees who wish to consult and instruct a lawyer are not
questioned in the absence of the lawyer;
 enhance the ability of detainees to consult with and instruct their
lawyers;
 enable the detainee to consult with a lawyer in private;
 enable the detainee to lodge a writ of habeas corpus with a court to test
the validity of the arrest or detention;
 establish minimum standards and conditions to which the detainee may
be subjected.

What every policy analyst needs to know about section 23

 The rights in section 23 apply only where a person has been arrested
or, in relation to sections 23(1), 23(4) and 23(5), detained under an
enactment.
 As a person may have been arrested or detained as a consequence of an
alleged offence, there may be some overlap and link between the rights
in sections 23, 24, and 25 - even though they apply to distinct stages of
the prosecutorial process.
 Where a person has been arrested or detained under an enactment
because of an alleged offence, the rights in section 23 apply from the
time a person is arrested or detained until such time as the prosecuting
authority formally advises an arrested person that he or she is to be
prosecuted and gives that person particulars of the charges he or she
will face.

Further discussion on the meaning of section 23(1) - initial

considerations

Who is "Everyone who is arrested or detained under any enactment"?

The words "under any enactment" distinguish the character or quality of

arrest or detention in section 23 from those in section 22. [482] The effect of
this qualification is to limit the scope of the meaning of "detention" for the
purposes of section 23. [483] The rights in section 23 apply in the case of a
detention only if that detention is authorised by legislation. [484] However, if
a person is "detained" but the detention falls outside of the scope of the
enactment, the rights in section 23 will still apply if the officer acted in
reliance on the statutory power. [485]

Statutory provisions, such as section 68 of the Land Transport Act 1998, may
expressly provide for a power of detention. In other cases the power may be
implicit given the nature of the statutory objective, for example, personal
searches under section 18(2) of the Misuse of Drugs Act 1975.

Key case

R v Goodwin [1993] 2 NZLR 153.

History of the section

The White Paper

The White Paper separated the proposed rights of persons arrested and
detained into those concerned with the liberty of the person (clause 15) and
those pertaining to arrest (clause 16). Apart from the right not to be
arbitrarily arrested or detained, section 23 is a consolidation of these clauses.

The Select Committee Reports on the Bill of Rights Bill

The Select Committee considered the two clauses on the rights of arrested
and detained persons alongside those pertaining to the criminal process
(namely clauses 18 and 19 of the Bill of Rights Bill). The Committee
received several comments about the general nature of these proposals. For
instance, it was suggested that they would shift the focus in criminal cases
from questions about the guilt of the defendant to questions about the actions
of the police. It was also submitted that the effect of the proposals would be
to create uncertainty and complexity in the law with a resultant lack of
guidance for police officers and an increase in the volume of litigation.
Finally, it was proposed that the order of these clauses should be changed to
better reflect the sequence of the criminal process, i.e. arrest, charging, and
trial.

The Select Committee noted that it was inevitable that the adoption of the
rights contained in these proposals as part of the supreme law would enable
arguments to be made on the basis of the infringement of these rights:
particularly as they had been the subject of considerable litigation in Canada.
However, the fundamental nature of these rights was such as to outweigh any
perceived disadvantages in their entrenchment. In the Committee's opinion,
awareness of the rights contained in the Bill would increase over time and
this would assist in overcoming some of the practical difficulties associated
with its adoption. Finally, the Committee supported the suggestion that the
Bill should be altered to reflect the sequence of events in the criminal
process.

With respect to the specific proposals, the Select Committee confined its
comments to the right not to be arbitrarily arrested and detained (which is set
out in section 22 of the Bill of Rights Act) and the right of arrested persons to
remain silent. The Committee considered that the latter right was one of the
most fundamental rights requiring protection. Although the Committee was
not convinced that the protection of silence was relevant in all situations
where persons were detained, it supported the view that it should also apply
where a person was detained "in relation to a suspected offence".

Origins in international treaties and overseas legislation

Articles 9(2) through (4) and 10(1) of the ICCPR provide:

9(2) Anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his arrest and shall be promptly informed of any charges against
him.
9(3) Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release. It
shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any
other stage of the judicial proceedings, and, should occasion arise, for
execution of the judgement.
9(4) Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that court may decide
without delay on the lawfulness of his detention and order his release if the
detention is not lawful.
10(1) All persons deprived of their liberty shall be treated with humanity and
with respect for the inherent dignity of the human person.

Articles 5(2) to 5(4) of the European Convention of Human Rights provide:

2. Everyone who is arrested shall be informed promptly, in a language which
he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of
paragraph 1(c) of this Article shall be promptly brought before a judge or
other officer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not
lawful.

Section 10 of the Canadian Charter sets out that:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that
right; and
(c) to have the validity of the detention determined by way of habeas corpus
and to be released if the detention is not lawful.

Section 23(1)(a) The right to be informed of the

reasons for the arrest
Section 23(1)(a) of the Bill of Rights Act is as follows:

Reasons for the arrest

Everyone who is arrested or who is detained under any enactment shall be
informed at the time of the arrest or detention of the reason for it.

Policy triggers: do I need to consider section 23(1)(a)?

If you are working on a policy or developing a practice that enables

enforcement officers to carry out powers of arrest or detention, you need to
ensure that the policy or practices are consistent with section 23(1)(a).

What every policy analyst needs to know about section 23(1)(a)

To comply with section 23(1)(a) of the Bill of Rights Act, the enforcement
officer should promptly inform an arrested or detained person (the
"detainee") of the reasons for his or her arrest or detention in words sufficient
to give the detainee notice of the true reasons for the arrest. With regard to
the type of information that needs to be provided, the enforcement officer
should be mindful that he or she does not:

 deliberately minimise the legal consequences of the jeopardy facing the

detainee;
 mislead the detainee over the reasons for the arrest or detention for the
purpose of eliciting information from him or her; or
 fail to advise the detainee that the reasons for the detention have
changed.

Measures to achieve compliance

When working on a policy or developing a practice that involves arrest or

detention, you should establish instructions or rules governing the exercise of
these powers. You may also need to consider what additional training and
support is required so that enforcement officers can carry out their tasks
consistently with the standards set down by the courts.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
following discussion on section 23(1)(a).

Related rights and freedoms

When developing policies or practices relating to the detention of persons,

you should consider the remaining rights in section 23, particularly section
23(1)(b) and 23(4). You may also need to consider:

 the right not to be arbitrarily arrested or detained (section 22);

 the right of everyone who is charged with an offence to be informed
promptly and in detail of the nature and cause of the charge (section
24(a));
 the right to adequate time and facilities to prepare a defence (section
24(d));
 the right to a fair trial (section 25(a));
 the right to be tried without undue delay (section 25(b));
 the right to be present at the trial and to present a defence (section
25(e)).
Further discussion on the meaning of section 23(1)(a)

Why should a person be informed at the time of his/her arrest or detention

of the reason for the arrest or detention?

The first right that is guaranteed to suspects under section 23(1) of the Bill of
Rights Act is the right to be informed of the reason for arrest or detention.
The purpose of informing a person who has been arrested or detained of the
grounds for the arrest or detention enables the person arrested or detained to:

 remedy any mistake, misapprehension, or misunderstanding in the

mind of the arresting or detaining authority;
 make use of the other rights that are set out in this section -
particularly, the right to consult a lawyer under section 23(1)(b) - as the
enjoyment of these rights is contingent on the detained or accused
person having "adequate knowledge of the reasons for detention or
arrest"; [486]
 Furthermore, once a suspect is able to identify the act or omission for
which he or she is arrested, the suspect might "make informed
decisions about whether to make a statement to the police, [...] co-
operate in the giving of body samples, participate in an identity parade,
show where exhibits are to be found, and co-operate in other aspects of
the police inquiry." [487]

When should a person be informed of the reasons for the arrest or

detention and what information should be provided?

Although section 23(1)(a) states that this information must be given at the
time the arrest is made or a person is detained, the courts have said that such
a requirement should not be taken literally where the enforcement officer
cannot comply.

The courts have held that section 23(1)(a) requires that the person is given
sufficient information to appreciate the nature and extent of the jeopardy they
are in. [488] In most cases this would involve identifying the date, place, and
act in question. [489] The person need not be told of the exact charge
contemplated or the reason in technical or precise language but the person
should have an appreciation of the "total situation" as it impacts on him or
her. [490] In certain cases, the reasons for the arrest or detention may be so
obvious from the conduct that preceded it that there is no need to expressly
inform the person of the reasons for the arrest. [491]

One Canadian commentator has observed: "The information conveyed to the

arrested or detained person [needs only be] such as to reasonably enable him
to decide whether or not to resist arrest as well as make an informed choice
concerning the right to retain and instruct counsel." [492]

The courts have also said that the person must be given sufficient information
to enable them to make an informed decision about whether or not to waive
their right to counsel. If a person is given an inadequate explanation as to the
reasons for his or her arrest, their subsequent decisions not to ask for legal
representation may be considered invalid. [493] Similarly, if the enforcement
officer misleads the arrested or detained person as to the reasons for his or
her arrest, then the arrest or detention is considered to be in breach of this
section. [494] It may also be considered a breach of this section if the
indication given to a person is that they have been arrested on significantly
less serious charges than the ones the police are contemplating.

When reasons for an arrest change

If a law enforcement officer becomes aware of other information that:

1. gives effect to a fundamental and discrete change in the purpose of the

investigation; and
2. may give rise to new and further charges

then the officer must advise the person arrested or detained of the new
reasons for his or her arrest or detention. [495]

Key cases

R v Goodwin [1993] 2 NZLR 153; Caie v A-G 6/4/01, Fisher J, HC Auckland

CP334-SD99; R v Jones, 16/7/1993 CA 312/92; R v Robinson CA 16/97, 12
May 1997;R v Gibbons (1997) 14 CRNZ 552; R v Tawhiti [1993] 3 NZLR
594; R v Schriek [1997] 2 NZLR 139; R v Small (1998) 52 CRR (2d) 315
(Alta CA); R v Evans [1991] 1 SCR 869.
Section 23(1)(b): The right to counsel and
instruct a lawyer without delay
Section 23(1)(b) of the Bill of Rights Act is as follows:

Right to counsel
Everyone who is arrested or who is detained under any enactment shall have
the right to counsel and instruct a lawyer without delay and to be informed of
that right

Policy triggers: do I need to consider section 23(1)(b)?

Are you developing a policy or practice that establishes or affects procedures

for dealing with persons arrested or detained (the "detainees") under any
statutory power? You should consider whether your policy or practice is
consistent with section 23(1)(b) if:

 it regulates the procedures for providing access to a lawyer;

 it provides procedures for informing detainees that they may be able to
gain access to free legal assistance;
 establishes guidelines on procedures relating to the questioning of
detainees.

What every policy analyst needs to know about section 23(1)(b)

 There are essentially four elements that make up the right to legal
representation. These are:

i. the right to consult counsel;

ii. the right to instruct a lawyer;
iii. the exercise of those rights without delay; and
iv. the right to be informed about those rights.

 The right under section 23(1)(b) not only ensures that detainees have
access to the information and advice they need before being
interviewed by law enforcement officers, it also enhances their
representation.
 In addition to protecting the various rights of detainees, counsel may
assist the law enforcement agency by: providing information and
 advice on technical matters, negotiating an agreement between the
agency and a detainee, and/or improving communications between the
arresting officer and a detainee.
 The phrase "without delay" does not mean instantly or immediately,
but the information must be given before the detainee's legitimate
interests are jeopardised.
 The expression "without delay" applies equally to the detainer and the
detainee. Although a detainee has the right to consult and instruct a
lawyer without delay, this right must be exercised without delay -
failure to do so may constitute a forfeiture of the right.
 Enforcement officers do not have to wait indefinitely for a lawyer
sought by a detainee to arrive - they are only required to allow a
reasonable opportunity for consultation.
 The right to consult and instruct a lawyer must be communicated to the
detainee effectively.
 Enforcement officers must facilitate contact with counsel. This means:
o a detainee who lacks sufficient means to pay for legal
representation should be advised of the existence of free legal
advice schemes;
o access to counsel should normally be in person. However, in
certain circumstances (particularly in the case of drunk drivers) it
may be made by telephone;
o generally, legal consultation should be in private.
 Enforcement officers must ensure that any waiver of the right to legal
representation is informed and voluntary.
 The right in section 23(1)(b) does not extend to the right to telephone a
friend or family member unless such a call is necessary to enable the
detainee to contact his or her lawyer.
 When a detainee seeks to exercise his or her right to legal
representation, an enforcement officer has a duty to refrain from taking
any positive or deliberate step to elicit evidence from the detainee until
he or she has had a reasonable opportunity to consult with counsel.
 In such circumstances, enforcement officers cannot merely refrain
from taking any positive or deliberate step to elicit incriminating
evidence - they should avoid acting in a manner that will have the
 effect of drawing out information in the absence of a detainee's legal
representative.
 A detainee may elect to waive the right to counsel. A waiver is not
effective unless it can be shown that the detainee had a proper
understanding of the protection under the right and the decision was an
informed and voluntary one.
 Enforcement authorities should, therefore, be aware of any barriers that
may affect a detainee's ability to make an informed choice to exercise
or waive the right to counsel.

Measures to achieve compliance

Consider what extra training or resources law enforcement officers need to

help them comply with their obligations under this section. Consider
developing checklists to help officers ensure the detainee understands about
the right to legal representation.

Your department should also develop guidelines on how an enforcement

officer may facilitate contact with a lawyer. These guidelines should:

i. remind the enforcement officer that a detainee who lacks sufficient

means to pay for legal representation should be advised of the
existence of free legal advice schemes;
ii. indicate the circumstances where access to counsel may be made by
telephone as opposed to being in person; and
iii. advise the enforcement officer that legal consultation, in general,
should be in private.

Consequently, when a detainee seeks to exercise his or her right to consult a

lawyer, it would be advisable for the enforcement officer to provide the
detainee with:

 a list of available lawyers drawn up by various law societies;

 a telephone book (both the yellow and white pages, if available);
 a telephone, including a cell-phone where a land-line is not available.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
following discussion on section 23(1)(b).
Related rights and freedoms

If you are considering whether the policy or practice that you are working on
raises section 23(1)(b) issues, you will also need to consider whether the
policy or practice is consistent with the remaining provisions of section 23,
particularly sections 23(1)(a) and 23(4) of the Bill of Rights Act.

You may need to consider:

 the right to adequate time and facilities to prepare a defence (section

24(d));
 the right to a fair hearing (section 25(a));
 the right to be present at the trial and to present a defence (section
25(e));

If the policy infringes section 23(1)(b), it may also infringe one or more of
the other rights.

Further discussion on the meaning of section 23(1)(b)

Section 23(1)(b) serves the same purpose as the rule laid down in the United
States by Miranda v Arizona. [496] In Miranda the US Supreme Court
interpreted the privilege against self-incrimination as requiring that a suspect
be informed of his right to consult and instruct a lawyer prior to police
questioning. The right to legal representation is also found in section 10(b) of
the Canadian Charter.

There are essentially four elements that make up the right to legal
representation. [497] These are:

 the right to consult counsel;

 the right to instruct a lawyer;
 the exercise of those rights without delay, and
 the right to be informed of these rights.

Why is it necessary to inform a suspect that he or she has the right to

counsel and to instruct a lawyer?

The right to consult with and instruct a lawyer is intended to correct the
imbalance between arrested or detained persons and the informed and
coercive powers available to the state. [498] The right under section 23(1)(b)
not only ensures that arrested or detained persons have access to the
information and advice they need before taking part in the interview with law
enforcement officers but it also enhances the representation of such persons.

In addition to protecting the various rights of arrested or detained persons,

counsel may: provide information and advice on technical matters, negotiate
an agreement between the agency and the arrested party and/or improve
communications between the arresting officer and the arrested or detained
persons. The presence of counsel also prevents the use of unacceptable
tactics on the part of the arresting officer and ensures that the position of the
arrested or detained persons is fully and accurately advanced.

What does it mean to exercise the right to legal representation without

delay?

The New Zealand courts have held that the right to legal representation
without delay is not synonymous with instantly or immediately. [499]
However, any delay in advising the arrested or detained person must be
reasonable. [500] The reasonableness of the delay will be dependent on the
facts of the case, but may be dependent on either the period of time that is
lapsed, [501] or the prejudice to the accused that results from the delay. [502]

The preamble to section 23(1)(b) confers the right to consult counsel to

everyone who is arrested or detained. It does not contemplate that persons be
advised they have the right before an arrest or detention takes place.
Nonetheless, Canadian courts have considered valid advice given before an
arrest or detention, provided there is "a close factual connection relating to
the [advice] to the detention and the reasons therefor." [503] However, as the
courts in New Zealand have not addressed this point, it is recommended that
agencies instruct their law enforcement officers to advise persons of their
rights once they have been arrested or detained even if that advice has been
given previously.

Can an arrested or detained person take his time when deciding whether to
consult and instruct a lawyer?

The New Zealand courts have held that the interests of justice and the
obligations inherent in human rights alike call for the expression "without
delay" to apply equally to the detainer and the detainee. Although a suspect
has the right to consult and instruct a lawyer without delay, the suspect must
exercise this right without delay. [504] Failure to do so may constitute a
forfeiture of the right.
The consequence of this approach is that where the circumstances require or
permit personal attendance of counsel, the enforcement officer is not obliged
to wait indefinitely for a lawyer sought by a suspect to arrive. They are
required to allow for a reasonable opportunity for consultation. Again, what
is reasonable is a question of fact, dependent on the particular circumstances
and the statutory context. [505] However, agencies need to be cautious about
acting to circumvent the right.

In R v Etheridge, [506] the Court of Appeal identified a number of factors

that were to be indicative of whether a delay was reasonable or not. These
factors included whether:

i. the law enforcement officers knew the person wanted legal counsel;
ii. the law enforcement officers knew arrangements had been made for a
solicitor to represent him;
iii. there was a pressing need or great urgency confronting the
enforcement officers requiring them to conduct the interview without
the lawyer being present.

What does it mean "to be informed" that you have the right to a lawyer?

Having determined when it should be given, the next matter that needs to be
considered is the precise content of the advice. The leading case on the
meaning of "informed" is R v Mallinson, [507] in which the Court of Appeal
confirmed the view that the obligation on the arresting officer is to
communicate the nature of the right in a clear, meaningful way that gives
effect to the right. [508]

The determination of whether there has been effective communication will

always be a question of fact, but there are a number of factors that will be
considered to go to show whether the right has been given effect to. These
include whether the person arrested or detained:

 fully understood what the right entitled him or her to do or refrain from
doing;
 had the mental, education, or language skills to fully understand what
the role of counsel was and what the implications were if he or she
waived the right.
There may also be occasions where it is necessary for the enforcement officer
to re-advise the arrested or detained person that he or she has the right to
legal representation. Such occasions may include situations where:

 the circumstances surrounding the arrest have changed;

 there has been a substantial lapse in time between the initial arrest and
the commencement of questioning; or
 the person detained or arrested elects to participate in a further
evidential process. [509]

Having advised the arrested or detained persons that they have the right to
consult a lawyer, is the arresting officer under an obligation to actually
facilitate contact with the lawyer?

The New Zealand courts have been very clear that once an arrested or
detained person indicates a desire to consult a lawyer the arresting officer is
under a duty to assist the person to make that contact. As Richardson J stated
in MOT v Noort and Police v Curran: [510]

That right can only have meaning to an arrested or detained person if it is

taken as raising a correlative obligation on the enforcement officer to
facilitate contact with a lawyer.

The New Zealand courts have routinely held that an individual who is unable
to contact one lawyer "should normally be allowed to try one or two others".
[511] However, once the individual has made several unsuccessful attempts
to contact various lawyers, then the police would be within their right to
request the detainee to carry on with the testing procedure (in the case of
drunk drivers) or commence their interrogation of the accused (in other
situations).

The right in section 23(1)(b) does not extend to the right to telephone a friend
or family member unless such a call was necessary to enable the person to
contact his or her lawyer. [512]

In order to ensure that contact with a lawyer has been adequately facilitated,
the following additional points should be noted:

Legal aid: Where an arrested or detained person, who has been informed of
his or her right to consult and instruct a lawyer, advises the enforcement
officer that he or she cannot afford one, the enforcement officer should
advise the arrested or detained person of the existence of free legal advice
schemes (such as the Police Legal Assistance Scheme). [513] Failure to do so
may lead to the exclusion of any evidence obtained thereafter.

Choice of counsel: In New Zealand an accused has a prima facie right to

appoint a lawyer of his or her own choice, unless the accused lacks sufficient
means to retain counsel and is relying on the state to fund his or her legal
representation. Where an accused person is legally assisted, he or she has no
right to counsel of choice. This contrasts with the position in Canada. [514]

Consultation with a lawyer in person or over the phone: Unless a person

elects to consult with his or her lawyer by phone, or because the
idiosyncracies of the breath and blood alcohol legislation regime demand that
consultation in most cases take place by phone, the police are under a duty to
refrain from attempting to elicit evidence from any person who seeks to
exercise his right to legal representation until they have consulted with the
lawyer in person.

Consultation in private: In general, the police should allow a detainee to

consult with a lawyer in private. [515] However, the right to privacy may be
waived or departed from where there is good reason. [516] Good reason may
exist where there is "a realistic prospect of criminal conduct if the suspect is
left unsupervised." [517]

May the enforcing authorities interrogate a suspect who makes

incriminating statements while waiting for counsel to arrive?

When a suspect seeks to exercise his or her right to legal representation, an

enforcement officer is under a duty to refrain from taking any positive or
deliberate step to elicit evidence from the suspect until he or she has had a
reasonable opportunity to consult with counsel. [518] Any evidence obtained
by law enforcement officers as a result of failing to observe the right of the
accused not to answer questions may be ruled inadmissible by the courts on
the grounds that the evidence was obtained unfairly. [519]

However, it would appear that the courts will make enquiries as to whether
the law enforcement officers "elicited" the information before ruling whether
the evidence is inadmissible.

The Court of Appeal has addressed the issue of whether enforcement officers
could use evidence gained where the accused voluntarily provides
information even though he or she is waiting for his or her lawyer to arrive
(see for example R v Taylor [520]).
However, the courts have not taken a consistent approach to determining
whether a state official elicited the information through unfair practices.
[521] It would seem that enforcement officers need to avoid steps that could
objectively be regarded as putting pressure on the accused to make
statements that may incriminate them.

Can an arrested or detained person waive his or her right to consult

counsel?

An arrested or detained person is at liberty to waive his or her right to consult

with and instruct a lawyer. The New Zealand courts have adopted a similar
approach to the Canadian Supreme Court in holding that the failure to request
the right to consult counsel and instruct a lawyer is not of itself a waiver. To
amount to a waiver, the person must exercise a conscious choice that is both
informed and voluntary. A proper understanding of the right is a pre-requisite
for a valid waiver. [522]

The Canadian Supreme Court has taken the view that valid waivers of the
equivalent provisions of the Canadian Charter will be rare. In their view, the
validity of a waiver is linked to the person's awareness of the rights which the
provision was enacted to protect. A person cannot be said to have validly
waived his or her right to receive information unless the person was fully
appraised of the information he or she was entitled to receive.

According to Lamer J in R v Bartle: [523]

The fact a detainee merely indicates that he knows his rights will not, by
itself, provide a reasonable basis for believing that the detainee in fact
understands their full extent or the means by which they can be implemented.
[524]

Key cases

R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA); MOT v Noort;
Police v Curran [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA); R v
Etheridge (1992) 9 CRNZ 268; Rae v Police [2000] 3 NZLR 452; (2000) 18
CRNZ 182 (CA); R v Kepa 1/7/1999, CA214/99; R v Kohler [1993] 3 NZLR
129; (1993) 10 CRNZ 118 (CA); R v Taylor [1993] 1 NZLR 647; (1992) 9
CRNZ 481 (CA); R v Read CA 438/00, 14/2/01 R v Bartle [1994] 3 SCR.
173; R v McKenzie (1999) 68 CRR (2d) 155; Miranda v Arizona (1966) 384
U.S 436; R v Read CA 438/00, 14/2/01; R v Kai Ji CA 333/03 8/09/03.
Section 23(1)(c) Determining the validity of the
arrest or detention
Section 23(1)(c) of the Bill of Rights Act is as follows:

Habeas corpus
Everyone who is arrested or who is detained under any enactment shall have
the right to have the validity of the arrest and detention determined without
delay by way of habeas corpus and to be released if the arrest or detention is
not lawful.

Policy triggers: do I need to consider section 23(1)(c)?

 Is your agency or department working on a policy or developing a

practice that enables enforcement officers to carry out powers of arrest
or detention?
 Does the power of arrest or detention take place in remote locations?

If the answer to either of the above is "yes", you may need to consider
whether your policy or practice is consistent with the right set out in section
23(1)(c) of the Bill of Rights Act.

What every policy analyst needs to know about section 23(1)(c)

 The purpose of section 23(1)(c) is to enable a detainee to test the

validity of the arrest or detention, so the detainee may be released if the
arrest or detention is found to be unlawful.
 The procedure for hearing writs of habeas corpus in New Zealand is set
out in section 9 of the Habeas Corpus Act 2001.
 Section 9(3) of that Act requires that the date for hearing the
application for the writ be no later than three days after the date on
which the application is filed.

Measures to achieve compliance

If you are working on a policy or is developing a practice that permits

enforcement officials to arrest or detain an individual pursuant to an
enactment (or has such a policy or practice currently in place) you need to be
aware that:
 i. a detainee has a right to file an application for a writ of habeas corpus
before the High Court to test the validity of the arrest and detention;
and
ii. the application must be treated as a matter of priority and urgency.

Enforcement officials should be made aware of the elements that make up

section 23(1)(c) of the Bill of Rights Act. More importantly, your department
should establish the procedures necessary to allow it to respond, in a timely
manner, to any application for a writ of habeas corpus filed by an individual
who is arrested or detained by an employee of your department.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 23(1)(c) below.

Further discussion on the meaning of section 23(1)(c)

What is the purpose of section 23(1)(c)?

One of the most fundamental principles of human rights is "the protection of

individual liberty, especially from the undue exercise of state power." [525]
As a means of securing the rights of citizens not to be arbitrarily-including
unlawfully - detained, the "great writ" of habeas corpus ad subjiciendum has
been long accepted as a constitutional protection of basic importance. [526]
This principle, which is recognised internationally by way of Article 9(4) of
the ICCPR, is reflected in section 23(1)(c) of the Bill of Rights Act, and
confers upon an arrested or detained person the right to test the validity of the
arrest or detention by way of habeas corpus. If the arrest or detention is found
to be unlawful, the arrested or detained person must be released.

The Court of Appeal observed in Bennett v Superintendent of Rimutaka

Prison: [527]

In the hands of creative lawyers and Judges it has proved to be a flexible

remedy against oppression and unlawful conduct. In recent years its use in
this country may largely have been confined to immigration and refugee
matters because alternative convenient and specific remedies have been
developed to meet particular problems in the general law. Bail laws and
legislation relating to child custody disputes are examples. But habeas corpus
is not to be shackled by precedent. It will adapt and enlarge as new
circumstances require.
What is the procedure for filing a writ of habeas corpus and how soon does
an application for a writ of habeas corpus have to be heard by the court?

The right of a detainee to have his or her application for a writ of habeas
corpus reviewed by a court without delay is regarded as critical to giving
effect to the right. The procedure for hearing writs of habeas corpus in New
Zealand is set out in section 9 of the Habeas Corpus Act 2001. Section 9(3)
of that Act requires that the date for hearing the application for the writ be no
later than three days after the date on which the application is filed.

The Human Rights Committee has found a breach of article 9(4) of the
ICCPR in a case where an individual was detained incommunicado for three
days during which it was impossible for him to gain access to a court to
challenge his detention. [528] This case can be contrasted with that of
another where the Committee found no breach of article 9 (4) when the
applicant was held for fifty hours without having the opportunity to challenge
his detention. [529]

The Human Rights Committee has also been critical where a court, having
upheld the application for a writ of habeas corpus, has failed to render its
decision "without delay". In Torres v Finland, [530] the Committee held
"that, as a matter of principle, the adjudication of a case by any court of law
should take place as expeditiously as possible." However, the question of
whether a decision was reached without delay depends on the type of
deprivation of liberty and on the circumstances of a given case. A period of
almost three months between the hearing and the date when the decision was
reached is "in principle too extended."

It should be noted that the expression "without delay" has been interpreted to
mean that the lawfulness of administrative detention must be directly
reviewed by a court and not only after a review by a higher administrative
authority. [531] The European Court of Human Rights has said that this does
not have to be a "court of law of the classic kind integrated within the
standard judicial machinery of the country". [532] But it must be a body that
has judicial character and that provides the "guarantees of procedure
appropriate to the kind of deprivation of liberty in question". [533]

Key cases

Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR 616; Hunia v

Parole Board [2001] 3 NZLR 425; (2001) 18 CRNZ 534; Hammel v
Madagascar (155/83); Torres v Finland (291/88).
Section 23(2) The right to be charged promptly
or released
Section 23(2) of the Bill of Rights Act is as follows:

To be charged promptly
Everyone who is arrested for an offence has the right to be charged promptly
or released.

Policy triggers: do I need to consider section 23(2)?

You may need to consider if the policy or practice that you are developing is
consistent with section 23(2) if it:

 provides enforcement officers with the power of arrest;

 establishes procedures for dealing with persons who are arrested.

What every policy analyst needs to know about section 23(2)

 The right does not require that the person be charged immediately - but
requires that an enforcement officer act with a sense of urgency.
 Section 23(2) does not require a person to be charged immediately on
arrest or detention. However, any delay in charging a person merely
because it is not administratively convenient to do so, or to allow the
Police an opportunity to strengthen their case against the person
detailed (for example, by prolonged questioning or by allowing the
police time to gather additional evidence to support a charge), could
run afoul of the right in section 23(2).

Measures to achieve compliance

The most effective way of complying with section 23(2) is to establish

internal procedures to allow an arrested person to be brought promptly before
a suitably authorised official for charging. Enforcement officers should be
encouraged to decide, as soon as possible, the particular charges that should
be laid against the arrested person. If there is insufficient evidence to support
the proposed charges, enforcement officers must release the arrested person,
but may re-arrest the person if such evidence subsequently becomes
available.
The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 23(2) below.

Related rights and freedoms

Section 23(2) relates to the initial stage of the criminal justice process where
decisions are being made whether to continue to detain a person. Section
23(3) applies flows on logically from section 23(2) as it enables the person
who is arrested to test the validity of the decision to continue to detain him or
her and any subsequent decision on whether to charge the person.

Further discussion on the meaning of section 23(2)

The right to be charged promptly or released

Under this subsection, an arrested person has the right to be charged

promptly or released. The word "promptly" does not mean that no time is
allowed to pass. Time will be required to make decisions (particularly
whether there is sufficient evidence to charge the person and, if so, with
what) and, as a result, some delay will be unavoidable. This was confirmed
by Richardson J in R v Te Kira: [534]

Section 23(2) recognises that some time may have to elapse before a decision
to charge can be made and, if so, as to what particular charge should be
brought. In its natural and ordinary meaning 'prompt' carries a sense of
urgency, of 'acting with alacrity' as the Oxford English Dictionary puts it.

The courts have also noted that there are other reasons where the delay
between arrest and charge may be justifiable, such as where the enforcement
authorities are urgently called elsewhere, where they wish to briefly question
the person, or where they have afforded him or her the right to consult with
their lawyer. [535] At the same, time section 23(2) is likely to be infringed
where the delay has been brought about in order to achieve an unfair
advantage, for example where the delay is to allow the police the opportunity
to strengthen their case through prolonged questioning or evidence gathering.
[536] It should be noted that a delay in charging a person may lead to an
infringement of section 23(3) of the Bill of Rights Act and the right to be
brought before a court as soon as possible.
Key cases

R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA); R v Rogers

(1993) 1 HRNZ 282

Section 23(3): The right to be brought before a

court
Section 23(3) of the Bill of Rights Act is as follows:

To be brought promptly before a court

Everyone who is arrested for an offence and is not released shall be brought
as soon as possible before a court or competent tribunal

Policy Triggers: do I need to consider section 23(3)?

You may need to consider whether the policy or practice that you are
developing is consistent with section 23(3) if it:

 permits enforcement authorities to arrest and detain a person for the

purposes of questioning in connection with the commission of
offences;
 is silent on the time-frame for bringing an arrested person before a
court or competent tribunal;
 allows enforcement authorities to detain an arrested person in custody
on a charge while continuing to investigate the case against that
person;
 affects the ability of courts to sit or the numbers of judges that may be
available to attend hearings (over holiday periods, for example).

What every policy analyst needs to know about section 23(3)

 The right to be brought before a court is guaranteed to "everyone who

is arrested for an offence" not just those who are "charged with an
offence".
 The arrested person must be brought before a judge or a competent
tribunal within a reasonable and realistic time period.
 The time period under consideration runs from arrest until presentation
before the court.
  Delays in bringing a person before a judge caused by delay on a
holding charge or for reasons arising out of Police tactics are likely to
breach the section.
 The arrested person needs to be brought before a judicial body that is
independent, objective and impartial in determining the issues.

Methods to increase the compliance of your policy with section 23(3)

In order to comply with section 23(3), your department should develop

internal procedures that ensure that an arrested person is brought before a
judge or a competent tribunal as soon as possible. These procedures may
need to include consideration of the availability and accessibility of court
venues in other centres or the availability of special sittings.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 23(3) below.

Related rights and freedoms

Section 23(3) of the Bill of Rights Act flows on logically from section 23(2).

Further discussion on the meaning of section 23(3)

What is the purpose of the right that is guaranteed under section 23(3)?

Section 23(3) of the Bill of Rights Act requires that everyone who is arrested
for an offence and is not released must be brought before a court or some
other tribunal authorised by law to exercise judicial power as soon as
possible. As noted in one case, the time period under consideration runs from
arrest until presentation before the Court. [537] The intention behind section
23(3) is to prevent persons arrested on suspicion of having committed a
criminal offence from being arbitrarily or unjustifiably deprived of their
liberty.

There are three key aspects to section 23(3) of the Bill of Rights Act:

i. the judicial control must be "as soon as possible";

ii. judicial scrutiny must be automatic - it cannot depend on a previous
application by the arrested person;
iii. the arrested person must be heard by the judicial officer in person.
How soon is "as soon as possible"?

The New Zealand courts have acknowledged that the phrase "as soon as
possible" does not mean immediately. As stated by Cooke J in R v Te Kira:

The requirements "promptly" [as set out in section 23(2) of the Bill of Rights
Act] and "as soon as possible" must be interpreted realistically. For example,
a reasonable time may be needed for a decision whether or not to charge a
person arrested (as by reference of the case to a senior officer) and, if the
person is to be charged, for the process of laying the charge and incidental
matters. Further, if having been given the information required by s 23(1)(a)
and (b) and s 23(4) the person wishes to make a statement or to wait for the
arrival of a lawyer, a reasonable time may be allowed for either of those
stages.

The inclusion of the phrase "as soon as possible" is one of the main
differences between section 23(3) of the Bill of Rights Act and Article 9(3)
of the ICCPR - upon which it is based - as the latter provision uses the term
"promptly" to describe the time-frame in which the police must bring arrested
persons before a judicial authority. However, the Human Rights Committee
has been vague on the exact meaning of this phrase, commenting only that in
no event may this period last more than a "few days". [538]

Although the enforcement authorities are expected to take whatever steps are
necessary to ensure that an arrested person is accorded the rights
contemplated by this section, the courts have recognised that they can only
do so "within the limits of proper administrative and financial constraints."
[539] Enforcement officials are therefore required to take steps in fulfilment
of these obligations where such steps are available. For instance, in R v
Shriek [540] the accused was arrested in Greymouth on cheque charges on a
day when the Court was not sitting. The Court of Appeal held that the
circumstances of the case did not necessitate the convening of a special
sitting of the court in compliance with section 23(3) given the nature of the
offending. However, there may be circumstances where compliance with
section 23(3) will point towards a duty on police to transport the person to
another centre or to take advantage of the opportunity for a special sitting.
[541]

The enforcement authorities may not deliberately keep an arrested person in

custody under the pretext of a lesser charge while a more serious charge
against that person is being further investigated, nor as a tactical delay while
they are gathering further evidence to support a conviction. [542]
Does an arrested person have to be brought before an actual court?

The New Zealand courts have not addressed this point, but section 23(3)
appears, like Article 9(3) of the ICCPR, to anticipate that there may be
situations where an arrested person is brought before a judicial body other
than a court. The Human Rights Committee has stated that such a body must
be independent, objective, and impartial in relation to the issues dealt with.
[543] A panel of Justices of the Peace appointed to decide whether there was
sufficient evidence to hold an individual in custody would likely satisfy such
criteria.

Key cases

R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA); R v Shriek

[1997] 2 NZLR 139; (1996) 14 CRNZ 449 (CA); R v Greenaway [1995] 1
NZLR 204 (CA); Kulomin v Hungary (521/92).

Section 23(4) The right to refrain from making

any statement
Section 23(4) of the Bill of Rights Act is as follows:

Right to silence
Everyone who is
(a) Arrested; or
(b) Detained under any enactment
for any offence or suspected offence shall have the right to refrain from
making any statement and to be informed of that right.

Policy triggers: do I need to consider section 23(4)?

You may need to consider whether the policy or practice that you are
developing is consistent with section 23(4) if it:

 enables law enforcement officers to question detainees, either in

connection with a statutory power of entry or more generally;
 establishes guidelines on what steps to take when a detainee has
exercised the right to silence;
 makes it an offence for a detainee to refuse to respond to questions put
to him or her by the enforcement authorities;
  enables enforcement officers to use techniques or devices to elicit
information from persons who have been arrested or detained on a
charge but released on bail, for the purposes of gaining further
evidence.

What every policy analyst needs to know about section 23(4)

 The right protected by section 23(4) comprises two distinct elements:

o the right to refrain from making a statement; and
o the right to be informed of that right.
 Section 23(4) protects the right of persons who are arrested or detained
not to make incriminating or prejudicial statements.
 Although the rights affirmed by this provision begin with the taking
into custody, the right extends the period leading to trial and the
determination of the charge.
 The right provides a general immunity from being compelled on pain
of punishment to answer questions posed by others.
 The right presents a general immunity from being compelled to answer
questions in situations where those answers may incriminate.
 Once a detainee has made it clear that he or she does not wish to
answer questions, no further attempts may be made to elicit
information from the detainee.
 The exclusion of evidence obtained in breach of section 23(4) is not
limited to statements made by the detainee, but extends to include any
information disclosed by the detainee following what the court would
regard as unfair tactics by enforcement officers.

Measures to achieve compliance

Adherence to the right to silence is likely to be monitored closely by the

courts. If you are considering developing a power to question detainees you
will need to ask:

 whether the power is essential to the operations of the agency;

 the purpose of the power;
 what steps could be taken to achieve that purpose without requiring the
detainee to answer questions;
  whether there are adequate procedural protections surrounding the
questioning;
 whether you will need to use the information in subsequent legal
proceedings against the detainee, or whether the use will be restricted;
 what steps that you wish to take to ensure compliance with the power.

You may also need to establish guidelines to ensure that the detainee has the
opportunity to obtain advice and legal representation during questioning. The
detainee being questioned should also be allowed to act on that advice.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 23(4) in the Bill of Rights Act Guidelines.

Related rights and freedoms

When developing your proposals that might give rise to issues under section
23(4) you should also whether the proposals are consistent with the
remaining provisions in section 23, particularly section 23(1)(b). You should
also consider:

 the right not to be compelled to provide information (section 14);

 the right to be secure against unreasonable search and seizure (section
21);
 the right to a fair trial (section 25(a));
 the right to be presumed innocent (section 25(c));
 the right not to be compelled to be a witness or confess guilt (section
25(d));
 the right to the observance of principles of natural justice (section
27(1)).

In addition to the Bill of Rights Act, each of these aspects of the right to
silence is protected, to varying degrees, by other statutory provisions or by
common law rules. For instance, the right to refrain from speaking is
protected indirectly through the law's insistence on the voluntariness of
confessions and through the exercise of the discretion to reject confessions
on the grounds of unfairness. Other expressions of the right to silence include
the caution that is given under the Judges Rules, and in the judicial warnings
that adverse inferences are not to be drawn from exercising the right to
silence.
Further discussion on the meaning of section 23(4)

What is the right to silence?

Section 23(4) of the Bill of Rights Act protects the right of persons who are
arrested or detained under any enactment not to make a statement. Section
23(4) protects the right of silence before trial whereas section 25(d) protects
the right at the trial itself. However, as alluded to by the majority in R v
Barlow, [544] there is a reasonable degree of overlap between the two rights.
Both these sections put into legislative form the right to silence that existed
before the Bill of Rights Act was passed. The "right to silence" has been
described as an "accumulation of a number of Related rights and freedoms or
liberties of [suspects] or accused persons." [545] In Smith v Director of
Serious Fraud Office, [546] Lord Mustill listed the various aspects that are
protected by the right as follows:

 a general immunity from being compelled on pain of punishment to

answer questions posed by others;
 a general immunity from being compelled to answer questions whose
answers may incriminate;
 a specific immunity for those under police questioning on suspicion of
criminal activity from being compelled to answer questions;
 a specific immunity for those on trial from being compelled to give
evidence;
 a specific immunity for those charged with an offence from having
questions put to them by police or others in authority; and
 a specific immunity for those on trial from having adverse comment
made on their failure to answer questions put to them prior to trial or at
trial.

What are the components of the right to silence?

The right protected by section 23(4) comprises two distinct elements:

 the right to refrain from making a statement; and

 the right to be informed of that right.

The right to refrain from making a statement extends to the production of

documents and verbal statements.
The right to silence is often considered by the New Zealand courts in
conjunction with the rights accorded to arrested or detained persons under
section 23(1)(b) of the Bill of Rights Act. In cases where suspects and
accused persons are advised of their right to consult a lawyer and they
indicate a desire to do so, the enforcement authorities are obliged to cease
any attempt to gain information from them under their lawyers arrive. In
cases where suspects and accused persons were not advised of their right to
consult a lawyer, the courts have, in general, excluded any confessions
subsequently obtained.

When does the right to silence apply?

The right to refrain from making a statement commences when a person has
been arrested or detained under any enactment. [547]

The right affirmed by section 23(4) protects accused persons throughout the
period they are placed on remand and also the time they are released from
police custody.

The majority in the Court of Appeal in Barlow held that although the rights
affirmed by this provision begin with the taking into custody, they did not
cease to operate when the person was released on bail. It could continue its
effect down to trial and the determination of the charge so long as the police
attempt to obtain information from the accused by whatever means.

Whose conduct will infringe the right?

The approach in Barlow is consistent with that taken in Canada. In Broyles v

R [548] the Supreme Court of Canada held that the police may not elicit
confessions from an accused through the use of a undercover officer or an
informer. However, Iacobucci J did note that:

In every case where the right to silence is raised, the threshold question will
be: was the person who allegedly subverted the right to silence an agent of
the state? In answering this question one should remember that the purpose
of the right to silence is to limit the use of the coercive power of the state to
force an individual to incriminate himself or herself; it is not to prevent
individuals from incriminating themselves per se. Accordingly, if the person
to whom the impugned remarks is made is not an agent of the state, there will
be no violation of the right to silence. [549]

Iacobucci J added that in order to determine whether or not the informer is a

state agent:
...it is appropriate to focus on the effect of the relationship between the
informer and the authorities on the particular exchange or contact with the
accused...only if the relationship between the informer and the state is such
that the exchange between the informer and the accused is materially
different from what it would have been had there been no such relationship
should the informer be considered a state agent for the purposes of the
exchange.

It would therefore appear that the right to silence may not be infringed in
situations where a person suspected of committing an offence divulges
incriminating information to a person with whom he or she has a pre-existing
relationship that included the imparting of personal confidences and where
the recipient of this information makes it known to the police.

What does the right to silence actually mean?

Once a suspect or accused person has expressed a desire to exercise his or her
right to silence as guaranteed in section 23(4), the police are obliged to cease
questioning him or her either directly or by deception or trick. [550] To give
a real meaning to the right, the courts have been quick to exclude statements
obtained by persistent questioning after the suspect or accused has made it
clear that he or she does not want to answer questions. [551]

The exclusion of evidence obtained in breach of section 23(4) is not limited

to statements made by the suspect or accused, but extends to include any
information disclosed by the accused following what the court would regard
as unfair tactics by enforcement officers. [552] For example, the police
cannot continue to question the accused once the lawyer for the accused has
left after informing the police that the accused does not wish to answer
questions. [553] Similarly, enforcement officers cannot use a third party to
actively elicit information from the accused in circumstances where the use
of the third party undermines the right to silence. [554]

Key cases

R v Barlow (1995) 14 CRNZ 9 (CA); R v Taliau 30/6/99, CA99/99; R v

Taumata (Ruling No 4) (1997) 15 CRNZ 451; 4 HRNZ 297; Broyles v R
(1991) 68 CCC (3d) 308 (SCC); Smith v Director of Serious Fraud Office
[1992] 3 All ER 456;
Section 23(5): The right to be treated with
humanity and respect
Section 23(5) of the Bill of Rights Act is as follows:

Humanity and dignity

Everyone deprived of liberty shall be treated with humanity and with respect
for the inherent dignity of the person.

Policy Triggers: do I need to consider section 23(5)?

Section 23(5) is essentially concerned with ensuring that detainees are kept in
facilities that meet minimum standards. Are you currently working on a
policy or developing a practice that:

 enables the state to detain individuals?

 permits the enforcement authorities to hold persons for any length of
time?
 authorises the enforcement authorities to restrain detainees?
 allows the enforcement authorities to hold individuals in amenities that
have limited facilities or services for the care and safety of detainees?
 enables law enforcement officers to undertake personal searches of
persons detained in custody?

If so, you may need to consider whether your policy or practice is consistent
with the right set out in section 23(5) of the Bill of Rights Act.

What every policy analyst needs to know about section 23(5)

 Section 23(5) is essentially concerned with ensuring that, where

persons are detained by the state, the conditions under which they are
detained conform with commonly accepted standards.
 The term "deprivation of liberty" refers to broader forms of detention
than just those used in law enforcement.
 The application of the right extends to all forms of detention and
includes all forms of detention after conviction.
 Any person deprived of liberty under the laws and authority of the
New Zealand government has the benefit of this right.
  In considering whether a detainee has been treated with humanity,
consideration will be given to the degree of suffering, both physical
and mental, to which the detainee has been subjected.

Methods to increase the compliance of your policy with section 23(5)

When developing policies or procedures for detaining persons, consider

whether there are any appropriate international standards that may be of
assistance when developing guidelines. For example, the Standard Minimum
Rules for the Treatment of Prisoners establishes the minimum conditions for
the treatment of prisoners.

You will also need to consider what training is required to enable staff to
comply with the guidelines.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 23(5) below.

Related rights and freedoms

When considering whether your policy or practice complies with section

23(5), you should also stop to consider whether it is consistent with the right
not to be subject to cruel, degrading, or disproportionately severe treatment
or punishment (section 9 of the Bill of Rights Act).

Further discussion on the meaning of section 23(5)

Whenever a person is deprived of liberty

The term "deprivation of liberty" is not confined to the initial stages of the
criminal process. As noted by Richardson J in R v Barlow: [555]

Section 23(5) [...] applies to any deprivation of liberty. The White Paper,
para 10.102, notes that the provision clearly has relevance to standards of
police detention, prison administration and so forth and that there is an
overlap between it and the prohibition of torture and cruel, degrading or
disproportionately severe treatment or punishment in (now) s 9. In the draft
Bill accompanying the White Paper the present s 23(5) was included along
with the present s 22, the right not to be arbitrarily arrested or detained, and
parts of the present s 23 under the section heading (now given to s 22) of
"Liberty of the person". It could equally be included as subs (2) of s 8. Its
presence in s 23 does not assist in determining the reach of s 23(4).
Any person deprived of liberty under the laws and authority of the New
Zealand government, whether in a police cell, prison, correctional institution,
hospital - particularly a psychiatric hospital - an asylum processing facility,
or elsewhere have the benefit of this right.

Treated with humanity and with respect for the inherent dignity of the
person

As stated previously, this provision complements the prohibition on torture

and cruel, degrading, or disproportionately severe treatment or punishment,
as set out in section 9 of the Bill of Rights Act. Persons deprived of their
liberty may not be subject to such treatment or punishment, or to any
constraint other than that resulting from the deprivation of liberty. Respect
for the dignity of such persons must be guaranteed under the same conditions
as that of free persons. As noted by the Human Rights Committee, persons
deprived of their liberty enjoy all the recognised rights, subject to restrictions
that are unavoidable in a closed environment. [556]

A person who is detained is treated with humanity in circumstances where

the form of detention does not give rise to feelings of anguish and inferiority
capable of humiliating and debasing a detainee. [557] The conditions and
circumstances under which a person is detained, and purpose of the
detention, are significant in determining whether a person has been treated
with humanity. It is important in this regard to note that the totality of
circumstances under which a person is detained may help determine whether
a person is treated with humanity. [558]

It is important to note that the Standard Minimum Rules for the Treatment of
Prisoners, which were first adopted by the United Nations in 1955, set out in
detail the minimum conditions which are suitable in the treatment of
prisoners, including those under arrest or awaiting trial. Among the
requirements in these Rules are minimum floor space and cubic content of air
for each prisoner, adequate sanitary facilities, clothing which shall be in no
manner degrading or humiliating, provision of a separate bed and provision
of food of nutritional value adequate for health and strength. The Human
Rights Committee has observed that these are minimum requirements which
should always be observed, even if budgetary considerations may make
compliance with these obligations difficult. [559]
What type of conduct would fall within section 23(5)?

Although a person's rights and liberties are subject to a number of limitations

simply by virtue of being deprived of their liberty, section 23(5) makes it
clear that there is a residue of basic rights which they may not be denied; and
if they are denied them, then they are entitled to legal redress.

Unfortunately, the New Zealand courts have had little opportunity to

examine the type of conduct that would be considered contrary to this
section. But in those cases where they have, the courts have looked at the
degree of suffering, both physical and mental, that the detained person has
been subjected to. In Ministry of Transport v Entwisle, [560] the accused was
acquitted of a charge of refusing to provide a blood sample for the purpose of
a drink-driving investigation on the ground that the rough treatment meted
out to him by the police - which had left him "shocked and distressed" -
breached section 23(5). In Harris v A-G [561] the accused was awarded
exemplary damages and damages for a breach of section 23(5) arising out of
a beating which had been inflicted upon him by the police.

These cases reflect the decisions of the Human Rights Committee, which has
held that ICCPR Article 10(1) is violated when a prisoner is held
incommunicado for any length of time; [562] is beaten by enforcement
officers; [563] is shackled and blind-folded; [564] is refused medical
attention; [565] is subjected to ridicule; [566] is denied reading facilities and
is not allowed to listen to the radio; [567] or is confined to his cell for an
inordinately long period of time. [568] To prepare prison food in unsanitary
conditions [569] and to place restrictions on a prisoner's correspondence with
his family [570] also infringe ICCPR Article 10(1).

Key cases

R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA); Ministry of Transport v

Entwisle [1990-92] 1 NZBORR 374; Harris v A-G 23/7/99, Durie J, HC
Masterton CP7/96; A v Nia Nia T13/96, HC Gisborne, 15/8/1996, Williams J;
Udompon v Minister of Immigration & Anor CP325-SD01, HC Auckland, 24
October 2003, Heath J Mukong v Cameroon Communication No. 458/1991,
HRC 1994 Report, Annex IX.AA; Peers v Greece Application 28524/95
(2001) 33 EHRR 51.
Footnotes:

482. For the sake of simplicity, future references to "detention"

should be read to mean "arrest or detention".
483. The phrase "under any enactment" was not included within the
White Paper and the first version of the Bill of Rights Bill, which was
introduced into the House of Representatives in 1989. The phrase was
inserted by the Select Committee following submissions it received
expressing concern about the risks that a failure to qualify the word
"detention" may lead to excessive litigation.
484. You may still need to consider whether the detention is arbitrary
for the purposes of section 22 of the Bill of Rights Act.
485. R v Goodwin [1993] 2 NZLR 153.
486. R v Goodwin [1993] 2 NZLR 153.
487. Caie v A-G 6/4/01, Fisher J, HC Auckland CP334-SD99.
488. R v Jones 16/7/1993 CA 312/92.
489. See Caie v A-G, 6/4/2001, Fisher J, HC Auckland CP334-SD99.
490. R v Jones 16/7/1993 CA 312/92.
491. R v Gibbons (1997) 14 CRNZ 552, 559. See also Nicholson v
Police (1993) 11 CRNZ 126. Section 316(1) of the Crimes Act 1961
provides that an arresting officer may not need to advise the person of
the reasons for the arrest if the reasons are obvious in the
circumstances.
492. Beaudoin & Mendes, The Canadian Charter of Rights and
Freedoms (3rd ed), at pp 11-15.
493. Rv Robinson CA 16/97, 12 May 1997. See also R v Tawhiti
[1993] 3 NZLR 594 and R v Small (1998) 52 CRR (2d) 315 (Alta CA)
in which the accused was not given sufficient detail as to why he was
detained. His response that he did not want a lawyer was, therefore, an
invalid waiver of his right to counsel.
494. R v Tawhiti [1993] 3 NZLR 594.
495. R v Jones CA312/92 17/7/93, (at p 8) and R v Evans [1991] 1
SCR 869 at 892-3.
496. Miranda v Arizona (1966) 384 U.S 436. For the latest statement
by the Supreme Court on Miranda warnings, see Chavez v Martinez
 538 U.S _(2003). In this case the Court held that police questioning in
the absence of Miranda warnings, even questioning that is overbearing
to the point of coercion, does not violate the constitutional protection
against compelled self-incrimination, as long as no incriminating
statements are introduced at the suspect's trial.
497. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA).
498. Richardson J in MOT v Noort; Police v Curran [1992] 3 NZLR
260; (1992) 8 CRNZ 114 (CA).
499. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA).
500. See, for instance, Toki v Police, 21/7/94, Doogue J, HC Nelson
AP17/94.
501. Moki v Police (1992) 8 CRNZ 617.
502. Barr v MOT [1993] 1 NZLR 703; (1992) 8 CRNZ 626.
503. R v Schmautz [1990] 1 SCR 398, 416.
504. As Richardson J observed in MOT v Noort; Police v Curran "if
the detainee wishes to avail himself or herself of the right to a lawyer
that must be done without delay on his or her part."
505. Section 72(1)(b) of the Transport Act 1998 provides that a
suspected drunk driver has ten minutes in which to decide whether he
or she wishes to undergo a blood test. For a discussion on when the 10
minutes commences see Rae v Police [2000] 3 NZLR 452.
506. R v Etheridge (1992) 9 CRNZ 268.
507. R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707.
508. See too R v Kai Ji CA 333/03 8/09/03 where the Court of Appeal
discusses the issue in the context of a person with English as a second
language.
509. See Rae v Police [2000] 3 NZLR 452; (2000) 18 CRNZ 182
(CA).
510. MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8
CRNZ 114 (CA).
511. MOT v Noort; Police v Curran [1992] 3 NZLR 260; (1992) 8
CRNZ 114 (CA), per Cooke P, at 274; p 128.
512. Knapton v Police (1993) 10 CRNZ 515.
513. See R v Kepa 1/7/1999, CA214/99.
514. See R v McKenzie (1999) 68 CRR (2d) 155.
515. See R v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA).
516. See Police v Toki HC Auckland 21/7/94 AP 17/94.
517. R v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA).
518. R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA) at p
651; p 486.
519. R v Read CA 438/00, 14/2/01.
520. R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA).
Despite the statements by the Court upholding the principles
underpinning the right, the Court held in this case that statements made
by the accused were not elicited by the police.
521. For an overview of the approaches taken by the Courts see
Mahoney "The Right to Counsel" in The New Zealand Bill of Rights
Act p539 footnote 82.
522. Ngatai v MOT 1 HRNZ, Sullivan v Police 1 HRNZ 434.
523. R v Bartle [1994] 3 SCR. 173.
524. R v Bartle [1994] 3 SCR. 173, p 205.
525. NZ Law Commission, Compensating the Wrongly Convicted,
para 8 (Parliamentary Paper E 31AJ 1998), available at
<www.lawcom.govt.nz>.
526. NZ Law Commission, Habeas Corpus Procedure (Parliamentary
Paper E 31AF 1997), available at <www.lawcom.govt.nz>.
527. Bennett v Superintendent of Rimutaka Prison [2002] 1 NZLR
616 at p 633-634.
528. Hammel v Madagascar (155/83).
529. Portorreal v Dominican Republic (188/84).
530. Torres v Finland (291/88).
531. Torres v Finland (291/88) para 7.2.
532. Weeks v UK A 114 para. 61 (1987).
533. De Wilde, Ooms and Versyp v Belgium A 12 para 76 (1971).
534. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
535. See R v Rogers (1993) 1 HRNZ 282.
536. R v Rogers (1993) 1 HRNZ 282.
537. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
538. See General Comment 8 of the Human Rights Committee.
539. R v Greenaway [1995] 1 NZLR 204 (CA) [emphasis added].
540. R v Shriek [1997] 2 NZLR 139; (1996) 14 CRNZ 449 (CA).
541. R v Greenaway [1995] 1 NZLR 204 (CA).
542. R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649 (CA).
543. Kulomin v Hungary (521/92).
544. R v Barlow (1995) 14 CRNZ 9 (CA).
545. Adams on Criminal Law, Ch 10.11.02 .
546. Smith v Director of Serious Fraud Office [1992] 3 All ER 456.
547. For the meanings of these terms, see the discussion on Section
22 of the Bill of Rights Act.
548. Broyles v R (1991) 68 CCC (3d) 308 (SCC).
549. Broyles v R (1991) 68 CCC (3d) 308 (SCC) at 318.
550. See R v Accused M A T (T000515) 7/6/00, Chambers J, HC
Auckland T000515.
551. See R v Barlow (1995) 14 CRNZ 9 (CA); and R v Taliau
30/6/99, CA99/99.
552. See R v Taumata (Ruling No 4) (1997) 15 CRNZ 451; 4 HRNZ
297 and R v Moresi (No 2) 14 CRNZ 322.
553. R v Kau CA179/02, 22/08/2002.
554. See R v Barlow (1995) 14 CRNZ 9 (CA). The majority of the
Court in Barlow held that the the third party did not elicit information
from the accused as Barlow willingly divulged the incriminating
information.
555. R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA).
556. Human Rights Committee, General Comment 21 (1992).
557. Peers v Greece Application 28524/95 (2001) 33 EHRR 51.
558. A v Nia Nia T13/96, HC Gisborne, 15/8/1996, Williams J.
559. See Mukong v Cameroon, Communication No 458/1991, HRC
1994 Report, Annex IX.AA.
560. Ministry of Transport v Entwisle [1990-92] 1 NZBORR 374.
561. Harris v A-G 23/7/99, Durie J, HC Masterton CP7/96.
562. See, for example, Caldas v Uruguay, Communication No
43/1979, HRC 1983 Report, Annex XVIII.
563. See, for example, Solorzano v Venezuela, Communication No
156/1983 HRC 1986 Report, Annex VIII.C.
564. See Jijon v Ecuador, Communication No 277/1988, HRC 1992
Report, Annex IX.I.
565. See, for example, Mpandanjila v Zaire, Communication No
138/1983, HRC 1986, Annex VIII.A.
566. See Francis v Jamaica, Communication No 606/1994, HRC
1995 Report, Annex X.N.
567. See Nieto v Uruguay, Communication No 92/1981, HRC 1983
Report, Annex XX.
568. See, for example, Cabreira v Uruguay, Communication No
105/1981, HRC 1983 Report, Annex XXI.
569. See Matthews v Trinidad and Tobago, Communication No
569/1993, HRC 1998 Report, Annex XI.E.
570. See Espinoza de Polay v Peru, Communication No 577/1994,
HRC 1998 Report, Annex XI.F.
Introduction to section 24: Rights of
persons charged and minimum
standards of criminal procedure
Section 24 of the Bill of Rights Act provides:

Rights of persons charged

Everyone who is charged with an offence -

a. Shall be informed promptly and in detail of the nature and cause

of the charge; and
b. Shall be released on reasonable terms and conditions unless there
is just cause for continued detention; and
c. Shall have the right to consult and instruct a lawyer; and
d. Shall have the right to adequate time and facilities to prepare a
defence; and
e. Shall have the right, except in the case of an offence under
military law tried before a military tribunal, to the benefit of a
trial by jury when the penalty for the offence is or includes
imprisonment for more than 3 months; and
f. Shall have the right to receive legal assistance without cost if the
interests of justice so require and the person does not have
sufficient means to provide for that assistance; and
g. Shall have the right to have the free assistance of an interpreter if
the person cannot understand or speak the language used in
court.

Section 25 of the Bill of Rights Act is as follows:

Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination
of the charge, the following minimum rights:

a. The right to a fair and public hearing by an independent and

impartial court:
b. The right to be tried without undue delay:
 c. The right to be presumed innocent until proved guilty according
to law:
d. The right not to be compelled to be a witness or to confess guilt:
e. The right to be present at the trial and to present a defence:
f. The right to examine the witnesses for the prosecution and to
obtain the attendance and examination of witnesses for the
defence under the same conditions as the prosecution:
g. The right, if convicted of an offence in respect of which the
penalty has been varied between the commission of the offence
and sentencing, to the benefit of the lesser penalty:
h. The right, if convicted of the offence, to appeal according to law
to a higher court against the conviction or against the sentence or
against both:
i. The right, in the case of a child, to be dealt with in a manner that
takes account of the child's age.

Policy Triggers: do I need to consider sections 24 and 25?

Are you developing policy that creates or amends:

• criminal offences?
• criminal penalties?
• criminal procedures?

Are you developing policy of a regulatory nature that creates or amends

offence or penalty provisions? If so:

• is the offence by its very nature of a criminal character?

• does the offence carry a penalty of imprisonment or a fine that is
intended to indicate that the conduct was socially harmful?

If your response to any of these questions is "yes", the proposal is likely to

raise issues of consistency with the rights in sections 24 and 25.

If, on the other hand, you answer "no" to the above questions, you should still
consider whether your policy is consistent with the right to the observance of
the principles of natural justice (section 27(1) of the Bill of Rights Act). Even
though your policy may not include "offences" for the purposes of sections
24 and 25, the principles of natural justice require that a person receive a fair
hearing where he or she may be subject to an adverse decision.

What every policy analyst needs to know about sections 24 and 25:

• If you are developing policy that creates or amends criminal offences

or procedures, you need to consider whether the policy complies with
the rights in sections 24 and 25.
• You should also consider whether sections 24 and 25 are applicable
when developing policies of a regulatory nature that contain offence
provisions. You should therefore ask whether:
• the offence by its very nature it is of a criminal character; or
• the offence carries a penalty of imprisonment or a fine that is intended
to indicate that the conduct was socially harmful.
• For the purposes of the Bill of Rights Act, a person is charged with an
offence "when the prosecuting authority formally advises an arrested
person that he is to be prosecuted and gives him particulars of the
charges he will face".
• The rights in section 24 are, therefore, applicable at some point
between the time of arrest and the commencement of court
proceedings.
• Generally, the courts in New Zealand would interpret the word
"offence" as an act punishable by criminal law, because these
provisions of the Bill of Rights Act set out rights that are primarily
concerned with criminal procedure.
• Any offence provision, no matter how minor, may fall within the scope
of sections 24 and 25 if its purpose is to punish and deter, or is of a
public nature intended to promote public order and welfare.
• Although criminal offending would appear to be the principal context
within which the rights in sections 24 and 25 would be applied, other
offences (such as military offences) might come within the meaning of
"offence" for the purposes of the Bill of Rights Act. This is more likely
to be the case if the resulting penalty (whether a fine or imprisonment)
is punitive and/or intended to act as a deterrent to prevent future
offending.
 • Section 25 applies to all stages of the process, from the pre-trial
hearing to the completion of the appeal process. This is indicated by
the words "in relation to the determination of the charge".

Methods to increase the compliance of your policy with sections 24 and

25

In developing any policy that may raise issues of consistency with sections
24 and 25, consider:

• the nature of the conduct you are seeking to regulate or the harm you
are seeking to address via offences or penalties;
• whether the interests of persons charged with the offence are
adequately recognised and taken into account;
• the impact that the policy or practice may have on the public's
perception of the way in which justice is administered;
• if you are considering developing a new offence, you should refer to
the Legislation Advisory Committee Guidelines (Guidelines on
Process and Content of Legislation). This publication contains a useful
chapter on criminal offences, which sets out other relevant
considerations when developing offences. [571]

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion on section 24 and section 25 below.

Further discussion on the meaning of section 24

When is somebody "charged with an offence"?

Section 24 of the Bill of Rights Act is to apply to any person who is "charged
with an offence". The question as to whether any person has been charged
with an offence has come in for considerable discussion by the courts as prior
to the Bill of Rights Act it had no fixed meaning. [572] The Court of Appeal
has held that, for the purposes of the Bill of Rights Act, a person is charged
with an offence when the first official accusation is made. [573]

It should be noted at this point that sections 23, 24, and 25 deal with different
stages of the prosecutorial process and the rights set out in those sections
apply at those distinct stages of the process. The rights in section 24 are
applicable at some juncture between the time of arrest and the
commencement of court proceedings. [574] It has been held that the presence
of this intermediate set of rights means that the phrase "charged with an
offence" must be given a broader interpretation than the Canadian approach
[575] which provides that a person is charged when a formal court process is
initiated. [576] The United Nations Human Rights Committee has said that
the rights of a person charged with an offence commence once a competent
authority makes a decision to proceed against a person or publicly announces
their intention to do so. [577]

For the purposes of the Bill of Rights Act then, a person is charged with an
offence "when the prosecuting authority formally advises an arrested person
that he is to be prosecuted and gives him particulars of the charges he will
face." [578] The person charged with the offence should be given sufficient
information to enable them to invoke his or her rights under section 24.

Offences

The word "offence" in sections 24 and 25 is not qualified by reference to

criminal activities. An offence is generally conceived of as being an act
punishable under criminal law. Section 2 of the Crimes Act 1961 defines an
offence to be "any act or omission for which any one can be punished under
this Act or under any other enactment, whether on conviction on indictment
or on summary conviction." It would appear that the courts in New Zealand,
for the purposes of applying sections 24 and 25, would generally interpret the
word consistently with this definition as these rights are primarily concerned
with criminal procedure.

The Court of Appeal in Daniels v Thompson [579] adopted the approach that
the Canadian Supreme Court has taken in respect of the prohibitions against
double jeopardy; that is the protection against double jeopardy only applies
in respect of a further criminal prosecution for a criminal offence for which
the accused has already been convicted or acquitted. [580]

However, there are indications that the courts in New Zealand may not
restrict the application of sections 24 and 25 of the Bill of Rights Act to
criminal offences. There have been signals by the Court of Appeal which
suggest that offences other than criminal offences might fall within the
definition. It is likely that military offences will fall within the scope of the
definition. [581] If a broad approach to interpreting the scope of sections 24
and 25 was taken, the approach would be consistent with trends in Canada
and Europe.
The approach in Canada and Europe

The Canadian Supreme Court has stated that while section 11 of the
Canadian Charter of Rights and Freedoms is principally concerned with
criminal law process, the ambit of section 11 is slightly broader than just
criminal offences. The Court considered that a matter could fall within the
scope of section 11 either: [582]

...because by its very nature it is a criminal proceeding or because a

conviction in respect of the offence may lead to a true penal consequence.

The Court in R v Wigglesworth went on to distinguish between those matters

which are "of a public nature, intended to promote public order and welfare
within a public sphere of activity" and those that are "primarily intended to
maintain discipline, professional integrity and professional standards or to
regulate conduct within a limited private sphere of activity." [583] It is these
latter matters that do not fall within the scope of section 11 of the Canadian
Charter unless such matters include penalties that are punitive. [584] A
penalty may be punitive if it is of a kind intended to address a social harm
resulting from the conduct. [585] Such a penalty could be in the form of a
fine or a term of imprisonment. The Court in Wigglesworth [586] doubted
whether a proceeding could not be criminal by its very nature and yet attract
a punitive penalty, but because it was willing to accept that such a situation
could occur, said:

If an individual is to be subject to penal consequences such as imprisonment

- the most severe deprivation of liberty known to our law - then he or she, in
my opinion, should be entitled to the highest procedural protection known to
our law. [587]

The European Court of Human Rights has developed three criteria for the
determination of whether an offence is criminal for the purposes of the
Convention. [588] These criteria may prove useful if you are developing a
policy that creates a new specific offence that may be considered to be an
"offence" for the purposes of sections 24 and 25. Only the last two criteria
are said to have any significance [589] and to have any relevance from a Bill
of Rights standpoint. The relevant criteria and associated questions with each
are:

i. The nature of the offence -

• What procedures are put in place for dealing with the offence?
 • Is the conduct prohibited because of the context in which it occurred or
because of the public interest in prohibiting such conduct generally?
(For example, an assault of a prison officer by a prisoner may cease to
remain a disciplinary offence).
• Is the offence only applicable to persons under a specific regime or
does it have a potentially broader application?

ii. The severity of the penalty -

• What is the nature and purpose of the penalty - is it purely punitive?

• Does the penalty have the effect of depriving a person of their liberty?
• Is a financial penalty intended to act as a deterrent to prevent future
offending or is it in the form of a remedy to compensate injured
parties?

An offence may be criminal for the purposes of the Convention even if it

meets only one of these criteria, but the European Court may also consider
the effect of both in any particular instance. [590]

Policy and legal advisers involved in developing policy that creates or

amends offence provisions or procedures should test their proposals against
these criteria to see what procedures need to be put in place to protect the
rights of persons who might be subject to these proposals.

All offences or just some?

There is some suggestion that persons charged with minor traffic violations
might not be able to avail themselves of the protections of the rights in
sections 24 and 25 of the Bill of Rights Act on the basis that such offences do
not "threaten their liberty". [591] It is unclear whether the New Zealand
courts will follow this line given overseas caselaw where even a minor traffic
infringement was sufficient to be considered a criminal charge for the
purposes of the Convention because the purpose of the offence provision was
to punish and deter. [592]

Key cases

Daniels v Thompson [1998] 3 NZLR 22 (CA); Drew v Attorney-General

(No.2) (2001) 18 CRNZ 465 (CA); R v Gibbons (1997) 14 CRNZ 552; R v
Kalanj [1989] 1 SCR 1594; R v Wigglesworth (1989) 2 SCR 541; Engel v
Netherlands July 8, 1976, Series A, No 22; 1 EHRR 766; Ozturk v Germany
February 21, 1984, Series A,No. 73; 6 EHRR 409.

History of the section

The White Paper

Section 24 is a reformulation of different aspects of the right of a person

charged with offences that were set out in articles 16 and 18 of the White
Paper. Parts of articles 16 and 18 now appear in sections 23 and 25 of the
Bill of Rights Act respectively.

Section 24 origins in international treaties and overseas legislation

Section 24 affirms in part New Zealand's obligations under Article 14(3) of

the ICCPR.

The equivalent to section 24 of the Bill of Rights Act can be found in section
11 and section 14 of the Canadian Charter.

Aspects of section 24 can also be found in Article 6(3) of the European

Convention on Human Rights. [593]

Section 24(a): Right to be informed promptly

and in detail of the nature and cause of the
charge
Section 24(a) of the Bill of Rights Act is as follows:

Inform promptly
Everyone who is charged with an offence shall be informed promptly and in
detail of the nature and cause of the charge.

Policy triggers: do I need to consider section 24(a)?

Are you developing policy or practices that:

• amend the procedures set out in the Summary Proceedings Act or

practice guidelines for altering a charge?
• establish practice guidelines or procedures for the laying of charges?
If you answer "yes" to either of these questions, you should consider whether
your policy or practice infringes section 24(a).

What every policy analyst needs to know about section 24(a)

• The primary purpose of section 24(a) is to enable an accused person to

make full answer and defence to any charge.
• A person who has been charged with an offence needs to be informed
about the specific offences he or she is alleged to have committed and
the alleged facts/events on which the charge is based.
• Section 24(a) does not mean the charges cannot be altered, as long as
the accused is informed promptly of any changes and, if changes are
made during proceedings, the accused is personally present.
• The relevant period of delay for the purposes of section 24(a) is the
time between the formal notification of the decision to lay charges and
revealing the specific nature of those charges.
• The failure to inform the accused person promptly needs to be
considered in the context of the causes of the delay and the prejudice
that has caused to the accused.

Measures to achieve compliance

• Establish quality assurance procedures to enable in-house legal

advisers to confirm whether the appropriate charges have been laid.
• Review and/or monitor the procedures that are followed in the stages
leading to the bringing of charges.
• Ensure that the legislation or operational policy specifies a clear duty
to promptly inform the person charged of the particulars of the charge.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.

Related rights and freedoms

When developing policies or practices relating to laying or amending

charges, in addition to those remaining rights in section 24, consider the
following rights:
 • the right to be informed of the reason for the arrest or detention
(section 23(a));
• the right to a fair trial (section 25(a));
• the right to be tried without undue delay (section 25(b));
• the right to be present at the trial and present a defence (section 25(e)).

Further discussion on the meaning of section 24(a)

The aim of section 24(a) [594] is to provide a person accused of committing

an offence with an opportunity to prepare their defence. In order to do this
they need to know what information they require to be able to respond to
specific allegations. [595] The person charged with an offence therefore
requires more detailed information on the nature of the charge and the
allegations against them than what they received at the time they were
arrested or detained. [596]

Extent of information to be provided

The level of detailed information required to be provided to the accused

person at this stage of the process will depend on what information he or she
has already received and the degree of complexity of the charges involved.
[597] However, as a basic minimum, the person must be informed of the
specific offence he or she has committed and the alleged facts or events upon
which the charge is based.

Specific information about the details of the charge enables the accused
person to make decisions about:

• whether he or she requires legal representation;

• whether he or she will make a statement to the police;
• whether he or she would provide body samples to assist with the
investigation;
• matters concerning his or her professional and personal life. [598]

It is permissible to amend charges if you promptly notify the accused person

of the particulars of those changes. [599] Amendments to the charges can be
made at any time during the trial as long as the statutory procedures for
making these amendments are strictly followed. [600] It is not considered
sufficient to only notify the accused's legal representative [601] or any other
party [602] of these changes. The defendant should be notified as well. A
defendant may need an opportunity to consider the implications of these
changes and an adjournment to proceedings may be necessary in order for
them to plan their defence. However, you should exercise caution about the
extent to which, and the number of occasions on which changes are made to
the charges as this prolongs court proceedings. These delays may infringe
section 25(b) of the Bill of Rights Act. [603]

The relevant period

As section 24(a) applies after a person is formally advised of the decision to

bring charges, the relevant period is the time between the notification of that
decision and the provision of the specific details of the charges. The United
Nations Human Rights Committee has said that the requirement to provide
the information "promptly" requires that the information is given "as soon as
the charge is first made by the competent authority." [604]

The Supreme Court in Canada has pointed to the existence of four factors
that need to be considered when determining whether any delay in informing
the accused is undue: [605]

i. the extent to which the accused contributed to the delay;

ii. the extent to which the delay could be attributed to the conduct of
enforcement officers;
iii. the resources that were available for finding the accused; and
iv. the prejudice experienced by the accused as a result of the delay.

Lamer CJ in Delaronde indicated that the prejudice caused by the delay

refers to matters other than just those relating to the defence of the charges.
The delays may, for example, lead to financial or personal detriment.

Key cases

Simpson v MAF (1996) 3 HRNZ 342; R v Gibbons (1997) 1 CRNZ 552;

Department of Conservation v Gilfillan [2000] 2 NZLR 499; R v E (1999) 17
CRNZ 40; R v Rapatini (1998) 16 CRNZ 311; R v Delaronde [1997] 1 SCR
213.

History of the section

The White Paper

Section 24(a) appears in the exact form that was proposed in the White
Paper.
Section 24(a) origins in international treaties and overseas legislation

Article 14(3)(a) of the ICCPR provides that:

In the determination of any criminal charge against him, everyone shall be

entitled to, in full equality, be informed promptly and in detail in a language
which he understands of the nature and cause of the charge against him.

Article 6(3)(a) of the European Convention provides:

Everyone charged with a criminal offence has the right to be informed

promptly, in a language which he understands and in detail, of the nature and
cause of the accusation against him.

Section 11(a) of the Canadian Charter states:

Any person charged with an offence has the right to be informed without
unreasonable delay of the specific offence.

Section 24(b) Right to release on reasonable

terms and conditions
Section 24(b) of the Bill of Rights Act is as follows:

Bail
Everyone who is charged with an offence shall be released on reasonable
terms and conditions unless there is just cause for continued detention

Policy Triggers: do I need to consider section 24(b)?

You may need to consider section 24(b) if you are:

• developing policy that seeks to amend the Bail Act;

• developing procedures or guidelines on bail applications.

What every policy analyst needs to know about section 24(b)

• The Bail Act 2000 sets out the parameters under which a person
charged with an offence may or may not be bailed.
• Bail applications should be denied only:
 i. in a limited set of circumstances; and
ii. where the denial of bail is necessary to promote the proper
functioning of the bail system and is limited to that purpose.

• Section 24(b) forms the standard or benchmark against which the Bail
Act is applied.
• Applications for bail can be made on more than one occasion.
• The merits of a renewed application must be considered in light of the
latest application, not on the original information.

Measures to achieve compliance

When developing policies or practices that may affect an individual's release

from custody before the hearing and determination of a charge, consider:

• whether the range of circumstances within which it is proposed to deny

bail are consistent with the generally accepted grounds for which bail
can be denied;
• whether the concerns addressed by continuing detention could instead
be met through imposing conditions on release;
• developing review mechanisms to ensure that the reasons for a person's
continuing detention remain valid, rather than detaining because it is
convenient.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.

Related rights and freedoms and considerations

When developing policies or practices relating to laying or amending

charges, consider the following rights as well as those in section 24:

• the right to freedom of movement (section 18);

• the right not to be arbitrarily arrested or detained (section 22);
• the right to have the validity of the arrest and detention determined
without delay by way of habeas corpus (section 23(1)(c));
• the right to be presumed innocent until proven guilty according to law
(section 25(c));
 • the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 24(b)

Section 24(b) creates the presumption that every person charged with an
offence will be released on bail unless there is just cause for them to be
detained in custody. The Canadian Supreme Court has defined "just cause" in
the context of bail applications to mean that bail can only be denied:

i. in a limited set of circumstances; and

ii. where the denial of bail is necessary to promote the proper functioning
of the bail system and is limited to that purpose.

Proposals to restrict the availability would therefore need to establish a clear

link between the reason for the detention and the need for detention. [606]
Such a linkage is consistent with the idea that every person is presumed
innocent until proven guilty according to law (see the discussion in these
guidelines dealing with section 25(c) of the Bill of Rights Act).

Clear criteria

The criteria for granting or refusing bail should be clearly set out to ensure
that the reasons for declining bail are limited to those that are considered
necessary to achieve an effective bail system.

The criteria could reflect the nature and quality of the offending and the
alleged offender as well as the risk that may be associated with the release of
the accused into the community. Relevant factors would include whether
there is a risk that the person charged with an offence may fail to appear in
court, or interfere with witnesses or offend while released on bail.

Appropriate procedures

A person accused of committing an offence should be released on bail unless

there is good cause for them to be detained in custody. For example,
concerns about the release of an accused person could be addressed by
releasing the person on bail subject to certain conditions. However, where
there are public interest reasons for not releasing the person into the
community, prosecuting agencies should be able to raise these before the
courts. The public interest reasons for continuing to detain would need to be
balanced against the liberty interests of the accused. Relevant factors here
may include the likely length of time before the matter comes to hearing or
trial and the impact ongoing detention may have on the ability of the accused
to prepare his or her defence.

The procedures for the granting of bail are set out in the Bail Act 2000 and
should be read consistently with section 24(b) of the Bill of Rights Act.
Section 7 of that Act establishes clear parameters for considering whether a
person charged with an offence is eligible for release on bail as of right. All
persons are considered to have a right to bail unless the person is charged
with particular specified offences. If a person is charged with any of these
offences, his or her eligibility will have to be assessed according to other
criteria. Even where a person does not meet the eligibility criteria for
automatic bail, the Bail Act makes it clear that the courts should release the
accused person, with or without conditions, unless there is good reason not
to. [607]

Need for review

An accused person should be able to test the reasons for their ongoing
detention to ensure that their detention continues to be justified. [608] This is
because circumstances dictate that a person's eligibility for bail may change.
[609] As one commentator has pointed out, the continuing detention of a
person where there were originally reasonable grounds to suspect he or she
had committed the offence [610] may have less validity over a period of time
as new evidence becomes available. [611] On-going and prolonged detention
of a person in such circumstances may give rise to issues under sections 22
and 25(c) of the Bill of Rights Act unless there are other reasons for the
person's ongoing detention. [612] The European Court of Human Rights has
taken a view that the original reason for ordering detention must be
constantly reviewed, and that the justifications for continuing to detain a
person must be made with regard to the current circumstances. As the United
Nations Human Rights Committee has said, on-going detention should reflect
the realities of the situation and the necessity of detention should be able to
be demonstrated with specific details. [613]

Conditions of release

Section 24(b) not only applies to whether a person charged with an offence
should be released on bail or not, but also the terms under which they are
released. Section 24(b) requires that such terms and conditions be
"favourable" to the accused. In other words, the conditions should not be so
onerous that they unnecessarily restrict that person's freedom of movement
[614] or act as a de facto deprivation of their liberty. [615] Nor should those
conditions expose him or her to treatment that might otherwise be seen as an
unreasonable interference with their rights as members of the community.
[616] In other words, the terms and conditions should form a rational and
proportionate response to any concerns that arose in the context of the bail
application.

Key cases

R v Lee [2001] 3 NZLR 858; R v Allison [2002] 1 NZLR 679; R v Morales

(1992) 77 CCC (3d) 91; Kemmache v France No 1 November 27, 1991,
Series A, No 218; 14 EHRR 83.

History of the Section

The White Paper

The White Paper proposed that the right to be released on favourable terms
and conditions would be triggered upon arrest rather than when being
formally charged. However, the White Paper did note that the right would
apply at different stages of the process. [617]

Section 24(b) origins in international treaties and overseas legislation

Article 9(3) of the ICCPR provides:

Anyone arrested or detained on a criminal charge shall be brought promptly

before a judge or other officer authorised by law to exercise judicial power
and shall be entitled to a trial within a reasonable time or to release. It shall
not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any
other stage of the judicial proceedings and, should occasion arise, for
execution of the judgement.

Article 5(3) of the European Convention provides:

Everyone arrested or detained in accordance with the provisions of paragraph

1 (c) of this Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to trial
within a reasonable time or release pending trial. Release may be conditioned
by guarantees to appear for trial. [618]
Section 11(e) of the Canadian Charter provides:

Any person charged with an offence has the right not to be denied reasonable
bail without just cause.

Article VIII of the US Constitution states:

Excessive bail shall not be required nor excessive fines imposed, nor cruel
and unusual punishments inflicted.

Section 24(c) The right to consult and instruct a

lawyer
Section 24(c) of the Bill of Rights Act is as follows:

Instructing a lawyer
Everyone who is charged with an offence shall have the right to consult and
instruct a lawyer.

Policy triggers: do I need to consider section 24(c)?

You may need to consider section 24(c) if you are developing policies that:

• affect a person's eligibility for legal aid;

• amend or alter procedures relating to legal representation for the
accused.

What every policy analyst needs to know about section 24(c)

The right to consult and instruct a lawyer in section 24(c):

• applies to all matters relating to the charge, including procedural issues

such as the application for name suppression;
• refers to two aspects of the process - the lawful gathering of evidence
and the right to a fair trial;
• does not prevent the state from acting on information where an accused
person chooses to act contrary to the advice of his or her lawyer;
• may be given greater significance where a case raises particularly
complex legal issues and the presence of counsel would have been of
 advantage to the accused in determining the outcome of the
proceedings.

Measures to achieve compliance

If the policy or practice you are working on raises issues of consistency with
section 24(c):

• establish procedures to enable a person who is detained to have

reasonable access to legal representation;
• establish procedures to ensure that each person accused of an offence
(where there is more than one party to the offence) is individually
aware of the right to be represented and of the possible consequences
of joint representation.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.

Related rights and freedoms

If you are considering whether the policy or practice you are working on
raises section 24(c) issues, also consider the following rights and freedoms:

• the right not to be compelled to provide information or opinions of any

kind (section 14);
• the right of everyone arrested or detained to be informed of the right to
consult and instruct a lawyer (section 23(1)(b));
• the right to refrain from making a statement (section 23(4));
• the right to adequate time and facilities to prepare a defence (section
24(d));
• the right to receive legal assistance without cost (section 24(f));
• the right to a fair hearing (section 25(a));
• the right to be present at the trial and present a defence (section 25(e)).

If the policy infringes section 24(c), it may also infringe one or more of these
rights.
Further discussion on the meaning of section 24(c)

Purpose and scope of section 24(c)

As with section 23(1)(b) of the Bill of Rights Act, section 24(c) appears
directed at addressing the imbalance between the state and the accused by
enabling the accused to obtain legal advice. A person who has access to legal
representation can make informed decisions relating to the preparation of his
or her defence and can have their interests represented in any matter related
to the charge.

There has been some judicial discussion as to whether section 24(c) may be
regarded as assisting an accused to exercise the right to silence found in
section 23(4) of the Bill of Rights Act and the right to consult and instruct a
lawyer upon arrest or detention in section 23(1)(b). [619] This discussion is
unresolved and at this time it appears that the narrow interpretation of section
24(c) is preferred (see footnote 488). Whereas the right to consult and
instruct a lawyer in section 23(1)(b) appears directed at the period leading up
to an application for bail, section 24(c) comes into effect after the issue of
bail has been decided. [620]

The Court of Appeal in Barlow considered the meaning and scope of the
right to consult a lawyer. In drawing a link between the right to silence in
section 23(4) and the right to consult and instruct a lawyer, Hardie-Boys J
cited with approval the following discussion from the Canadian Supreme
Court decision in R v Hebert: [621]

The guarantee of the right to consult counsel confirms that the essence of the
right is the accused's freedom to choose whether to make a statement or not.
The state is not obliged to protect the suspect against making a statement;
indeed, it is open to the state to use legitimate means of persuasion to
encourage the suspect to do so. The state is, however, obliged to allow the
suspect to make an informed choice about whether or not he will speak to the
authorities. To assist in that choice, the suspect is given the right to counsel.

Hardie-Boys J explained the necessity for the right to silence to extend to the
period after an accused person has been released on bail in this way: [622]

Necessarily, the right to silence must continue to be available after an

accused person has been released on bail. For until the charge has been
finally disposed of, the adversarial relationship between the State and the
individual continues, and the superior power and resources of the State
remain available to the police...[and it is within this context] that the right of
silence and the right to a lawyer's advice has been established.

It seems clear from Barlow that the right to consult a lawyer includes the
right for the accused to act on his or her lawyer's advice without interference
from the state. As was said in Hebert and Barlow, this does not mean that the
state cannot act on the basis of information freely provided by an accused
person who acts contrary to the legal advice they have received.

Complexities of the case

The Court of Appeal considers that the ability to consult with and retain
counsel may be of particular benefit to the accused where the facts of the
case raise complex issues or may be of assistance in understanding the
defences available in law and in cross-examining witnesses. [623]

The right to consult and instruct a lawyer may also require consideration as
to whether the accused and his representative had sufficient time to prepare a
defence and whether the accused was disadvantaged in any material sense by
the restrictions on the time to prepare for trial. [624] The overriding
consideration for the courts is whether a person convicted of an offence "has
been found guilty at the end of a process which has integrity and the
hallmarks of fairness." [625] It is for this reason that while section 24(c) may
allow a person charged with an offence to consult and instruct a lawyer of his
or her choice, the courts have held that the combined effect of section 5 and
24(c) means that a person who is charged with an offence and eligible for
legal aid does not have a right to consult and instruct a lawyer of his or her
choice. [626]

Consultation over procedural matters

The right for a person charged with an offence to consult with a lawyer
would seem to extend to the right of that person to consult with his or her
lawyer over all matters relating to the charge, including procedural issues
such as applications for name suppression.

Key cases

R v Barlow (1995) 14 CRNZ 9; Neilson v R 15/06/93 CA53/93; R v Ru

4/10/01, CA 238/01; R v Broyles (1991) 68 CCC (3d) 308 (SCC); R v Hebert
(1990) 57 CCC (3d) 1; 77 CR (3d) 145 (SCC)
History of the section

The White Paper

Section 24(c) appears in the same form as was proposed in the White Paper.

Section 24(c) origins in international treaties and overseas legislation

As noted in the introduction to section 24, the rights applying to the part of
the process after arrest and prior to trial are unique to our context and there
are no equivalent provisions elsewhere. However, similar provisions do
appear either prior to a person being charged, or at a subsequent time during
the pre-trial process.

Article 14(3)(b) of the ICCPR provides:

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
...
(b) To have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing.

Article 6(3)(b) of the European Convention states:

Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence

Section 10(b) of the Canadian Charter provides that:

Everyone has the right on arrest or detention to retain and instruct counsel
without delay and to be informed of that right.

Article VI of the American Bill of Rights states:

In all criminal prosecutions, the accused shall have the right...to have the
assistance of counsel for his defense.
Section 24(d) Right to time and facilities to
prepare a defence
Section 24(d) of the Bill of Rights Act is as follows:

Time and facilities

Everyone who is charged with an offence shall have the right to adequate
time and facilities to prepare a defence

Policy Triggers: do I need to consider section 24(d)?

You may need to consider section 24(d) if you are developing policies or
practices that:

• alter procedures for responding to requests for information or material

to be used as evidence in criminal proceedings;
• affect the ability of self-represented persons to gain access to legal or
other relevant research material;
• establish procedures for the destruction or disposal of material that was
to be used, or has been used, as evidence in criminal proceedings;
• relate to the storage of evidence before and after the conclusion of
criminal proceedings;
• create, amend, or alter procedures relating to the ability to appeal
decisions from tribunals or disciplinary bodies to the courts;
• require the accused to follow certain procedures before submitting
evidence in their defence;
• establish rules or procedures governing the ability of the courts to
adjourn hearings;
• establish protocols for agencies to share information gathered in the
context of analysing evidence;
• would codify the laws of criminal discovery.

What every policy analyst needs to know about section 24(d)

• The right to adequate time and facilities to prepare a defence is

concerned with what is "sufficient or necessary" rather than what is
"full and complete".
• The adequacy of time to prepare a defence will depend on a number of
factors, including the legal complexity of the case and the relative
experience of legal counsel.
• Where a statute or practice places a time limit on making certain
appeals or applications, those limits must be reasonable and certain.
• The right to adequate facilities to prepare a defence is intended to put
the defence on an equal footing with the prosecuting authority.
• The right to adequate facilities to prepare a defence does not infer that
the defence should have access to the same or identical facilities as the
prosecution.
• "Facilities" should be interpreted broadly to include access to evidence,
witnesses, caselaw and other information that the defendant needs to
make a full defence.
• The adequacy of facilities is likely to depend on the complexity of the
charge and the type of evidence that is required to make a full defence.
• A self-represented accused is more likely to require access to a greater
range of information than an accused represented by counsel.
• Access to evidence on an equal footing appears to mean unrestricted
access to evidence, including exhibits and witnesses, to enable the
defence to put forward a plausible explanation as to the legitimacy of
the defendant's actions, where the point in dispute is an essential
element of the offence and the interpretation of the evidence goes to
the central issue at trial.
• The prosecution has an obligation to preserve evidence or information
that may be of significance to the defence.
• The right to adequate facilities is generally limited to a duty not to
obstruct the defence from carrying out its investigations, and to provide
pre-trial disclosure.
• The state may have a positive obligation to assist the defence where the
nature of the evidence and the limited circumstances under which it
can be obtained demands assistance to preserve the interests of justice.
• Not only is the prosecution required to provide the defence with the
material considered essential for the prosecution to prove its case, but
any other specified information requested by the defence, subject to
competing considerations.
Measures to achieve compliance

If you are developing any policy or practice that gives rise to an issue of
consistency with section 24(d), consider:

• developing checklists to enable your agency to identify what

information should be disclosed in response to an application for
discovery;
• whether procedures are needed to ensure the preservation of evidence
relating to the offence;
• developing practice guidelines to ensure appropriate responses for
requests for assistance from persons charged with an offence;
• developing procedures to enable the accused to access expert evidence;
• developing practices or procedures to ensure a person convicted of an
offence is automatically advised of his or her appeal rights and the
relevant procedures;
• establishing flexible guidelines and procedures to permit adjournments
of hearings to allow a defence to be prepared.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.

Related rights and freedoms

When considering whether your policy or practice is consistent with section

24(d), also consider:

• the right to seek information (section 14);

• the right to consult and instruct a lawyer (section 24(c));
• the right to a fair trial (section 25(a));
• the right to be presumed innocent (section 25(c));
• the right to be present and present a defence (section 25(e);
• the right to appeal (section 25(h)).
Further discussion on the meaning of section 24(d)

What is adequate time?

An inquiry into whether a person has had adequate time to prepare his or her
defence is going to depend on the facts of the case and whether the
requirement that the defence prepare a defence within the allotted time is
likely to result in a miscarriage of justice.

The adequacy of the time is going to depend on a number of factors including

the legal complexity of the case, and the relative experience of legal counsel.
[627] It would therefore appear that short time frames are themselves not a
relevant consideration because of the presumption that counsel has the
required level of training to compensate and the existence of adjournments as
a procedural safety-net. [628] However, the Court may also have regard to
the reasons why the defence has not had adequate opportunity to prepare a
defence. Relevant considerations here might include:

• the length of time between the time the person was charged and the
commencement of proceedings;
• whether the charges have been amended or fresh charges have been
laid;
• the availability or presence of the counsel for the accused;
• delays in obtaining evidence from the prosecution under the discovery
process.

Procedural constraints

Statutory provisions or court practices that require the defence to follow

certain procedures before presenting evidence in their defence - such as
providing the court with notice that they wish to raise a particular defence -
should be reasonable and certain. [629] The same principles would seem to
apply in respect of procedural constraints on the ability to appeal.

In one case before the European Court, [630] the minority expressed the view
that:

in criminal matters, the State must ensure that the accused is officially
informed of the essential and decisive steps and elements [that need to be
followed in order to allow him or her to appeal a decision]...it cannot put the
burden in this respect entirely on the accused or convicted person.
The European Court of Human Rights has gone on to accept the minority
point of view as more correctly stating the law on Article 6 of the Convention
and has emphasised this point in subsequent cases. [631]

Adequacy of facilities

"Facilities" should be interpreted broadly for the purposes of section 24(d) to

include access to evidence, witnesses, and information that the prosecution
will present at the hearing as are reasonably necessary to enable the accused
to prepare a defence. The adequacy of those facilities is likely to be
dependent on the complexity of the charge and the type of evidence that is
required to make a full defence. A self-represented accused is also more
likely to require access to a greater range of information than an accused
represented by counsel. [632]

In R v Accused [633] Richardson J expressed the view that the right to

adequate facilities to prepare a defence must be interpreted in a manner that
gave effect to the right. Significantly, the right should be given effect to in
order that there is a fair trial. Richardson J observed that section 24(d) was
designed to put the defence on an equal footing with the prosecution and
included adequate access to evidence which the accused person requires to
present his or her case. [634]

The majority of the Court of Appeal in Griffin endorsed the approach of

Richardson J in R v Accused. [635] The Court said: [636]

The question of the adequacy of the facilities made available [to the accused]
will depend, at least in part, on determining what more could have been done
and whether to do more was necessary in all the circumstances. As in many
contexts an abstract answer cannot be given. The question is one which must
be answered according to the circumstances of the individual case.

In Griffin the majority held that having access to evidence on an equal

footing meant that access would enable the defence to put forward a plausible
explanation as to the legitimacy of the defendant's actions where:

i. the point in dispute was an essential element of the offence; and

ii. the interpretation of the evidence was going to the central issue at trial.
[637]
It is also significant that the failure to allow the accused to have access to the
evidence on an equal footing in Griffin would seriously affect the credibility
of the expert testimony of the accused.

Disclosure of information

Closely associated with the adequacy of facilitiest is the application of the

laws on disclosure. The disclosure by the prosecution to the defence of
evidence to be used in any proceeding goes to the overall fairness of the
proceedings as it enables the defence to respond to allegations by providing
alternative explanations or interpretations of events. As the Court in Police v
Nimmo pointed out, the common law duty of disclosure is subject to the
Official Information Act and the Privacy Act as well as the Bill of Rights
Act. [638] In Nimmo, Williams J referred to the application of the Official
Information Act in the context of criminal proceedings. In his judgment he
referred to the decision of the Court of Appeal in Commissioner of Police v
Ombudsman [639] which dealt with an accused's request under the Act for
copies of the briefs of evidence of witnesses the prosecution proposed to call
in a summary case. The views of the Court of Appeal hold some relevance
for the application of the Bill of Rights Act in this context. The Court held:

...that unless there was some special risk of interference with witnesses,
fabrication of evidence or other perversion of justice which could amount to
a good reason within s 6(c) [of the Official Information Act] for withholding
from a person making the request information to which they would otherwise
be entitled, the general practice after a criminal prosecution has been
commenced should be disclosure of personal information contained in briefs,
witness statements or notes of interviews. The duty of disclosure was held
not to be dependent on defence requests and the enactment of the Official
Information Act 1982 did not alter the existing requirements for disclosure (R
v Connell [1985] 2 NZLR 233 (CA), at p 241). [The] source of the
information is irrelevant provided it otherwise comes within the definition of
official information and the principles of openness and fairness (Police v
Tyson [1989] 3 NZLR 507, 512).

The obligation under common law to disclose information in the absence of

any specific request is said to relate to:

1. The name and address of any person interviewed by the prosecution

who can give material evidence but is not going to be called as a
witness. However, there is no requirement to produce written
 statements from such persons unless a failure to do so would prejudice
the defence.
2. Statements made by any witness that bring to light significant
inconsistencies with the intended evidence of that witness. Any
information relating to possible bias of a witness should also be
disclosed.
3. Briefs of evidence, witness statements, and notes of interview. [640]

And even though the prosecution may be required to provide any additional
information, it is for the defence to make the specific request. [641] There is
also no obligation for the prosecution to provide the defendant with
information that they do not possess or do not have authority over. [642] The
defence may still be able to obtain that information directly from the third
party, or may be able to gain access to it by way of a subpoena or witness
summons. [643]

Sufficient or necessary or full and complete?

It would therefore seem that the prosecution is not under any obligation to
provide the defence with all the information related to the proceeding. As the
Court of Appeal noted, the right to adequate time and facilities to prepare a
defence is concerned with what is "sufficient or necessary" rather than that
which is "full and complete". [644] The defence has an obligation to be
diligent in its preparation of the defence - as more than one court has said:

...The prosecutor's duty is to prosecute the case fairly and openly in the
public interest. It is not part of his duty to conduct the case for the defence.
[645]

However, the courts have been critical of prosecution practices that have led
to the destruction of evidence or the loss of evidence. The prosecution's duty
of disclosure may give rise to an obligation to preserve evidence to enable
the defence to provide "full answer and defence." [646] The issue of whether
the prosecution may still be able to rely on the evidence derived from the
original physical evidence will depend largely on the reasons why that
original evidence was destroyed, [647] and the prejudice that resulted from
its destruction.
Is there a positive obligation on the state to assist the accused?

There is also more than the suggestion that the right to adequate facilities
means more than a duty not to obstruct the defence from carrying out its
investigations; and that there may be a positive obligation on the part of the
state to assist the defence. [648] The Court of Appeal in R v Donaldson [649]
discussed whether an enforcement officer was required to assist a person who
was accused of committing an offence obtain evidence that would enable her
to raise reasonable doubt as to her guilt.

Facts of the case

Donaldson failed an evidential breath screening test and was taken to a police
station. She was told that she would undergo an examination by a doctor. She
asked that a sample of her blood be taken and was told that one would not be
taken. Although Donaldson made repeated requests, a blood sample was not
taken. The appellant consented to the doctor examining her. The doctor
formed the opinion that the appellant was clinically under the influence of
drugs and alcohol and unfit to drive a motor vehicle safely.

By the time Donaldson left the police station 5½ hours had elapsed since she
had been breathalysed. The Court held that by this time there was no longer
any opportunity of her obtaining useful chemical evidence about blood
alcohol levels, even had facilities for blood testing been available to her.

In this case Donaldson was completely reliant on the law enforcement

authorities to gather the evidence upon which the charge was based and she
had no other means of contesting the charges. The Court of Appeal looked to
North American caselaw for assistance. The Canadian and US courts have
considered whether there is a positive obligation so that a person charged
with an offence can make "full answer and defence" in response to the
charge. [650] These factors are therefore integral to the accused's right to a
fair trial.

The key questions appear to be:

1. What was the nature of the evidence and what role was the
enforcement officer required to play in obtaining it?
2. Was that evidence likely to play a significant role in the accused
person's defence?
3. Was the accused person otherwise able to obtain that evidence? [651]
The Court went on to say [652] that:

It is likely that there will in practice be a fine line between:

a. Requiring the police not to obstruct the preparation of a defence,

which must be implied in the right recognised in s 24(d); and
b. Imposing on the police a new and affirmative duty to assist in
the collection of evidence useful for the defence.

Omissions to obtain or preserve evidence likely to be material to the defence

will fall on one or other side of the line according to a wide variety of factors.
Clearly bad faith on the part of the police would point towards obstruction. In
other cases the degree and foreseeability of materiality of the lost evidence,
and the existence and extent of any practical difficulties in obtaining or
preserving that evidence, will often be relevant.

Even though the Court of Appeal in Donaldson did not express a final view
as to whether the prosecution had a positive duty to assist the accused gather
evidence, the Court alludes to such a possibility when Thorpe J observed:
[653]

...a more limited interpretation [of section 24(d)] is likely to render the right
ineffective in cases such as the present. For what real opportunity does a
driver have to obtain his or her own blood test in the evening or night hours?

Cases subsequent to Donaldson have highlighted the fact that there is no

obligation on the state to assist the defence to obtain evidence where:

• the accused has had a reasonable opportunity to obtain evidence [654]

or examine evidence [655] but has failed to do so; and
• the failure to preserve the evidence is unlikely to lead to a miscarriage
of justice. [656]

Although there is no fixed rule requiring the state to assist the accused by
preserving evidence, authorities should exercise care to ensure that evidence
material to the charge is preserved. As a general rule, the more likely the
evidence is to point to exonerating the accused, the greater the obligation on
the authorities to preserve the evidence or to assist the accused to obtain the
evidence.
Key cases

R v Accused CA 357/94 (1994) 12 CRNZ 417; R v Griffin [2001] 3 NZLR

577; R v Holdgate 24/5/01, CA 422/97; R v Donaldson [1995] 3 NZLR 641;
Commissioner of Police v Ombudsman [1988] 1 NZLR 385; Police v Nimmo
(1999) 16 CRNZ 491; Attorney-General v District Court at Otahuhu (2001)
19 CRNZ 29 (CA); R v McLeay 4/4/97, CA 349/96 California v Trombetta
467 US 479; Arizona v Youngblood 488 US 51; Melin v France June 22,
1993, Series A No 261-A; 17 EHRR 1; Brown v Stott [2001] 2 WLR 817
(PC); R v Brown [1997] 3 All ER 769 (HL).

History of the section

The White Paper

Section 24(d) is identical in form to that proposed in the White Paper.

Section 24(d) origins in international treaties and overseas legislation

Article 14(3)(b) of the ICCPR provides

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
...
(b) To have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing.

Article 6(3)(b) of the European Convention states

Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence

Section 24(e) Right to trial by jury

Section 24(e) of the Bill of Rights Act is as follows:

Trial by jury
Everyone who is charged with an offence shall have the right, except in the
case of an offence under military law tried before a military tribunal, to the
benefit of a trial by jury when the penalty for the offence is or includes
imprisonment for more than 3 months.
Policy triggers: do I need to consider section 24(e)?

You may need to consider section 24(e) if you are developing policies or
practices that:

• establish a framework for introducing regulatory offences and have

these offences tried summarily;
• amend or alter procedures in the Summary Proceedings Act;
• alter the threshold under the Summary Proceedings Act for when a
person may elect to be tried by a jury;
• restrict the period during proceedings within which a person can elect
to be tried by jury.

What every policy analyst needs to know about section 24(e)

The right to elect to be tried by a jury, when charged with an offence

punishable by more than three months' imprisonment, is long-standing. The
procedures for informing the accused of the right are set down in statute.

Measures to achieve compliance

Means of ensuring your policy is consistent with section 24(e) include:

• Developing offence provisions that maintain the right to elect trial by

jury where the maximum penalty is more than three months'
imprisonment.
• Establishing procedures for the accused to be informed of the right to
elect trial by jury.

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.

Related rights and freedoms

When considering whether your policy or practice is consistent with section

24(e) of the Bill of Rights Act, you should also consider the right to a fair
trial (section 25(a)).
Further discussion on the meaning of section 24(e)

Section 66(1) of the Summary Proceedings Act provides that any person
charged summarily with an offence punishable by a term of imprisonment
exceeding three months is able to elect to be tried by jury at any time before
the trial has, to a large extent, commenced. A decision as to whether or not a
charge, in the language of section 66(1), has been "gone into" will depend on
the facts, but the courts in the past have given a robust interpretation to the
accused's right to elect trial by jury. [657] The implementation of the right
will, by and large, be governed by the Summary Proceedings Act. Section
24(e) of the Bill of Rights should be read as supporting and enhancing this
entitlement. And even though statutory provisions in the past have expressly
provided that a person charged with certain offences cannot elect trial by
jury, [658] section 24(e) has an effective role to play in ensuring that the
standard procedure remains that a person charged with certain offences has a
right to be tried by his or her peers. Although the courts have not addressed
this point, section 24(e) may reinforce current standards and procedures
governing jury trials and jury selections (such as the requirement that the
jurors are selected from the community at large, that jurors remain
disinterested parties, that 12 persons serve on a jury, and that jurors
deliberate in private and so forth). [659]

Although an accused person may elect to forego their right to a trial by jury,
[660] it is self-evident that section 24(e) would require that the person
making that election is making it in a fully informed manner and in a clear
and unequivocal fashion. The Canadian Supreme Court has previously held
that the mere fact that the accused has chosen not to turn up to trial does not
constitute a waiver of the right. [661]

It would seem that the definition of what constitutes an offence under

military law should be restricted to those offences connected with military
service, rather than offences committed by military personnel in other
capacities. [662]

The Canadian courts have also taken the position that the right to elect a trial
by jury is not affected by a judge's summing up at the conclusion of the
hearing of evidence. The right to elect a trial by jury is not undermined where
the judge elects not to put part of a defendant's defence to the jury. [663] The
role of the trial judge in such a case is to determine whether the defence had
raised sufficient evidence to put the issue to the jury. [664]
Key cases

Ratu v Harlow [1960] NZLR 861; Birch v Ministry of Transport (1992) 2

CRNZ 83; R v Lee [1989] 2 SCR 1384; R v Osolin [1993] 4 SCR 595.

History of the section

The White Paper

This section is identical to that which was proposed in the White Paper.

Section 24(e) origins in international treaties and overseas legislation

There is no equivalent provision in either the ICCPR or the European

Convention of Human Rights. However, section 11(f) of the Canadian
Charter provides:

Any person charged with an offence has the right, except in the case of an
offence under military law tried before a military tribunal, to the benefit of a
trial by jury where the maximum penalty for the offence is imprisonment for
5 years or a more severe punishment.

Section 24(f) Right to legal assistance

Section 24(f) of the Bill of Rights Act is as follows:

Legal assistance
Everyone who is charged with an offence shall have the right to receive legal
assistance without cost if the interests of justice so require and the person
does not have sufficient means to provide for that assistance.

Policy triggers: do I need to consider section 24(f)?

You may need to consider section 24(f) if you are:

• changing the criteria under which a person is able to apply for criminal
legal assistance;
• amending the income thresholds under which a person is able to
qualify for assistance;
• amending the range of proceedings for which criminal legal aid may be
granted.
What every policy analyst needs to know about section 24(f)

• The significance and scope of section 24(f) should be considered in the

context of the Legal Services Act 2000.
• What constitutes "the interests of justice" is a legal matter, not an
operational or administrative one.
• The interests of justice are served by providing legal services where the
nature of the offending is grave, the accused has limited ability to
effectively represent him or herself, or the potential consequences of
such a failure are significant.
• The overall concern therefore appears to be one of fairness to the
accused - is the accused able to prepare and present a full defence to a
charge? Is the accused able to adequately protect their interests prior to
and during the proceedings?
• The right to legal assistance does not confer a right for an accused
person to choose his or her representative.
• The quality of representation is relevant only where it becomes
apparent to the judge that the lawyer's behaviour was incompatible
with the interests of justice.
• The right to receive legal assistance refers not only to the period prior
to the proceedings, but also to the appeals process.

Measures of increasing compliance

If you are developing policy or practices that may affect a person's eligibility
to receive legal assistance without cost:

• Ensure that the grounds under which an assessment can be made are
sufficiently certain that irrelevant considerations cannot be taken into
account.
• Re-assess the grounds under which a person can appeal the decision to
refuse to provide legal assistance - are the grounds too restrictive?

The information set out above is based on the decisions of courts in New
Zealand and overseas. If you require further information, refer to the
discussion below.
Related rights and freedoms

When considering whether your policy or practice is consistent with section

24(f) of the Bill of Rights Act, you should also consider:

• the right to be free from discrimination (section 19);

• the right to consult and instruct a lawyer without delay (section 23(b));
• the right to consult and instruct a lawyer (section 24(c));
• the right to have adequate time and facilities to prepare a defence
(section 24(d));
• the right to be present and present a defence (section 25(e));
• the right to appeal to a higher court (section 25(h)).

Further discussion on the meaning of section 24(f)

The Legal Services Act

The White Paper anticipated that the right in section 24(f) would be given
effect to at an operational level by legislation dealing with what is referred to
as legal aid. The Legal Services Act 2000 therefore governs how our legal
aid system will work on a daily basis; defining who is eligible for legal aid
under what criteria and so forth. As this legislation confers a discretionary
power on decision-makers, section 24(f) will be relevant when considering
the merits of particular decisions. As the courts have been quick to point out,
the issue of what constitutes "the interests of justice" is a legal issue and not
an operational or administrative one. [665] The courts therefore seem to have
created a residual discretion to determine whether a decision by the Legal
Services Agency was consistent with section 24(f) or not. This position was
expressed in a forthright way by Williamson J when he stated that, even
though the Legal Services Agency was required to determine where the
"interests of justice" lie, the court must still be vigilant to ensure that
administrative and procedural steps do not unjustly limit or prevent the
exercise of the right. [666]

Serving the interests of justice

The European Court of Human Rights has held that the interests of justice are
served by providing legal services where the legal issues are complex, [667]
the accused has limited ability to effectively represent himself, or the
potential consequences of such a failure are significant (that is, the severity
of the penalty). [668] The interests of justice may also be served where an
accused is not represented in a situation where his co-accused have obtained
representation. [669] The overall concern appears to be one of fairness. A
key question would therefore appear to be whether there is likely to be a
miscarriage of justice because the accused was unable to obtain legal
representation.

Choice of legal representation

The United Nations Human Rights Committee, European Court of Human

Rights, and the courts here have taken the consistent stance that the right to
legal assistance does not confer a right on an accused person to choose his or
her representative. [670] Similarly, although section 24(f) affirms the right to
be provided with legal representation, there does not appear to be any
requirement that the legal representation must meet a particular standard.
However, in some circumstances the quality of that representation may
disadvantage the accused to the extent that the accused suffers from a
miscarriage of justice. The Human Rights Committee, in referring to its
jurisprudence on this issue, has said that: [671]

a State party cannot be held responsible for the conduct of a defence lawyer,
unless it was or should have been manifest to the judge that the lawyer's
behaviour was incompatible with the interests of justice.

The distinction appears to lie in what the courts see as strategic decisions
made by counsel during the course of a trial as opposed to general
competence. A decision whether or not to call or cross-examine a particular
witness, for example, is more likely to be regarded as a strategic decision
which the courts are less likely to interfere with no matter how flawed that
decision is.

Representation at all stages of the process

The right in section 24(f) does not appear to be restricted to the initial
proceedings. Not only is a person charged with an offence eligible to receive
legal assistance prior to the proceedings, but also on appeal. Even though the
Legal Services Agency may have regard to the grounds for appeal in
determining whether to grant legal aid, [672] it is not clear from the Act
whether the merits of the appeal can be considered. [673] It would seem from
the European caselaw that the merits of the appeal will of themselves not be
sufficient reason to decline an application if the penalties are severe or the
legal issues are complex. [674] However, legal aid can only be granted for
appeals to the Privy Council in special circumstances. [675]
Key cases

Taito v R (2002) 19 CRNZ 224; (2002) 6 HRNZ 539; Smith v R 25/11/93,

Williamson J, HC Invercargill AP28/93; Darvell v Auckland District Legal
Services Subcommittee [1993] 1 NZLR 111; R v Heemi (1998) 16 CRNZ 221
(CA); Granger v United Kingdom (1990) 12 EHRR; Brown v Jamaica
775/1997.

History of the section

The White Paper

This section is identical to the provision that was proposed in the White
Paper.

Section 24(f) origins in international treaties and overseas legislation

Article 14(3)(d) of the ICCPR provides:

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
...
(d) to be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment in any
such case if he does not have sufficient means to pay for it.

Article 6(3)(c) of the European Convention for Human Rights provides:

Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own
choosing, or if he has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require.
Section 24(g) Right to the assistance of an
interpreter
Section 24(g) of the Bill of Rights Act is as follows:

Access to an interpreter
Everyone who is charged with an offence shall have the right to have the free
assistance of an interpreter if the person cannot understand or speak the
language used in court.

Policy triggers: do I need to consider section 24(g)?

Are you developing policies or practices:

• That attempt to set down guidelines for the use of translators and
interpreters in courts?
• That attempt to establish rules or procedures for the use of interpreters
or translators in proceedings?

If you answer "yes" to any of these questions, then you should consider
whether your policy or practice is consistent with section 24(g) of the Bill of
Rights Act.

What every policy analyst needs to know about section 24(g)

Section 24(g) has strong links with section 25(a) and the right to a fair trial as
well as a number of other associated rights. As the right in section 24(g) is
directed at enhancing the accused's participation both during and prior to
proceedings, the following matters are worth considering:

• It is not sufficient that an accused has some understanding of and

ability to speak the language used in Court: they must be able to
understand and speak it sufficiently well to be able to obtain, enjoy and
exercise all their rights in the proceedings to the best of their other
abilities.
• The phrase "language used" in section 24(g) is broad enough to
encompass both spoken and written language.
• Although the right extends to written documents, it does not require all
documents to be translated - just those critical to the maintenance of a
fair trial.
 • The costs of providing a translation of the documents may rest with the
prosecution.
• It is the responsibility of the Courts to ensure that the defence receives
copies of translated documents in a timely fashion.

Measures for increasing compliance

If you are developing policies or practices on the administration of court

proceedings, and particularly the use of interpretation and/or translation
services, you should consider:

• Consulting with interpretation and translation service providers over

the way in which the delivery of services could be enhanced.
• Seeking the views of groups in the community who are representative
of those who may be affected by such policies such as people of
different ethnic and national origins, or who have particular
disabilities.

Related rights and freedoms

Section 24(g) intersects with a whole host of rights, both those directly
related to court proceedings as well as a number of other rights. These
include:

• the right to receive information in any form and of any kind (section
14);
• the right to be free from discrimination (section 19); · the right to
consult and instruct a lawyer without delay (section 23(b));
• the right to be informed promptly and in detail of the nature and cause
of the charge (section 24(a);
• the right to consult and instruct a lawyer (section 24(c));
• the right to adequate time and facilities to prepare a defence (section
24(d));
• the right to a fair trial (section 25(a));
• the right to be present and present a defence (section 25(e));
• the right to examine witnesses (section 25(f));
• the right to the observance of the principles of natural justice (section
27(1)).
Further discussion on the meaning of section 24(g)

Effective participation

Section 24(g) is another aspect of the right to a fair trial - a person's ability to
participate effectively in proceedings is directly related to their ability to
comprehend what is taking place.

In R v Cooper [676] the Court said

At first glance [section 24(g)] might seem to be a very limited right, but it
cannot be if it is interpreted as part of the fabric of the rights enacted by that
legislation, particularly in sections 23, 24 and 25. It is not sufficient that an
accused has some understanding of and ability to speak the language used in
Court: they must be able to understand and speak it sufficiently well to be
able to obtain (or should it better be put 'attain'), enjoy and exercise all their
rights in the proceedings to the best of their other abilities. Unless they have
that level of understanding and speaking ability, to deny them the services of
an interpreter would be to deny or unreasonably derogate from the pivotal
right to a fair hearing (section 25(a)) and would be a failure to observe the
principles of natural justice (section 27(1)).

For this reason it would appear that the requirement for interpretation must
be genuine and necessary in order to secure effective participation. [677] The
fact that there are two official languages in New Zealand may act to qualify
this requirement here. There is therefore no requirement for a party to
establish the need for the proceedings to be conducted in Te Reo. [678]

As the objective of the right in section 24(g) is to secure effective

participation, the right extends to preparation for trial as well as the conduct
of the proceedings themselves. [679]

Interpretation versus translation

The courts have held that there is no substantive distinction to be made

between interpretation and translation. The right therefore extends to written
as well as oral evidence. [680] In Alwen Industries the Court held:

If the purpose of the right is to ensure an accused person understands and

participates meaningfully in the proceeding, then to restrict interpretative
assistance to the spoken word (when much of significance in legal
proceedings appears in written form) would rob the right of its true force.
The right to assistance is triggered by the fact that a person is unable to
understand or speak the language used in Court. Once that criterion is met,
the right to interpretative assistance should attach generally, not in a
restricted capacity.

The phrase "language used" is broad enough to encompass both spoken and
written language - not just, as counsel for the respondent argued, the extracts
from the documentary exhibits which are read out or articulated in Court.

The reference to the language being used "in court" does not restrict the
application of the section to the actual trial, but can include the production of
hand up briefs of evidence at the depositions stage. [681]

However it might not be necessary for all written documents to be translated;

documents that are not seen as critical to the defence are not required to be
translated. The Court in Alwen Industries considered that:

...the "touchstone" will be the overall need to ensure the accused receives a
fair trial. Specifically, this refers to the need to ensure the accused
understands the proceedings, is able to instruct counsel fully and prepare a
defence. [682]

Similarly, it would not be necessary to translate documents if the accused has

demonstrated an ability to understand the contents of the documents in
another context.

Bearing the costs of translation

The Court in Alwen Industries also considered certain procedural aspects of

the right in section 24(g). The Court held that, by virtue of section 3(a) of the
Bill of Rights Act, it was arguable that it was for the prosecution to meet the
costs of translation given its responsibility to present evidence in an
intelligible form. [683] However, this issue has not been conclusively
determined and such a requirement may depend on the relevance of the
documents to the proceedings and the number of documents needing
translation. The European Court of Human Rights has also expressed the
view that the accused should not bear the cost of interpretation or translation.
[684]

However, it remains for the Court to arrange on request for an interpreter or

translator as the case may be, and to make available to the defence a
translation of the briefs of evidence in a timely fashion. [685]
Key cases

R v Cooper 3/6/97 Judge Moore DC Whangarei T63/96; Alwen Industries

Ltd v Collector of Customs [1996] 3 NZLR 226; (1996) 14 CRNZ 136; 3
HRNZ 29; Kamasinski v Austria December 12, 1989, Series A, No 168; USA
v Mosquera 816 F Supp 168 (1993)

History of the section

The White Paper

This provision is unchanged from that which was proposed in the White
Paper.

Section 24(g) origins in international treaties and overseas legislation

Article 14(3)(f) of the ICCPR provides:

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
...
(f) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court

Article 6(3)(e) of the European Convention for Human Rights provides:

Everyone charged with a criminal offence has the following minimum rights:
...
(e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court

Section 14 of the Canadian Charter provides:

A party or a witness in any proceedings who does not understand or speak

the language in which the proceedings are conducted or who is deaf has the
right to the assistance of an interpreter.

Although the US Constitution does not have a specific right to an interpreter,

it is considered that the right is found in a number of provisions but
principally the 14th and the 6th Amendments.
Footnotes:

571. The latest version can be found on the Internet at

http://www2.justice.govt.nz/lac/.
572. R v Keir (1994) 11 CRNZ 532 (CA).
573. Martin v Tauranga District Court [1995] 2 NZLR 419.
574. R v Gibbons (1997) 14 CRNZ 552, 562.
575. R v Kalanj [1989] 1 SCR 1594, 1607.
576. R v Gibbons (1997) 14 CRNZ 552, 562.
577. General Comment 13. Adopted on 13/04/84.
578. R v Gibbons (1997) 14 CRNZ 552, 562. Such an approach is
consistent with the views of the minority in R v Kalanj where Lamer
and Wilson JJ both considered that a person is charged for the purposes
of the Charter when "the impact of the criminal process is felt by the
accused" R v Kalanj [1989] 1 SCR 1594, 1621.
579. Daniels v Thompson [1998] 3 NZLR 22 (CA).
580. See for example R v Wigglesworth (1989) 2 SCR 541.
581. This point was raised but not decided in Drew v Attorney-
General (No 2) (2001) 18 CRNZ 465 (CA) 481.
582. R v Wigglesworth (1989) 2 SCR 541, 559 [emphasis added].
583. R v Wigglesworth (1989) 2 SCR 541, 560.
584. R v Wigglesworth (1989) 2 SCR 541, 561.
585. R v Wigglesworth (1989) 2 SCR 541, 561.
586. R v Wigglesworth (1989) 2 SCR 541, 562.
587. R v Wigglesworth (1989) 2 SCR 541, 562.
588. Engel v Netherlands July 8, 1976, Series A, No 22; 1 EHRR
766.
589. K Reid (1998), A Practitioner's Guide to the European
Convention of Human Rights Sweet & Maxwell, London, p 55.
590. K Reid (1998), p 54.
591. Llewellyn v Auckland City Council 8/12/97 Cartwright J HC
Auckland, AP174/97. Compare this position with that of the Canadian
courts which came to the opposite view Re McCutcheon and City of
Toronto (1983) 147 DLR (3d) 193.
592. Ozturk v Germany February 21, 1984, Series A, No 73; 6 EHRR
409.
593. Note though that the scope of Article 6(3) may be limited by the
language of the provision in that it refers to persons being "charged
with a criminal offence".
594. Lamer J in R v Delaronde [1997] 1 SCR 213, indicated that the
purpose of the equivalent provision in the Canadian Charter went
further than the right to "make full answer and defence".
595. There is, therefore, some overlap between this provision and
sections 24(d) and 25(e) of the Bill of Rights Act.
596. Simpson v MAF (1996) 3 HRNZ 342, 354.
597. R v Gibbons (1997) 1 CRNZ 552, 563.
598. Caie v Attorney-General 6/04/01, Fisher J, HC Auckland,
CP334-SD99.
599. R v E (1999) 17 CRNZ 40.
600. Jones v Police [1998] 1 NZLR 447; (1997) 1 CRNZ 374 (CA).
601. Department of Conservation v Gilfillan 2 NZLR 499, 503.
602. Italy 10889/84 May 11, 1988, 56 DR 40. In this case the accused
was sent notification of the charges by mail. The accused denied
having received the notification.
603. R v Rapatini (1998) 16 CRNZ 311, 314-15.
604. General Comment 13. Adopted on 13/4/84.
605. R v Delaronde [1997] 1 SCR 213.
606. See Gonthier J in R v Morales (1992) 77 CCC (3d) 91, 122.
607. See section 7(5) of the Bail Act 2000.
608. R v Lee [2001] 3 NZLR 858, 864 para 25.
609. R v Lee [2001] 3 NZLR 858, 864 paras 24 and 27.
610. Section 8(2)(a) of the Bail Act provides that the belief that the
person charged has committed an offence is a discretionary factor that
the courts can take into account when considering whether to detain the
accused in custody. Obviously the right to be presumed innocent is a
relevant consideration - see the discussion on section 25(c) of the Bill
of Rights Act in these guidelines.
611. Karen Reid (1998) A Practitioner's Guide to the European
Convention of Human Rights, Sweet & Maxwell, London, p 306. See
 Kemmache v France No 1 November 27, 1991, Series A, No 218; 14
EHRR 83, para 45
612. Kemmache v France No 1 November 27, 1991, Series A, No
218; 14 EHRR 83, para 50.
613. Hill and Hill v Spain (526/93).
614. Raimondo v Italy February 22, 1994, Series A, No 281-A; 18
EHRR 237.
615. Guzzardi v Italy November 6, 1980, Series A, No 39; 3 EHRR
333.
616. R v Allison [2002] 1 NZLR 679, 684.
617. Para 10.109 of the White Paper.
618. It should be noted that article 5(3) of the Convention does not
provide for a right to bail, but the caselaw reflects many of the same
considerations with regards the ability to detain persons prior to trial.
619. See Hardie-Boys J in R v Barlow (1995) 14 CRNZ 9, 43. Note
however, that Gault J took a contrary view in holding that the right in
section 24(c) extended only to assured access to legal counsel when
required - see Gault J at page 52 of the judgment.
620. Hardie-Boys J in R v Barlow (1995) 14 CRNZ 9, 43.
621. R v Hebert (1990) 57 CCC (3d) 1; 77 CR (3d) 145 (SCC).
622. R v Barlow (1995) 14 CRNZ 9, 43.
623. Drew v Attorney-General [2002] 1 NZLR 58. Although this case
turned on whether the observance of the principles of natural justice
required an inmate to be legally represented at a disciplinary hearing,
the policy rationale is equally applicable here. See, too, R v Jays
24/08/89 CA 177/89.
624. Neilson v R 15/06/93 CA 53/93.
625. R v Ru 4/10/01, CA 238/01, para 28.
626. Bailey v Whangarei District Court (1995) 13 CRNZ 231, 237-
239. But note that as of November 2001, persons eligible to receive
legal aid may, if charged with an offence, consult their preferred
lawyer.
627. Neimkemper v Police 21/6/94, Barker J, HC Auckland
AP120/94.
628. R v Holdgate 24/5/01, CA 422/97 For the position in Europe, see
Karen Reid (1998) A Practitioner's Guide to the European Convention
of Human Rights Sweet &Maxwell, London, p70.
629. Section 341(3) of the Resource Management Act provides that
the statutory defence to a charge in Section 341(2):
Except with the leave of the Court does not apply unless, within 7 days
after the service of the summons or within such further time as the
Court may allow, the defendant delivers to the prosecutor a written
notice-
(a) Stating that he or she intends to rely on subsection (2); and
(b) Specifying the facts that support his or her reliance on subsection
(2).
630. Melin v France June 22, 1993, Series A No 261-A; 17 EHRR 1.
The majority in this case felt that this wasn't an automatic obligation as
there may be instances where, like in Melin's case, the accused ought
to have known the procedures. Melin was a lawyer.
631. Vacher v France December 17, 1996, RJD, 1996-vi, No 25.
632. See R v Waetford CA 406/99, 2/12/1999 where the Court of
Appeal held that a self-represented accused was entitled to be provided
with relevant copies of legal material, cases and statutes.
633. R v Accused CA 357/94 (1994) 12 CRNZ 417.
634. See R v Accused CA 357/94 (1994) 12 CRNZ 417, 425-427. As
these comments were only observations, they do not form part of the
law on section 24(d) but are influential given that the views expressed
come from the Court of Appeal. See Brown v Stott [2001] 2 WLR 817
(PC), per Lord Bingham at p 827. The concept of equality of arms is
discussed at more length in the discussion on the right to a fair trial in
these guidelines.
635. The accused had been convicted under s 138 Crimes Act 1961
on a charge of having sexual intercourse with a severely subnormal
woman. Despite requests by the defence, a defence psychologist had
not been permitted to test and examine the complainant in order to
reach an opinion if the complainant was "severely subnormal". Note
the dissenting judgment of Gault J in R v Griffin [2001] 3 NZLR 577;
(2001) 19 CRNZ 47 (CA), 588 para 49
636. R v Griffin [2001] 3 NZLR 577; (2001) 19 CRNZ 47 (CA), 584,
para 29
637. R v Griffin [2001] 3 NZLR 577; (2001) 19 CRNZ 47 (CA), 584,
para 37.
638. See also sections 344C and 368 of the Crimes Act and sections
13A, 13B, 23AA of the Evidence Act 1908 which deal with the
disclosure of information about, or concern appearance at trial of
witnesses.
639. Commissioner of Police v Ombudsman [1988] 1 NZLR 385;
(1988) 3 CRNZ 268 (CA).
640. See Police v Nimmo (1999) 16 CRNZ 491, 495 and 499.
641. Police v Nimmo (1999) 16 CRNZ 491, 500.
642. Attorney-General v District Court at Otahuhu (2001) 19 CRNZ
29 (CA)
643. R v Dobson 8/6/95, CA 25/95.
644. Attorney-General v District Court at Otahuhu (2001) 19 CRNZ
29 (CA), 44 para 49
645. R v Brown [1997] 3 All ER 769 (HL) per Lord Hope of
Craighead, 778, referring to statements made by Diplock LJ in
Dallison v Caffery [1964] 2 All ER 610 at 622, [1965] 1 QB 348 at 375
cited with approval in R v Shaqlane, 5/3/01, CA341/00.
646. R v Bero (2000) 151 CCC (3d) 545 (Ont CA).
647. On the routine destruction of evidence see R v McLeay 4/4/97,
CA 349/96 and the dissenting judgment of Gault J in Griffin cited
above.
648. See Emmerson and Dixon (1999) in Human Rights Law and
Practice Butterworths, London, p 154 para 4.6.65.
649. R v Donaldson [1995] 3 NZLR 641.
650. This is regarded as part of a person's right to "fundamental
justice" and "due process" in the context of criminal proceedings. See
section 7 of the Charter and Article V of the American Bill of Rights.
651. R v Donaldson [1995] 3 NZLR 641, 647-649.
652. R v Donaldson [1995] 3 NZLR 641, 649.
653. R v Donaldson [1995] 3 NZLR 641, 649.
654. Simpson v Police HC Auckland AP 67/98, Williams J.
655. R v Ruka CA 74/97 17/09/97.
656. R v Bevin CA 389/96 16/12/96.
657. See, for example, Ratu v Harlow [1960] NZLR 861.
658. See section 43 of the Summary Offences Act 1981. These
statutory exemptions will continue to apply despite section 24(e) by
virtue of section 4 of the Bill of Rights Act. See Birch v Ministry of
Transport (1992) 2 CRNZ 83, 86.
659. See generally the provisions of the Juries Act 1981.
660. Section 66(7) of the Summary Proceedings Act 1981.
661. R v Lee [1989] 2 SCR 1384. Note that the Court was divided as
to whether the limit on the right to elect trial by jury was justifiable in
terms of section 1 (our section 5) of the Charter. The majority held that
it was.
662. PW Hogg Constitutional Law of Canada (3rd ed) 48-24.
663. R v Osolin [1993] 4 SCR 595.
664. R v Osolin [1993] 4 SCR 595, 677.
665. Smith v R 25/11/93, Williamson J, HC Invercargill AP28/93.
666. Smith v R 25/11/93, Williamson J, HC Invercargill AP28/93.
667. The Legal Services Act refers to the "gravity of the offence"
rather than complexity of the legal issues although see Turton v R
CA38/02 17/2/03 where one of the accused was able to establish that
there was a material misdirection to the jury in relation to her
responsibility as a party where she was unrepresented.
668. Granger v United Kingdom (1990) 12 EHRR, para 47.
669. Darvell v Auckland District Legal Services Subcommittee [1993]
1 NZLR 111, 128. See also the comments of the trial judge referred to
with approval by Williams J in Darvell at 118.
670. R v Heemi (1998) 16 CRNZ 221 (CA). For a European position
see X v Germany 6 DR 114 (1976).
671. Brown v Jamaica 775/1997. See, too, Artico v Italy (1980) 3
EHRR 1.
672. Section 8(2)(b)(i) of the Legal Services Act 2000.
673. Section 8(2)(b)(ii) of the Legal Services Act refers to "any other
circumstances that, in the opinion of the Agency, are relevant". The
decision of the Court of Appeal in Nicholls v Registrar of the Court of
Appeal [1998] 2 NZLR 385 has since been overruled by the Privy
Council in Taito v R (2002) 19 CRNZ 224; (2002) 6 HRNZ 539. Prior
 to the enactment of the Legal Services Act 2000, the Court of Appeal
considered applications for legal aid on the merits of the appeal.
674. See Karen Reid (1998) A Practitioner's Guide the European
Convention of Human Rights Sweet & Maxwell, London p107.
675. Those circumstances being where "the Attorney-General
certifies that a question of law of exceptional public importance is
involved and that the grant of aid is desirable in the public interest".
See sections 6(b) and 7(1)(c)(ii) of the Legal Services Act.
676. R v Cooper [1997] DCR 632, at 635; (1997) 4 HRNZ 300, at
302-303.
677. Karen Reid (1998) A Practitioner's Guide to the European
Convention of Human Rights Sweet &Maxwell, London p97.
678. See section 4 of the Maori Language Act 1987. Section 4
provides that any party to a proceeding may speak Maori but there is
no requirement that other parties address that person in Maori.
679. Beaudoin and Ratushny (1989) The Canadian Charter of Rights
and Freedoms (2nd ed), 532 - 533. On a related point see Sullivan v
Ministry of Fisheries [2002] 3 NZLR 721.
680. Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR
226; (1996) 14 CRNZ 136; 3 HRNZ 29, Kamasinski v Austria
December 12, 1989, Series A, No 168, and USA v Mosquera 816 F
Supp 168 (1993).
681. Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR
226; (1996) 14 CRNZ 136; 3 HRNZ 29, 230.
682. Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR
226; (1996) 14 CRNZ 136; 3 HRNZ 29, 232.
683. Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR
226; (1996) 14 CRNZ 136; 3 HRNZ 29, 232 -233.
684. Leudicke, Belkacem and Koc v Federal Republic of Germany
(1978) 2 EHRR 149, para 40
685. Alwen Industries Ltd v Collector of Customs [1996] 3 NZLR
226; (1996) 14 CRNZ 136; 3 HRNZ 29, 233.
Section 25: Minimum standards of
criminal procedure -
Section 25 of the Bill of Rights Act is as follows:

Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination
of the charge, the following minimum rights:

a. The right to a fair and public hearing by an independent and

impartial court:
b. The right to be tried without undue delay:
c. The right to be presumed innocent until proved guilty according
to law:
d. The right not to be compelled to be a witness or to confess guilt:
e. The right to be present at the trial and to present a defence:
f. The right to examine the witnesses for the prosecution and to
obtain the attendance and examination of witnesses for the
defence under the same conditions as the prosecution:
g. The right, if convicted of an offence in respect of which the
penalty has been varied between the commission of the offence
and sentencing, to the benefit of the lesser penalty:
h. The right, if convicted of the offence, to appeal according to law
to a higher court against the conviction or against the sentence or
against both:
i. The right, in the case of a child, to be dealt with in a manner that
takes account of the child's age.

Policy Triggers: do I need to consider section 25?

Are you developing policy creating or amending

 criminal offences?
 criminal penalties?
 criminal procedures?

OR
Are you developing policy of a regulatory nature that creates or amends
offence or penalty provisions or policy that imposes disciplinary sanctions

and

 The offences are, by their very nature, of a criminal character, or

 The offence carries a penalty of imprisonment or a fine that is intended
to indicate that the conduct was socially harmful?

If your response to any of these questions is "yes" then it is likely that the
proposal you are working on will raise issues of consistency with section 25
and the rights contained in that section.

If, on the other hand you answer "no" to the above questions, but your policy
still seeks to establish a regime with civil or administrative penalties, you
should still go on to consider whether your policy is consistent with the right
to the observance of the principles of natural justice, as found in section
27(1) of the Bill of Rights Act.

What every policy analyst needs to know about section 25

 Section 25 is concerned with rights related to criminal procedure

regardless of the seriousness of the offence.
 Section 25 may also apply to regulatory offences.
 The word "offence" in section 25 is not qualified by reference to
"criminal activities" that are prosecuted through the ordinary criminal
courts. [686]
 Although criminal offending would appear to be the principal context
within which the rights in section 25 would be applied, offences other
than criminal offences (such as military offences) might come within
the meaning of "offence" for the purposes of section 25. This is more
likely to be the case if the resulting penalty (whether a fine or
imprisonment) is punitive and/or intended to act as a deterrent to
prevent future offending.
 Section 25 applies to all stages of the process, from the pre-trial
hearing to the completion of the appeal process. This is indicated by
the words "in relation to the determination of the charge".
Methods to increase the compliance of your policy with section 25

In the development of any policy that may raise issues of consistency with
section 25, consider:

 The nature of the conduct that you are seeking to regulate or the harm
that you are seeking to address via offences or penalties.
 Whether the interests of persons charged with the offence are
adequately recognised and taken into account.
 The impact that the policy or practice may have on the public's
perception of the way in which justice is administered.
 If you are considering developing a new offence, you should refer to
the Legislation Advisory Committee Guidelines (Guidelines on
Process and Content of Legislation). This publication contains a useful
chapter on criminal offences, which sets out other relevant
considerations when developing offences. [687]

Related rights and freedoms

Many of the rights in section 25 are inter-related. You should therefore

consider if more than one of the rights in section 25 is triggered by an issue
of inconsistency. If you are developing policies or practices that you think
might give rise to issues of compliance with section 25, you should also
consider whether those practices are consistent with the other rights
governing criminal offences, including:

 the rights of persons arrested or detained (section 23)

 the rights of persons charged with an offence (section 24)
 retroactive penalties and double jeopardy (section 26).

Aside from those considerations, think about whether those policies or

practices are consistent with:

 the right to the observance of the principles of natural justice (section

27(1)).

Further discussion on the meaning of section 25

The word "offence" in section 25 is not qualified by reference to criminal

activities. An offence is generally conceived of as being an act punishable
under criminal law. Section 2 of the Crimes Act 1961 defines an offence to
be "any act or omission for which any one can be punished under this Act or
under any other enactment, whether on conviction on indictment or on
summary conviction." It would appear that the courts in New Zealand, for the
purposes of applying section 25, would generally interpret the word
"offence" consistently with this definition as section 25 is primarily
concerned with criminal procedure rights regardless of the seriousness of the
offence. The Court of Appeal in Daniels v Thompson [1998] 3 NZLR 22
(CA) adopted the approach that the Canadian Supreme Court has taken in
respect of the prohibitions against double jeopardy; that is the protection
against double jeopardy only applies in respect of a further criminal
prosecution for a criminal offence for which the accused has already been
convicted or acquitted. [688]

However, there are indications that the Courts might not apply such a strict
definition in respect of sections 24 and 25 of the Bill of Rights Act. The
Court of Appeal in Drew v Attorney-General (No 2) (2001) 18 CRNZ 465
(CA) was asked to consider whether disciplinary offences in prisons were of
sufficient character to meet the definition of an offence for the purposes of
sections 24 and 25 of the Bill of Rights Act. The Court of Appeal did not
reach a finding on this matter but left a clear signal to suggest that offences
other than criminal offences might fall within the definition. [689] Military
offences are likely to be considered to be an offence for the purposes of
section 25.

Although criminal offending would appear to be the principal context within

which the rights in section 25 would be applied, the courts in Canada have
given extensive consideration to the equivalent provision in the Canadian
Charter. The Canadian Supreme Court has stated that the ambit of section 11
of the Charter is slightly broader than just criminal offences - a matter could
fall within the scope of the provision if, because of its nature it is a criminal
proceedings or because a conviction in respect of the offence may lead to a
penal consequence (for example, imprisonment or a substantial fine)

The discussion in these guidelines on the scope and application of section 24

of the Bill of Rights Act traverses these issues in more detail.

Key cases

Drew v Attorney-General (No.2) (2001) 18 CRNZ 465 (CA), 481; Drew v

Attorney-General (No.2) (2001) 18 CRNZ 465 (CA), 481; R v Wigglesworth
(1989) 2 SCR 541
History of the section

The White Paper

The rights set out in section 25 as minimum standards of criminal procedure

were contained in Articles 16, 17, and 18 of the proposed Bill of Rights Act
as it appeared in the White Paper. However, these were re-organised into
four main sections - sections 23, 24, 25 and section 26 in the Bill of Rights
Act without any discussion.

Section 25 (a) The Right to a Fair Trial

Section 25(a) of the Bill of Rights Act is as follows:

Fair trial
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right to a fair and public hearing by an independent and
impartial court.

Policy Triggers: do I need to consider section 25(a)?

 Are you developing policies or practices amending the way in which

evidence is presented in a court or tribunal?
 Are you developing special procedures to provide safeguards for
witnesses when testifying in court?
 Are you developing policy or practices that will regulate the way in
which the media is able to report on trials or pending court cases or
other hearings?
 Are you developing policies or practices concerning the way in which
juries are selected?
 Are you amending policies or practices governing legal aid?
 Are you seeking to amend the procedure allowing for a change of trial
venue?
 Are you developing policy that creates new offences or amends
existing offence or penalty provisions allowing enforcement officers to
issue infringement offence notices with "instant" fines for breaches of
legislation?
If your response to any of these questions is "yes" then it is likely that the
proposal you are working on will raise issues of consistency with section
25(a) and the right to a fair trial.

What every policy analyst needs to know about section 25(a)

Fair trial

 Consideration of whether a person has received a fair trial involves an

assessment of a range of factors, many of which are individually
identified in section 25.
 What constitutes fairness will require a weighing of a number of public
interest factors including the rights of the accused and the victim.
 The right is concerned with the quality of the trial process rather than
the merits of the decisions of tribunals and courts.
 An assessment of whether any trial is fair will need to consider
whether the trial procedures strike an appropriate balance between the
legitimate interests of the state in having allegations of criminal
offending prosecuted and the broader public interest in ensuring that an
accused receives a fair trial.

Public hearing

 The right to a public hearing is in accord with the principles of open

justice.
 The right to a fair trial may require that certain information is withheld
from the public.

Impartiality

 Proceedings must be free from bias and the objective perception of

bias.
 Impartiality does not mean that the Court or jury would have to have
no knowledge of the accused or the circumstances of the complaint.
Independence

 The independence of tribunals and courts is needed to enable judges

and others acting in a judicial capacity to act without fear of
interference.
 The independence of the tribunal and courts is to preserve the integrity
of the decision-making process.
 There are three essential ingredients pointing to the independence of
courts and tribunals and those performing adjudicative functions.
These are:
o security of tenure for adjudicators;
o financial security;
o administrative autonomy.

Measures to achieve compliance

In the development of any policy that may raise issues of consistency with
the right to a fair and public hearing or independence and impartiality of the
court, consider:

 Whether and to what extent the interests of the accused, the interests of
the complainant, and the interests of the community are addressed.
 Whether there is an appropriate balance between the legitimate
interests of the state in having allegations of criminal offending
prosecuted and the broader public interest in ensuring that an accused
receives a fair trial.
 The impact that the change in policy or practice may have on the
public's perception of the way in which justice is administered.
 Whether there are any persuasive reasons why a hearing should not be
held in public.
 Whether decision-makers and adjudicators are likely to be sufficiently
impartial to conduct of proceedings.
 Whether there are adequate opportunities for shifting the venue of the
proceeding where it is considered that this is necessary to preserve the
impartiality of the court.
 Whether the policy will maintain the independence of the court or
tribunal by preserving rules relating to tenure and appointment of
adjudicators, or the way in which institutions are funded.
Related rights and freedoms

If you are developing policies or practices that you think might give rise to
issues of compliance with the right to a fair trial, you should also consider
whether those practices are consistent with the remaining rights governing
criminal procedure in section 25(b) - (i). Aside from those considerations,
think about whether those policies or practices are consistent with:

 the right to freedom of expression (section 14);

 the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 25(a)

What is a fair trial?

The idea of a fair trial is central to human rights doctrine, not only as a right
in itself, but because without this one right, all the others are at risk; if the
state is unfairly advantaged in the trial process, it cannot be prevented in the
courts from abusing all other rights. [690]

Section 25(a) of the Bill of Rights Act reflects the common law principle of a
right to a fair trial. What constitutes a fair trial cannot be stated with
precision because what is "fair" will frequently depend on the facts of the
particular case. [691] The right to a fair trial though, is concerned with the
quality of the trial process rather than the merits of the decisions of tribunals
and courts. [692]

Access to the courts

The right to a fair trial ensures that a person who is charged with an offence
is able to contest the allegation before an impartial and independent decision-
making body. The accused needs to be able to have access to the courts for
this purpose. The courts in New Zealand do not appear to have considered
whether section 25(a) provides a right of access to the courts. However, this
matter has been considered in Europe. Although Article 6 of the European
Convention contains no express right of access to a court, the Court in
Golder v UK [693] held that it would be 'inconceivable' that Article 6 should
not first protect that which alone makes it possible to benefit from such
guarantees, namely access to a court. That is, a right to access to the courts,
subject to reasonable limits, is the doorway through which the remaining
rights of criminal procedure may be invoked. [694]
The European Court has said that while the right of access to a court might
be subject to limitations-

...the final decision as to the observance of the convention's requirements

rests with the court. It must be satisfied that the limitations applied do not
restrict or reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired. Furthermore, a limitation
will not be compatible with art 6(1) if it does not pursue a legitimate aim and
if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved ... [695]

Equality of arms

Whether section 25(a) also provides for equality of arms (that is, that a
defendant in a criminal trial is placed on an equal footing with the
prosecution) has been briefly considered by the courts in New Zealand.
However, the courts have yet to consider whether it applies in the context of
the right to a fair trial or the possible scope of the concept. [696]

The courts in Europe have considered that the principle of equality of arms
between the defence and prosecution is an integral part of a fair trial. The
Court in Brown v Stott [697] cited with approval the decision in Fitt v UK
[698] which set out the reasoning for this as follows:

It is a fundamental aspect of the right to a fair trial that criminal proceedings,

including the elements of such proceedings which relate to procedure, should
be adversarial and that there should be equality of arms between the
prosecution and defence. The right to an adversarial trial means, in a criminal
case, that both prosecution and defence must be given the opportunity to
have knowledge of and comment on the observations filed and the evidence
adduced by the other party...

An assessment of a range of factors

Despite this, the broad scope of section 25(a) remains evident as it is seldom
referred to without consideration of at least one of the other rights in the
section. Consideration of whether a person has received a fair trial involves
an assessment of a range of factors. Many of these factors are individually
identified in section 25. The European Commission on Human Rights has
described the role of other rights in section 25 this way:

They exemplify the notion of a fair trial ... but their intrinsic aim is always to
ensure, or to contribute to ensuring, the fairness of the criminal proceedings
as a whole. The guarantees enshrined in [the equivalent of sections 25(b) -
(i)] are therefore not an aim in themselves, and they must accordingly be
interpreted in the light of the function which they have in the overall context
of the proceedings.

It is also possible that factors other than those expressly included in section
25 (such as the failure to fully disclose relevant information prior to trial)
may be considered if their presence or absence contributes to a risk of a
miscarriage of justice or otherwise have an effect on the fairness of a trial.

Although it is therefore fair to say that, if one of the other rights in section 25
has been breached then it is likely that section 25(a) has also been breached,
compliance with the individual rights contained in sections 25(b) - (i) may
not always ensure fairness.

Public interest factors

The New Zealand caselaw suggests that what constitutes fairness will require
a weighing of a number of public interest factors such as: the interests of the
accused; the interests of the complainant; and the interest of the community
to have "allegations of serious criminal activity prosecuted". [699] This
weighing process can perhaps be best illustrated by way of an example. The
right to cross-examine the witnesses for the prosecution is considered an
important ingredient of a fair trial as it provides the defence and the court
with an opportunity to test the veracity of the witnesses' evidence,
particularly where the witnesses' evidence is crucial to the prosecution's case.
[700] However, where a witness is unable to give evidence in court (for
example if a witness dies before the proceedings take place), any written or
recorded testimony by that witness may be submitted in evidence. The
evidence may be admissible if the evidence is considered to be inherently
reliable and trustworthy. [701]

Special procedures may be appropriate in cases where it is not in the public

interest to require witnesses to testify in open court. However, such
procedures may only be permissible where the defendant or his or her
counsel can test that evidence. For example, witness screens or video tapes
presenting the evidence of children under 17 years of age can be used in sex
abuse cases. [702] There are also a number of common law mechanisms to
protect witnesses and complainants in cases involving sexual offences.
However, although the courts have employed these methods as a way of
"getting to the truth" they have also been diligent in ensuring that the right of
the accused to a fair trial is preserved. [703]
Why hearings should be public

Not only should justice be done, it should be seen to be done. The

requirement for a hearing to be held in public is therefore in accord with the
principles of open justice. [704] That the media and the public should have
free access to the courts is implicit in the provisions of the Criminal Justice
Act. [705]

Lord Diplock in Attorney-General v Leveller Magazine Ltd [706] set down

the rationale for the requirement for open justice:

As a general rule the English system of administering justice does require

that it be done in public: Scott v Scott [1913] AC 417. If the way that courts
behave cannot be hidden from the public ear and eye this provides a
safeguard against judicial arbitrariness or idiosyncrasy and maintains the
public confidence in the administration of justice. The application of this
principle of open justice has two aspects: as respects proceedings in the court
itself it requires that they should be held in open court to which the press and
public are admitted and that, in criminal cases at any rate, all evidence
communicated to the court is communicated publicly. As respects the
publication to a wider public of fair and accurate reports of proceedings that
have taken place in court the principle requires that nothing should be done
to discourage this.

Thomas J in Police v O'Connor [707] discussed the public nature of a trial in

some detail. After citing the above statement from Lord Diplock he said:
[708]

The conduct of proceedings in open Court, to which I would add the freedom
of reporting such trials, provides an assurance to the wider public that justice
is being administered openly and under public scrutiny...

In a real sense, the fact that the Courts are open to the public, and that
proceedings may be freely reported in the media, is the method by which
Judges remain answerable to the public.

There are, however, occasions where restrictions on the media or the public's
ability to gain access to the courts or information before the courts is
necessary to facilitate a fair trial. As Thomas J pointed out in O'Connor,
[709] "the principle of open justice must be balanced against the objective of
doing justice."
Public hearings and the presumption of innocence

Restrictions on the ability of the media to report matters coming before the
courts may also be necessary to ensure that the court remains impartial and
the presumption of innocence is maintained. [710]

Name suppression is possibly one of the more common examples of where

the courts restrict the media's right of access to information. [711] Name
suppression orders are available where the possible harm to the accused or to
associates or family of the accused outweighs the advantages that accrue to
the public as a result of disclosure. [712] The courts have been careful to
ensure that the application of suppression orders do not accrue beyond those
situations where there is evidence of special harm. [713] The Court of
Appeal, when considering whether the name of an "extraordinarily successful
businessman, community leader and philanthropist" should continue to be
suppressed on account that the public interest in him was "undue", said: [714]

The Court cannot enter into assessment of whether media or public interest is
appropriate or "undue"...in the absence of identified harm from the publicity
which clearly extends beyond what is normal in such cases, the presumption
of public entitlement to the information prevails. Any other approach risks
creating a privilege for those who are prominent which is not available to
others in the community and imposing censorship on information according
to the Court's perception of its value.

Section 138 of the Criminal Justice Act confers on the courts the power to
suppress a wide range of information if, in the court's view, suppression is
necessary in the interests of justice, or public morality, or the reputation of
any victim of any alleged sexual offence or offence of extortion, or the
security or defence of New Zealand. [715]

Even then, where possible, the effect of section 25(a) demands that the
interests of the public may still be able to be accommodated to the fullest
extent practicable. [716] In Tukuafu v R Chambers J held that: [717]

In the interest of a fair trial, various prejudicial matters about an accused may
quite legitimately need to be suppressed. Generally speaking, once a trial is
over, the balance tilts the other way... [718]

It would therefore appear that the duration of name suppression would

depend on the need for name suppression. If name suppression is needed in
order to preserve the interests of a fair trial, then name suppression may be
lifted at the completion of the proceedings. However, name suppression may
be permanent where the interests of the parties to the proceedings need to be
protected beyond the completion of proceedings (for example, to protect the
identity of a victim of a sexual offence).

Impartial courts

Courts and tribunals are required to be impartial in order to ensure that they
are free from bias. Courts and tribunals should therefore be independent from
the other branches of government (see below). Adjudicators - including juries
- are also required to be impartial. On a robust reading of the requirement
that the court is impartial, the courts have said that such a requirement does
not mean that the court or jury would have to have no knowledge of the
accused or the circumstances of the complaint. Section 322 of the Crimes Act
1961, which is strengthened by the right to a fair trial, provides for a
procedure allowing for a change of trial venue where a change of venue can
be sought and granted because of concerns that media coverage may affect
the impartiality of any jury. [719] However, the courts have observed that:
[720]

It is not possible to obtain a human tribunal which is totally devoid of any

preconceptions or ideas which are sometimes referred to as
prejudice...including ones which may be subtle or inbred but, once aware of
the possibility and conscious need to act independently and impartially, the
Judge or juror is capable of weighing the relevant issues and reaching a just
conclusion. In the view of our modern society there can be no guarantee that
jurors will be unaware of the facts of a particular case.

Independence

Courts and tribunals are required to be independent from the other branches
of government in order to preserve the appropriate constitutional checks and
balances in our democracy.

The independence of courts and tribunals are likely to be determined with

reference to the following: [721]

i. tenure of office - judges and others serving in the courts and tribunals
should only be able to be removed from their positions for reasons
relating to their ability to perform the functions of the position;
ii. financial security - the level of remuneration provided to judges and
other persons serving in a judicial capacity should be set by an
 independent body and at a sufficiently high level to minimise the
possibility of corruption; and
iii. institutional autonomy - courts and tribunals should be able to
independently arrange the functions of the institution.

Key cases

Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 R v

Middleton 26/9/00, CA218/00; Lewis v Wilson & Horton [2000] 3 NZLR
546; R v L [1994] 2 NZLR 54; R v Metcalf (1996) 14 CRNZ 184; Police v
O'Connor [1992] 1 NZLR 87; R v Barlow [1996] 2 NZLR 116; (1995) 13
CRNZ 503; 3 HRNZ 40; R v B [1995] 2 NZLR 172; Attorney-General v
Leveller Magazine Ltd [1979] AC 440;Brown v Stott [2001] 2 WLR 817
(PC); Saunders v United Kingdom (1997) 23 EHRR 313, Reports 1996-VI

History of the section

The White Paper

The provision as originally proposed in the White Paper provided that

everyone charged with an offence has the right to a fair and public hearing by
a competent, independent, and impartial court.

The phrase "competent" was omitted from the final version of the Bill on the
grounds that it was not considered to enhance the guarantee of independence
and impartiality. Submissions were also made to the Select Committee that
the word "competent" may enable arguments to be made on the basis of the
calibre of the judge or jury dealing with a particular matter. [722]

Section 25(a) origins in international treaties and overseas legislation

Article 14(1) of the ICCPR provides that:

All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law ... [723]
Article 10 of the UDHR provides that:

Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of their rights and
obligations and of any criminal charge against him.

Section 11(d) of the Canadian Charter provides:

Any person charged with an offence has the right to be presumed innocent
until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal.

Article 6(1) of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law
... [724]

Section 25(b) Right to be tried without undue

delay
Section 25(b) of the Bill of Rights Act is as follows:

Undue delay
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right to be tried without undue delay

Policy Triggers: do I need to consider section 25(b)?

Although it is unlikely that the policy or practice that you are working on
will, of itself, give rise to issues of inconsistency with this right, the
implementation of this policy or practice might have practical implications
for the courts. So:

 Are you developing new practices or procedures for the management

of caseloads in the courts?
 Are you developing policies that may increase the workloads of the
courts by, for example, creating a range of new criminal offences
where the conduct has previously been dealt with by an administrative
tribunal?
  Are you developing policies or practices that may reduce the number
of tribunals or limit the range of persons who are able to act in a
judicial capacity?
 Are you developing practices concerning procedures for the
investigation and prosecution of offences?

What every policy analyst needs to know about section 25(b)

 The right to be tried without undue delay seeks to protect interests

other than the right to a fair trial, including the liberty interest of the
accused, the preservation of public confidence in the administration of
justice, and to prevent unnecessarily prolonged detention or control.
 The right to be tried without undue delay applies once a person has
been officially accused of an offence, and complements principles
against abuse of process.
 This right is narrower than the courts' power to discharge an accused
person under section 347 of the Crimes Act 1961 or the courts'
common law power to stay proceedings as an abuse of process. For
example, both of those powers can be used if there is delay before or
after a person is officially accused.
 The New Zealand Courts have been willing to consider whether any
delays in the pre-charge period have meant that delays in the post-
charge period are "undue".
 The New Zealand Courts have not yet considered whether this right
includes the right to be sentenced within a reasonable time.
 Delay may be caused by a variety of factors including actions by the
Crown, the accused, the court system or the intricacies of the offence
itself, but lack of resources may not be an acceptable explanation by
itself for the delay.
 While an accused person may waive his or her right to be tried without
undue delay, their consent must be a fully informed decision and must
be made express.
 The prejudice that accrues to the accused as a result of the delay may
be a decisive factor in determining whether a delay is undue,
particularly where there is no one contributing factor causing the delay.
Measures to achieve compliance

If you are developing policy that will affect the caseloads of the courts or that
relates to the management of caseloads, consider:

 The additional funding needed to effectively implement the changes.

 The implications for the courts if those policies are implemented
without the required level of funding.
 Whether penalties, other than those imposed by a court, are an
adequate means of addressing the conduct that you are attempting to
sanction.

If you are amending the laws relating to the granting of bail:

 ensure that there are adequate protections built into the legislation to
enable a person held on remand to apply at suitable intervals for bail;
or
 if the person is on bail, adequate opportunity to seek a review of bail
conditions.

These measures may help minimise the effects caused by delays in holding
proceedings.

Related rights and freedoms

When considering whether your policy or practice is consistent with section

25(b) you should also consider whether it is consistent with:

 the right to a fair and public hearing by an independent and impartial

tribunal (section 25(a));
 the right to be presumed innocent until proven guilty (section 25(c));
 the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 25(b)

In Martin v Tauranga District Court Casey J stated: [725]

... the early trial objective of para (b) is aimed at the perceived affront to
human dignity caused by drawn-out legal process, as recognised over the
centuries in those jurisdictions acknowledging the worth and liberty of the
individual.

Objectives of section 25(b)

Section 25(b) serves three purposes. Firstly, it ensures that persons charged
with an offence are afforded a fair trial. Delays in the trial process may lead
to a miscarriage of justice as witnesses' memories of events fade or they no
longer remain available to testify for whatever reason. Secondly, delays to
the start of a trial may mean that an accused is held in custody or subject to
stringent bail conditions for a longer period than necessary. And thirdly,
section 25(b) seeks to preserve an individual's security or liberty interest.
That is, the courts have acknowledged that lengthy delays may have an
impact on an individual's sense of certainty about his or her future, even if
they are not held in custody. The independence of the liberty interest was
identified in Hughes v Police where Gallen J stated: [726]

The Courts have accepted the pressures and personal consequences arising
from an extended delay on the person subjected to such delay, can of
themselves amount to prejudice for the purposes of an abuse of process
application, even where they are not seen as directly impinging upon the
ability of the person concerned to defend him or herself.

These interests have been said to apply to corporations in the context of

regulatory offences as well as individuals who are charged with what are
known as truly criminal offences. [727]

The European Court of Human Rights has also included a fourth

consideration: the desire to avoid delays which might jeopardise the
effectiveness and credibility of the administration of justice. [728]

Scope of section 25(b)

Section 25(b) is said to be narrower in application than section 347 of the

Crimes Act 1961 (which sets out the power of a court to discharge an
accused) or the common law power of the superior courts to stay proceedings
as an abuse of process. Undue delay in the context of s25(b) is concerned
with delay after a charge is laid whereas the existence of delay before the
charge can be considered in deciding whether there has been abuse of
process. Pre-trial delay giving rise to an abuse of process is likely to give rise
to consideration as to whether the accused would receive a fair trial. [729]
The scope of section 25(b) is broader than what may otherwise be the case
because the courts have been willing to consider whether any delays in the
pre-charge period have meant that delays in the post-charge period are
"undue". Also the word "charge" under section 25(b) has been defined by the
courts to refer to "the first official accusation". [730]

The UN Human Rights Committee has also said that the guarantee in article
14(3)(c) of the ICCPR relates not only to the time by which a trial should
commence, but also the time by which it should end and judgement rendered.
While the issue of delays in sentencing has not been considered by the New
Zealand courts, the Supreme Court of Canada has held that the right to be
tried without unreasonable delay also includes the right to be sentenced
within a reasonable time. [731] The Court considered that extending the
scope of section (11)(b) of the Canadian Charter to delays in sentencing
protected the same interests as trial delays.

Factors leading to the delay

In fixing the period of delay that is reasonable, the Supreme Court of Canada
has distinguished four types (reasons) of delay: (1) delay that is inherent in
the proceedings; (2) delay that is attributable to the Crown; (3) delay that is
attributable to the accused; and (4) delay that is institutional or systemic to
the court system. [732]

In R v Dodunski Nicholson J reviewed the state of law in New Zealand on

section 25(b) and stated: [733]

What constitutes undue delay such as to breach an accused person's right

under s25(b) will depend on all the circumstances. Aspects of the lapse of
any significant time may be attributable to different matters. No one matter
will necessarily be dominant. The overall length of time must be considered
in light of the nature of the charges, whether the liberty of the accused has
been curtailed, the steps taken in the proceedings, whether the accused has
contributed to, or acquiesced in, the delay and the overall circumstances of
the case.

When is delay undue?

The leading case on what constitutes undue delay in New Zealand is Martin.
The Court of Appeal provided support for the reasoning in the Supreme
Court of Canada decision in R v Morin. [734] The key considerations in
considering whether a delay was undue should be:
 1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including:
a. inherent time requirements of the case;
b. actions of the accused;
c. actions of the Crown;
d. limits on institutional resources; and
e. other reasons for delay, and
4. prejudice to the accused.

Even though an accused may be said to have waived their rights to be tried
without undue delay by agreeing to or requesting adjournments to
proceedings, the courts have said that the waiver must be "clear and
unequivocal, with full knowledge of the rights the procedure was enacted to
protect and of the effect that waiver will have on those rights". [735] In other
words, the consent to the waiver must be informed and made express.

Causes of the delay

The reasons for the delay are also significant. The courts are less likely to
find that a delay in trial is undue where the trial raises matters of significant
complexity or involve a lot of witnesses. The UN Human Rights Committee
observed "that investigations into allegations of fraud may be complex and
the author [needs to show] that the facts did not necessitate prolonged
proceedings". [736] Any contribution that the accused makes to the delay is
also of consequence as it suggests that the impact of the delay on the accused
is not significant.

Although a delay caused by lack of resources is not of itself reason to find

the delay was undue, [737] the United Nations Human Rights Committee has
said that economic hardship or availability of resources does not excuse a
State from full compliance with article 14 of the ICCPR , because they are
minimum standards that all States have agreed to observe. The courts in New
Zealand have also indicated that they will not necessarily accept a lack of
resources as an adequate reason for explaining a delay. [738] However, the
courts may take into consideration the steps that the Crown has taken to
address causes of systemic delay when assessing whether any delay is
unreasonable.
Prejudice caused by delay

The prejudice caused to the accused by the delay is likely to be of great

significance. This is particularly the case where the accused is held in
custody pending trial, or is subject to stringent bail conditions. [739]

Key cases

Martin v Tauranga District Court [1995] 2 NZLR 419; Hughes v Police

[1995] 3 NZLR 443; R v Dodunski High Court, New Plymouth, T16/01, 7
June 2002; R v Haig [1996]1 NZLR 184; R v Morin [1992] 1 SCR 771; R v
MacDougall [1998] 3 SCR 45; Procurator Fiscal, Linlithgow v Watson and
Burrows; Her Majesty's Advocate v JK [2002] UKHRR

History of the section

The White Paper

The White Paper proposed that the equivalent provision to section 25(b)
should contain reference to "undue" as opposed to "unreasonable" delay.

Section 25(b) origins in international treaties and overseas legislation

Article 14(3)(c) of the ICCPR states:

In the determination of any criminal charge against him, everyone shall be

entitled in full equality, to be tried without undue delay.

Section 11(b) of the Canadian Charter provides that:

Any person charged with an offence has the right to be tried within a
reasonable time.

Article 5(3) of the European Convention on Human Rights provides that:

Everyone arrested or detained shall be brought promptly before a judge or

other authorised officer and shall be entitled to trial within a reasonable time
or to release pending trial.

Article 6(1) of the Convention provides that:

In the determination of his civil rights or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law.
Section 25(c) The right to be presumed innocent
until proved guilty
Section 25(c) of the Bill of Rights Act is as follows:

Presumption of innocence
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right to be presumed innocent until proved guilty according
to law.

Policy triggers: do I need to consider section 25(c)?

Are you drafting offence provisions that contain any of the following
features?

Presumptions

 Presumptions (presumed facts) where there is an evidential burden on

the defendant to rebut the presumption and thereby put the burden of
proof back on the prosecution.
 Presumptions which impose a persuasive burden on the defendant to
displace the presumption.
 Irrebuttable presumptions, which cannot be displaced at all.

Reverse onus provisions

 Where the offence provides that a qualification, proviso, excuse or

other defence is to be established by the defendant.
 Where there is a statutory defence relating to an element of the offence.
 Where there is a statutory "absence of fault" defence which must be
proved by the defendant on the balance of probabilities.
 A summary offence that contains reference to a qualification, proviso
or excuse.

Or, do you intend to:

 Alter the criteria under which an accused person may apply for bail?
 Amend the conditions under which a person can be released on bail?
If your answer is "yes" then your policy might give rise to issues of
consistency with section 25(c) of the Bill of Rights Act.

 Offence provisions that require the defence to disprove some element

of the offence in order to avoid conviction are referred to as reverse
onus provisions because they place the burden of proof on the
defendant to free themselves from blame. As reverse onus provisions
may lead an accused person to be convicted despite the existence of a
reasonable doubt as to their guilt, they are likely to infringe against the
presumption of innocence - the question is then whether these
provisions are justifiable.

What every policy analyst needs to know about section 25(c)

 Section 25(c) reflects the fundamental common law rule that every
person has the right to be presumed innocent until proven guilty. The
rule ordinarily requires that: (1) the burden of proving guilt rests with
the state; (2) guilt should be proved beyond reasonable doubt and (3)
the matter to be proved is guilt, which means that the offence should
not ordinarily cover conduct that involves no moral fault. [740]
 The most common statutory exceptions to the presumption of
innocence include strict liability offences (reverse onus provisions),
offences containing presumptions (of fact or law) and statutory
defences to be proved by the defendant (see above).
 Statutory limitations to 25(c) need to be justified in terms of section 5.
 When interpreting an offence provision the courts will require the
prosecution to prove all elements of the offence unless there is clear
language to the contrary.
 Summary offences that contain an exception, exemption (etc) in effect
contain a reverse onus provision that places a burden of proof on the
defendant by virtue of section 67(8) of the Summary Proceedings Act
(see below).
 Public welfare regulatory offence provisions that reverse the onus of
proof are more likely to be justifiable where the penalty levels are at
the lower end of the scale.
 Evidential burdens and mandatory presumptions that require an
accused person to displace some statutory presumption may infringe
 against the right even though the accused may not be required to
establish their innocence to a particular standard of proof.
 The presumption of innocence may necessitate the granting of name
suppression where it is considered that there is a significant risk that an
accused person would otherwise not receive a fair trial.
 The presumption of innocence also requires that the accused person be
released on bail unless there is sufficient public interest in that person
being held in custody prior to trial.

Measures to achieve compliance

Where possible, offence provisions should be drafted so that they are

consistent with the right to be presumed innocent until proven guilty. [741]
Offences complying with the presumption require the prosecution to prove
two things: (1) that defendant caused the prohibited act (actus reus) to take
place and, (2) that he or she intended the act, or was reckless as to whether it
would occur or knew what the consequences of their action would be (mental
element or mens rea). [742] In other words the prosecution must prove the
prohibited act and an associated guilty mind.

In general terms, offence provisions are likely to infringe against the

presumption of innocence where the prosecution is not required to prove the
actus reus and mens rea elements of the offence beyond all reasonable doubt.
This is because a defendant's failure to discharge an onus of proof or rebut an
evidential burden or prove an absence of fault will permit their conviction
even where doubt may exist as to their guilt.

An offence provision that creates any departure from the presumption of

innocence requires justification under s.5. If you are developing such
provisions, there are a number of factors that you need to consider:

1. the nature and context of the conduct that you are attempting to
regulate;
2. the reason why you want the defendant to provide evidence or prove
on the balance of probabilities that they were not at fault;
3. the ability of the defendant to exonerate themselves; and
4. the penalty level that you wish to impose.
These factors are considered in turn below.

1. The nature and context of the conduct that you are attempting to
regulate.

Public Welfare Regulatory Offences

The Courts have generally accepted that there is a distinction between "truly
criminal offences" and offences that are considered to be in the realm of
"public welfare regulatory offences" ("regulatory offences"). [743]

The distinction was explained by Cory J in Wholesale Travel this way: [744]

The objective of regulatory legislation is to protect the public or broad

segments of the public (such as employees, consumers and motorists, to
name but a few) from the potentially adverse effects of otherwise lawful
activity. Regulatory legislation involves a shift of emphasis from the
protection of individual interests and the deterrence and punishment of acts
involving moral fault to the protection of public and societal interests.
(emphasis added)

There is an argument that this distinction is relevant in considering the right

to be presumed innocent. The basic tenet of the argument is that a regulatory
regime exists to protect the wider values of the public and this important
objective may provide some justification for a reverse onus of proof.

Licensing Regime offences

A related argument may be put forward in relation to licensing regimes

which contain offences for non-compliance. The argument goes that those
who choose to participate in the licensed regime (e.g. transport service
licensing) have knowingly accepted the enhanced standards of behaviour
required of them and the reverse onus of proof is therefore justified. This
"licensing" argument was described by Cory J in Wholesale Travel as: [745]

...rest[ing] on the view that those who choose to participate in regulated

activities have, in so doing, placed themselves in a responsible relationship
with the public generally and must accept the consequences of the
responsibility. Therefore, it is said, those who engage in regulated activity
should ... be deemed to have accepted certain terms and conditions applicable
to those who act within the regulated sphere.
If you intend to strictly regulate certain types of activity, particularly
commercial activity (such as the sale of alcohol, tobacco or motor vehicles)
then it is more likely to be justifiable to require participants in that field to
provide explanations as to why they have infringed the specific conditions
therein.

Similarly, persons who participate in activities that carry with them risks to
public health and safety or take place in a situation of significant social or
public interest, then that person should be expected to meet certain
expectations of care. The argument runs that if they are unable to meet those
predetermined standards, then they should be required to show why they
were not at fault.

Truly criminal offences

Criminal offences are those offences that involve activity which contains an
element of moral fault and that are aimed at punishing wrongdoing rather
than preventing future harm. Notwithstanding the rule of the presumption of
innocence, criminal provisions may be drafted containing statutory
limitations on s25(c) in some circumstances by, for example, containing
presumptions of fact or a statutory defence to be proved by the defendant. In
assessing whether such provisions are a justified limitation on the section
25(c) right, the courts have considered the nature and context of the specific
offences and whether the presumption is relevant, rational and proportionate
to the objective served by the offence provision itself.

By way of example, legislation that provides for the prevention of misuse of

drugs frequently include provisions that impose a burden on defendants to
disprove an intention to supply where the defendant has been found in
possession of a quantity of the prohibited drug. The Canadian Supreme Court
in R v Oakes [746] considered such a provision in the Narcotic Control Act
which provided that, upon possession of drugs, a defendant is required to
prove that she or he was not trafficking the drug. While the court held that
the objective of the law - protecting society from the 'grave ills' of drug
trafficking - was laudable, the provision was not rationally connected to that
objective. This was because the reverse onus provision operated once it was
proved that the accused possessed any quantity of the drug. By comparison,
the New Zealand Court of Appeal considered that a similar provision in the
Misuse of Drugs Act, which imposed a burden on the defendant to disprove
an intention to supply where the defendant had been found with more than a
specified quantity of drug, was consistent with section 25(c). This is because
the specified quantity of the drug was viewed as a rational threshold to
impose. [747]

2. The reason why you want the defendant to provide evidence or prove on
the balance of probabilities that they were not at fault.

Is there something about the nature of the offence that makes it impracticable
for the prosecution to prove the traditional elements of the offence (mens rea
and actus reus)?

Although the Court of Appeal has noted that in the case of

regulatory/licensing offences it may be easier for the defendant to point to
information explaining why they acted in a particular manner, [748] the same
could be said for all criminal offending. After all, the person accused of
murder knows, better than anyone, whether they intended to kill the victim or
not. For this reason, simply categorising an offence as a regulatory or
licensing offence is not sufficient justification for a reverse onus or
presumptive offence.

However, where the offence turns on a particular matter that is peculiarly

within the knowledge of the defendant, there may be reasons why it is
reasonable to expect the defendant to either point to it or prove it. The
conduct and the context within which the alleged offending took place are
particularly relevant factors to consider as is the availability of exculpatory
evidence.

Provisions requiring a defendant to simply provide evidence (known as an

evidential onus) in reply to the prosecution case rather than actually prove a
fact or defence (a persuasive onus) will be easier to justify. [749] This is
because it will be easier for the defendant to discharge the requirement in the
first instance. However, such a provision may still be inconsistent with s25(c)
if the effect of it is that, in the absence of any evidence from the defendant,
they can be convicted without the Crown proving all elements of the offence
in the usual way.

3. The ability of the defendant to exonerate themselves.

You may assume that it will be easy for defendants to explain why they
behaved in a particular manner or to provide relevant evidence to support a
claim that they acted without fault. However, this is not always the case. It is
not always possible for the defendant to produce documents or other
objectively assessable information that can be used as evidence. A reverse
onus or presumption provision may not be justifiable if it is going to be
impracticable or impossible for the defendant to make out a valid defence.

So, before deciding that a defendant should be required to provide or prove

particular evidence, consider whether the relevant information or evidence
would in fact be practically available to him or her. How easy would it be for
him or her to obtain this information? How complex is the material?

4. The penalty level that you wish the courts to impose.

As a general principle, offences where the prosecution is not required to

prove both the actus reus and the mens rea should carry penalties at the
lower end of the scale for that type of offence. As imprisonment over 1 year
is usually a penalty associated with indictable offences, offences with terms
of imprisonment for longer periods are generally considered to require the
prosecution to prove all the elements of the offence beyond reasonable doubt.

The Canadian Supreme Court in R v Wholesale Travel Group [750] has

considered that imprisonment for a regulatory offence is justifiable as the
stigma associated with imprisonment for a regulatory offence is less than that
for a truly criminal offence. However, while an offence that reverses the
burden of proof and contains a penalty of a term of imprisonment may, in
limited situations, be justifiable, the penalty must be clearly associated with
the seriousness of the offence and the importance of the objective to which
the offence is aimed.

Related rights and freedoms

When considering whether the policy or practice that you are working on
complies with the right to be presumed innocent, also consider:

 the right to freedom of expression (section 14);

 the right of every person charged with an offence to be released on
reasonable terms and conditions unless there is just cause for continued
detention (section 24);
 the right to a fair trial (section 25(a));
 the right to the observance of the principles of natural justice (section
27(1)).
Further discussion on the meaning of section 25(c)

The common law principle

Section 25(c) confirms the basic common law principle that it is for the
prosecution to prove all the elements of the offence, and thereby the guilt of
the accused, beyond reasonable doubt. The obligation requires the
prosecution to prove, beyond reasonable doubt, that the defendant committed
the prohibited act (by act or omission) with a particular state of mind (i.e.
intentionally, deliberately, knowingly or recklessly).

The principle was explained in Woolmington v DPP [751] by Viscount

Sankey:

Throughout the web of the English Criminal Law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner's
guilt subject ... to the defence of insanity and subject also to any statutory
exception. If at the end of and on the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or the prisoner
... the prosecution has not made out its case and the prisoner is entitled to an
acquittal ... the principle that the prosecution must prove the guilt of the
prisoner is part of the common law and no attempt to whittle it down can be
entertained.

The decision in Woolmington emphasises that the presumption of innocence

ought not to be eroded as a common law doctrine. Section 25(c) of the Bill of
Rights Act serves to protect against the erosion of the presumption of
innocence by statute.

Statutory exceptions to the presumption of innocence

There a number of ways in which exceptions to the principle in Woolmington

may arise. This is because both the common law rule and its corollary
provision in section 25(c) can be overriden by other statutory provisions.
[752]

However, the courts have indicated that the statutory scheme should make it
clear if the onus is to be reversed. The Legislative Advisory Committee
points out for example that even though section 67(8) Summary Proceedings
Act makes it clear that summary offences [753] that contain a reverse onus
provision place a burden of proof on the defendant, the issue of who bears
the burden of proof for indictable offences [754] is less clear.
Statutory exceptions and their interpretation

It has been said that it is fundamental to New Zealand's criminal law that the
onus of proof remains throughout on the Crown. [755] Generally speaking
every offence establishes a level of blame or culpability. [756] However, as
noted above, offence provisions can be framed so that they require different
types of proof. In this respect there are three main types of offence provision.

A truly criminal offence requires the prosecution to prove two things: (1) that
the defendant caused the prohibited act (actus reus) to take place and, (2) that
he or she intended the act, or was reckless as to whether or not it would occur
or knew what the consequences of their action would be (mens rea). [757] In
other words the prosecution must prove the prohibited act and an associated
guilty mind. It is on the basis of the guilty mind that the moral culpability of
a criminal act accrues.

Public welfare/regulatory offences typically require proof only of the

prohibited act or state of affairs. Proof of the mental or fault element is not
necessary but if the defendant can show that he or she wasn't at fault then
liability is avoided. These offences are normally called strict liability
offences.

Absolute liability offences occur where even proof of an excuse or absence of

fault will not remove liability from a defendant. Once the prosecution has
proved the act beyond reasonable doubt the entire offence is proved. [758]

Where the intent of Parliament as to the type of offence intended is unclear,

the courts will frequently return to first principles for interpretation. For
present purposes these may be stated quite shortly as:

... a universal principle that if a penal provision is reasonably capable of two

interpretations, that interpretation which is most favourable to the accused
must be adopted. [759]

The New Zealand Court of Appeal [760] has observed that in the process of
determining where a statutory provision requires the burden of proof to lie,
consideration should be given to what is an eminently fair outcome. [761]

Reverse onus provisions

On occasions, statutory provisions will clearly require the accused to prove

or rebut a particular fact, defence, excuse or element of the offence. In such
cases the burden of proving guilt switches from the prosecution to the
defence once the prosecution has proved that the accused has acted or
omitted to act in contravention of a statutory requirement. This is known as a
reversal of the onus of proof and is inconsistent with the presumption of
innocence in section 25(c) of the Bill of Rights Act.

As noted above, reverse onus provisions include offences where:

 there is a statutory "absence of fault" defence which must be proved by

the defendant on the balance of probabilities;
 there is a statutory defence relating to an element of the offence;
 a summary offence contains reference to a qualification, proviso or
excuse covered by s67(8) Summary Proceedings Act; or
 an indictable offence provides that a qualification, proviso, excuse or
other defence may be established by the defendant.

Interpretation of reverse onus provisions

The Canadian Supreme Court [762] considered the interpretation of a reverse

onus provision in a truly criminal offence provision and the majority held
that:

In general one must, I think, conclude that a provision which requires an

accused to disprove on a balance of probabilities the existence of a presumed
fact, which is an important element of the offence in question, violates the
presumption of innocence in section 11(d). If an accused bears the burden of
disproving on a balance of probabilities an essential element of an offence, it
would be possible for a conviction to occur despite the existence of a
reasonable doubt. This would arise if the accused adduced sufficient
evidence to raise a reasonable doubt as to his or her innocence but did not
convince the jury on a balance of probabilities that the presumed fact was
untrue [emphasis added].

On that basis the Supreme Court confirmed that the provision requiring the
defendant to disprove an important element of the offence violated the
presumption of innocence without sufficient justification and was therefore
invalid.

The Canadian Supreme Court considers that the approach established in R v

Oakes requires offences to be viewed holistically. [763] In Whyte [764] the
court further explained that the specific factor the defendant needed to prove
or disprove (i.e essential element, a collateral factor, an excuse or a defence)
was not important. The key consideration was the impact that the presence or
absence of this factor would have on the verdict. [765] The right to be
presumed innocent is infringed where the accused, while being able to raise
doubt as to their fault is unable to prove absence of fault to the required
standard. They are thereby liable to be convicted where doubt as to their guilt
remains.

Summary offences

The interpretation of summary criminal offences is affected by s 67(8) of the

Summary Proceedings Act 1957 ("SPA") which provides that:

Any exception, exemption, proviso, excuse, or qualification, whether it does

or does not accompany the description of the offence in the enactment
creating the offence, may be proved by the defendant, but, ... need not be
negatived in the information, and, whether or not it is so negatived, no proof
in relation to the matter shall be required on the part of the informant.

Section 67(8) of the SPA has traditionally been interpreted to place a burden
of proof on the defendant. However, notwithstanding s67(8) there have been
some cases where the Court has used s25(c) to interpret summary offence
provisions to put only an evidential burden on the defendant. [766] This
means that the prosecution retains the overall burden of proving all elements
of the offence (see below).

Burden of proof or evidential burden?

Although a number of statutory provisions appear to require the accused to

prove a total absence of fault on his or her part, these offence provisions may
simply require the accused to present evidence pointing to the existence of
some doubt as to their guilt. This is called an evidential burden (in contrast
with a burden of proof) and may not infringe s25(c).

For example, section 29 of the Summary Offences Act provides that "every
person [commits an offence] who is found without reasonable excuse ... in a
building ...". The High Court [767] noted that the phrase "reasonable excuse"
must have a wider meaning than a purely "lawful excuse", and rejected the
argument that an excuse under the section would be an "excuse" within the
meaning of section 67(8) of the Summary Proceedings Act 1957. Hammond
J considered that if that were so, a defendant would face the burden of
establishing the defence on the balance of probabilities. However, Hammond
J was inclined to think that, in the form the legislation is now, it is for the
defendant to raise an evidentiary basis for the defence, but it is the
prosecution that ultimately has the persuasive burden. The Court noted that,
having regard to section 6 and 25(c) of the Bill of Rights Act, such an
interpretation was to be preferred. [768]

The House of Lords in R v Lambert [769] adopted a similar approach when it

observed that even if it appeared obvious that a statutory offence provision
imposed a legal burden on the accused, the provision should be read down to
impose only an evidential burden. Such an approach should be adopted
wherever practicable so as to give effect to human rights principles. [770]

Public welfare regulatory offences [771]

The approach to the interpretation of reverse onus provisions in public

welfare regulatory offences was discussed by the Court of Appeal in
MacKenzie v Civil Aviation Department. [772] In that case the Court of
Appeal held that regulatory offences will ordinarily permit a defence of
'absence of fault', with the burden of proving the absence of fault resting with
the defendant. The court accepted that a reversal of the onus of proof can be
justified notwithstanding the presumption of innocence. The Court discussed
the approach of the Canadian Supreme Court in R v City of Sault Ste Marie
[773] in relation to recognising public welfare offences as a new category of
offences and stated:

Courts must be able to accord sufficient weight to the promotion of public

health and safety without at the same time snaring the diligent and socially
responsible. The principle of English criminal law, that the burden of proof
of a requisite mental state rests on the prosecution, is not whittled down
where, in matters of public welfare regulation in an increasingly complex
society, the defence of due diligence is allowed because it is recognised that
the price of absolute liability is too high ... the defendant will ordinarily know
far better than the prosecution how the breach occurred and what he had done
to avoid it. In so far as the emphasis in public welfare regulations is on the
protection of the interests of society as a whole, it is not unreasonable to
require a defendant to bear the burden of proving that the breach occurred
without fault on his part...

Following MacKenzie, some public welfare regulatory offences reverse the

onus of proof by requiring the defendant to prove on the balance of
probabilities that he or she was without fault, once the prosecution has
proved beyond reasonable doubt that the accused committed the offence (the
actus reus). [774] These provisions appear inconsistent with the presumption
of innocence because there is a risk that the accused may be convicted
despite a reasonable doubt about his or her guilt.

Consideration will therefore need to be given to the relevant factors outlined

above, namely the: nature and context of the offence, penalty level, ability of
the defendant to exonerate themselves, and the specific reason that the
prosecution should not be required to prove all elements of the offence.

Presumptions

Presumptions are a further form of statutory exception to the rule in

Woolmington. The Supreme Court of Canada in R v Downey identified three
types of presumptions that require proof of a basic fact: [775]

Permissive inferences: Where the trier of fact is entitled to infer a presumed

fact from the proof of the basic fact, but is not obliged to do so. This results
in a tactical burden where the accused may wish to call evidence in rebuttal,
but is not required to do so.

Evidential presumption: Where the trier of fact is required to draw the

conclusion from proof of the basic fact in the absence of evidence to the
contrary. This mandatory conclusion results in an evidential burden whereby
the accused will need to call evidence, unless there is already evidence to the
contrary in the Crown's case.

Presumption with persuasive burden: Similar to evidential burdens except

that the evidential fact must be disproved on a balance of probabilities
instead of by the mere raising of evidence to the contrary.

The courts in New Zealand have considered that offence provisions

containing permissive inferences may not necessarily give rise to issues of
consistency with section 25(c) if they do not detract from the requirement of
the prosecution to prove that the accused is guilty beyond reasonable doubt.
[776]

Presumptions that put an evidential burden on the defendant are more likely
to be inconsistent with s25(c). This is particularly so when the presumption
leads to acceptance of a fact that is an element of the offence. In Downey, the
Supreme Court in Canada held that mandatory presumptions requiring the
accused to provide evidence raising reasonable doubt as to the existence of a
fact may give rise to issues of consistency with the presumption of
innocence. Such presumptions work on the basis that proof of the existence
of one fact - for example being found late at night carrying a bag of tools - is
proof of the existence of an element of the offence - the intention to commit a
burglary - unless the accused is able to provide evidence to the contrary. The
Court said in Downey that such presumptions may, in situations where the
defendant is unable to adduce sufficient evidence to rebut the presumption,
lead to the conviction of a person even though reasonable doubt exists as to
their guilt.

Nevertheless, not all presumptions will be inconsistent with the right to be

presumed innocent in s25(c). The issue of consistency will depend in each
situation on the particular drafting of the offence provision and the relevance
and proportionality of the presumption to the offence and the overall
objective of the act.

The European Court views persuasive presumptions this way: [777]

Presumptions of fact or of law operate in every legal system. Clearly, the

Convention does not prohibit such presumptions in principle. It does,
however, require the Contracting States to remain within certain limits in this
respect as regards criminal law ... Article 6(2) does not therefore regard
presumptions of fact or of law provided for in the criminal law with
indifference. It requires States to confine them within reasonable limits
which take into account the importance of what is at stake and maintain the
rights of the defence.

In considering the relative merits of evidential burdens or persuasive

presumptions, Lord Hope in R v DPP, ex p Kebilene stated: [778]

The cases show that, although art 6(2) is in absolute terms, it is not regarded
as imposing an absolute prohibition on reverse onus clauses, whether they be
evidential (presumptions of fact) or persuasive (presumptions of law). In
each case the question will be whether the presumption is within reasonable
limits.

It seems therefore that whether or not the presumption can be justified

depends on the relevance and rationality of the presumption in the context of
the particular offence provision.

Other matters

The right to be presumed innocent also appears in other contexts, such as

name suppression and bail applications.
Name suppression

Suppression of the identity of the accused prior to trial or retrial may be

necessary in order to protect the right to be presumed innocent. However the
presumption of innocence cannot of itself displace the principles of freedom
of expression and the right to an open trial. [779] The application of section
25(c) in this context complements the right of the accused to receive a fair
trial. However, it would appear that the principles of open justice would
support the presumption allowing the publication of an individual's identity
unless there is evidence of harm accruing to the accused or others resulting
from that publicity. [780]

The Court of Appeal, when reviewing the leading caselaw on suppression

orders and in applying the principles required when considering whether to
grant or revoke a suppression order, said: [781]

The public's right to receive information, the principle of open justice, the
type of information in question, its public importance and interest, its likely
circulation, methods of diluting its effect on the mind of potential jurors, the
presumption of innocence, and other issues are to be balanced against its
prejudicial effect. But once this exercise has been completed and it has been
determined that there is a significant risk that the accused will not receive a
fair trial, the issue ceases to be one of balancing ...there is no room in a
civilized society to conclude that, 'on balance', an accused should be
compelled to face an unfair trial.

Bail applications

The Court of Appeal has also considered the relevance of the presumption of
innocence to the application of bail laws. In noting the right under section
24(b) of the Bill of Rights Act that every person charged with an offence
shall be released on reasonable terms and conditions unless there is just cause
for continued detention, the Court of Appeal has said: [782]

The seriousness of the charge faced will not in itself provide a justification
for refusal of bail. Refusal can be justifiable only when the prosecution
demonstrates not merely that the charge is a serious one but also that there is
something additional which favours detention of the accused in the public
interest, and that combination of factors is not outweighed by considerations
favouring bail. The societal interest must be unable to be met by the granting
of bail upon terms as to residence, reporting to police, curfew, non-
association, travel restrictions and the like.
Having noted that the charge faced is serious, the Court will need to be
satisfied concerning the strength of the prosecution case for it would be
wrong in principle to cause an accused to be held in custody pending trial if
the case appears weak.

Considering the circumstances when the courts will not consider bail, the
Court of Appeal, in implicitly taking into account the right to be tried without
undue delay, said: [783]

Someone who has pleaded not guilty must be presumed to be innocent of the
charged offending until proven guilty according to the law ... Such a person
also enjoys the benefit of section 24 [of the Bill of Rights Act] which
requires that there be 'just cause' for continued detention ...

Another important consideration is the likely length of the detention before

trial. Where it is unlikely to occur within a few months the delay will be a
factor favouring the granting of bail but is not in itself determinative...

It is the task of the Judge hearing a bail application to balance these various
factors, giving due weight of course to the Bill of Rights guarantees, and to
form a judgment upon whether bail should be granted and, if so, the
conditions to attach to it.

It is therefore clear that, where possible, the Courts need to apply the
provisions of the Bail Act 2000 consistently with not only section 24(b) of
the Bill of Rights Act, but also sections 25(b) and 25(c) of that Act.

Pre-trial conduct

The courts have said that the right to be presumed innocent does not extend
to pre-charge conduct even where it is alleged that the police have
maliciously pursued a prosecution. The scope of the right is restricted to the
trial process and does not extend to the conduct of the investigation. [784]

Key cases

Civil Aviation Authority v MacKenzie [1983] NZLR 78; Millar v Ministry of

Transport [1986] 1 NZLR 660; R v Rangi [1992] 1 NZLR 385; Prockter v R
[1997] 1 NZLR 295; Lewis v Wilson & Horton [2000] 3 NZLR 546; R v
Burns (Travis) [2002] 1 NZLR 387; B v Police (No.2) [2000] 1 NZLR 31; A
v Wilson & Horton 6 HRNZ 106; R v City of Sault Ste Marie (1978) 85 DLR
(3d) 161; R v Whyte [1988] 2 SCR 3; R v Wholesale Travel Group [1992] 84
DLR (4th) at 213; R v Oakes (1986) 26 DLR (4th) 200; R v Downey [1992] 2
SCR 10; Woolmington v DPP [1935] AC 462 (HL);R v Lambert (Steven)
[2001] UKHL 37; [2001] 3 WLR 206; [2001] 3 All ER 577, HL; R v DPP, ex
p Kebilene [1999] 4 All ER 801; Salabiaku v France (1988) 13 EHRR 379

History of the section

The White Paper

Section 25(c) of the Bill of Rights Act appears in the same form as it was
proposed in the White Paper.

Section 25(c) origins in international treaties and overseas legislation

Article 14(2) of the ICCPR provides:

Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.

Article 6(2) of the European Convention on Human Rights states:

Everyone charged with a criminal offence shall be presumed innocent until

proved guilty according to law.

Section 11(d) of the Canadian Charter provides:

Any person charged with an offence has the right to be presumed innocent
until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal.

Footnotes:

686. See the earlier discussion of "what is meant by charged with an

offence" at pages 231-234 of these guidelines.
687. The latest version can be found on the Internet at
http://www2.justice.govt.nz/lac/
688. See, for example, R v Wigglesworth (1989) 2 SCR 541. 2
689. Drew v Attorney-General (No.2) (2001) 18 CRNZ 465 (CA),
481.
690. David Robertson (1997), A Dictionary of Human Rights, Europa,
p77.
691. There are a number of statutory provisions directed at providing
for a fair hearing, see section 67 of the Summary Proceedings Act, the
Juries Act and Jury Rules, and sections 138 to 140 of the Criminal
Justice Act.
692. R v Barlow [1996] 2 NZLR 116; (1995) 13 CRNZ 503; 3 HRNZ
40. Though the issue of whether the accused is able to plead,
understand the nature or purpose of the proceedings and to
communicate with counsel for the purpose of conducting a defence
may be relevant, see R v Duval, High Court Whangarei T 84/94, 2
August 1995, Thomas J.
693. Golder v UK (1975) 1 EHRR 524 at 535-536 (para 35).
694. Golder v UK (1975) 1 EHRR 524 at 537 (para 38).
695. Tinnelly & Sons Ltd v UK (1998) 4 BHRC 393 at 415 (para 72).
696. R v Heemi (1998) 16 CRNZ 221, 228. This issue is discussed in
further detail at pages 298, 303, and 305 of these guidelines.
697. Brown v Stott [2001] 2 WLR 817 (PC), per Lord Bingham at
827.
698. Fitt v UK (2000) 30 EHRR 480 at 510-511.
699. R v B [1995] 2 NZLR 172, 187.
700. The complainant in R v Metcalf (1996) 14 CRNZ 184 resided
overseas and did not wish to return to give evidence against the
accused. The court held that her statement was inadmissible because
the accused would not be given an opportunity to cross-examine the
witness.
701. In contrast to the decision in Metcalf, the Court of Appeal R v L
[1994] 2 NZLR 54 held that the deceased's evidence was admissible.
There was no information before the Court to suggest that cross-
examination would have affected the reliability of the deceased's
testimony.
702. Sections 23C - 23I of the Evidence Act 1908; section 158CA of
the Summary Proceedings Act 1957 and the Evidence (Videotaping of
Child Complainants) Regulations 1990
703. R v Lewis [1991] 1 NZLR 409,412R v L (D.O) [1993] 4 SCR
419; R v Levogiannis [1993] 4 SCR 475. See also the New Zealand
Law Commission's Preliminary Paper No.26 (1996) The Evidence of
Children and Other Vulnerable Witnesses.
704. See the Concluding Comments of the Human Rights Committee
in Campos v Peru (577/94) where the committee was critical of a
system that allowed for secret trials.
705. Section 138(1) of the Criminal Justice Act 1985
706. Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449-
450
707. Police v O'Connor [1992] 1 NZLR 87
708. Police v O'Connor [1992] 1 NZLR 87, 95
709. Police v O'Connor [1992] 1 NZLR 87, 96.
710. Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR
563.
711. See section 140(1) of the Criminal Justice Act.
712. Section 138(8) of the Criminal Justice Act.
713. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563.
714. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563.
715. Section 138(2) of the Criminal Justice Act 1985.
716. Sections 138(2) and 140(2) - (4) of the Criminal Justice Act, see
also O'Connor
717. Tukuafu v R High Court, Auckland, A205/01, 17 December 2001
718. See also Gisborne Herald Co Ltd v Solicitor-General [1995] 3
NZLR 563, 569 where the court said "where there is a conflict between
fair trial values and freedom of expression... the latter may be
suspended or delayed until a trial is completed".
719. R v Middleton 26/9/00, CA218/00.
720. R v Sanders [1994] 2 NZLR 568, 574
721. For a more complete discussion of these points see Paul
Rishworth (2003) "Minimum Standards of Criminal Procedure for
Trial, Sentencing and Appeals" in The New Zealand Bill of Rights,
OUP, pp 671-673
722. Interim Report of the Justice and Law Reform Select Committee
Inquiry into the White Paper - A Bill of Rights for New Zealand (1986-
87), p 61.
723. Article 14(1) goes on to self-define the possible limits to the
right.
724. Article 6(1), like Article 14(1) of the ICCPR, defines the scope
of the right with reference to access by the media and the public.
725. Martin v Tauranga District Court [1995] 2 NZLR 419, 429.
726. Hughes v Police [1995] 3 NZLR 443, 453.
727. R v CIP [1992]1 SCR 843. It applies to extradition cases Poon v
Commissioner of Police [2000] NZAR 70.
728. Considered in Procurator Fiscal, Linlithgow v Watson and
Burrows; Her Majesty's Advocate v JK [2002] UKHRR.
729. R v O [1999] 1 NZLR 347,350.
730. Martin v Tauranga District Court [1995] 2 NZLR 419, 420.
731. R v MacDougall [1998] 3 SCR 45.
732. R v Smith [1989] 2 SCR 1120.
733. R v Dodunski High Court, New Plymouth, T16/01, 7 June 2002.
734. R v Morin [1992] 1 SCR 771 - note that section 11(d) of the
Canadian Charter refers to a test of "unreasonableness" rather than
considering what is undue.
735. R v Morin (1992) 12 CR (4th) 1 (SCC), 15.
736. Wolf v Panama (289/88).
737. See R v Martin [1995] 2 NZLR 419, at 425, 431, and 434.
738. R v Haig [1996] 1 NZLR 184, 193. See also, Martin at 421
where Cooke P made the same point. However, Cooke P went on to
make the observation that, where the court is aware that the
government is conscious of a problem and is taking prompt steps to
deal with it, the courts would be reluctant to stay proceedings on the
ground of systemic delay only.
739. Martin v Tauranga District Court [1995] 2 NZLR 419.
740. For an overview of the general principals of criminal law and the
classification of offences see Chapter 12 of the LAC Guidelines or
Adams on Criminal Law Vol 1 Commentary on section 20 of the
Crimes Act 1961 and Vol 2, Chapter 2.1 Evidence: Evidence in
Criminal Cases
741. For general guidance on developing offence provisions in
legislation, see Chapter 12 of the LAC Guidelines.
742. A true crime is able to be distinguished from other types of
offences by means of the statutory context within which it appears, the
penalty level, or the stigma associated with the conviction for the
behaviour.
743. R v City of Sault Ste Marie (1978) 85 DLR (3d) 161, 170-171,
confirmed in Civil Aviation Authority v MacKenzie [1983] NZLR 78.
744. R v Wholesale Travel Group (1992) 84 DLR (4th).
745. R v Wholesale Travel Group (1992) 84 DLR (4th) at 213.
746. R v Oakes [1986] 1 SCR 103.
747. R v Phillips [1991] 3 NZLR 175 (CA).
748. Civil Aviation Authority v MacKenzie [1983] NZLR 78.
749. Refer to further discussion of the interpretation of provisions and
types of presumptions below.
750. R v Wholesale Travel Group (1992) 84 DLR (4th) at 219.
751. Woolmington v DPP [1935] AC 462 (HL), 481.
752. See discussion on section 4.
753. Summary offences are criminal offences that can be heard in the
District Court without a jury trial.
754. An indictable offence is, for these purposes, any offence in the
Crimes Act or other enactment that is of a more serious nature than a
summary offence. Conviction of an indictable offence may lead to the
imposition of heavier penalties than summary offences.
755. R v Rangi [1992] 1 NZLR 385, 390.
756. Millar v Ministry of Transport [1986] 1 NZLR 660.
757. A true crime is able to be distinguished from other types of
offences by means of the statutory context within which it appears, the
penalty level, or the stigma associated with the conviction.
758. For an overview of the general principals of criminal law and the
classification of offences see Chapter 12 of the LAC Guidelines or
Adams on Criminal Law Vol 1 Commentary on section 20 of the
Crimes Act 1961 and Vol 2, Chapter 2.1 Evidence: Evidence in
Criminal Cases
759. Sweet v Parsley [1970] AC 132; [1969] 1 All ER 347, per Lord
Reid
760. Civil Aviation Authority v MacKenzie [1983] NZLR 78
761. The combined effect of section 5 and section 25(c) are likely to
be influential in making this assessment. To see how the courts have
applied section 6 and 25(c) see R v Rangi [1992] 1 NZLR 385 and
Grey v Police (Hammond J High Court, Hamilton, AP65/01, 31
 October 2001). The High Court in Grey was considering the correct
interpretation of section 29 of the Summary Offences Act.
762. R v Oakes (1986) 26 DLR (4th) 200, 222.
763. R v Whyte [1988] 2 SCR 3, 17-18 See also R v Vaillancourt
[1987] 2 SCR 636 and R v Chaulk [1990] 3 SCR 1303.
764. R v Whyte [1988] 2 SCR 3.
765. R v Whyte [1988] 2 SCR 3, 18. See N Jayawickrama (2002) The
Judicial Application of Human Rights Law, Cambridge University
Press, Cambridge, p541
766. Grey v Police 31/10/01 Hammond J, HC Hamilton, AP 65/01.
767. Grey v Police Hammond J High Court, Hamilton, AP65/01, 31
October 2001.
768. See also R v Rangi [1992] 1 NZLR 385.
769. R v Lambert (Steven) [2001] UKHL 37; [2001] 3 WLR 206;
[2001] 3 All ER 577, HL. For a discussion of this decision, see
Roberts, P (2001) "Drug Dealing and the Presumption of Innocence:
The Human Rights Act (almost) bites" in The International Journal of
Evidence & Proof 17.
770. See the judgment of Lord Slynn of Hadley in R v Lambert
(Steven) [2001] UKHL 37; [2001] 3 WLR 206; [2001] 3 All ER 577,
HL at para 17.
771. For an overview of regulatory offences see Andrew Butler
"Regulatory Offences and the Bill of Rights in G. Huscroft and P
Rishworth (eds) Rights and Freedoms: The New Zealand Bill of Rights
Act 1990 and the Human Rights Act 1993, Brookers, Wellington.
772. Civil Aviation Authority v MacKenzie [1983] NZLR 78.
773. R v City of Sault Ste Marie (1978) 85 DLR (3d) 161
774. Note that the balance of probabilities is a lesser standard of proof
than beyond reasonable doubt.
775. R v Downey [1992] 2 SCR 10, 22-23; emphasis added.
776. R v Rangi [1992] 1 NZLR 385, 390. See too R v Osolin [1993] 4
SCR 595 where the court stated that a defendant had to do more than
assert his mistaken belief as to a fact, the assertions needed to have
some "air of reality".
777. Salabiaku v France (1988) 13 EHRR 379 at 388 (para 28).
778. R v DPP, ex p Kebilene [1999] 4 All ER 801 at 847, [2000] 2
AC 326 at 385
779. Prockter v R [1997] 1 NZLR 295, 299
780. Lewis v Wilson &Horton [2000] 3 NZLR 546, 563
781. R v Burns (Travis) [2002] 1 NZLR 387, 404-405; (2000) 6
HRNZ 506, 509-510 (CA)
782. B v Police (No.2) [2000] 1 NZLR 31, 34.
783. B v Police (No.2) [2000] 1 NZLR 31, 34-35.
784. Oniel v Marks (2001) 195 DLR (4th) 59 (Ont CA); A v Wilson &
Horton (2000) 6 HRNZ 106, 109.
Part III: Section 25(d) Right not to
be compelled to be a witness or to
confess guilt
Section 25(d) of the Bill of Rights Act is as
follows:
No-one to be compelled to be a witness
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right not to be compelled to be a witness or confess guilt.

Policy Triggers: do I need to consider section 25(d)?

• Are you developing policies for developing a regulatory regime

containing enforcement functions?
• Does the policy contain proposals providing for the ability for
enforcement officers to question any person in connection with an
investigation?
• Would enforcement officers under the proposed regime be able to
demand that persons under investigation or persons employed by
companies under investigation, provide them with documents or other
records?
• Does your policy contain proposals to require persons being
investigated, or persons employed by companies being investigated, to
co-operate with, and assist the enforcement officers?

What every policy analyst needs to know about section 25(d)

• The right is intended to protect the person from making statements that
the accused or person being questioned wishes to refrain from making.
• However, it is yet to be decided whether a statutory power requiring
the production of documents may infringe the right if the demand is
backed up by a coercive sanction for a failure to comply.
 • The privilege against self-incrimination may extend to situations where
a person is required by statute to answer questions and those answers
may be used in evidence in subsequent hearings.
• Provisions that allow inferences to be made concerning a person's guilt
as a result of their refusal to answer questions or their continuing
silence will infringe section 25(d).

Measures to achieve compliance

You should consider whether it is necessary for a person to be required to

answer questions put to him by investigators. Consider whether the
information is able to be obtained in other ways or from other sources. Ask
yourself whether the information gained in the course of questioning a person
needs to be used in evidence, particularly where other independent evidence
is available? If an accused person or witness subsequently gives different
testimony in court you may still take proceedings for perjury.

As the burden of proof is on the state to prove that a confession has been
obtained without duress, you should consider implementing certain
techniques, such as audio or video recording of interviews to satisfy the court
if there are subsequent concerns.

Related rights and freedoms and considerations

When developing your proposals that might give rise to issues under section
25(d) you should also consider whether the proposals are consistent with:

• the right to freedom of expression and the right not to be compelled to

provide information (section 14);
• the right to be secure against unreasonable search and seizure (section
21);
• the right to silence (section 23(4));
• the right to a fair trial (section 25(a));
• the right to be presumed innocent (section 25(c)).

Further discussion on the meaning of section 25(d)

Section 25(d) complements the right not to be compelled to express oneself

[785] and the right of silence enjoyed by every person arrested or detained.
[786] Section 25(d) also complements the common law discretion of the
court to exclude confessions if the confession was obtained in an unfair
manner by the oppressive or unfair use of power by an interrogator. [787]

The Court of Appeal has stated that the purpose of the right to silence and
against self-incrimination is: [788]

... to protect a suspect in the coercive atmosphere of interrogation by the

police or other legal authority where that person may feel pressed to give an
answer when he or she is actually not obliged to speak. They affirm the
common law right to refrain from saying anything. They are relevant where
the point has been reached where the suspect is going to be charged or has
been charged and is under questioning or is seeking to volunteer a statement.
[789]

When are statements made that are "independent of the will of the
accused"?

The right not to be compelled to be a witness or confess guilt refers to

statements that the accused may make that exist independently of the will of
the accused. [790] That is, section 25(d) is not so much concerned with
statements that an accused may, of his or her own volition, choose to make,
but rather the right is directed at the right of the accused to refuse to answer
any questions put by enforcement officers investigating an offence. However,
consideration will still need to be given as to the reasons why the accused
decided to make self-incriminating statements.

The New Zealand courts have indicated their willingness to consider whether
the right in section 25(d) has been infringed where there is the suggestion
that the accused was subject to some degree of coercion to make a statement
prior to being charged. This is particularly where that statement is being used
as evidence during trial. [791] Such an approach is consistent with the stance
taken in Europe where the admissibility of such statements may go to the
overall fairness of those proceedings. [792]

The UN Human Rights Committee [793] has said that:

...the wording of article 14, paragraph 3 (g) [of the ICCPR], that no one shall
be "compelled to testify against himself or to confess guilt", must be
understood in terms of the absence of any direct or indirect physical or
psychological pressure from the investigating authorities on the accused with
a view to obtaining a confession of guilt. [794]
Statutory provisions that require a person to provide information that could
be used to establish guilt raise issues of consistency with section 25(d) of the
Bill of Rights Act (see below).

Does the right apply in respect of documents?

The courts in New Zealand have not clearly indicated whether the right under
section 25(d) extends to situations where statutory powers are used to gain
access to documents. However, pre-Bill of Rights Act caselaw and caselaw
from the Europe and Canada provides some guidance. The New Zealand
Court of Appeal in Taylor v New Zealand Poultry Board [795] has
previously held that the privilege against self-incrimination can apply outside
court proceedings where there is a statutory obligation to answer questions or
produce documentation.

The European Court has previously held that the right does extend to
documents that form evidence against the person required to produce the
information. [796] However, there are indications that the European Court
may adopt a position that the right to silence and the privilege against self-
incrimination as read in to article 6(1) of the European Convention extends
only to verbal forms of communication or records of that conversation. This
is because physical or tangible forms of evidence such as documents or
property exist independently of the will of the accused. That is, they are
independently accessible. Documents produced under warrant would
therefore not appear to be protected by the privilege against self-
incrimination. [797]

The courts in Canada have taken a similar view when considering whether
the requirement to produce documents containing self-incriminatory
statements infringes section 7 of the Charter and the right to fundamental
justice. The Supreme Court of Canada discussed the privilege in the context
of documents found as a result of compelled testimony. La Forest J created a
distinction between compelled testimony and information that a person is
required to provide in the course of an investigation. He stated that: [798]

Compelled testimony is evidence that simply would not have existed

independently of the exercise of the power to compel it; it is in this sense
evidence which could have been obtained only from the accused.

La Forest J went on to say that documents exist independently of the

compelled testimony of the accused. That is, there was a probability that the
information may have been obtained or discovered irrespective of any
assistance given by the accused. [799] As such, its value as evidence has to
be assessed in its own right. La Forest J considered prejudice would accrue to
the accused only where that evidence could not have been found except for
the compelled evidence of the accused. [800]

It would therefore appear that while a requirement to comply with statutory

demands to answer questions during an investigation might infringe section
25(d) where such responses are to be used in evidence, the same might not
apply in respect of other types of evidence. However, the coercive element of
a requirement to produce documents may be sufficient to transform the
power from a reasonable to an unreasonable search for the purposes of
section 21 of the Bill of Rights Act, depending on how that requirement is
framed. The use of the evidence in any proceedings may also be considered
to infringe the right of the accused to a fair trial.

Adverse comment and inferences at trial

Section 25(d) is also not infringed where the accused is required to provide
some sort of explanation as to the reasons for his or her actions or presence at
the scene of a crime where the prosecution has established a prima facie case.
[801] The accused may still elect to remain silent or choose to cast doubt
through the evidence of other witnesses. [802] As a person is not obliged to
speak, the right to silence extends to protect the accused from adverse
inferences made by investigators, prosecutors or the courts where the accused
does not answer a question. [803]

Key cases

R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA); R v Butcher [1992] 2

NZLR 257; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394; R v
Bouwer [2002] 1 NZLR 105; Trompert v Police [1985] 1 NZLR 357; Drain v
Police (1994) 11 CRNZ 576; Funke v France 16 EHRR 297; A-G's
Reference (No 7 of 2000) [2001]2 Cr App R 286 (CA); Saunders v United
Kingdom; Thomson Newspapers Ltd v Director of Investigation & Research
(1990) 54 CCC 417; R v Altseimer (1982) 38 OR (2d) 783 (CA).

History of the section

The White Paper

The wording of section 25(d) of the Bill of Rights Act is identical to that
proposed in the White Paper.
Section 25(d) origins in international treaties and overseas legislation [804]

Article 14(g) of the ICCPR provides that:

In the determination of any criminal charge against him, everyone shall be

entitled, in full equality, not to be compelled to testify against himself or to
confess guilt.

Section 11(c) of the Canadian Charter states that:

Any person charged with an offence has the right not to be compelled to be a
witness in proceedings against that person in respect of the offence.

Section 13 of the Charter also provides:

A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of
contradictory evidence.

Section 25(e) The right to be present at trial

Section 25(e) of the Bill of Rights Act is as follows:

Right to be present at trial and present a defence

Everyone who is charged with an offence has, in relation to the determination
of the charge, the right to be present at trial and present a defence

Policy Triggers: do I need to consider section 25(e)?

Are you:

• Developing or amending policies and procedures relating to the right

of the defendant to be present at trial and/or circumstances when the
trial may proceed in the absence of the defendant?
• Developing policy and procedures regarding the representation of the
interests of the defendant at trial and in related proceedings?
• Developing criteria for determining whether a person is capable of
understanding the court process?
• Developing a process for the appointment of fully or partially publicly
funded legal representatives?
If your answer to any of these questions is "yes", then you should consider
whether your policy or practice is consistent with section 25(e).

What every policy analyst needs to know about section 25(e)

The key points from section 25(e) can be summarised as follows:

• Section 25(e) goes to the fairness of the proceedings to allow the

accused to know the case against him or her, make oral representations
and respond to and challenge the allegations against him or her.
• The right to be present at trial does not oblige or require the accused to
be present - however the reasons for his or her absence may go to the
overall fairness of the trial.
• The overriding concern of the Court should be that the accused
receives a fair trial and that the outcome of the proceedings is just or
fair even if the accused is absent.
• The seriousness of the charges faced by the accused are not considered
to be relevant consideration for the Courts when considering fairness.
• Procedural safeguards such as an oral hearing help ensure the
correctness of the overall decision on the substance of cases.
• The notion that a person must be fit to plead and stand trial is
concerned with the ability of the person to understand the nature or
purpose of the proceeding, and their ability to communicate adequately
with counsel for the purpose of conducting a defence.

Measures to achieve compliance

If you are developing or amending policies or practices that govern the

procedures for responding to delays in trials caused by the absence of the
accused or his or her legal representative, consider whether the policy is
consistent with the principles set down in the decision of the House of Lords
in R v Jones. [805]

If the policy sets down some criteria governing the circumstances under
which the trial may proceed in the absence of the accused and/or his or her
legal representatives, consider whether sufficient weight is accorded to the
public interest of a fair trial and the prospect of a miscarriage of justice.
Related rights and freedoms

When considering whether your policy or practice is consistent with section

25(e), you should also consider whether it is consistent with the right to:

• adequate time and facilities to prepare a defence (section 24(d));

• the right to legal assistance (section 24(f));
• a fair and public hearing (section 25(a));
• the right to examine witnesses for the prosecution (section 25(f));
• the observance of the principles of natural justice (section 27(1)).

Further discussion on the meaning of section 25(e)

There are two aspects to section 25(e): the right for every person charged
with an offence to be present [806] and the right to be able to put forward a
defence. Essentially, section 25(e) goes to the fairness of the proceedings. It
allows the accused to know the case against him or her, to make oral
representations and to respond to and challenge the allegations against him or
her.

The UN Human Rights Committee has said "The accused or his lawyer must
have the right to act diligently and fearlessly in pursuing all available
defences and the right to challenge the conduct of the case if they believe it
to be unfair." [807]

The Courts have said that the rights in 25(e) will be lost to those who do not
exercise reasonable diligence in respect of their right to be present at trial. In
other words, an accused who without good excuse fails to attend and to avail
him or herself of the right to be present at trial cannot allege a deprivation of
the right if the trial proceeds in their absence. [808] However, a defendant
who gives notice that he is unable to negotiate stairs to a courtroom because
of a disability and who is unable to attend the proceedings because no
arrangements have been made to accommodate the disability cannot be tried
in his absence. [809]

Conduct of trials in the absence of the accused

The right to be present at trial does not oblige or require the accused to be
present. However, the reasons for his or her absence may go to the overall
fairness of the trial. In Hodges v Police, in allowing an appeal for a re-
hearing, Justice Hammond held: [810]
Arranging for the hearing of a defended infringement notice does give rise to
a good deal of practical difficulties in the District Court. And regrettably
persons do sometime seek to avoid unwelcome outcomes after the event, or
when (as here) they do raise concerns for good and sufficient reasons about
not having had notice, they get the appropriate procedures for trying to do
something about what has occurred wrong. Nevertheless, expediency, or the
practical difficulties which can arise cannot displace the right of a defendant
to a hearing. Whether or not Mr Hodges received the 6 August letter, and on
the probabilities it seem that he did not, this case has gone off and in my
view a re-hearing is required.

The court has a discretion as to whether a proceeding should be deferred by

the absence of the accused. [811] In exercising the discretion, a balance
needs to be struck between the administration of justice and the expense of a
long trial caused by delays. [812] The courts are likely to consider the likely
prejudice against one of the accused by not being present against the likely
impact of the delay in the context of the length of the hearing and the reasons
for the absence of the accused. [813]

The UN Human Rights Committee has held that a trial in absentia is

compatible with article 14 of the ICCPR only when the accused is summoned
in a timely manner and informed of the proceedings. [814]

Fairness to the accused

The courts are only likely to allow criminal proceedings to take place in the
absence of the accused on rare occasions. The House of Lords in R v Jones
[815] considered the right to be present at trial in the context of an accused
who absconded while on bail. The trial proceeded and the accused was found
guilty. On appeal, the House of Lords held, bearing in mind the right of the
accused to a fair trial, that despite the court's residual discretion to conduct a
trial in the absence of the accused, the discretion should be exercised
cautiously. The overriding concern of the court should be that the accused
receives a fair trial and that the outcome of the proceedings is just despite the
absence of the accused. [816] The seriousness of the charges faced by the
accused is not considered relevant. The court in Jones went on to add that "it
was generally desirable that a defendant should be represented even if he had
voluntarily absconded, since that would provide a valuable safeguard against
the possibility of error and oversight." [817]
Right to be present at an appeal

The right to be present at trial may also extend to the right to be present on
appeal depending on the nature of the proceedings. The Privy Council has
held that procedural safeguards such as an oral hearing help ensure the
correctness of the overall decision on the substance of cases. [818] While a
statutory scheme may provide for appeals to be determined "on the papers",
the procedures for determining the outcome of the appeal should contemplate
the justness of the outcome and the fairness of the process for the accused. In
other words, the procedure should be in accord with the principles of natural
justice (see the discussion on section 27(1) in these guidelines).

Hearing of witnesses

It has also been said that the use of closed circuit television cameras or other
devices such as screens to protect witnesses for the prosecution does not
infringe the right of the accused to be present at a hearing. The Court of
Appeal in M v A-G stated that the use of such devices does not prevent the
accused from remaining in court, hearing the testimony, or communicating
with his or her representative. The testimony of witnesses is considered 'live'.
[819]

Presenting a defence

Capacity to understand & effective legal representation

In order for the accused to receive a fair hearing, not only should she or he be
present, but he or she should be in a position where they understand what is
taking place. Thomas J in R v Duval held that: [820]

The notion that a person must be fit to plead and stand trial is not just a
matter of procedural fairness, as has been suggested, but a substantive
requirement firmly rooted in an accused's constitutional rights to a fair trial.
The doctrine defines the limits to which society may go in prosecuting
persons who are unable to defend themselves.

Thomas J, after considering various academic articles and commentaries,

[821] held that while there are no rigid rules as to the form of a disqualifying
disability, the governing legislation provides the framework for determining
whether the accused is capable of understanding the nature of the
proceedings. [822] But in all events:
What is imperative in any trial is that an accused is able to plead, to
understand the nature or purpose of the proceeding, and to communicate
adequately with counsel for the purpose of conducting a defence. [823]

Although section 25(e) does not specify or limit who may present the defence
for the accused, it would, on its face, appear to be broader than section 354 of
the Crimes Act 1961. This section provides that: "every person accused of
any crime may make his full defence thereto by himself or by counsel."

A full defence would require the accused to have: [824]

... the capacity to appreciate the case against them and to present a defence to
that case. It may also be said that a person's right to the observance of the
principles of natural justice under s 27 of the [Bill of Rights] Act is in point
for it is a fundamental principle that persons must know the case against
them and have an opportunity to answer that case. Accused who are unable to
understand the case against them cannot be guaranteed that right.

Although the right to present a defence includes, amongst other things, legal
representation, there does not appear to be any requirement that the legal
representation is effective. [825] However, the quality of representation must
go to reflect the fairness and justness of the outcome of the trial. [826]

Examination of the evidence

The right to present a defence includes the idea that the defence has
opportunity to examine the evidence available to the Crown for the purposes
of preparing a defence capable of rebutting the Crown's evidence. If the
defence is prevented from being able to gather evidence to the point where
the defence is unable to effectively cross-examine a witness then the Courts
may consider that there has been a miscarriage of justice. [827]

Key cases

Downey v MAF Court of Appeal, 11/5/92, CA 355/91; Taito v R (2002) 19

CRNZ 224; 6 HRNZ 539 (PC); M v A-G 29/5/97 CA60/97; R v Duval [1995]
3 NZLR 202; R v Griffin [2001] 3 NZLR 577; (2001) 19 CRNZ 47 (CA);
Drew v Attorney-General [2002] 1 NZLR 58; Brown v Jamaica 775/1997; R
v Jones [2002] 2 All ER 113.
History of the section

The White Paper

Section 25(e) is identical to that which was proposed in the White Paper.

Section 25(e) origins in international treaties and overseas legislation

Article 14(3)(d) of the ICCPR states:

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; and to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by
him in any such case if he does not have sufficient means to pay for it.

Article 6(1) of the European Convention on Human Rights states, in part,

that:

In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law.

Section 7 of the Canadian Charter provides that:

Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental justice.

Section 25(f) Right to examine and cross-

examine witnesses
Section 25(f) of the Bill of Rights Act is as follows:

Cross-examination of witnesses
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right to examine the witnesses for the prosecution and to
obtain the attendance and examination of witnesses for the defence under the
same conditions as the prosecution.
Policy triggers: do I need to consider section 25(f)?

Are you developing policy or practices that:

• Alter the laws of evidence on the admissibility of evidence that is

hearsay?
• Alters the laws on discovery or limits the ability of the defence to gain
access to evidence?
• Makes it easier to admit written documents into evidence without the
consent of the other party?
• Protect the interests of witnesses for the prosecution by enabling them
to present testimony other than in an open court thereby limiting the
ability of the defendant to "confront" the witness for the prosecution
(for example, video testimony, the use of protective screens)?

If you answer "yes" to any of these questions then you need to consider
whether your policy or practice is consistent with section 25(f) of the Bill of
Rights Act.

What every policy analyst needs to know about section 25(f)

• The central purpose of cross-examination is to enable the Crown and

the defence to test the veracity of evidence presented by the other
party's witnesses.
• The opportunity of the court to observe prosecution witnesses'
demeanour when giving evidence in the presence of the accused is
normally important to the assessment of the credibility of the witness.
• In order for the defence to effectively examine the prosecution's
witnesses, the defence must be able to prepare and have access to
evidence that will challenge evidence presented by the Crown.
• The right to cross-examine witnesses for the prosecution is consistent
with the general principle that witnesses should give their evidence
orally in a courtroom in the presence of the accused.
• The use of measures to protect vulnerable witnesses for the prosecution
may be consistent with the legitimate interests of the state in having
allegations of criminal offending prosecuted while balancing the rights
of the accused to a fair trial in all circumstances.
 • As the effect of any measures designed to protect a witness may be
prejudicial to the accused, the accused's right to a fair trial requires that
the measures be limited to what is strictly necessary to achieve the aim.
• Additionally, it is for the prosecution to establish the need for the
measures and there must be a proper assessment of any alleged threat
to a witness.
• The use of modified procedures should not limit the ability of the
defendant or his counsel to examine and test the credibility of the
evidence presented by witnesses for the prosecution.
• The right to examine witnesses for the prosecution may therefore not
be infringed where the defendant has the opportunity to examine a
prosecution witness or other means of discrediting the written
testimony of the witness.
• The defendant should not be convicted on the basis of written evidence
where the defendant has not had an opportunity to test the reliability of
that evidence.
• But the defendant's rights may not be infringed where it is considered
that written evidence is able to be independently corroborated by other
evidence and cross-examination would not have affected the reliability
of the evidence.
• The right of the defence to summons witnesses goes to the fairness of
the proceedings.
• The mere fact that the defence was unable to secure an expert witness
to examine or challenge the evidence of an expert witness for the
Crown may not, of itself, infringe the right where that testimony is not
considered material.
• A decision by the defendant's counsel not to call material witnesses is
essentially a matter of strategy and the Courts are unlikely to interfere
in what they regard as a matter for counsel's professional judgement.

Measures to achieve compliance

If you are developing policy or practices that may determine or shape the
way in which the defence may examine witnesses for the prosecution or
obtain witnesses for the defence, consider developing the policies in such a
way that:
 • The proposals provide the defendant with sufficient opportunity to
challenge the reliability of evidence.
• The changes will enable the defendant to present a defence.
• There are alternative means of enabling a defendant to challenge the
reliability of the witnesses' testimony other than by way of direct cross-
examination, such as with the use of third parties.
• Witnesses are able to present evidence in ways other than by way of
open testimony in an open court only where certain tightly drawn
criteria are able to be satisfied.
• The defence is able to challenge or test the expert testimony of
witnesses for the prosecution by way of their own expert witnesses.
• Legal aid becomes more readily available for the purposes of allowing
the defence to call its own expert witnesses.
• Provides the defence with sufficient opportunity to locate and produce
witnesses.

Related rights and freedoms

When developing proposals or practices that you consider might give rise to
issues of consistency with the right under section 25(f), you should also
consider:

• the right of a person charged with an offence to have "adequate time

and facilities to prepare a defence" (section 24(d));
• the right to a fair and public hearing (section 25(a));
• the right to be present at trial and present a defence (section 25(e)).

Further discussion on the meaning of section 25(f)

Testing the evidence

As the central purpose of cross-examination is to enable the Crown and the

defence to test the veracity of the evidence presented by the other party's
witnesses, cross-examination plays an important role in establishing the
existence of, or removing, reasonable doubt. The defence must, therefore, be
able to prepare for cross-examination by having access to evidence that will
rebut evidence presented by the Crown. [828] A failure by the prosecution to
adequately disclose material information under the laws of discovery may
infringe section 25(f) where: [829]
...non disclosure has created a real risk of a miscarriage of justice.
Conventionally such a real risk might be perceived if, being evidence, the
information might reasonably have left the jury in a state of reasonable
doubt, or being other information might have been used by the defence in
meeting the Crown case, or might otherwise have affected a significant
decision in respect of the defence case. Examples of the principle may be
found in R v Wickliffe [1987] 1 NZLR 55 and Re Appelgren [1991] 1 NZLR
431. The application of the principle must have regard to materiality in the
circumstances of a particular case and additionally, in some cases, credibility.

Confronting the accuser

The general principle is that witnesses should give their evidence orally in a
courtroom. In this way the defence is able to test the reliability of the
evidence and credibility of the witness. This goes towards ensuring that the
outcome is fair. [830] It is also seen as providing the defendant with an
opportunity to 'confront his or her accuser' either directly or by way of her of
his legal representative. [831] On the issue of the right of the defendant to
confront his or her accuser, the Court of Appeal in R v L has said: [832]

But neither the specific legislation nor the Bill of Rights guarantee elevates
the opportunity to cross-examine into an absolute right to confront and
question the witness at the trial itself. On the contrary both s 184 [of the
Summary Proceedings Act 1957] and s 3 [of the Evidence Amendment Act
(No 2) 1980] proceed on the premise that testimony may be admitted at the
trial even though the witness is not available for cross-examination. And in
terms of s 25 of the Bill of Rights the right to examine the witnesses for the
prosecution applies "in relation to the determination of the charge". It is
directed to the overall process and is not tied to the actual trial itself.

In other words, the interests of the defendant in obtaining a fair trial may be
achieved where the reliability and credibility of the witness is able to be
tested in arenas other than open court (for example, the opportunity to cross-
examine the witness in a pre-trial hearing may be sufficient).

Protecting vulnerable witnesses

The courts have also established a number of procedures to ensure that

hearings remain fair to all parties, including witnesses. This is because the
courts recognise the vulnerability of particular witnesses either because of the
nature of the offence, the age of the witness [833], or the threat of reprisals
on the witness or their family. It is also possible that a witness is unable to
give evidence in court because they have since died. [834] For this reason,
the courts may allow witnesses to give evidence using closed circuit
television [835], special protective screens, measures to preserve their
identity, or written statements. [836]

The use of such devices is not of itself likely to give rise to issues of
inconsistency with the right to examine witnesses for the prosecution or the
right to a fair trial (section 25(a)) in all circumstances. The European Court
of Human Rights in Doorsen v Netherlands has said, in respect of such
measures, that: [837]

It is true that Article 6 (art. 6) does not explicitly require the interests of
witnesses in general, and those of victims called upon to testify in particular,
to be taken into consideration. However, their life, liberty or security of
person may be at stake...Contracting States should organise their criminal
proceedings in such a way that those interests are not unjustifiably
imperilled. Against this background, principles of fair trial also require that
in appropriate cases the interests of the defence are balanced against those of
witnesses or victims called upon to testify.

The Court added in respect of the connection between the right to examine
prosecution witnesses and the right to a fair trial: [838]

However, if the anonymity of prosecution witnesses is maintained, the

defence will be faced with difficulties which criminal proceedings should not
normally involve. Accordingly, the Court has recognised that in such cases
Article 6 para. 1 taken together with Article 6 para. 3 (d) of the Convention
(art. 6-1+6-3-d) requires that the handicaps under which the defence labours
be sufficiently counterbalanced by the procedures followed by the judicial
authorities.

With such concerns in mind, it is for the prosecution to establish the need for
the witness to give evidence anonymously. There must, for example, be a
proper assessment of any alleged threat to a witness. [839] The European
Court of Human Rights in Van Mechelen v Netherlands held that: [840]

Having regard to the place that the right to a fair administration of justice
holds in a democratic society, any measures restricting the rights of the
defence should be strictly necessary. If a less restrictive measure can suffice
then that measure should be applied.
Unexamined witnesses

There are a number of guiding principles on using written statements or

written evidence from unexamined witnesses. The first of these is that
witnesses should give their evidence orally in the presence of the accused.
[841] Despite this, the defendant's right to examine witnesses for the
prosecution may not be infringed where a defendant who does not have the
opportunity to examine a prosecution witness has other means of testing the
written testimony of the witness. [842] For example, the reliability of the
written testimony could be tested by the testimony of the accused or
witnesses for the defence. It is also possible that a defendant's rights have not
been infringed where a witness provides written testimony at an earlier
hearing (for example, depositions), but is unable to provide oral testimony
during a subsequent proceeding. [843] But it is generally recognised that the
defendant's rights have been infringed where the defendant has been
convicted for the most part on the basis of written evidence where the
defendant has not had an opportunity to test the reliability of that evidence.

Although the principle is that witnesses for the prosecution be available at

trial for examination by the defence, it is evident that exceptions to this
principle exist. However, these exceptions are only seen to apply where they
do not affect the right of the accused to a fair trial. The key area of
assessment will be whether cross-examination will have exposed concerns
about the reliability of the evidence. These exceptions therefore only apply
where:

i. there are good reasons for the witness not to appear in person; [844]
and
ii. there are sufficient opportunities for the defence to test the reliability
and credibility of that evidence.

Witnesses for the defence [845]

The right in section 25(f) refers not only to the right to examine witnesses for
the prosecution, but to "...obtain the attendance and examination of witnesses
for the defence under the same conditions as the prosecution."

The White Paper suggested that this provision would ensure "that the
accused and the prosecution are on an equal footing with regard to the
summoning and hearing of witnesses." [846] However, it is uncertain
whether the concept of the prosecution and defence being on equal footing
applies to more than providing a legal means of obtaining the attendance and
examination of witnesses or whether it also extended to the provision of
resources for enabling the defence to search for and bring witnesses to
testify. [847] What should be borne in mind is that the courts have a measure
of discretion in governing their proceedings to ensure that any hearing is fair.

This aspect of the right is designed to guarantee to the accused the same legal
powers of compelling the attendance of witnesses and of examining or cross-
examining any witnesses as are available to the prosecution. It should
therefore be read alongside section 24(d) of the Bill of Rights Act, which
provides for the right of a person charged with an offence to have "adequate
time and facilities to prepare a defence". It has been held that the equivalent
article of the ICCPR (Article14(3)(e)) is not concerned with the right to call
witnesses per se; it is concerned with equality of rights to call witnesses as
between the defence and the prosecution. [848] It does not "require the
attendance and examination of every witness on the accused's behalf: its
essential aim, as is indicated by the words 'under the same conditions' is a full
'equality of arms' in the matter." [849] Otherwise the accused may engage in
unnecessary time wasting or irrelevant questioning.

It is for the defendant to establish for the court that the examination of a
certain witness or evidence is necessary in order to secure a fair trial. As
Gault J in R v Griffin [850] suggests, the mere fact that the defence was
unable to secure an expert witness to examine or challenge the evidence of an
expert witness for the Crown may not, of itself, infringe the right where that
testimony is not considered material. [851] However, where the evidence
goes to the central core of the case then where practicable that evidence
should be put to the court. [852]

On the other hand it would seem that a decision by the counsel for the
accused not to call material witnesses is unlikely to raise an issue of
consistency with this right. The rationale for this is that the calling of
witnesses is essentially a matter of strategy and the courts are unlikely to
interfere in what they regard as a matter for counsel's professional judgement.
[853]

Key cases

R v B [1995] 2 NZLR 172 (CA); R v B (No.2) [1995] 2 NZLR 752; Takiari v

R 22/07/1999 CA 274/98; R v L[1994] 2 NZLR 54; R v Metcalf (1996) 14
CRNZ 184 R v L (D.O) [1993] 4 SCR 419; R v Drabble Court of Appeal
18/2/92 CA 355, 356/91 and M v A-G 29/5/97 CA60/97; R v Griffin [2001] 3
NZLR 577; (2001) 19 CRNZ 47 (CA); R v Levogiannis [1993] 4 SCR 475;
Lilly v Virginia (1999) 144 L Ed(2d) 117 (US SC); Doorsen v Netherlands
March 26, 1996, RJD, 1996-II, No. 6; Van Mechelen v Netherlands April 23,
1997, RJD, 1997 - III, No 36; Asch v Austria April 26, 1991, Series A
No.203

History of the section

The White Paper

Section 25(f) is identical to that proposed in the White Paper.

Section 25(f) origins in international treaties and overseas legislation

Article 14(3)(e) of the ICCPR provides that:

In the determination of any criminal charge against him, everyone shall be

entitled to the following minimum guarantees, in full equality:
(e) To examine, or have examined, the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.

Article 6(3)(e) of the European Convention on Human Rights provides:

Everyone charged with a criminal offence has the following minimum rights:
(d) To examine, or have examined, the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.

Section 7 of the Canadian Charter provides that:

Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental justice.

Section 25(g) Right to lesser penalty when

penalties changed
Section 25(g) of the Bill of Rights Act is as follows:

Retroactive penalties
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right, if convicted of an offence in respect of which the
penalty has been varied between the commission of the offence and
sentencing, to the benefit of the lesser penalty.

Policy triggers: do I need to consider section 25(g)?

• Are you developing policies that seek to introduce a new range of

sentencing initiatives that expand or reduce the scope of possible
sanctions or impose further or remove restrictions on convicted
offenders?
• Are you altering the penalties or penalty levels for offences, or
introducing or making changes to orders on conviction that are in the
nature of a penalty?

If your answer to these two questions is "yes" then you should consider
whether your policy or practice is consistent with section 25(g).

What every policy analyst needs to know about section 25(g)

• Section 25(g) applies irrespective of whether the subsequent penalty is

greater or less than the sentence originally imposed.
• Section 25(g) applies only in the context of penalties applied during
court proceedings and which have a punitive objective - administrative
adjustments to the implementation of the sentence are not covered by
the right.
• The severity of the order may not of itself be a sufficient guide as to
whether it is a penalty or not.
• The range of penalties is not restricted to fines or terms of
imprisonment, but the nature of the penalty should be closely
associated with the commission of the offence.
• Relevant factors to consider include the nature and purpose of the
measure in question; its characterisation under national law; the
procedures involved in the making and implementation of the measure;
and its severity.
• The judicial imposition of non-parole periods at the time of sentencing
is likely to be regarded as a penalty.
Measures to achieve compliance

If you are developing policies proposing to amend the penalty levels for
specific offences or introduce new penalties, consider whether you need to
include transitional provisions to ensure that the changes to the legislation
will be applied in accordance with 25(g)

Related rights and freedoms

When considering whether your policy complies with section 25(g) you
should also consider:

• the right to a fair trial (section 25(a));

• the right not to be subject to retroactive penalties (section 26(1));
• the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 25(g)

When section 25(g) applies

The right in section 25(g) to the benefit of a lesser penalty applies where the
penalty has been changed at any time between the commission of an offence,
the determination of the charge and sentencing. It therefore applies up until
the time any appeal process has been completed and applies irrespective of
whether the subsequent penalty is greater [854] or less [855] than the
sentence originally imposed. The judicial imposition of a minimum non-
parole period following conviction after a second trial was therefore
inconsistent with section 25(g) where a minimum non-parole period was not
available at the time the person was initially charged with the offence. [856]

Section 25(g) only applies in respect of a person who has been convicted of
an offence. [857] In applying section 25(g), the courts have given
consideration to different aspects of the sentence and any penalty that has
been imposed; section 25(g) applies to penalties other than maximum fines or
terms of imprisonment. [858]

Penalties and administrative sanctions

The New Zealand courts have considered the issue of what constitutes a
penalty in the context of the phrase "punishment" in section 26(2) of the Bill
of Rights Act. The Court of Appeal considers that the phrase refers simply to
punitive sanctions imposed as part of criminal proceedings. [859] In Palmer
v Superintendent Auckland Maximum Security Prison, Wylie J held that the
word "penalty" in section 25(g) relates to the official imposition of a sanction
authorised by law. [860] However, measures taken to administer the sentence
imposed at those proceedings that may operate to the disadvantage of the
offender are not likely to be considered to be a penalty if they are "directed at
reducing the risk of reoffending, protecting the public, and rehabilitating the
offender." [861]

The UN Human Rights Committee has taken a similar approach. In ARS v

Canada (91/81) the Committee held in relation to "mandatory supervision"
for convicted persons released before the expiration of their term of
imprisonment:

that mandatory supervision cannot be considered as equivalent to a penalty,

but is rather a measure of social assistance intended to provide for the
rehabilitation of the convicted person, in his own interest. The fact that, even
in the event of remission of the sentence being earned, the person concerned
remains subject to supervision after his release and does not regain his
unconditional freedom, cannot therefore be characterized as the imposition or
re-imposition of a penalty incompatible with the guarantees laid down in
article 15 (1) of the Covenant.

The imposition of a minimum non-parole period at sentencing has been

recognised as a penalty for the purposes of section 25(g). In the High Court
in R v Poumako, Salmon J held that the imposition of a minimum term of
imprisonment was an order in the nature of a penalty. Salmon J applied the
following definition of "penalty": [862]

any suffering in person or property by way of forfeiture, deprivation or

disability, imposed as a punishment by law or judicial authority in respect of
. . . an act prohibited by statute.

Although the decisions of the New Zealand courts and the Human Rights
Committee are illustrative of what, other than fines and terms of
imprisonment, is not considered to be a penalty, decisions from Europe are
more useful in providing us with examples of what is. [863]

The European Court of Human Rights in Welch v UK considered whether a

confiscation order made under the Drug Trafficking Offences Act 1986
constituted a 'penalty' within the meaning of article 7 of the European
Convention. The Court set out the approach to be taken to the question
whether, in any given case, a measure amounted to such a penalty. It stated:
[864]

the starting point in any assessment of the existence of a penalty is whether

the measure in question is imposed following conviction for a "criminal
offence". Other factors that may be taken into account as relevant in this
connection are the nature and purpose of the measure in question; its
characterisation under national law; the procedures involved in the making
and implementation of the measure; and its severity.

The House of Lords in Gough & Anor v Chief Constable of the Derbyshire
Constabulary noted [865] that many court orders contained punitive and
preventive characteristics. [866] The Court in Gough also noted in relation to
the severity of the orders that:

It is important also to have in mind the fact, obvious as it is, that there are
various instances in which a familiar form of order may bear with great
severity on the person against whom it is made without there being the least
question of its amounting to a 'penalty' for the purposes of art 7. [867]

Laws LJ in Gough expressed the view that the categorisation of orders as

civil/criminal was unhelpful. He stated that there are a variety of
circumstances in which criminal courts are empowered to make orders that
would not be classed as penalties. [868] A conviction for an offence may act
as a gateway criterion permitting the imposition of such orders, but this does
not make the orders themselves a penalty. [869] Much will depend on
whether the order for the most part serves to punish the offender or protect
the public. The Court in Gough reached the conclusion that an order was
more likely to be regarded as a penalty the more closely tied the order was to
the commission of an offence as it is primarily intended to punish the
offender.

Consideration of whether an order is a penalty for the purposes of section

25(g) should therefore focus on the intention of the order. An order is likely
to be a penalty if it could be seen as part of society's response to the actions
of the offender even though the public or offender may benefit from the
order. [870]

Key cases

R v Pora [2001] 2 NZLR 37; (2000) 18 CRNZ 270 (CA); R v Poumako

(1999) 17 CRNZ 294; Daniels v Thompson [1998] 3 NZLR 22 (CA); Palmer
v Superintendent Auckland Maximum Security Prison [1991] 3 NZLR 315;
Fulcher v The Parole Board (1997) 15 CRNZ 222; Welch v UK (1995) 20
EHRR 247; Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289; ARS v Canada (91/81); R v Bunn [2000]
182 DLR (4th) 56 (SCC)

History of the section

The White Paper

Section 25(g) of the Bill of Rights Act is identical to that which was
proposed in the White Paper.

Section 25(g) origins in international treaties and overseas legislation

Article 15(1) of the ICCPR provides that:

No-one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when the
criminal offence was committed. If, subsequent to the commission of the
offence, provision is made by law for the imposition of a lighter penalty, the
offender shall benefit thereby.

Article 7(1) of the European Charter of Human Rights provides that:

No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or
international law at the time it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal offence was
committed.

Section 11(i) of the Canadian Charter provides that:

Any person charged with an offence has the right if found guilty of the
offence and if the punishment for the offence has been varied between the
time of commission and the time of sentencing, to the benefit of the lesser
punishment.
Section 25(h) The right to appeal
Section 25(h) of the Bill of Rights Act is as follows:

Right to appeal
Everyone who is charged with an offence has, in relation to the determination
of the charge, the right, if convicted of the offence, to appeal according to
law to a higher court against the conviction or against the sentence or both.

Policy triggers: do I need to consider section 25(h)?

Are you working on policies or practices:

• That amend or alter the criteria under which legal aid is granted for
appeals?
• Amending or altering the procedures under which a person convicted
and sentenced for an offence is able to appeal those decisions?
• That relate to the granting of name suppression for either the accused
person or any complainant?
• That are likely to restrict the ability of a person to appeal any decision
from the court?

If you answer "yes" to any of these questions, consider whether your policy
or practice is consistent with section 25(h) of the Bill of Rights Act.

What every policy analyst needs to know about section 25(h)

• The right to an appeal should be given substance so that it is an

effective right of appeal - the mere presence of an appeal process may
not be sufficient if the person is unable to adequately present their case.
• The opportunity to "seek leave to appeal" does not constitute an
exercise of an appeal right for the purposes of section 25(h).
• An appeal hearing carries with it the same guarantees that are afforded
the defendant at trial.
• Not all appeals will require an oral hearing, but this may depend on the
nature of those proceedings and the scope of the appeal.
• The right of appeal refers to one appeal only.
Measures to achieve compliance

If you are establishing a regulatory framework containing offences:

• Establish a statutory framework setting out the procedures for lodging

an appeal.
• Establish a timeframe for the lodging of an appeal that takes into
account potential delays that a person may be faced with in reaching a
decision to lodge an appeal.
• Clearly set out what the avenues for the rights of appeal are.
• Enable the appellant to make oral submissions unless there are good
reasons for restricting the form of appeal to one that is done simply "on
the papers" (without hearing oral submissions).

Related rights and freedoms and considerations

If you consider that the policy or practice you are working on gives rise to
issues under section 25(h) of the Bill of Rights Act, also consider:

• the right to a fair and public hearing by an independent and impartial

tribunal (section 25(a));
• the right to be presumed innocent (section 25(c));
• the right to the observance of the principles of natural justice (section
27(1)).

Further discussion on the meaning of section 25(h)

Substance over form

The right in section 25(h) is:

... intended to be an effective right of appeal which so far as is reasonably

possible will ensure that justice is done in the appeal process. The context is
one of access to justice. [871]

The Privy Council in Taito also said that the issue was one of substance over
form. Section 25(h) requires that the right to appeal must be "effective". An
effective appeal requires a "collective judicial decision" that is arrived at after
a hearing that is held in public. [872]
For this reason, the New Zealand Court of Appeal has held that a defendant
granted name suppression during the first trial, should have that order
continued until such time as the appeals process is completed in order to
ensure that the defendant continues to receive a fair trial. [873]

This view has been supported in Europe where the European Court has held
that the right to a fair trial and other minimum guarantees found in section 25
of the Bill of Rights Act do not cease with the decision at first instance as:

[A] criminal charge is not really 'determined' as long as the verdict of

acquittal or conviction has not become final. Criminal proceedings form an
entity and must, in the ordinary way, terminate in an enforceable decision.
[874]

Oral versus written hearings

Although the decision of the Privy Council in Taito suggests that section
25(h) requires appeals to be carried out by way of oral hearings, the
European Court of Human Rights has taken a less strict approach. The
European Court has considered the conduct of the appeal in the context of the
right to a fair hearing as contained in Article 6(1) of the Convention. In
Morris and Monnell v United Kingdom [875] the European Court considered
that the principles of the equality of arms as provided for in section 25(e) of
the Bill of Rights Act were applicable:

in order to determine whether the requirements of fairness in Article 6 (art. 6)

were met in the present case, it is necessary to consider matters such as the
nature of the leave-to-appeal procedure and its significance in the context of
the criminal proceedings as a whole, the scope of the powers of the Court of
Appeal, and the manner in which the two applicants' interests were actually
presented and protected before the Court of Appeal.

It would seem that though the right of appeal in particular circumstances

carries with it the right to make oral submissions before the court, reasonable
limits might be placed on the right. The reasonableness of those limits will
depend on the nature of the proceedings, the statutory provisions setting out
rights of appeal, and the scope of the appeal. [876] If the appeal requires a
determination of facts and law, then it is less likely that a body hearing the
appeal could make a determination without hearing the applicant in person.
[877] The appellant in such circumstances must have access to all judgments
and documents necessary to "enjoy the effective exercise of the right of
appeal". [878]
Ongoing rights of appeal

The right of appeal in section 25(h) provides the right to one appeal. Section
25(h) does not confer a right of ongoing appeal. It does not therefore give
every person accused with a summary offence the right to appeal to the Court
of Appeal. The right does not refer to the "highest" court but simply a higher
court. [879] A person convicted of a summary offence simply has the right
under section 25(h) to appeal to the High Court. The Court of Appeal in
Slater also held that the right to appeal to a higher court is a right that is
affirmed "according to law". It is therefore a right which must be exercised
according to the terms of section 144 Summary Proceedings Act. [880]

Key cases:

Taito v R (2002) 19 CRNZ 224; 6 HRNZ 539 (PC); R v Burns (Travis)

[2002] 2 NZLR 387; R v Slater (1996) 14 CRNZ 189(CA); Delcourt v
Belgium January 17, 1970, Series A, No 11; EHRR; Morris and Monnell v
United Kingdom March 2, 1987, Series A; No 115; 10 EHRR 205; Ekbatani
v Sweden May 26, 1988, Series A, No 134; 13 EHRR 504.

History of the section

The White Paper

Section 25(h) of the Bill of Rights Act is identical to that proposed in the
White Paper.

Section 25(h) origins in international treaties and overseas legislation

Article 14(5) of the ICCPR states

Everyone convicted of a crime shall have the right to his conviction and
sentence reviewed by a higher tribunal according to law.

Article 2 of Protocol 7 of the European Convention [881] provides:

1. Everyone convicted of a criminal offence by a tribunal shall have the

right to have his conviction or sentence reviewed by a higher tribunal.
The exercise of this right, including the grounds on which it may be
exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor
character, as prescribed by law, or in cases in which the person
concerned was tried in the first instance by the highest tribunal or was
convicted following an appeal against acquittal.
Section 25(i) The right for a child to be dealt
with in a manner that takes account of the
child's age
Section 25(i) of the Bill of Rights Act is as follows:

Age of the child to be considered

Everyone who is charged with an offence has, in relation to the determination
of the charge, the right, in the case of a child, to be dealt with in a manner
that takes into account the child's age.

Policy triggers: do I need to consider section 25(i)?

• Are you developing policy that will amend or alter the way in which
child and young offenders are dealt with by the courts?
• Are you developing policy that will create a range of offences that will
have a major impact on children or young people?
• Are you developing policy to change the definitions of "child" and
"young offender"?

If you answer "yes" to any of these questions, consider whether your policy
or practice is consistent with section 25(i) of the Bill of Rights Act.

What every policy analyst needs to know about section 25(i)

Section 25(i) requires that authorities develop a proportionate and considered

response to the issue of child and youth offenders. It provides for a
framework that enables authorities to deal with offenders in a way that takes
into account the offender's right to a fair trial bearing in mind:

• the age of the offender;

• the offender's capacity to appreciate the nature of the proceedings and
the legal implications;
• the gravity of the offence;
• the level of public and media interest.

Section 25(i) is considered relevant to the treatment of children and youth at

the time of trial, and not the time at which the offence is committed.
Measures to increase compliance

If you are developing criminal law policy that will impact on children
consider:

• Does the policy make any special provision for the fact that children
will be affected by these arrangements?
• Have you consulted with persons who have knowledge and/or
expertise on child and youth issues about the impact of your proposal
on children?

Related rights and freedoms

If you are developing policy that you consider might give rise to issues under
section 25(i), also consider the rights of a person arrested or detained and the
rights of a person charged with an offence under sections 23 and 24 of the
Bill of Rights Act in addition to:

• the right to a fair and public hearing (section 25(a));

• the right to be present and present a defence (section 25(e)).

Further discussion on the meaning of section 25(i)

Flexible standards

The UN Human Rights Committee notes that there does not appear to be any
universal standards regarding:

• the minimum age at which a juvenile may be charged with a criminal

offence;
• the maximum age at which a person is still considered to be a juvenile;
• the existence of special courts and procedures;
• the laws governing procedures against juveniles and how all these
special arrangements for juveniles take account of "the desirability of
promoting their rehabilitation."

Despite this, the Committee has noted that juveniles should enjoy at least the
same guarantees and protections as are accorded to adults under article 14 of
the ICCPR. [882]
The rights to a fair trial afforded to adult offenders under section 25 of the
Bill of Rights Act should apply equally to child and youth offenders as a
minimum standard. However, a child's age and capacity to understand what
is taking place during a proceeding may not be the same as an adult's.
Modifications to trial procedure may be necessary to enable the offender to
understand what is taking place.

The White Paper commentary on section 25(i) states that the provision
establishes a "flexible standard and leaves room for a wide measure of
flexibility in legislation, it creates a right for children to be dealt with in
special and appropriate ways." [883] The White Paper adds that the meaning
of "child" in this provision is not intended to be used in a specialised way,
but should cover any case and any circumstance where the youth of the
person called for special protection or treatment. [884]

When age is relevant

Internationally, there does not appear to be any commonly accepted

minimum age for the imposition of criminal responsibility. In New Zealand,
that minimum age is 14 years. [885] The Court of Appeal has indicated that
section 25(i) is relevant to treatment at the time of trial and not the time at
which the offence was committed. [886]

A fair trial

The European Court of Human Rights has also held that trial procedures for
youth offenders need to be tailored to take into account the youth's right to a
fair trial. What is considered fair in the context of adult offenders will not
always be considered fair for young offenders. [887] The Court in T
considered that:

It follows that, in respect of a young child charged with a grave offence

attracting high levels of media and public interest, it would be necessary to
conduct the hearing in such a way as to reduce as far as possible his or her
feelings of intimidation and inhibition. [888]

In a separate but concurring judgment, Lord Reed in T said the following in

respect of providing for the ability of a young offender to participate in his or
her trial [889]:

There is on the other hand nothing in art 6 [of the European Convention] to
indicate that there can be any derogation, in cases involving children from
the principle that the trial process should provide for the effective
participation of the accused who must be able to follow the proceedings and
to give instructions where necessary to his lawyer. In order for that principle
to be respected in cases involving children, however, the conditions under
which the trial is held (including the procedure followed) have to be such as
will permit such participation, taking into account the age, level of maturity
and intellectual and emotional capacity of the child concerned.

Lord Reed went on to say:

If a child is to be held accountable to the criminal law, then he must enjoy the
same right as an adult to understand what is happening at the trial and to play
an active role in his defence. It has to be acknowledged that there are
inevitable limitations to the participation which can be expected of a child in
legal proceedings, whatever form those proceedings may take, since the
understanding and maturity of a child are unlikely to equal those of an adult.
[890]

Jurisdiction of the Youth Court

The Children Young Persons and their Families Act 1989 sets out the
procedures for dealing with children and young persons under 17 years of
age who offend against the law. This Act established the Youth Court for the
hearings of proceedings relating to such offending. Subject to certain
exceptions, any young person under 17 years of age who is charged with an
offence must be brought before a Youth Court to be dealt with in line with
the provisions of the CYPF Act. The only exception to this is where a young
person is charged with either murder or manslaughter. [891] Section 10(1) of
the CYPF Act imposes an obligation on the Court and the person's legal
representative or family to fully explain the nature of the proceedings and the
implications of those proceedings. Section 11 of the CYPF Act imposes an
identical duty on the Court and counsel to encourage and assist the
participation of the child or young persons in those proceedings. [892]

Key cases:

Police v Edge [1993] 2 NZLR 7, 14; (1992) 9 FRNZ 659; T v United

Kingdom (16/12/99) ECHRR; 7 BHRC 659
History of the section

The White Paper

The wording of section 25(i) is virtually identical to that which appeared in

the White Paper.

Section 25(i) origins in international treaties and overseas legislation

Article 14(4) of the ICCPR provides:

In the case of juvenile persons, the procedure shall be such as will take
account of their age and the desirability of promoting their rehabilitation.

The United Nations Convention on the Rights of the Child (UNCROC) [893]
states:

3(1) In all actions concerning children, whether undertaken by private or

public welfare institutions, courts of law, administrative authorities, or
legislative bodies, the best interests of the child shall be a primary
consideration.

...
40(1) States Parties recognize the right of every child alleged as, accused of,
or recognized as having infringed the penal law to be treated in a manner
consistent with the promotion of the child's sense of dignity and worth which
reinforces the child's respect for the human rights and fundamental freedoms
of others and which takes into account the child's age and desirability of
promoting the child's reintegration and the child's assuming a constructive
role in society.

40(2) To this end and having regard to the relevant provisions of

international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having

infringed the penal law by reason of acts or omissions that were not
prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at
least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her,
and, if appropriate, through his or her parents or legal guardians and to have
legal or other appropriate assistance in the preparation and presentation of his
or her defence;
(iii) To have the matter determined without delay by a competent,
independent and impartial authority or judicial body in a fair hearing
according to law, in the presence of legal or other appropriate assistance and,
unless it is considered not to be in the best interest of the child, in particular,
taking into account his or her age or situation, his or her parents or legal
guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or
have examined adverse witnesses and to obtain the participation and
examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and
any measures imposed in consequence thereof reviewed by a higher
competent, independent and impartial authority or judicial body according to
law;
(vi) To have the free assistance of an interpreter if the child cannot
understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the
proceedings.

40(3). States Parties shall seek to promote the establishment of laws,

procedures, authorities and institutions specifically applicable to children
alleged as, accused of, or recognized as having infringed the penal law, and,
in particular:

(a) The establishment of a minimum age below which children shall be

presumed not to have the capacity to infringe the penal law;

(b) Whenever appropriate and desirable, measures for dealing with such
children without resorting to judicial proceedings, providing that human
rights and legal safeguards are fully respected.

40(4). A variety of dispositions, such as care, guidance and supervision

orders; counselling; probation; foster care; education and vocational training
programmes and other alternatives to institutional care shall be available to
ensure that children are dealt with in a manner appropriate to their well-being
and proportionate both to their circumstances and the offence.
Footnotes:

785. Section 14 of the Bill of Rights Act.

786. Section 23(4) of the Bill of Rights Act.
787. See the section on the admissibility of confessions in Laws of
New Zealand.
788. R v Barlow (1995) 14 CRNZ 9; 2 HRNZ 635 (CA).
789. To this end, the courts have held that section 25(d) is of more
relevance in pre-trial proceedings. Even though a person charged with
an offence cannot be compelled to testify in proceedings, "the present
law certainly allows an inference adverse to an accused to be drawn if
he remains silent at trial in the face of evidence pointing to his guilt." R
v Butcher [1992] 2 NZLR 257, 268.
790. Such statements may not only incriminate the accused but other
parties who may be incriminated by such statements. You should
therefore also carefully consider the Laws of Evidence and particularly
those on the privilege of witnesses, see Part III of the Evidence
Amendment Act (No. 2) 1980.
791. R v Bouwer [2002] 1 NZLR 105.
792. Saunders v United Kingdom
793. Berry v Jamaica 330/88
794. It therefore stands to reason that any action taken that is
inconsistent with section 9 of the Bill of Rights Act (torture, cruel,
disproportionately severe treatment etc) will run foul of section 25(d) if
that treatment leads to an accused person making a self incriminatory
statement, see Berry v Jamaica 330/88; Cadoret and Le Bihan v
France (221/87, 323/88).
795. Taylor v New Zealand Poultry Board [1984] 1 NZLR 394.
796. Funke v France 16 EHRR 297.
797. See Saunders v United Kingdom at para 69 and A-G's Reference
(No 7 of 2000) [2001]2 Cr App R 286 (CA) at 59-60. For similar
reasons the right in section 25(d) is not seen to extend to other
evidence such as: blood samples or breath tests (R v Altseimer (1982)
38 OR (2d) 783 (CA), bodily samples taken for the purpose of taking
DNA (Saunders); or the taking of property of the accused for the
 purpose of comparison with evidence found at the scene of a crime
(Toka v R, HC Christchurch 11/5/94,T 12 94).
798. Thomson Newspapers Ltd v Director of Investigation &
Research (1990) 54 CCC 417.
799. Thomson Newspapers Ltd v Director of Investigation &
Research (1990) 54 CCC 417, 508g.
800. Thomson Newspapers Ltd v Director of Investigation &
Research (1990) 54 CCC 417, 518d.
801. See for example the doctrine of recent possession as set out in
Trompert v Police [1985] 1 NZLR 357.
802. See John Murray v United Kingdom R v Clarke Court of Appeal,
16/12/93, CA417/93; and Drain v Police (1994) 11 CRNZ 576.
803. Section 366(1) of the Crimes Act 1961 prohibits anyone other
than the person charged or his or her counsel or the Judge from
commenting on the fact that the accused refrained from giving
evidence as a witness. See also section 364 of the Crimes Act. Section
67(5) of the Summary Proceedings Act 1957 forbids adverse comment
by the informant on the failure of the defendant to testify. For further
information on this issue, see Adams on Criminal Law: Chapter 2
Evidence in Criminal Cases.
804. Note that even though the European Convention on Human
Rights does not contain an express reference to the right not to be
compelled to give self-incriminating evidence, the European Court has
held that it is such a significant right at common law that it forms part
of what constitutes a fair trial, see Funke v France 16 EHRR 297;
Saunders v United Kingdom. It is also considered contrary to Article
6(2) of the Convention and the right to be presumed innocent.
805. R v Jones [2002] 2 All ER 113.
806. This right is also affirmed by section 376(1) of the Crimes Act
1961 and section158(1) of the Summary Proceedings Act 1957.
807. Human Rights Committee General Comment 13 [21] 12/04/84.
808. Downey v MAF Court of Appeal, 11/5/92, CA 355/91. See too
section 376 of the Crimes Act 1961 and section 158 of the Summary
Proceedings Act 1957. These Acts authorise the continuance of a trial
in the absence of the accused where the behaviour of the accused in the
course of that trial or preliminary hearing renders their continued
 presence impracticable. Section 61(b) of the Summary Proceedings Act
permits the court to proceed with the hearing in the absence of the
defendant in certain very limited circumstances.
809. Pomeroy v Police [2000] NZAR 273.
810. Hodges v Police High Court, Wanganui, AP267/01, 13 February
2002.
811. R v Kenneth Watts and June Watts (No5) [1992] DCR 158.
812. R v Kenneth Watts and June Watts (No5) [1992] DCR 158,159.
813. R v Kenneth Watts and June Watts (No5) [1992] DCR 158,159 -
160.
814. Mbenge v Zaire 16/79.
815. R v Jones [2002] 2 All ER 113.
816. R v Jones [2002] 2 All ER 113, 120.
817. R v Jones [2002] 2 All ER 113, 121.
818. Taito v R (2002) 19 CRNZ 224; 6 HRNZ 539 (PC) para 12.
819. M v A-G, Court of Appeal, 29/5/97 CA 60/97, at page 6.
820. R v Duval [1995] 3 NZLR 202, 205 adopting R v Lee Kun [1916]
1 KB 337, 341 per Lord Reading CJ.
821. W J Brookbanks "Judicial Determination of Fitness to Plead -
the Fitness Hearing" (1992) 7 Otago Law Review 520, 521 and IG
Campbell (1988) Mental Disorder and Criminal Law in Australia and
New Zealand.
822. R v Duval [1995] 3 NZLR 202, 205. Note that the Criminal
Procedure (Mentally Impaired Persons) Act 2003 provides the
legislative framework for determining whether a person is fit to stand
for trial or not.
823. R v Duval [1995] 3 NZLR 202, 206.
824. R v Duval [1995] 3 NZLR 202, 205.
825. See the discussion on effective legal representation under section
24(f) of these guidelines.
826. Brown v Jamaica 775/1997.
827. R v Griffin [2001] 3 NZLR 577; (2001) 19 CRNZ 47 (CA).
828. See also the sections in these guidelines dealing with facilities to
prepare a defence (24(d)) and presenting a defence (25(e)).
829. Takiari v R 22/07/1999 CA 274/98 at page 11; see too the
decision of the Court of Appeal in R v Griffin [2001] 3 NZLR 577;
(2001) 19 CRNZ 47 (CA).
830. You should also refer to the Laws of Evidence concerning
hearsay.
831. Saidi v France, September 20 1993, Series A, No 261-C; 17
EHRR 251. Although an inability to confront one's accusers may not
lead to an infringement of the right where the courts are able to
independently assess the credibility of the witnesses Doorsen v
Netherlands, March 26, 1996, RJD, 1996-II, No 6.
832. R v L[1994] 2 NZLR 54, 61. The Court in R v L at p 59 set out
relevant considerations of principle governing the exercise of the
discretion to exclude such otherwise admissible evidence. See also R v
L (D.O) [1993] 4 SCR 419; R v Levogiannis [1993] 4 SCR 475 and the
New Zealand Law Commission's Preliminary Paper No.26 (1996) The
Evidence of Children and Other Vulnerable Witnesses.
833. Sections 23C - 23I of the Evidence Act 1908; section 158CA of
the Summary Proceedings Act 1957 and the Evidence (Videotaping of
Child Complainants) Regulations 1990.
834. See the discussion of R v L [1994] 2 NZLR 54 above in relation
to the right to a fair trial.
835. R v Drabble Court of Appeal 18/2/92 CA 355, 356/91 and M v
A-G 29/5/97 CA60/97 where the Court of Appeal has found that the
use of CCTV technology and special witness protection screens do not
limit the defendant's rights as the defendant is still able to put questions
to the witnesses.
836. Compare R v L [1994] 2 NZLR 54 with R v Metcalf (1996) 14
CRNZ 184 where the key issue was the reliability of the witnesses
statement. See the section of guidelines on the right to a fair trial
(section 25(a)) above.
837. Doorsen v Netherlands March 26, 1996, RJD, 1996-II, No. 6 p.
470, para. 70.
838. Doorsen v Netherlands March 26, 1996, RJD, 1996-II, No. 6 p.
471, para. 72.
839. Saidi v France, September 20 1993, Series A, No 261-C; 17
EHRR 251.
840. Van Mechelen v Netherlands April 23, 1997, RJD, 1997 - III, No
36 at para 58.
841. Lilly v Virginia (1999) 144 L Ed(2d) 117 (US SC).
842. Asch v Austria April 26, 1991, Series A No.203.
843. R v H, High Court Invercargill T 5/95 12 October 1995.
844. Cf R v L [1994] 2 NZLR 54 with R v Metcalf (1996) 14 CRNZ
184 and Unterpertinger v Austria, November 24, 1986, Series A, No
110; 13 EHRR 175.
845. See also the discussion on 'equality of arms' at p280 of the
guidelines.
846. A Bill of Rights for New Zealand, A White Paper (Government
Printer, 1985), para 10.137.
847. See discussion of "Equality of arms" at page 280 of these
guidelines. See also Adams on Criminal Law Ch 10.17.03.
848. Gordon v Jamaica (237/87).
849. See Vidal v Belgium April 22, 1992, Series A, No. 235 - B.
850. R v Griffin [2001] 3 NZLR 577; (2001) 19 CRNZ 47 (CA).
851. Asch v Austria April 26, 1991, Series A No.203.
852. On the issue of a defendant's right to seek medical examination
of an alleged victim of a sexual assault, see R v B [1995] 2 NZLR 172
(CA); and R v B (No.2) [1995] 2 NZLR 752 at 758 -764.
853. Peart and Peart v Jamaica (464, 482/91).
854. R v Pora [2001] 2 NZLR 37; (2000) 18 CRNZ 270 (CA).
855. R v Bunn [2000] 182 DLR (4th) 56 (SCC).
856. R v Pora [2001] 2 NZLR 37; (2000) 18 CRNZ 270 (CA).
857. Dental Council of New Zealand v Bell [1992] 1 NZLR 438.
858. See also section 6 of the Sentencing Act 2002, which is identical
in scope to section 25(g).
859. Daniels v Thompson [1998] 3 NZLR 22 (CA), 47.
860. Palmer v Superintendent Auckland Maximum Security Prison
[1991] 3 NZLR 315, 325 [1990] 1 NZBORR 185.
861. Fulcher v The Parole Board (1997) 15 CRNZ 222, 244; Palmer
v Superintendent Auckland Maximum Security Prison [1991] 3 NZLR
315, 325 [1990] 1 NZBORR 185, 195.
862. R v Poumako (1999) 17 CRNZ 294, 298. This approach was
supported by the Court of Appeal R v Poumako (2000) 17 CRNZ 530;
5 HRNZ 652 (CA).
863. Refer to the discussion in these guidelines on the definition of
offences in the introduction to section 24 of the Bill of Rights Act.
864. Welch v UK (1995) 20 EHRR 247, 262.
865. Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289, 323 at para 31.
866. For example, criminal proceedings for breach of the peace
leading to a binding over order were considered criminal in nature as
they contain a deterrence aspect (an incentive to keep the peace) and a
punitive aspect (the consequence of a failure to keep the peace) - see
Steel & Ors v United Kingdom September 23, 1998 Reports 1998 -VII.
867. Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289, 323 at para 31.
868. Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289, 323 at para 33.
869. Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289, 329.
870. Gough & Anor v Chief Constable of the Derbyshire
Constabulary [2001] 4 All ER 289, 327. at para 38. The Court in
Gough held that a football banning order, that prevented the offender
from attending regulated football matches, was not a penalty as it was
not intended to act as a punishment.
871. Taito v R (2002) 19 CRNZ 224; 6 HRNZ 539 (PC).
872. Taito v R (2002) 19 CRNZ 224, 236; 6 HRNZ 551 (PC).
873. R v Burns (Travis) [2002] 2 NZLR 387; (2000) 6 HRNZ 506
(CA), para 14.
874. Delcourt v Belgium January 17, 1970, Series A, No 11; EHRR
pp. 14-15, para 25.
875. Morris and Monnell v United Kingdom March 2, 1987, Series A;
No 115; 10 EHRR 205.
876. Section 392A of the Crimes Act provides that there is a
presumption that appeals will be heard by way of oral submissions.
However section 392A provides that that presumption can be rebutted
in certain cases. Section 392A sets out the procedures and relevant
 criteria for determining whether an appeal should be heard orally or on
the papers.
877. Ekbatani v Sweden May 26, 1988, Series A, No 134; 13 EHRR
504. The Court in this case expressly stated that Article 2 of Protocol 7
to the Convention could not be read to limit the right to a fair trial at
appeal - see para 27 of Ekbatani.
878. Henry v Jamaica (230/87). See also section 392(1A) of the
Crimes Act 1961. Section 392(1A) requires the Registrar for the Court
to prepare a preliminary case on the appeal including documents,
exhibits, or other things connected with the proceedings that the
Registrar considers are relevant to the grounds of appeal. These
documents must be made available to the parties to the appeal.
879. R v Slater (1996) 14 CRNZ 189(CA), 195.
880. R v Slater (1996) 14 CRNZ 189(CA), 194.
881. See too Article 6 of the Convention.
882. Human Rights Committee General Comment 13[21] Adopted on
12/4/84.
883. The White Paper para 10.142.
884. The White Paper para 10.143.
885. Section 272(1) of the Children Young Persons and Their
Families Act 1989 (CYPF Act)
886. Police v Edge [1993] 2 NZLR 7, 14; (1992) 9 FRNZ 659.
887. T v United Kingdom (16/12/99) ECHRR; 7 BHRC 659, 684 -
686.
888. T v United Kingdom (16/12/99) ECHRR; 7 BHRC 659, 686.
889. T v United Kingdom (16/12/99) ECHRR; 7 BHRC 659, 697.
890. T v United Kingdom (16/12/99) ECHRR; 7 BHRC 659, 697-698.
891. Section 272(3)(a) and (b) of CYPF Act.
892. For a further and fuller guide to procedures dealing with children
and young offenders under the CYPF Act, see Stephen O'Driscoll
(2002) "Children and Young Persons" in Laws of New Zealand 23 June
2002.
893. United Nations Convention on the Rights of the Child 1989
(New York, 20 November 1989; TS 44 (1992); Cm 176).
Section 26 Retroactive penalties and
double jeopardy
Section 26 of the Bill of Rights Act is as follows:

Retroactive offences and double jeopardy

1. No one shall be liable to conviction of any offence on account of any

act or omission which did not constitute an offence by such person
under the law of New Zealand at the time it occurred.
2. No one who has been finally acquitted or convicted of, or pardoned
for, an offence shall be tried or punished for it again.

Section 26(1) Retroactive offences

No one shall be liable to conviction of any offence on account of any act or

omission which did not constitute an offence by such person under the law of
New Zealand at the time it occurred.

Policy Triggers: do I need to consider section 26(1)?

 Are you amending offence provisions in the legislation to expand or

broaden the range of activities to which it applies?
 Are you developing policy that creates and offence for acts done before
the legislation comes into effect?

If the answer to either of these questions is "yes" then you will need to
consider if the policies are consistent with the section 26(1).

What every policy analyst needs to know about section 26(1)

 Section 26(1) is concerned with ensuring that persons are not punished
by the criminal law for doing something that was not unlawful at the
time
 Section 26(1) reflects that persons are entitled to expect the law to be
sufficiently clear and certain so that he or she can confidently carry out
certain activities or decide not to carry out those activities with the
knowledge that those acts or omissions are in compliance with the law
  Section 26(1) is an affirmation of the general principle that matters of
substantive criminal law should not be applied with retrospective effect

Measures to achieve compliance

 If amending offence provisions consider employing transitional

provisions that will enable conduct prior to the new act coming into
force to be dealt with under previous legislation.
 Avoid giving offence provisions retrospective effect
 If you are amending an offence provision, test the scope of the new
offence provision to ensure it does not accidentally go beyond the
range of activities it is intended to capture
 If you are seeking to decriminalise certain conduct or provide a new
defence to an offence, develop proposals that accommodate a person
who committed an offence before the law change, but is not tried until
after the law change

If you are considering developing a new offence refer to the Legislation

Advisory Committee Guidelines (Guidelines on Process and Content of
Legislation). This publication contains a useful chapter on criminal offences
that sets out other relevant considerations when developing offences that may
be of assistance. [894]

Related rights and freedoms and freedoms

If you are developing policy that you consider might give rise to issues under
section 26(1), you should also consider:

 The right to a fair trial (section 25(a))

 The right to the lesser penalty when penalties changed (section 25(g))
 The right to the observance of the principles of natural justice (section
27(1))

Further analysis on the meaning of section 26(1)

In what situations does this right apply?

Section 26(1) as applies only in respect of offences that have a retrospective

effect. That is, section 26(1) is concerned with substantive changes to the law
that either result in extending current offences to capture a broader range of
conduct or that prohibits certain activities and applying those changes to a
previous period of time where the conduct or activities were lawful. It is not
concerned with procedures that do not form part of the penalty or punishment
of an offender [895] or changes to procedural law, (such as changes in trial
practice or changes to the law of evidence). [896] Changes to procedural law
may, however, infringe 26(1) where they affect the basic ingredients of a fair
trial.

The right has been described as follows:

It is a fundamental right that no one should be held criminally liable for an

act or omission which did not constitute an offence at the time it was
committed, or be subjected to a sentence which was not in force at that time.
A defendant's conduct is to be judged by the law at the time of the conduct;
not in retrospect. If Parliament chooses to depart from this principle it must
surely take care to ensure that it does so with due deliberation and with firm
adherence to proper form. [897]

The right to be free from liability under a retrospective offence contained in

section 26(1) of the Bill of Rights Act has always been a fundamental
principle, and a "plank of the common law" [898] in New Zealand. Section
26(1) is concerned with ensuring that the law is sufficiently certain and clear
that it enables individuals to refrain from, or perform, activities with the
confidence that their behaviour is in compliance with the law. That is, the
individual must be able to foresee the consequences of their actions.
Amendments to the criminal law that apply to conduct prior to enactment and
that have the effect of clarifying an element of an offence may offend against
the principles of retrospectivity if the amendment extends to conduct
previous thought to be lawful or increases the severity of the offence. [899]

Section 26(1) does not apply in circumstances where the courts provide
clarification on the application of an offence so long as the developments in
caselaw are reasonably foreseeable and do not alter the essence of the
offence. [900] The European Court of Human Rights has also taken the
approach that as long as the development in the law is reasonably
foreseeable, whether as the consequences of Parliamentary scrutiny or
judicial interpretation, then the prohibition against retrospective offences
does not apply. It is unclear whether the courts in New Zealand would take a
similar approach. Developments in the law may be reasonably foreseeable in
situations where a person who is engaged in an activity that entails a degree
of legal risk, searches out legal advice as to the legal risks associated with a
course of action. [901] However, where conduct is of an ongoing nature and
is only unlawful for a part of that period, only the conduct that took place
after the law change can be prosecuted. [902]

The general principle

The Legislation Advisory Committee has previously provided comment on

the issue of retrospectivity. [903] The LAC sets out the general principle in
the following way [904]:

a. Legislation should, in general, have prospective effect only. In

particular it should neither interfere with accrued rights and duties, nor
should it create offences retrospectively; and
b. Legislation should, in general, neither deprive individuals of their right
to benefit from judgments obtained in proceedings brought under
earlier law, nor to continue proceedings asserting rights and duties
under the law.

The European Court of Human Rights has also taken the view that the
prohibition against retrospective offences is to guard against arbitrary
prosecution, conviction and punishment. [905]

Although the general principle applies to all statutory provisions that have
retrospective effect, section 26(1) is concerned with retrospective offences.
[906]

Key cases

Fulcher v Parole Board (1997) 15 CRNZ 222 (CA); T v Attorney-General

(CA 175/97, 27 August 1997); R v Poumako [2000] 2 NZLR 695; R v Pora [
2001] 2 NZLR 37; R v King [1995] 3 NZLR 409; C.R v U.K and S.W. v U.K
November 22, 1995, Series A, Nos. 335-B and 335-C; Cantoni v France
November 15, 1996, RJD, 1996-V, No 20; Veeber No 2 v Estonia (No 2)
Application no 45771/99, 21/01/2003; Calder v Bull 3 U.S. (3 Dall.) 386,
390 (1798)

History of the section

The White Paper

The right, as set out in the Bill of Rights White Paper, is intended to apply
only to offences, [907] not apply to all legislation, policies or practices that
have retrospective effect. The right now contained in section 26(1) is the
same as that contained in the White Paper, the only difference is that it was
relocated to a new clause.

Section 26(1) origins in international treaties and overseas legislation

Article 15 of the International Covenant on Civil and Political Rights

(ICCPR) provides:

1. No one shall be held guilty of any criminal offence on account of any

act or omission which did not constitute a criminal offence, under
national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed. If, subsequent to
the commission of the offence, provision is made by law for the
imposition of the lighter penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any
person for any act or omission which, at the time when it was
committed, was criminal according to the general principles of law
recognized by the community of nations

The European Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention) is an example of a regional
instrument that affirms the protection against retrospective offences. Article 7
of the European Convention states:

(1) No one shall be held guilty of any criminal offence on account of any act
or omission which did not constitute a criminal offence under national or
international law at the time when it was committed. Nor shall a heavier
penalty be imposed that the one that was applicable at the time the criminal
offence was committed.
(2) This article shall not prejudice the trial and punishment of any person for
any act or omission which, at the time it was committed, was criminal
according to the general principles of law recognised by civilised nations.

Section 11(g) of the Canadian Charter of Rights and freedoms contains a

similar right to section 26(1) of the Bill of Rights Act:

11 Any person charged with an offence has the right ... (g) not to be found
guilty on account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or international law or
was criminal according to the general principles of law recognized by the
community of nations;

Article 1 (Section 9) of the United States Constitution prohibits the passing

of ex post facto laws (or laws that have retrospective effect). Specifically, any
law that makes an act criminal that was not criminal when it was committed
is prohibited. [908]

Section 26(2) Protection against double jeopardy

Section 26(2) of the Bill of Rights Act is as follows:

Double jeopardy
No one who has been finally acquitted or convicted of, or pardoned for, an
offence shall be tried or punished for it again.

Policy Triggers: do I need to consider section 26(2)?

 Are you considering changes to existing offences that would allow a

person to be tried a second time for the same alleged crime?
 Are you amending any criminal procedure rules relating to previous
convictions and acquittals?
 Are you designing a regulatory regime that provides for the imposition
of a punishment for doing something that would also amount to a
crime?
 Is the offence part of a new regime, if so are there any offences that
may already apply to the activity?
 Do you wish to provide a person with access to exemplary or
compensatory damages for criminal activities of another person or
company, (see for example: 319 of the Injury Prevention,
Rehabilitation, and Compensation Act 2001)?

What every policy analyst needs to know about section 26(2)

 A person who has been tried once, in proceedings that may involve the
imposition of a true penal consequence, cannot be tried again on a
charge that is substantially the same as the original charge
 Only applies in respect of criminal offences and not trials that may
result in a form of civil liability.
  Only applies where a person has been finally acquitted, convicted or
pardoned (i.e.: after all the appeals have been exhausted) for the
"same" offence; and
 Penalties and sanctions imposed by professional disciplinary bodies do
not usually form a punishment for the purposes of this section
 A person who faces more than one charge relating to the same conduct
is not at risk of being punished twice for the same offence if the
essential elements of the offences differ

Measures to achieve compliance

If you are considering developing a new offence refer to the Legislation

Advisory Committee Guidelines (Guidelines on Process and Content of
Legislation). This publication contains a useful chapter on criminal offences
that sets out other relevant considerations when developing offences that may
be of assistance in formulating disciplinary powers. [909]

Further discussion on the meaning of section 26(2)

The decision by the Court of Appeal in Daniels v Thompson is the leading

New Zealand case on section 26(2). In this decision the Court clearly
establishes that the right applies only to the prosecution of criminal offences
(see below). The fundamental principles underlying the right are succinctly
set out by Justice Thomas in Daniels.[910] These fundamental principles
have been recognised in both New Zealand [911] and overseas jurisdictions:
[912]
Thomas J stated:

The idea underlying protection against double jeopardy is that the state, with
all its resources and power, is not to be allowed to make repeated attempts to
convict an individual for an alleged offence, thereby subjecting him or her to
embarrassment, expense and ordeal and compelling them to live in a
continuing state of anxiety, as well as enhancing the possibility that, even
though innocent, they may be found guilty. ... The protection against double
punishment prevents a person from suffering the patent injustice of being
punished twice for the same offence.

What types of proceedings does section 26(2) apply to?

The majority of the Court of Appeal made it clear that section 26(2) must be
read as referring:
Only to criminal proceedings relating to an offence against the law, for which
the person has been tried. What is prohibited is further trial for the same
offence, that is a trial which may also result in acquittal or conviction. The
provision is not concerned with a trial which may result in a form of civil
liability. [913]

Because of the decision in Daniels, section 26(2) does not apply in situations
where a person may be subject to civil penalties imposed by the courts, or
disciplinary penalties imposed by administrative or professional bodies and
criminal penalties imposed by the courts. [914] Sanctions imposed by
professional or administrative bodies [915] or civil penalties imposed by a
court are considered not to come under the definition of a penalty for the
purposes section 26(2) because they are not punitive. [916] In the case of
civil penalties, the US Supreme Court in Hudson made the point that
attempts to distinguish between punitive and non-punitive civil penalties may
be unworkable and confusing. There was, therefore, too much scope for an
inconsistent approach when trying to second-guess the intent of a policy
agency.

The Canadian Supreme Court in R v Wigglesworth considered that

professional disciplinary regimes are "primarily intended to maintain
discipline, professional integrity and professional standards or to regulate
conduct within a limited private sphere of activity." Criminal sanctions on the
other hand are "of a public nature, intended to promote public order and
welfare within a public sphere of activity". [917]

The prohibition contained in section 26(2) also relates to new proceedings for
the same offence [918] and therefore, does not apply in respect of an act that
involves a number of discrete offences where the elements of the offences
differ. [919] However, if the differences between the offences are considered
nominal, the courts may hold that a person is being punished twice. [920]

Who does the right protect?

The protection only applies to the same legal person. Justice Gendall set out
in the High Court judgment of Spencer v Wellington District Court: [921] "In
principle, I think there can only be double punishment, so as to justify a stay
if the same legal person is punished." In Spencer the employer (a
corporation) had been punished under section 6 of the Health and Safety in
Employment Act 1992 for the death of a worker. However, the employer was
also the person who contributed to the death (i.e: failed to take the correct
duty of care) and was to be prosecuted under section 56 of the Crimes Act
1961 for manslaughter. Justice Gendall considered the company and the
plaintiff to be two different legal persons.

What does "finally" acquitted or convicted mean?

The principle of "finality" underpins the idea that once a person has been
finally acquitted, convicted or pardoned for the offence then that person
should not be tried or punished for that offence again. The High Court in
Police v Gilchrist [922] considered that:

...a defendant is entitled to the certainty that, after the passing of sentence and
any time for appeal, her case is over and she can get on with life. There must
be finality - an end to proceedings.

The Canadian Supreme Court, like New Zealand, has noted that for someone
to have been "finally" acquitted or "finally" found guilty then all appellate
procedures must have been completed [923] and there must be no error of
law that resulted in the acquittal. [924]

In New Zealand where someone is discharged under section 347 of the

Crimes Act 1961, that discharge has the effect of an acquittal with the effect
that an accused may not be punished for that offence. [925]

What happens if someone has been acquitted, or convicted and punished in

a foreign jurisdiction?

The right may also apply in situations where a person is charged with an
offence in circumstances where the person has been previously acquitted,
pardoned, or convicted and punished for the same offence in a foreign
jurisdiction. However, there are practical difficulties associated with applying
the right in such circumstances because of the different ways in which
different jurisdictions penalise acitivities. The Canadian Supreme Court held
that in order for the right to apply the scope and purpose of the offences that
prohibit the conduct must be the same. [926]

Key cases

Daniels v Thompson [1998] 3 NZLR 22; Chapman v Institute of Chartered

Accountants of NZ [2001] NZAR 456 (HC); Police v Gilchrist (1998) 16
CRNZ 55; Ward v Police (HC Whangarei, AP 28/93, 22 July 1993, Hillyer
J); Corp. Professionnelle des medicins v Thibault [1988] 1 SCR 1033; R v
Wigglesworth [1987] 2 SCR 541; Hudson v US 118 S Ct 488; Gradinger v
Austria, October 23, 1995, Series A, No 328-C; Franz Fischer v Austria
[2001] ECHR 37950/97

History of the section

The White Paper

The Bill of Rights White Paper set out that inclusion of section 26(2) is to
"enshrine the rules against double jeopardy already contained in the Crimes
Act 1961 s.357." [927] The right now contained in section 26(2) of the Bill
of Rights Act is substantively the same as the right proposed by the White
Paper.

Section 26(2) origins in international treaties and overseas legislation

Article 14(7) of the International Covenant on Civil and Political Rights

(ICCPR):

No one shall be liable to be tried or punished again for an offence for which
he has already been finally convicted or acquitted in accordance with the law
and penal procedure of each country.

Article 4 of Protocol No. 7 to the European Convention states:

(1) No one shall be liable to be tried or punished again in criminal

proceedings under the jurisdiction of the same State for an offence for which
he has already been finally acquitted or convicted in accordance with the law
and penal procedure of that State.
(2) The provisions of the preceding paragraph shall not prevent the reopening
of the case in accordance with the law and penal procedure of the State
concerned, if there is evidence of new or newly discovered facts, or if there
has been a fundamental defect in the previous proceedings, which could
affect the outcome of the case.
(3) No derogation from this Article shall be made under Article 15 of the
Convention.

Section 11(h) of the Canadian Charter of Rights and freedoms contains a

similar right to section 26(2) of the Bill of Rights Act:

11. Any person charged with an offence has the right ...
(h) if finally acquitted of the offence, not to be tried for it again and, if finally
found guilty and punished for the offence, not to be tried or punished for it
again; and ...

Footnotes:

894. The latest version can be found on the Internet at

http://www2.justice.govt.nz/lac.
895. Fulcher v Parole Board (1997) 15 CRNZ 222 (CA).
896. T v Attorney-General (Court of Appeal, CA 175/97, 27 August
1997, Elias J.
897. R v Poumako [2000] 2 NZLR 695, paragraph 73 per Thomas J
(general principle also affirmed by majority judgment). See also R v
Pora [ 2001] 2 NZLR 37, per Elias CJ.
898. R v Pora [ 2001] 2 NZLR 37, paragraph 32 per Elias CJ.
899. See for example R v King [1995] 3 NZLR 409. The issue in King
was whether recent amendments to the Crimes Act would have
application in this case. These changes clarified the scope of particular
offences, but at the same time broadened the application of the
provisions. As a result, more minor offences were now potentially
much more serious.
900. C.R v U.K and S.W. v U.K November 22, 1995, Series A, Nos.
335-B and 335-C.
901. Cantoni v France November 15, 1996, RJD, 1996-V, No 20.
902. Veeber No 2 v Estonia (No 2) Application no 45771/99,
21/01/2003.
903. Legislation Advisory Committee Report Number 9 "Recurring
Issues", and the Legislation Advisory Committee Guidelines
(Guidelines on Process and Content of Legislation) Chapter 12:
Criminal Offences.
904. Page 35, paragraph 164.
905. C.R v U.K and S.W. v U.K November 22, 1995, Series A, Nos.
335-B and 335-C.
906. It is therefore arguable that the reach of section 26(1) is longer
than the protection afforded by section 10A of the Crimes Act 1961
 because it applies to all offences (including military offences) and not
just criminal offences. The impact of section 10A, though, may be
greater because of the residual effect of section 4 of the Bill of Rights
Act. Section 10A prohibits retrospective penalties in more absolute
terms. It provides:
Notwithstanding any other enactment or rule of law to the contrary, no
person shall be liable in any criminal proceedings in respect of an act
or omission by him if, at the time of the act or omission, the act or
omission by him did not constitute an offence.
907. Paragraph 10.124. Note: the protection relating to retrospective
penalties is contained in section 25(g) of the Bill of Rights Act.
908. Calder v Bull 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland
71 US (4 Wall.) 333, 377 (1867); Burgess v Salmon 97 US 381, 384
(1878).
909. The latest version can be found on the Internet at
http://www.justice.govt.nz/lac/index.html.
910. Daniels v Thompson [1998] 3 NZLR 22, Thomas J (dissenting)
p.57
911. New Zealand legislation also provides protection for this right in
the Crimes Act 1961:
- double punishment under section 10(4); and
- previous acquittal or conviction under sections 357 to 359.
Section 26(2) has broader application than the jeopardy provisions
contained in sections 358 and 389 of the Crimes Act 1961 because the
right refers to not only the acquittal and conviction of the individual
but also the punishment of the individual.
912. See for example: R v Pora [2001] 2 NZLR 37, R v Poumako
[2000] 2 NZLR 695, Green v United States 355 US 184, 187-188; and
R v Wigglesworth [1987] 2 SCR 541. Compare S v G (1995) 2 HRNZ
11.
913. Daniels v Thompson [1998] 3 NZLR 22 Henry J (majority),
p.48.
914. Daniels v Thompson [1998] 3 NZLR 22, p.48; Chapman v
Institute of Chartered Accountants of NZ [2001] NZAR 456 (HC); and
Harder v director of Land Transport Safety (1998) 5 HRNZ 343.
915. Chapman v Institute of Chartered Accountants of NZ [2001]
NZAR 456 (HC).
916. Hudson v US 118 S Ct 488.
917. R v Wigglesworth (1989) 2 SCR 541, 560.
918. Sections 358 and 359 of the Crimes Act 1961 provide for a "bar"
on second accusations or charges being bought for substantially the
same offence for which a person has been convicted or aquitted.
919. R v Wigglesworth [1987] 2 SCR 541 per Wilson J p.566.
920. Franz Fischer v Austria [2001] ECHR 37950/97.
921. Spencer v Wellington District Court [2000] 3 NZLR 102 (HC)
per Gendall J, paragraphs 34 - 41.
922. Police v Gilchrist (1998) 16 CRNZ 55, p 60.
923. Corp. Professionnelle des medicins v Thibault [1988] 1 SCR
1033.
924. R v Shubley [1990] 1 S.C.R. 3,(paragraphs 21 - 24).
925. Ward v Police (HC Whangarei, AP 28/93, 22 July 1993, Hillyer
J).
926. R v Van Rassel [1990] 1 SCR 225.
927. The White Paper para 10.125.
928. Note that 4(2) provides for a very broad limitation on the right,
and on the face of it, this would appear unlikely to satisfy the
requirements of section 5 of the Bill of Rights Act.
Introduction to sections 27(1) to
27(3): The right to justice
The rights in section 27 affirm the requirement for decision-makers to act in
accordance with certain procedures that are considered fundamental to the
rule of law. These rights are concerned with ensuring that decision-makers
follow correct procedures rather than arrive at fair outcomes. There are no
equivalent provisions to be found in the International conventions or bills of
rights employed elsewhere. It is considered that the inclusion of these
protections recognises the developments in administrative law in New
Zealand.

There is some interplay between these rights. The rights in section 27 are, in
many ways, similar to the criminal procedure rights found in sections 23 to
25 of the Bill of Rights Act.

Section 27(1) affirms common law principles and the requirement for
decision-makers to act fairly or reasonably. Essentially, the right requires
decision-makers to hear both sides of the argument. It also requires decision-
makers to be impartial.

Section 27(2) serves to ensure that a person may challenge the lawfulness of
any decision that affects him or her.

Section 27(3) precludes the Crown from having any procedural advantage in
legal proceedings between it and any person.

Section 27(1) The right to the observance of the

principles of natural justice
Principles of natural justice
Every person has 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.
Policy triggers: do I need to consider section 27(1)?

You may need to consider whether your policy or practice complies with
section 27(1) if the policy that you are working on provides for, or the
agency that you work for engages in a process of decision-making where the
outcome affects or impacts on the interests of individuals (whether as part of
the general public or a specific sector of the community). If so, you should
ask:

 Does the policy or practice restrict the ability of a person likely to be

affected by the outcome to participate in a hearing or the decision-
making process?

The types of restrictions on a person's ability to participate include:

 not giving the person adequate notice of the hearing or the complaint
made against the person;
 withholding from the person concerned the information that is to be
relied on in reaching a particular decision;
 limiting the opportunities for a person to make written or oral
representations to the decision-maker;
 not allowing the person to attend the hearing or cross-examine certain
witnesses;
 not allowing the person to have legal representation at the hearing;
 not providing the person with the reasons for the decision (thereby
inhibiting a person from deciding whether they will challenge the
decision); and
 limiting the period within which the person can appeal or challenge
any decision.

Section 27(1) also requires a decision-maker to be impartial or disinterested

in the outcome of the decision-making process, so:

 Does the policy or practice allow a person who has an interest in the
outcome of the process to be the decision-maker?
What a policy analyst needs to know about section 27(1)

 The observance of natural justice principles has traditionally required

compliance with the right to hear the other side and the right to be free
from bias or partiality on the part of the decision maker.
 Section 27(1) is concerned with procedural fairness and not the
substance of the decision arrived at.
 The requirements of natural justice are flexible in practice, the scope
and content of which adapts to particular situations.
 The right applies only in the context of public authorities or tribunals
that make determinations of an adjudicative character and that are of
direct impact on that person's rights.
 Policy decisions of "general application" taken by Ministers are not
individuated assessments and are not determinations in respect of a
person's rights.
 The definition of who or what is a public authority is sufficiently broad
to take into account most decision-makers exercising a statutory
function.
 The determination must also have a direct bearing on the individual's
interests.
 The right in section 27(1) imposes a duty on decision makers to act
fairly
 The more serious the consequence for the individual the greater the
need for procedures to be put in place that address the interests of the
affected party.

Measures to achieve compliance

The issue of what is required by the observance of the principles of natural

justice will vary from case to case. However, the following suggestions will
be of some use to you in the development of policies and procedures:

 Prior notice - develop procedures to ensure that anyone whose rights

or interests may be affected by a decision will have sufficient notice of
that impending decision or hearing and be given adequate opportunity
to prepare and present their case. Prior notice is not required where the
person's interests or rights are merely speculative or insignificant. Prior
notice is essential to an effective right to be heard (see below). [929]
 Disclosure of relevant material - develop a practice that enables
interested parties to be provided with all relevant material relating to a
decision. Such a practice will aid interested parties in the preparation
of their submission so that they can challenge or correct any material at
issue. [930] Where disclosure of material may lead to harm to others,
breach of confidence, invasion of privacy or injury to the public
interest consider ways in which the interests of all parties can be
accommodated.
 Opportunity to be heard - all parties to a dispute should have the right
to be heard by the decision-maker. [931] Depending on the
circumstances, the decision maker may be required to hold an oral
hearing before reaching a decision. Oral hearings are likely to be
required in situations where a person's credibility is at issue or the
nature of the fact-finding task requires the hearing. In other situations,
the opportunity to make written submissions will be sufficient. Ex
parte applications, which provide no opportunity for one or more sides
of the dispute to be notified or to be heard, are therefore prima facie
inconsistent with the right to natural justice in section 27(1). Ex parte
applications may, however, be justified in certain situations. In terms
of justification, relevant factors may include where the ex parte process
is aimed at avoidance of delay and the protection of the applicant (for
example, situations involving domestic violence), or where any
decision resulting from an ex parte application can be varied or
discharged at a later date (that is, where the process results in interim
as opposed to final orders). [932]
 Warnings as to adverse credibility findings -warn parties of any
pending adverse findings in order to provide an opportunity for the
affected party to respond. [933]
 Legal representation - provide opportunities for persons to be
represented at public tribunals. If you are considering limiting the right
to legal representation, reflect on the seriousness of the particular issue
and possible consequences of the decision, whether any points of law
are likely to arise, the capacity of the particular party to conduct the
case without legal representation, procedural difficulties likely to be
encountered, the need for speed in making the decision, and the need
for fairness between the parties involved. [934]
  Cross-examination - natural justice generally requires the right of a
person to cross-examine or test the evidence of the other side,
especially in circumstances where credibility is an issue. The issue of
cross-examination is unlikely to arise outside situations where natural
justice requires an oral hearing.
 Reasons for decisions - provide the affected party with reasons for the
decisions. The Court of Appeal in Lewis v Wilson and Horton Ltd
[935] pointed to three main reasons why the provision of reasons is
desirable. Firstly, providing reasons for decisions is an important
aspect of openness in the administration of justice (which is affirmed
by section 25(a) of the Bill of Rights Act in the context of criminal
proceedings). Secondly, a failure to give reasons means that the
lawfulness of what has been done cannot be assessed by a court
exercising its supervisory jurisdiction (for example, by way of judicial
review). Finally, providing reasons is the best protection against
decision-makers giving wrong, arbitrary or inconsistent decisions. It
would also serve to ensure that the decision is able to be objectively
seen as being free from the taint of bias or predetermination.
 Other means of ensuring that your decision-making process is fair and
is seen to be free from bias include:
o Establishing a requirement that members of decision-making
panels or bodies declare potential conflicts of interest on
appointment to office, and require members to update these
regularly
o Establish an independent decision-making body or office
whereby a person affected can challenge that decision.

Related rights and freedoms and freedoms

You may have noticed that many of the concepts mentioned above, for
example, the right to prior notice, disclosure of relevant material, and the
opportunity to be heard, are similar to the rights set out in section 25 of the
Bill of Rights Act (minimum standards of criminal procedure). As was noted
in the White Paper and in the discussion above, the principles of natural
justice vary in their application depending upon the circumstances of the
particular case or issue being determined, with the more serious the matter
the nearer the procedures will need to approximate those in section 24 and 25
of the Bill of Rights Act if the circumstances so require.
Further discussion on the meaning of section 27(1)

Duty to act 'fairly'

Natural justice is often described as a duty on decision makers to act fairly.

The majority of the Privy Council in the case of Furnell v Whangarei High
Schools Board commented that "[n]atural justice is but fairness writ large and
juridically, fair play in action". [936] Natural justice and fairness can
therefore be seen as alternative descriptions for a single but, as noted below,
flexible concept.

However, it should be noted that the duty in section 27(1) is to act

procedurally fairly. In other words, section 27(1) is concerned with ensuring
that the process for reaching a decision is a fair one, and not whether the
decision itself is fair.

Principles of natural justice

Observance of natural justice has traditionally required compliance with two

broad principles. The first principle relates to the right to hear the other side
and the second to the freedom from bias or partiality on the part of the
decision-maker. [937] In practice, the procedures that will be required to
comply with these principles will, as noted above, vary from case to case.
Essentially, the more serious the consequence for the individual, the greater
the procedural protection that will be required.

Right to hear the other side

 The central concepts of the first broad principle of natural justice

include [938]:
 prior notice - anyone whose rights or interests may be affected by a
decision should have sufficient notice of that impending decision or
hearing
 disclosure of relevant material - all relevant material should be
disclosed to interested parties so that they can know the case against
them and correct any inaccuracy
 opportunity to be heard - all parties to a dispute should have the
opportunity to put their case, whether in writing or in the form of an
oral representation
  warnings as to adverse credibility findings - parties subject to an
adverse finding should be given advance notice of the decision so that
they have the opportunity to respond
 legal representation [939] - the principles of natural justice may require
that a person be legally represented where representation is necessary
in the interest of fairness

Bias/impartiality

The second broad principle of natural justice requires impartiality in decision

making - that is, the decision-maker should be disinterested and unbiased. A
decision-maker who is 'biased' (for instance, if he or she has a personal
interest in the outcome) should be disqualified from hearing the issue, unless
the decision-maker discloses the personal interest and the parties agree to the
person's continued involvement. As we have already seen earlier, the
requirement that the decision-maker be impartial does not extend to them
coming to an issue without a personal view on the issue. It requires the
decision-maker to approach the matter from a disinterested perspective and
that there is no impropriety. [940] Justice, after all, should not only be fair, it
should be seen to be fair.

General considerations

Section 27(1) affirms the right to natural justice in situations where a tribunal
or public authority has the power to make a determination in respect of a
person's rights, obligations or interests protected or recognised by law. The
High Court has observed that section 27(1) is an exceptionally important
provision in the Bill of Rights Act, but that surprisingly little use has been
made of it in civil litigation in general. [941]

The decision-maker

Section 27(1) requires the decision-maker to be either a tribunal or a public

authority: the tribunal or public authority must have the power to make a
determination in respect of the relevant person's rights, obligations or
interests. The courts have taken the approach that the terms 'tribunal' and
'public authority' should be interpreted broadly. [942] A court is clearly a
tribunal, and Ministers have been held to be public authorities. [943] The
courts have also held that a district law society which is investigating a
complaint against a lawyer is bound by section 27(1) of the Bill of Rights Act
to observe the principles of natural justice, [944] as is the corporation that
administers the accident compensation scheme. [945]

When considering whether a tribunal or public authority is making a

'determination' in respect of a person's rights, obligations or interests, the
Court of Appeal has held that the determination must be of an adjudicative
character and of direct impact on the person's rights and so forth. [946]
Policy decisions taken by Ministers are not individuated assessments and are
not determinations in respect of a person's rights - even where the outcome of
that decision has a bearing on the interests of individuals. [947]

Appeals

The principles of natural justice do not confer an automatic right of appeal:

the right of appeal is conferred by statute. [948] However, as we have seen,
the interests of fairness may necessitate that an interested party be given the
opportunity to appeal against a decision that affects them. [949]

Common law principles

The principles of natural justice has been reflected in the law for some time.
As noted in the White Paper, natural justice reflects basic principles of the
common law which go back to at least the sixteenth century. There is
therefore a large body of case law pre-dating the enactment of the Bill of
Rights Act that is relevant to determining the scope and application of section
27(1).

A flexible concept

The requirements of natural justice are flexible in practice, the scope and
content of which adapts to particular situations. [950] The most important
factor to bear in mind is that observance of the principles of natural justice is
a flexible concept. What is "fair" in one context might not be fair in another.

The requirements of natural justice depend on a number of factors, including

the circumstances of the case, the rules under which the tribunal or public
authority is acting, the matter that is being dealt with, the sanctions that could
be imposed and the nature of the inquiry or determination. [951] As one
judge has pointed out

[i]t is necessary to consider carefully the circumstances, because what is, or

is not, fair procedure or fair play will depend on the relevant circumstances
of each and every case. [952]
Key cases

Lumber Specialities Ltd v Hodgson [2000] 2 NZLR 347; Singh v Auckland

District Law Society [2000] 2 NZLR 604; Freeborn v ARCIC [1998] 2 NZLR
371; (1998) 15 CRNZ 501; Chisholm v Auckland City Council (unreported
Court of Appeal CA 32/02, 29 November 2002; Manukau City Council v
Ports of Auckland Ltd [2000] 1 NZLR 1 (PC); Daganayasi V Minister of
Immigration [1980] 2 NZLR 130; Taito v R (2002) 19 CRNZ 224, (2002) 6
HRNZ 539 (PC); Drew v Attorney-General [2001] 1 NZLR 53; Drew v A-G
(No 2) (2001) 18 CRNZ 460 (CA); P v Department of Child, Youth and
Family Services [2001] NZFLR 721

History of the section

The White Paper

Section 27(1) is unchanged from that which was proposed in the White
Paper.

Section 27(1) origins in international treaties and overseas legislation

The right to justice in section 27 is not found in any international human

rights instrument. The closest provision in terms of content is Article 14(1) of
the International Covenant on Civil and Political Rights. Article 14(1)
provides that everyone charged with an offence or whose interests or
obligations are affected "in a suit at law ... shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established
by law."

There is some equivalence to section 27(1) to be found in the Canadian

Charter and the American Bill of Rights, though in both cases the provisions
are broader in scope that section 27(1).

Section 7 of the Canadian Charter provides that:

Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of
fundamental justice.

The Fifth Amendment to the Constitution of the United States provides:

...No person shall be deprived of life, liberty or property, without due process
of law.
Section 27(2) The right to a judicial review of
determinations
Section 27(2) of the Bill of Rights Act is as follows:

Application for judicial review

Every person whose rights, obligations, or interests protected or recognised
by law have been affected by a determination of any tribunal or other public
authority has the right to apply, in accordance with law, for judicial review of
that determination.

Policy triggers: do I need to consider section 27(2)?

 Does your policy seek to limit the ability of courts to review the
decisions made by a tribunal or public authority?
 Does your policy intend to limit the ability of a person affected by
these decisions to legally challenge the decision?

If so, then you should consider whether your policy is consistent with section
27(2).

What every policy analyst should know about section 27(2)

 The purpose of section 27(2) is to enable any individual whose rights,

obligation or interests have been adversely affected by the decision to
apply to the courts for a review of that decision to ensure that it has
been carried out lawfully
 As the right to seek judicial review of official actions enables a person
to challenge the lawfulness of those actions, any intention to limit that
right should be made clear and explicit
 Statutory provisions that seek to limit the ability of the Courts to
review decisions, may not prevent the courts from reviewing those
decisions where the decision-maker has acted unlawfully
 The right to apply for judicial review under section 27(2) is not limited
to statutory decision-making
 Statutorily imposed restrictions on the time within which an individual
may apply for judicial review are not inconsistent with section 27(2)
Measures to achieve compliance

If you are developing legislation and you wish to prevent or limit the ability
of the courts to review the decisions made under that legislation, consider
whether your objectives can be achieved by limiting the period within which
a person may apply for judicial review, or the scope of the review. However,
if your policy expressly limits or precludes the right to apply for judicial
review you may wish to have good justificatory material for limiting the right
to apply for judicial review.

Related rights and freedoms and freedoms

There is also some overlap between section 27(1) and section 27(2) of the
Bill of Rights Act. A statutory provision that allowed an interested party to
appeal a decision to a court on a matter of fact or law or apply for judicial
review of the decision would achieve consistency with both section 27(1) and
27(2).

The courts have said that a statutory provision that seeks to prevent a court
from reviewing a decision cannot be interpreted to mean that Parliament
intended for the decision-maker's decision to be immune from review where
the decision-maker failed to observe the principles of natural justice.

Further discussion on the meaning of section 27(2)

Section 27(2) affirms the right of a person to apply for judicial review of a
determination affecting that person's rights, obligations or interests. The
purpose of section 27(2) is to enable any individual whose rights, obligation
or interests have been adversely affected by the decision to apply to the
courts for a review of that decision to ensure that it has been carried out
lawfully. [953]

The right to seek judicial review of official actions enables a person to

challenge the lawfulness of those actions. The Legislative Advisory
Committee (LAC) points out that, as Parliament would not have intended to
authorise unlawful action, it is not appropriate for legislation to limit or
preclude judicial review. [954]

Scope of section 27(2)

The right in section 27(2) is consistent with the right to seek judicial review
of official decisions or actions that exists under the common law. The right is
not limited to statutory decision-making. [955] Section 27(2) does not,
therefore, create a new remedy.

Time constraints/privative clauses

The provision is concerned with access to justice, ensuring that, otherwise

than 'according to law', judicial review proceedings may not be interfered
with. [956] The phrase 'according to law' means that statutory time
constraints on the period within which an individual may apply for judicial
review are not likely to be inconsistent with section 27(2). The period within
which an individual may apply for review should be reasonable otherwise the
constraints may have the effect of limiting the purpose of the right. A statute
may also regulate the manner in which review may be sought. Some
specification of scope is also likely to be permissible.

A privative clause is a statutory provision that provides that the decision or

part of the decision of a tribunal or statutory authority on a question of law is
final. A Court is therefore prevented from reviewing that decision or any
aspect of that decision. In spite of this, the courts have been hesitant to
conclude that a question of law has been conclusively conferred on a
statutory authority or tribunal. [957] This is particularly the case where a
decision-maker has failed to observe the principles of natural justice. Where
a decision-maker fails to act in accordance with the principles of natural
justice, it may be said that he or she acts outside their jurisdiction. The
decision cannot have been reached on a correct legal basis. A privative clause
is therefore unlikely to have any effect as the Courts will assume that
Parliament did not intend for decision-makers' findings to be immune from
review if the decision has not been reached on the correct legal basis. [958]
That can arise if it is not legally correct, not in accordance with applicable
rules of natural justice or subject to Wednesbury unreasonableness.

The Court of Appeal in O'Regan v Lousich [959] described the approach of

the Courts to privative clauses in this way [1995] 2 NZLR 620, 626-627
Tipping J held:

Parliament grants the decision maker the power to decide on the footing that
the power is to be exercised lawfully (ie correctly in law), fairly (ie according
to the rules of natural justice, if applicable) and reasonably (ie within the
bounds of reason - the Wednesbury principle). If the decision maker goes
wrong in law, acts unfairly or makes an unreasonable decision, the decision
is regarded as having been made ultra vires and thereby the decision maker
exceeds his or her jurisdiction.
In O'Reilly Lord Diplock said that if a decision maker, whose jurisdiction is
limited by statute, mistakes the law, he has asked himself the wrong question,
ie a question into which he had no power to inquire. Thus it was a question
which he had no jurisdiction to determine. ...

On this basis the question is not whether the decision maker has made a
wrong decision but whether he has inquired into and decided a matter which
he had no right and therefore no jurisdiction to consider. This analysis was
developed in cases where the decision maker had made an error of law. In
doing so he had made a wrong decision and thereby asked himself the wrong
question. If the decision maker acts unfairly it is not a case of asking himself
the wrong question. It is rather that the power to decide is given on the
implicit basis that it will be exercised fairly. Parliament gives no power to
decide unfairly and therefore by doing so the decision maker exceeds his
powers. His decision is therefore ultra vires and outside his jurisdiction.
Similarly, if a decision is unreasonable in the relevant sense it is ultra vires
and in excess of or outside the decision maker's jurisdiction.

The process of reasoning whereby a person misdirecting himself in law was

said to have asked himself the wrong question can now be simplified into
saying that a power to decide is given on the basis that it must be exercised
on the correct legal basis. ... Thus we are back to the proposition with which I
started, namely that if a decision maker goes wrong in law, acts unfairly or
makes an unreasonable decision he will have acted ultra vires and in excess
of jurisdiction.

It is, of course, perfectly possible for Parliament to provide, if it chooses, that

the decision of a particular decision maker shall not be impugned on certain
bases or indeed on any basis. With most types of tribunal and decision maker
there is a presumption that Parliament does not intend the decision to be
conclusive irrespective of errors of law, unfairness or unreasonableness...
[960]

Key cases

Bulk Gas Users Group v Attorney-General [1983] NZLR 129; O'Regan v

Lousich [1995] 2 NZLR 620; Te Runanga Whare Kauri Rekoku v AG,
unreported, High Court, Wellington, CP 682/92, 12 October 1992; R (on the
application of Farrakhan) v Secretary of State for the Home Department
[2002] 4 All ER 289
History of the section

The White Paper

Section 27(2) is unchanged from that which was proposed in the White
Paper.

Section 27(2) origins in international treaties and overseas legislation

The right to justice in section 27 is not found in any international human

rights instrument. The closest provision in terms of content is Article 14(1) of
the International Covenant on Civil and Political Rights. Article 14(1)
provides that everyone charged with an offence or whose interests or
obligations are affected "in a suit at law ... shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established
by law."

Section 27(3) Proceedings involving the Crown

same as proceedings between individuals
Section 27(3) of the Bill of Rights Act is as follows:

Proceedings involving the Crown

Every person has 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.

Policy triggers: do I need to consider section 27(3)?

 Does your policy attempt to prevent or limit Crown liability or bar

proceedings against the Crown for the actions of its agents?
 Does your policy exempt the Crown from paying compensation,
damages or costs to individuals whose interests or rights have been
affected by changes in government policy?
 Does your policy propose to remove a cause of action against the
Crown, and in particular, to remove a cause of action where there may
be proceedings instituted?
 Does the policy provide that proceedings between a person and the
Crown will be conducted differently than between individuals?
What every policy analyst should know about section 27(3)

 Section 27(3) affirms the right of a person who sues, or is being sued
by the Crown to have that litigation conducted in the same way that
litigation between two individuals would be conducted
 Section 27(3) does not guarantee a cause of action against the Crown
 Section 27(3) requires that the Crown must not have any procedural
advantages in court proceedings (that would not be available to an
individual in the same situation
 Changes to the substance of the law which limit or remove any basis
for Crown liability, thereby reducing or even eliminating the prospects
of success by an individual in suing the Crown, are not necessarily
inconsistent with section 27(3)

Measures to achieve compliance

The right in section 27(3) of the Bill of Rights Act to bring civil proceedings
against, and defend civil proceedings brought by, the Crown relates to
procedural matters. The key question to ask is whether your policy results in
the government having any procedural advantage when bringing or
defending actions in court.

Issues of compliance with section 27(3) commonly arise in the context of

policies or legislation that purport to exempt the Crown from paying
compensation, damages, or costs to third parties. In light of the decision in
Westco Lagan Ltd v Attorney-General [961] , we take the view that non-
compensation provisions are unlikely to breach section 27(3).

Uncertainty does, however, still exist about the extent to which the Crown
can legislate to remove all liability for its actions, and at what point in
proceedings (before, during or after) this occurs. Provisions that restrict the
ability of a person to bring proceedings against the Crown are problematic in
terms of compliance with section 27(3). Provisions that stipulate that the
Crown is not liable to pay any costs or damages are similarly problematic.
This is because although restrictions on the type of remedy do not by
themselves represent a procedural bar to bringing proceedings, substantive
restrictions on the range of available remedies may act as a procedural bar if
they have the effect of rendering the proceedings irrelevant. You should
therefore obtain expert legal advice if you intend to exempt the Crown from
legal liability for any of its actions.
Further discussion on the meaning of section 27(3)

Section 27(3) has been interpreted by the courts as a right that relates to
procedural matters in litigation. [962] The provision affirms the right of a
person who sues, or is being sued by the Crown to have that litigation
conducted in the same way that litigation between two individuals would be
conducted. Section 27(3), in effect, requires that the Crown must not have
any procedural advantages in court proceedings to enforce rights if such
rights exist.

While section 27(3) protects procedural rights, to date it has not been
interpreted as precluding changes to the substantive law, nor does it
guarantee a cause of action against the Crown. As noted by the High Court,
section 27(3) does not restrict the power of the legislature to determine what
substantive rights the Crown is to have. [963] It follows that changes to the
substance of the law which limit or remove any basis for Crown liability,
thus reducing or even eliminating the prospects of success by an individual in
suing the Crown, are not necessarily inconsistent with section 27(3). On this
basis, legislation that removes the right to compensation from the Crown or
legislation that has the effect of overruling the decision of a Court may not
breach the right.

The leading case on section 27(3) endorses this approach. In Westco Lagan
Ltd v Attorney-General, Justice McGechan commented that: [964]

Section 27(3), on a natural reading, is intended to place the Crown in the

same position in relation to litigation as private individuals. It reflects the
way in which Court procedures have moved away from the privileged
position which the Crown historically enjoyed ... It is aimed at procedures
which govern the assertion or denial of rights in the course of Court or
equivalent proceedings; and is not aimed at the creation of other rights in
themselves ... Section 27(3) ... cannot restrict the power of the legislature to
determine what substantive rights the Crown is to have. Section 27(3) merely
directs that the Crown shall have no procedural advantage in any proceedings
to enforce rights if such rights exist.

Although the Court in Westco held that section 27(3) cannot be used to limit
the power of the legislature to decide what substantive rights the Crown is to
have in the context of legal proceedings, it would appear that in some
instances that the determination of those substantive rights may create a
procedural advantage for the Crown. It is worth noting that previous
legislation which placed restrictions on procedural aspects of remedies
against the Crown, including "damages and costs", has been considered to
breach section 27(3). [965] In other words, restrictions on the type of
remedies may act as a procedural bar where a potential plaintiff is unable to
bring proceedings against the Crown in the same way as against an
individual.

It is also not clear yet in New Zealand whether the legislative removal of a
cause of action against the Crown that occurs after proceedings are instituted
breaches section 27(3).

It is therefore apparent that the distinction between procedural rights and

substantive rights is not clearcut. We have therefore included the following
discussion.

Alternative viewpoint

While the above interpretation of section 27(3) is consistent with recent case
law and the White Paper, and is the approach that we take when vetting
legislation and policy proposals, the approach is not supported by all
commentators on the Bill of Rights Act. An alternative interpretation is that
section 27(3) confers substantive as well as procedural rights, or that the link
between substance and procedure is so close as to amount to the same thing.
Some commentators argue that the remedy available in a proceeding is so
closely related to the process that to remove the availability of a remedy is to
affect the process. [966] Similarly, legislation which reverses a court
judgment that was favourable to an individual (and unfavourable to the
Crown) could, on this alternative interpretation, be seen as a breach of
section 27(3). This is because an individual cannot overturn an unfavourable
court judgment after litigation, so the Crown should also not be able to do so.
The LAC has put it this way: "[r]egular parties to civil litigation do not have
the power or ability to initiate legislation terminating litigation or nullifying
its result". [967]

The European Court of Human Rights held in Kutic v Croatia [968] that
legislative removal of a cause of action against the Crown that occurs after
proceedings are instituted violates Article 6 (the right to a fair trial) of the
European Convention on Human Rights. The Court stated at paragraph 25
that:

this right of access to a court [for the determination of civil disputes] does not
only include the right to institute proceedings, but also the right to obtain a
'determination' of the dispute by a court. It would be illusory if a Contracting
State's domestic legal system allowed an individual to bring a civil action
before a court without securing that the case would be determined by a final
decision in the judicial proceedings. It would be inconceivable that Article
6(1) should describe in detail procedural guarantees afforded to litigants -
proceedings that are fair, public and expeditious - without guaranteeing the
parties to have their civil disputes finally determined."

Article 6 of the European Convention concerns both criminal and civil

hearings. Therefore, although the courts in New Zealand have not been asked
to consider this, it is also possible that the legislative removal of a cause of
action might give rise to an issue of consistency with the principles of natural
justice (the right to be heard).

Key cases

Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40; Mangawaro

Enterprises v Attorney-General [1994] 2 NZLR 451; Knight v Commissioner
of Inland Revenue [1991] 2 NZLR 30; Kutic v Croatia ECHR Application
No 48778/99 1 June 2002.

History of the section

The White Paper

Section 27(3) appears in the same form to that which was proposed in the
White Paper.

Section 27 origins in international treaties and overseas legislation

The right to justice in section 27(3) is not found in any international human
rights instrument. Based on recent caselaw, the closest provision is Article
6(1) of the European Convention on Human Rights.

Article 6(1) of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal

charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law
... [969]
Footnotes:

929. Waitemata Health v AG [2001] NZFLR 1122, (2001) FRNZ 216

(CA).
930. See Daganayasi v Minister of Immigration [1980] 2 NZLR 130.
In this case the Minister of Immigration disallowed an appeal against
deportation on the basis of a medical referee's report which suggested
that the applicant's child was not in need of specialist treatment in New
Zealand. The Court of Appeal quashed the Minister's decision as the
referee's report had not been disclosed and the applicant had not had
the opportunity of challenging its contents. See also Taito v R (2002)
19 CRNZ 224, (2002) 6 HRNZ 539 and R v Duval (1995) 13 CRNZ
215 where the court commented (at 218) that "a person's right to the
observance of the principles of natural justice under s 27 of the [Bill of
Rights] Act is in point for it is fundamental principle that persons must
know the case against them and have an opportunity to answer that
case".
931. See Franic v Wilson [1993] 1 NZLR 318 (HC) and Upton v
Green (No 2) [1996] 3 HRNZ 179.
932. See B v District Court at Hamilton (1995) 13 FRNZ 413.
933. See Re Erebus Royal Commission [1983] 1 NZLR 662 (PC).
934. See Drew v Attorney-General [2002] 1 NZLR 58 where the
Court of Appeal held that natural justice requires decision-makers to
consider whether a person needs to be legally represented on case-by-
case basis.
935. Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).
936. Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 at
718 (PC), quoted with approval in Daganayasi V Minister of
Immigration [1980] 2 NZLR 130 at 141. See also Taito v R (2002) 19
CRNZ 224, (2002) 6 HRNZ 539 (PC).
937. For a useful discussion of these concepts, see Philip A Joseph
(2001) Constitutional and Administrative Law in New Zealand (2nd
ed), Brookers, Wellington pages 860 - 886.
938. These concepts are dealt with in more depth below, in the
methods to ensure compliance section.
939. As to whether the observance of the principles of natural justice
require legal representation, see Drew v Attorney-General [2001] 1
NZLR 428 (CA)
940. Pickering v Police (1999) 16 CRNZ 386.
941. Lumber Specialities Ltd v Hodgson [2000] 2 NZLR 347 (HC) at
373 (Hammond J).
942. Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347 at 375
(Hammond J).
943. Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347, paras
181 -185
944. Singh v Auckland District Law Society [2000] 2 NZLR 604 at
616.
945. Freeborn v ARCIC [1998] 2 NZLR 371; (1998) 15 CRNZ 501.
946. Chisholm v Auckland City Council (unreported Court of Appeal
CA 32/02, 29 November 2002, Tipping J, at paragraph 32. The case
concerned the Council making decisions in relation to emergency
responses to public health risks (emergency disposal of septic tank
waste) under section 330 of the Resource Management Act, as opposed
to determining the applicant's rights to use of neighbouring land.
947. Manukau City Council v Ports of Auckland Ltd [2000] 1 NZLR 1
(PC) at 14, Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347.
948. Philip A Joseph (2001) Constitutional and Administrative Law in
New Zealand (2nd ed), Brookers, Wellington page 860
949. For further information on appeal and review rights, see chapter
13 (Appeal or Review) of Legislation Advisory Committee Guidelines
on Process and Content of Legislation, Wellington, May 2001, pages
158 - 164.
950. See Drew v A-G (No 2) (2001) 18 CRNZ 460 (CA) at 479 and
Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 139.
951. See Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118
per Tucker LJ (CA).
952. Potter J in P v Department of Child, Youth and Family Services
[2001] NZFLR 721 at 753.
953. Applications for judicial review of a government decision
usually arise within New Zealand. However the issue has recently
arisen of whether, in some circumstances, judicial review (of New
 Zealand government's decisions) should be available to those outside
New Zealand. There is English precedent for this occurrence - see R
(on the application of Farrakhan) v Secretary of State for the Home
Department [2002] 4 All ER 289.
954. Legislation Advisory Committee Guidelines on Process and
Content of Legislation, Wellington, May 2001, pages 158 - 159.
955. Applications for judicial review apply to applications under Part
I (sections 2 - 16) of the Judicature Amendment Act 1972 and to
applications for an order of mandamus or prohibition or certiorari
under RR 623, 625, and 626 of the High Court Rules.
956. Te Runanga Whare Kauri Rekoku v AG, unreported, High Court,
Wellington, CP 682/92, 12 October 1992, p 35.
957. See Bulk Gas Users Group v Attorney-General [1983] NZLR
129, 133
958. Zaoui v Attorney-General & Ors HC AK Williams J CIV-2003-
404-5872 (19/12/2003)
959. O'Regan v Lousich [1995] 2 NZLR 620 626-627
960. O'Regan v Lousich [1995] 2 NZLR 620, per Tipping J at 626-
627
961. Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40.
962. Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40;
Mangawaro Enterprises v Attorney-General [1994] 2 NZLR 451; and
Knight v Commissioner of Inland Revenue [1991] 2 NZLR 30.
963. Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40, 55.
964. Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40, 55.
965. See the Attorney-General's Section 7 Report on the Casino
Control (Moratorium) Amendment Bill 1997,
966. See, for example, M Taggart "Déjà vu All Over Again" [1998]
NZLJ 234.
967. Legislation Advisory Committee, Report No 9, Recurring Issues,
June 1996, 43. Rishworth has taken a differing view stating that it is
Parliament and not the Crown that makes legislation and that the role
of Parliament in enacting legislation that overturns judicial decisions is
the "ultimate safeguard of public policy." (2003) "The Right to Justice"
in The New Zealand Bill of Rights Act page 769
968. Kutic v Croatia ECHR Application No 48778/99 1 June 2002
969. Article 6(1), like Article 14(1) of the ICCPR, proceeds to define
the scope of the right with reference to access by the media/public.
PART IV Remedies under the Bill
of Rights Act
The New Zealand Bill of Rights Act contains no express remedies for
infringement of its protected rights, in spite of what was proposed in the
White Paper. The UN Human Rights Committee has expressed ongoing
concern about the need to ensure availability of remedies for infringement of
the Bill of Rights Act. At New Zealand's last Periodic Report in July 2002
the Committee again urged the New Zealand government to take appropriate
steps to ensure remedies are available in accordance with Article 2 of the
ICCPR.

What every policy analyst needs to know

• The Bill of Rights Act has no express remedy provisions, but remedies
are available for a breach of the Act
• The Courts have developed and considered a variety of remedies, as
appropriate based on the individual circumstances of each case,
including excluding 'tainted' evidence, issuing a stay of proceedings,
reducing an offender's sentence, and monetary compensation
• The Human Rights Act 1993 provides for a publicly funded complaints
process for complaints about alleged breaches of section 19 (freedom
from discrimination) of the Bill of Rights Act
• There are individual complaint mechanisms provided in some
international instruments to which New Zealand is a party, including
core UN human rights treaties
• Liability for a Bill of Rights Act breach does not require a finding of
fault or bad faith on the part of the Crown - occurrence of the breach is
sufficient

Further Discussion

Although the Bill of Rights Act has no remedy provisions, this does not mean
remedies are not available for a breach of the Act. The New Zealand Courts
have developed various remedies. The Human Rights Act 1993 provides for
a publicly funded complaints process for complaints about alleged breaches
of section 19 (freedom from discrimination) of the Bill of Rights Act. There
are also individual complaint mechanisms provided in some international
instruments to which New Zealand is a party, including core UN human
rights treaties.

Liability for a Bill of Rights Act breach does not require a finding of fault or
bad faith on the part of the Crown - occurrence of the breach is sufficient.
However, fault or bad faith may be relevant in determining the appropriate
remedy.

The Development of Judicial Remedies

Although the Bill of Rights Act has no remedy provisions, the courts have
developed various remedies for infringement of the rights and freedoms
identified in the Act. In Simpson v Attorney-General (Baigent's case) [970]
the Court of Appeal held that effective and appropriate remedies are
available for breach of the Bill of Rights Act. The courts were seen as having
a positive duty to provide remedies. As Cooke P explained in Baigent [971]:

we would fail in our duty if we did not give an effective remedy to a person
whose legislatively affirmed rights have been infringed.

In establishing the availability of judicial remedies, the Court of Appeal

placed considerable weight on New Zealand's obligations under the
international human rights covenants, in particular the ICCPR that is
affirmed in the long title to the Bill of Rights Act.

The freedom of the courts to grant remedies is significant. The courts are able
to consider a wide range of remedies - possibly beyond the traditional forms -
provided they can be seen as effective and appropriate in the circumstances
[972].

What about statutory immunity?

Importantly, the Court of Appeal in Baigent characterised the remedy under

the Bill of Rights Act as a public law remedy:

[it is] an independent cause of action against the Crown, and not one which
arises from vicarious liability. It is the Crown, as the legal embodiment of the
state which is bound by the International Covenant to ensure an effective
remedy for the violation of fundamental rights [973].

The Crown's liability is direct rather than vicarious. The Crown may be held
directly liable despite the statutory immunity of the individual officers or
employees concerned and statutory restrictions on Crown liability.
This attribution of direct liability meant that the Crown's protection from
vicarious liability under section 6(5) of the Crown Proceedings Act 1950 did
not apply.

What types of remedies are available?

Because of their judicial nature, the remedies available as a consequence of a

breach of the Bill of Rights Act are constantly evolving. A breach of a
particular right does not automatically give rise to a corresponding remedy.
Instead, the courts will determine the most effective and appropriate remedy
based on the individual circumstances of each case. When formulating a
remedy the court will consider:

• The purpose and nature of the right infringed;

• The nature and seriousness of the breach [974];
• The consequences of the breach [975]; and
• what is necessary for the vindication of the right, rather than the
punishment of the wrong-doer or compensation to the person affected
[976].

The Bill of Rights Act is frequently invoked in criminal cases and many of
the remedies available reflect this.

The range of remedies the courts have awarded or considered include:

• Excluding 'tainted' evidence from a proceeding;

• Issuing a stay of proceedings [977];
• Awarding monetary compensation;
• Remitting a decision to the original decision-maker for
reconsideration;
• Reducing the sentence of an offender;
• Issuing an injunction requiring positive action, or an order for return of
property [978];
• Declaring that an action of a public body is inconsistent with the Bill of
Rights Act;
• Making a formal declaration of inconsistency between the Bill of
Rights Act and a particular statute.
Monetary Compensation

Following overseas authorities [979], the Court of Appeal in Baigent

established compensation as a discretionary remedy for breaches of the Bill
of Rights Act where:

• There is no existing cause of action; or

• The existing cause of action and remedy is inadequate [980].

An action for Bill of Rights Act compensation will not preclude a concurrent
claim for damages based on common law or statute. The courts will,
however, avoid 'double recovery' [981].

What types of actions can be compensated for?

The majority of compensation claims under the Bill of Rights Act involve
rights concerning the deprivation of liberty or invasion of privacy. However,
the Act offers scope for compensation to be awarded in actions not
previously recognised in common law, such as non-observance of natural
justice [982] or preventing freedom of movement [983].

Compensation has been awarded for a wide range loss including:

• Physical damage [984];

• intangible harm such as distress and injured feelings [985];
• Loss of liberty [986];
• Economic loss (including both past and future earnings) [987];
• Loss of opportunity [988];
• Legal costs [989];
• In addition, interest may be awarded [990].

It should be noted that the courts have been cautious to avoid extravagant
awards of compensation [991]. This cautious approach is consistent with
overseas jurisdictions [992].

What sorts of considerations may be relevant when awarding compensation?

It appears that awards for Bill of Rights compensation will be approached on

the same basis as damages in an action in common law [993]. Relevant
considerations about whether, and how much, compensation should be
awarded may include:
 • The value which the right protects and the seriousness of the breach
[994];
• The consequences of the breach [995];
• The need to emphasise the importance of the right involved and to
deter breaches [996];
• Whether the plaintiff has exercised due diligence in pursuing his or her
claim [997];
• The standing of the plaintiff in the community [998], or the character
of the plaintiff [999];
• Whether the breach was committed in bad faith or was deliberate
[1000];
• Contributory negligence and mitigation of losses [1001];

Are punitive damages available?

The question as to whether exemplary damages are available for a breach of

the Bill of Rights Act remains open. Recent academic comment and case law
suggest that exemplary damages may be available in appropriate cases
[1002]:

...the vindication of rights can be achieved without recourse to the concept of

punitive damages - although such damages may at times be called for over
and above the damages necessary to vindicate the right [1003].

Overseas courts have been willing to consider punitive damages for

violations of constitutional rights in appropriate circumstances [1004].

Who is liable for compensation?

It remains unclear who is primarily liable for a Bill of Rights Act

compensation claim. In Baigent, Justice McKay [1005] stated:

[w]here a right is infringed by a branch of Government or a public

functionary, the remedy under the Act must be against the Crown.

Does this mean that the Crown is liable for all infringements of the Bill of
Rights Act? The Law Commission suggests that the correct approach is that
the Crown is primarily liable for infringements by its servants and agents (ie.
those referred to in section 3(a)). Liability for infringements by other public
bodies (ie those referred to in section 3(b)) should lie with the person or body
that has legal control over them [1006]. This interpretation seems to be
consistent with later case law [1007].

Referring decision back to original decision-maker

If a decision made by an authority or tribunal is found to breach rights

contained in the Bill of Rights Act, the decision can be remitted to the
original decision-maker for reconsideration. The court will often direct the
decision-maker to reconsider the decision with specific attention to be paid to
a particular right [1008].

A recent decision of the Court of Appeal also raises the possibility of the
courts quashing a defective decision, rather than remitting it to the original
decision-maker [1009].

Exclusion of evidence

The exclusion of evidence is often the most effective remedy where an

infringement of a right relating to search, arrest and detention (sections 21 to
24) results in the obtaining of incriminating evidence. The effect of this
remedy is that the 'tainted' evidence is excluded from consideration in the
decision-making. The Court of Appeal has recently modified the application
of this remedy.

The previous approach - a presumption in favour of exclusion

Where evidence had been obtained in a breach of the Bill of Rights Act it
was presumed to be excluded unless the courts were satisfied that there was
an overriding reason to admit the evidence. The presumption in favour of
exclusion could therefore be displaced for a 'good cause'. In practice the
presumption led to the almost automatic exclusion of evidence once a breach
had been established [1010] - often immunising a criminal against
prosecution.

The new 'balancing exercise'

In Shaheed the Court of Appeal introduced a balancing exercise to assist the

courts in determining whether excluding evidence is a truly proportionate
response to the particular breach. Appropriate and significant weight must
first be given to the nature of the right and the breach, but there is no longer a
presumption that evidence will be excluded. Public interest considerations
that may be relevant to the balancing exercise include:
 • The value which the right protects and the seriousness of the breach;
• Whether the breach has been committed deliberately or recklessly;
• Whether there were other avenues available that would not have
resulted in a breach;
• The nature and quality of the disputed evidence;
• The centrality of the evidence to the prosecution's case; or
• The availability of an alternative remedy or remedies.

The new balancing exercise is in line with the approach of other

commonwealth jurisdictions, including the Privy Council [1011] and the
House of Lords [1012].

Declarations of Inconsistency - the development of a new judicial remedy?

The Court of Appeal has hinted at a willingness to make formal declarations

where legislation is found to be inconsistent with the Bill of Rights Act. Such
declarations would be in addition to a similar remedy available through the
Human Rights Tribunal in respect of section 19 of the Bill of Rights Act
(freedom from discrimination).

In R v Poumako, Justice Thomas made a clear statement about inconsistency

with the Bill of Rights Act and indicated he would have issued a declaration
of inconsistency, asserting:

Where there is no other remedy, a declaration may provide the only effective
remedy [1013]

The rest of the Court did not adopt his proposal. There has been no
opportunity since Poumako for the Court of Appeal to clarify where it stands
on this issue. The Court has, however, stated previously that the courts do
have the power and, on occasion, the duty to indicate where a statute is
inconsistent with the Bill of Rights [1014].

The ability of the courts to formally declare a piece of legislation as

incompatible with the Bill of Rights Act raises an important constitutional
issue: that of the relationship between parliament and judiciary. Section 4
prevents the courts from overriding legislation that is inconsistent with the
Bill of Rights Act. But by making a formal declaration of inconsistency, the
courts could exercise significant political pressure for law reform [1015].
A comparative example: The United Kingdom's declaration of
incompatibility

Section 4 of the Human Rights Act 1998 gives the courts in the United
Kingdom the power to make a declaration of incompatibility where it is
impossible to construe legislation compatibly with the European Human
Rights Convention. The incompatible legislation remains in force unless
amended by parliament in order to preserve parliamentary sovereignty.

As at April 2003, 11 declarations of incompatibility had been made in

accordance with section 4. [1016] Four of these were overturned on appeal.
The incompatibility identified in another four of them was addressed by
legislative amendment.

The House of Lords' position appears to be a cautious one:

[a declaration of incompatibility] is a measure of last resort. It must be

avoided unless it is plainly impossible to do so. [1017]

Human Rights Review Tribunal Remedies for Breach of Section 19

Freedom from discrimination

An amendment to the Human Rights Act 1993 [1018] means that there is
now a publicly funded complaints process available for complaints about
alleged breaches of section 19 of the Bill of Rights Act (freedom from
discrimination). This new complaints process does not affect the ability to
pursue other judicial remedies through the courts for a breach of section 19 -
it is an additional avenue for relief.

Part 1A of the Human Rights Act provides that an activity by a person or

body performing a public function, power or duty will generally be in breach
of the Human Rights Act if it is inconsistent with section 19 and cannot be
justified under section 5 of the Bill of Rights Act.

The Human Rights Commission has power to initiate an inquiry into any
matter where it appears that there may be an infringement of human rights. If
the dispute cannot be resolved through mediation and conciliation, a binding
decision can be sought from and enforced by the Human Rights Review
Tribunal.
Where the Human Rights Review Tribunal finds an activity is an unjustified
infringement of section 19 of the Bill of Rights Act it may award the
following remedies:

• A declaration that a breach of the Human Rights Act has occurred;

• An order restraining the breach;
• Compensation against the person or agency who committed the breach;
• An order that a person or agency act in a particular way to redress any
loss or damage suffered; and
• A declaration that a piece of legislation is inconsistent with the Bill of
Rights Act (and, therefore, a breach of Part 1A of the Human Rights
Act). Where a declaration of inconsistency is made, the Government is
required to prepare a report to Parliament setting out what it intends to
do in response to the declaration.

For more information on the dispute resolution processes and the role of the
Human Rights Commission, contact the Human Rights Commission.

Note that in March 2002, the Ministry of Justice published The Non-
discrimination Standards for Government and the Public Sector: Guidelines
on how to apply the standards and who is covered. You should refer to the
Non-discrimination Guidelines for a detailed description of how Part 1A of
the Human Rights Act is applied.

International Scrutiny

Reports to United Nations Committees

As part of its international obligations, and as a consequence of previous

decisions to ratify various international human rights treaties, the government
is required to periodically report to a number of Committees on matters
relating to this country's compliance with these human rights standards.
[1019]

In the period leading up to the designated reporting date, the relevant

Committee is apprised of specific issues relating to New Zealand's
compliance with the international treaty in question - frequently by non-
governmental organisations. Based on this information, the Committee will
prepare a number of questions in advance of the receipt of the report and will
also ask questions at the presentation of the report.
You should therefore be aware that, if your agency has developed policies or
practices that appear to be inconsistent with these standards, those practices
will be subject to international scrutiny. You will also be asked to prepare a
response to those questions.

Human Rights Treaties: Individual Complaint Mechanisms

The individual complaint mechanisms of the core UN human rights treaties

which New Zealand is currently a party to are the following:

• Optional Protocol to the International Covenant on Civil and Political

Rights (ICCPR) - New Zealand recognises the competence of the
Human Rights Committee to receive and consider communications
from individuals who claim to be victims of violation by New Zealand
of any of the rights in the ICCPR (including the rights in the Second
Optional Protocol)
• Optional Protocol to the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) - New Zealand
recognises the competence of the Committee on the Elimination of
Discrimination Against Women to receive and consider
communications from individuals or groups of individuals who claim
to be victims of violation by New Zealand of any of the rights in the
CEDAW
• Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) - NZ has made a declaration that it
recognises the competence of the Committee Against Torture to
receive and consider communications from individuals who claim to be
victims of a violation by New Zealand of the provisions of the
Convention In addition, there is a limited right of individuals to bring a
complaint under Article 26 of the International Labour Organisation
(ILO) Constitution asserting that an ILO member state is not
satisfactorily securing the effective implementation of an ILO
Convention which it has ratified. In terms of individuals bringing such
complaints, they must be a delegate of the International Labour
Conference. Delegates include an employers' representative and a
worker's representative.
The effect of ratification is that individuals in New Zealand can bring
'communications' to the individual Committees alleging that their rights
under the international conventions have been breached by the state.
Although an individual can only lodge a communication if they have
exhausted all their domestic remedies, individuals and groups have lodged
several communications. Although there is no legal obligation on the
Government to act on an adverse decision made by the Committee, the
decision of the Committee is taken very seriously, because it amounts to a
conclusion that New Zealand is in breach of its international obligations.
Again, practices and policies that are inconsistent with the Conventions will
be subject to international scrutiny. Decisions by the Committee will also be
posted on the UN web-site.

The effect of lodging a communication with the Human Rights Committee,

for example, is that it enables the individual to argue their case under the
ICCPR and not the provisions of the Bill of Rights Act. As you may have
noted the provisions of the Bill of Rights Act and ICCPR differ in a number
of respects and it is possible that the Human Rights Committee arrives at a
different conclusion.

As Rishworth points out, where there are broad similarities between the
provisions of the ICCPR and the Bill of Rights Act, the domestic Courts will
have regard to the decisions of the Human Rights Committee.

Key Cases

Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385;

Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667; R v
Grayson and Taylor [1997] 1 NZLR 399; R v Shaheed [2002] 2 NZLR 377;
Martin v Tauranga District Court [1995] 1 NZLR 491; Dunlea v Attorney-
General [2000] 3 NZLR 136; Upton v Green (No 2) (1996) 3 HRNZ 179;
Kerr v Attorney-General (1996) 4 HRNZ 270; Manga v Attorney-General
[2002] 2 NZLR 65; Dunlea v Attorney-General [2000] 3 NZLR 136; J v
Attorney-General (1995) 2 HRNZ 311; PF Sugrue Ltd v Attorney-General
(Chisholm J, Christchurch, CP 19-96, May 3, 2002); Attorney-General v P F
Sugrue Ltd (2000) 26/8/03, CA 106/02; R v Poumako [2000] 2 NZLR 695;
Daniels v Chief Executive of the Department of Work and Income (HC
Auckland, 8 April 2002, Harrison J, M1558/PL01) 12; Whithair v A-G
[1996] 2 NZLR 45; Mohammed v The State [1999] 2 AC 111.
History of the situation

The White Paper

The White Paper included a draft remedies clause, as follows, that was
omitted from the final bill:

25. Enforcement of guaranteed rights and freedoms Anyone whose rights or

freedoms as guaranteed by this Bill of Rights have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.

The wording of this clause comes from section 24(1) of the Canadian Charter
of Rights and Freedoms. The White Paper envisaged that such a clause
would enable the Courts to provide traditional remedies, while also allowing
for the development of additional remedies where appropriate.

The Select Committee Reports on the Bill of Rights Act Bill

The Select Committee's final recommendation as to the form of a Bill of

Rights for New Zealand did not contain clause 25 or an equivalent. The
reason for the omission is unclear. One suggestion is that the Select
Committee saw clause 25 as being associated with the White Paper's concept
of a Bill of Rights being supreme law. In abandoning the concept of supreme
law, the Select Committee also abandoned the idea of an express remedy
clause [1020].

Remedies under the international treaties

Unlike the Bill of Rights Act, international human rights treaties provide for
express remedies. For example:

i. The International Covenant on Civil and Political Rights ("ICCPR")

Article 2(3) of the ICCPR requires New Zealand to:

(a) ensure any person whose Covenant rights are violated has an effective
remedy;
(b) develop the possibilities of judicial remedy; and
(c) ensure any person claiming a remedy has his or her right enforced by
competent authorities.

ii. Universal Declaration of Human Rights states:

Article 8 of the Declaration states that everyone whose fundamental
 rights has been violated has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.

Footnotes:

970. [1994] 3 NZLR 667

971. [1994] 3 NZLR 667, 676.
972. Huscroft, G and Rishworth, P, Rights and Freedoms: The New
Zealand Bill of Rights Act 1990 and The Human Rights Act 1993
(Wellington: Brookers, 1995) 413.
973. Per McKay J in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 718.
974. R v Grayson and Taylor [1997] 1 NZLR 399.
975. Baigents Case [1994] 3 NZLR 667, 718.
976. R v Shaheed [2002] 2 NZLR 377, para 25.
977. Martin v Tauranga District Court [1995] 1 NZLR 491 for undue
delay under s 25(b) of the Bill of Rights Act.
978. Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR
667,676 per Cooke P.
979. The Court expressly followed Maharaj v Attorney-General of
Trinidad and Tobago (No 2) [1979] AC 385.
980. Dunlea v Attorney-General [2000] 3 NZLR 136.
981. Per Cooke P in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 678.
982. Upton v Green (No 2) (1996) 3 HRNZ 179.
983. Kerr v Attorney-General (1996) 4 HRNZ 270.
984. Per Cooke P in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 678.
985. Per Cooke P in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 678.
986. Manga v Attorney-General [2002] 2 NZLR 65 and Dunlea v
Attorney-General [2000] 3 NZLR 136.
987. J v Attorney-General (1995) 2 HRNZ 311
988. Upton v Green (No 2) (1996) 3 HRNZ 179. In this case the
plaintiff was not given the opportunity to make submissions in relation
to his sentence, and therefore the opportunity to persuade the judge to
impose a lesser term.
989. Binstead v Northern Region Domestic Violence Approval Panel
(HC Auckland, 8 April 2002, Harrison J, M1558/PL01).
990. PF Sugrue Ltd v Attorney-General (Chisholm J, Christchurch,
CP 19-96, May 3, 2002).
991. [1994] 3 NZLR 667, 678.
992. For analysis of overseas jurisdictions see, Law Commission,
Crown Liability and Judicial Immunity: A Response to Baigent's Case
and Harvey v Derrick (Wellington: NZLC, 1997) 35.
993. Dunlea v Attorney-General [2000] 3 NZLR 136.
994. Per McKay J in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 718.
995. Per McKay J in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 718.
996. Per Cooke P in Simpson v Attorney-General (Baigent's Case)
[1994] 3 NZLR 667, 678.
997. Attorney-General v P F Sugrue Ltd (2000) 26/8/03, CA 106/02.
NB. The Limitation Act 1950 does not expressly provide a limitation
period in respect of BORA compensation claim.
998. Kerr v Attorney-General (1996) 4 HRNZ 270. Police were found
to have acted in breach of the plaintiff's rights to freedom of movement
(section 18). A relevant consideration in the assessment of damages
was persons the plaintiff associated with.
999. In Manga v Attorney-General [2002] 2 NZLR 65 the fact that the
plaintiff had been in prison previously was a consideration in setting
the award of compensation.
1000. Daniels v Chief Executive of the Department of Work and
Income (HC Auckland, 8 April 2002, Harrison J, M1558/PL01) 12.
Justice Harrison stated that the fact that the breach was not made in bad
faith or deliberate told against awarding compensation. However, it is
not necessary to allege bad faith in an action for compensation. See
Kerr v Attorney-General (1996) 4 HRNZ 270 and Whitair v Attorney-
General (1996) 2 HRNZ 289.
1001. No case has yet expressly determined whether contributory
negligence or mitigation are relevant in New Zealand.
1002. See Butler, A "Compensation for Violations of the New Zealand
Bill of Rights Act 1990: Where Are We At?" (2002) 6 Human Rights
Law & Practice 134. Whithair v A-G [1996] 2 NZLR 45.
1003. Dunlea v Attorney-General [2000] 3 NZLR 136, para 78.
1004. For example, Canada in R v F (G) (1991) 280 APR 11.
1005. Simpson v Attorney-General (Baigent's Case [1994] 3 NZLR
667, 718.
1006. Law Commission, Crown Liability and Judicial Immunity: A
Response to Baigent's Case and Harvey v Derrick (Wellington: NZLC,
1997) 35.
1007. See Innes v Wong (No 2) (1996) 4 HRNZ 247.
1008. For example in Newspaper Publishers Association of New
Zealand v Family Court [1999] 2 NZLR 344 the matter was
resubmitted to the Family Court to consider the ambit of the
suppression order to take into account the freedom of expression under
section 14. In Moonen v Film and Literature Board of Review [2000] 2
NZLR 9 the Court of Appeal made an order directing the Film and
Literature Board of Review to reconsider the classification of certain
publications in accordance section 14.
1009. Living Word Distributors Ltd v Human Rights Action Group
[2000] 3 NZLR 570. In his dissenting judgment, Justice Thomas found
that the Film and Literature Board of Review had exceeded its
decision-making jurisdiction.
1010. R v Shaheed [2002] 2 NZLR 377, para 140.
1011. Mohammed v The State [1999] 2 AC 111.
1012. Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91.
1013. [2000] 2 NZLR 695, para 95.
1014. Moonen v Film & literature Board of Review [2000] 2 NZLR 9.
1015. Butler, A "Judicial Indications of Inconsistency - A New
Weapon in the Bill of Rights Armoury?" (2000) New Zealand Law
Review 43, 59-60.
1016. Professor Brice Dickson (Northern Ireland Human Rights
Commission), The Human Rights Act in Northern Ireland after Two-
and-a-half Years, a paper prepared for the Belfast Solicitors'
 Association, 10 April 2003. For example, in International Transport
Roth GmbH v Home Secretary [2002] 3 WLR 344, the statutory
penalty scheme for carriers of illegal immigrants (a blanket imposition
of a substantial fixed penalty without regard to the blameworthiness of
the carrier) was found to be incompatible with the right to a fair
hearing in the determination of a criminal charge. The Nationality,
Immigration and Asylum Act 2002 corrects the incompatibility.
1017. Per Lord Steyn in R v A [2001] UKHL 25.
1018. Human Rights Amendment Act 2001.
1019. New Zealand's reporting obligations are found in:
Article 40 of the ICCPR
Article 16 of the ICESCR
Article 9 of the CERD
Article 17 of the CEDAW
Article 44 of the UNCROC
Article 19 of the CAT
1020. Per Hardie-Boys J in Simpson v Attorney-General (Baigent's
Case) [1994] 3 NZLR 667, 699.
Part V Appendices
Section 5 checklist
Is the objective of this policy sufficiently important to justify infringing or
limiting a fundamental right?

Yes No

A brief explanation as to why I think it is justifiable.

Do I have empirical evidence to demonstrate the significance and importance
of this objective?

Yes No
Is the restriction on the right sufficiently precise to ensure that the restriction
addresses only those matters that it is intended to capture?

Yes No - the impact is likely to be broader than the activity that I wish
to target.

Describe effect of restriction

Are those persons or organisations able to readily find out what the
consequences of their actions will be if they fail to comply with the law,
policy, or practice?

Yes No

If yes - how?
Is the policy able to be demonstrably justified for reasons other than simply
economic considerations?

Yes No

What are they?

Have I considered other options for achieving this objective?

Yes No

What are they and why are they not considered suitable?
Are the persons or organisations able to easily comply with the law, policy,
or practice?

Yes No
Is the policy, regulation, or law to be published or publicised and made
accessible to the public?

Yes No

If not, how are persons or organisations affected by the law, policy, practice
able to comply with it?
Offences and penalties No.1
This is one of two checklists in the appendices to the Guidelines provided to
assist you in the development of offence and penalty provisions. The
checklists are intended to guide users through the range of considerations
required in the policy development process to evaluate compliance with the
Bill of Rights Act. The checklists will also refer back to the relevant part of
the Guidelines for further clarification and discussion of particular
considerations. It must be emphasised that while the checklists provide a very
useful guide to Bill of Rights Act considerations, final compliance
assessments will require more detailed examination of specific provisions.

1. Is this a new or amended 2. Is there an existing offence provision

offence provision? that addresses this conduct?

yes no yes no

(If the answer is yes, provide (If the answer is no, provide brief
brief explanation as to your explanation as to which provisions you
objective.) considered and why these were not
available)
3. Is the offence: 4. If these offences are criminal or "truly
a). a criminal offence or an criminal", is it possible for a person subject
offence that could be described to these offence provisions, to be
as "truly criminal in nature"? or potentially liable for other criminal or
b). is it of a kind more consistent "truly criminal" offences for the same
with an administrative sanction? conduct?

yes - criminal (See pages 348 - 352 of the Guidelines for

no - administrative a discussion of the right against double
jeopardy)
(provide a brief explanation as
to your answer - see page 225 of Yes No
the Guidelines for an
explanation as to the difference
between the two types of
offences.)
5. Is the penalty level in this 6. If the penalty levels have been
offence in line with penalty increased, is the new penalty:
levels for similar types of
Necessary as a deterrent?
offences? Yes No
In proportion to the nature of the conduct?
Yes No Yes No
Consistent with established guidelines for
(If the answer is no, what other addressing the conduct?
penalties have you considered Yes No
and why should the penalty level Likely to outrage the public conscience?
be changed for this offence?) Yes No
In line with what is necessary for the
achievement of a valid social aim?
Yes No
Rationally connected with your policy
objective?
Yes No

(If the answer to any one or more of these

questions is no it may be necessary to
consider whether the penalty is
disproportionately severe - see pages 65 -
70 for a further explanation)
7. Is the new offence intended 8. Does the proposal increase existing
to: penalty levels?

a) apply from the date of Yes No

enactment of the legislation?
Yes No Do you intend for the new penalty to
apply:
b) apply from some other point
of time? a). from date of enactment? or
Yes No b). from some other point of time?
Yes - at time of enactment
Have you considered including No - at some other point
transitional provisions into the
legislation? Have you considered including transitional
Yes No (See pages 343 -345 provisions into the legislation?
of the guidelines) Yes No (See pages 343 - 345 of the
guidelines)
Offences and penalties No.2: the onus of proof
This is the second of two checklists in the appendices to the Guidelines
provided to assist you in the development of offence and penalty provisions.
The checklists are intended to guide users through the range of
considerations required in the policy development process to evaluate
compliance with the Bill of Rights Act. The checklists will also refer back to
the discussion on offences in the Guidelines for further clarification. It must
be emphasised that while the checklists provide a very useful guide to Bill of
Rights Act considerations, final compliance assessments will require more
detailed examination of specific provisions.

This checklist provides a series of questions covering a broad range of issues

relating to the onus of proof - that is, where should the onus of proving
whether the accused was "at fault" lie? If you recall, the general proposition
is that the prosecution needs to prove that an accused committed the
prohibited act and intentionally (or knowingly, etc) performed the act beyond
reasonable doubt. There are occasions where it is possible for the accused to
have to prove on the balance of probabilities that they were "without fault"
when performing the prohibited act, for example, they had a reasonable
excuse for doing so.

1. Are you creating or amending 2. Does the offence provision attempt to

a new offence provision? address a matter that is of public concern?

yes no (If so, what is the yes no (If the answer is yes, provide a
objective of the offence?) brief description of the problem and the
reasons why it is considered desirable to
make the conduct an offence.)
3. Is the offence: 4. Are you intending to require that:

a) a criminal offence? a) the prosecution prove beyond reasonable

yes no doubt that the defendant both carried out
the prohibited act and did so with the
b) an offence that could be required intention or knowledge and for the
described as "truly criminal in defence just to raise reasonable doubt?
nature"? yes no
yes no
b) (as for i) but enable the defendant raise
c) an offence that is directed at persuasive evidence that he or she did or
the prevention of future harm did not perform certain acts?
through the enforcement of yes no
minimum standards of conduct
and care? c) simply require the prosecution to prove
yes no that the defendant committed the act but
require the defendant to prove that he or
(See page 296 of the guidelines she acted with total absence of fault?
for an explanation as to the yes no
differences between the types of
offences) (see pages 288 - 302 of the guidelines for a
discussion of the difference between these
Provide a brief explanation as options)
to your answer
5. If you answered yes to the 6. Does the offence provision require the
question in 4b above, does the accused to disprove an evidential fact on
accused: balance of probabilities or prove that he or
she acted with total absence of fault, then
a) need to raise evidence consider
pointing to a position contrary
to that proposed by the a) the reason why the accused person has to
prosecution? establish why they were not at fault.
yes no
b) the ease with which the defendant has
b) need to disprove an access to evidence that would enable him
evidential fact on balance of or her to discharge the burden of proof.
probabilities?
yes no c) the nature of the conduct that is being
regulated.

d) the environment within which the

prohibited activity has taken place: is it
highly regulated? yes no describe

e) the penalty level that you wish for the

courts to impose

see pages 290 -293 of the guidelines.

Applying section 19 of the Bill of Rights Act
Non-discrimination: statutory provisions that are inclusive
in effect
The discussion on the right to be free from discrimination referred to the
distinction between legislative provisions that were inclusive in their effect
and provisions that were exclusive. It was suggested that if your policy
makes a distinction on one of the prohibited grounds of discrimination, one
way of avoiding the policy giving rise to issues of discrimination was to
make sure that it is inclusive and not exclusive in its effect. An example of a
statutory provision with an inclusive effect is set out here:
Developing a statutory power of entry
Do you wish to develop a statutory power of entry?

1. Who is going to be authorised to exercise this power?

Enforcement officers should be properly trained and have suitable

qualifications and experience.

2. What is the purpose behind the exercise of this power?

Monitoring of compliance Primarily an investigative tool for the purpose of

with regulatory controls. gathering evidence in the detection and
prosecution of offences.

3. Do the enforcement officers require a warrant before exercising these

powers?

No if: Yes

• the premises are commercial • the general presumption is

premises; that an enforcement officer
• the power is exercised at a will require a warrant unless
reasonable time; there are good reasons why
• the person conducting the not.
inspection is concerned with
No if:
ensuring the regulatory framework
is complied with. • the occupier consents;
• the entry is necessary
Possibly if:
because of an imminent risk
• it becomes evident in the course of to public health and safety;
conducting an inspection that a • it is necessary to conduct a
serious breach of the legislation is search to prevent the
taking place and it is likely that commission of a criminal
further enforcement action is offence;
• the search takes place as a
 needed. result of an enforcement
officer having reasonable
grounds to believe that an
offence has been committed;
• the search takes place where
there is a diminished
expectation of privacy, e.g
prisons, borders.

4. What actions must an enforcement officer take prior to executing their

powers?

An inspector must: An enforcement officer must:

• provide evidence of • provide evidence of his or her authority

his or her authority to to act upon entering the premises;
act upon entering the • present evidence of their identity and
premises; authority whenever asked to do so;
• present evidence of • if the occupier or owner is absent, leave
their identity and a notice detailing the fact that the search
authority whenever took place and on what occasion, the
asked to do so. purpose, contact details and details of
any property removed.

5. What powers can an enforcement officer employ in the course of

exercising a power of entry?

During an inspection, an An enforcement officer can, under

inspector can: warrant:

• obtain copies of • use reasonable force to gain entry;

documents; • obtain copies of documents;
• take samples/photographs/ • require a person to provide them
or other things; with assistance;
• require a person to provide • remove documents and goods;
 them with assistance; • require a person to answer
• issue notices of compliance questions, but not encroach on the
privilege against self-incrimination.

6. What other powers can an enforcement officer have to execute the power
of entry?

An inspector may: An enforcement officer may:

• charge an individual or company • charge an individual or

with an offence for obstructing or company with an offence
hindering an officer in the course for obstructing or hindering
of their duties; an officer in the course of
• order an individual to do an act or their duties;
refrain from continuing to do an act • seize any item;
if the non/performance of the act is • detain and search any
in contravention of the legislation. individual found on the
premises.
Powers of entry

a) Conduct examinations, tests, inquiries, and inspections, or direct the

employer or any other person who or that controls the place of work, to
conduct examinations, tests, inquiries, or inspections:
(b) Be accompanied and assisted by any other people and bring into the place
of work any equipment necessary to carry out the inspector's functions:
(c) Take photographs and measurements and make sketches and recordings:
(d) Require the employer, or any other person who or that controls the place
of work, to ensure that the place of work or any place or thing in the place of
work specified by the inspector is not disturbed for a reasonable period
pending any examination, test, inquiry, or inspection:
(e) Require the employer, or any other person who or that controls the place
of work, to produce documents or information relating to the place of work
or the employees who work there and permit the inspector to examine and
make copies or extracts of the documents and information:
(f) Require the employer, or any other person who or that controls the place
of work, to make or provide statements, in any form and manner the
inspector specifies, about conditions, material, or equipment that affect the
safety or health of employees who work there.
Powers of entry 3
An example of legislation conferring a power of entry under warrant on
enforcement officers
(4) Reasonable force may be used if it is necessary for either or both of the
following purposes:

(a) To detain a person under subsection (3)(a):

(b) To search a person under subsection (3)(b).
Consistency with principles of natural justice:
administrative decision-making model 1
(5) If the Secretary decides to cancel or refuse to amend or renew a licence,
the Secretary must notify the [licence holder] of-
(a) For a cancellation, the date on which the cancellation takes effect and the
reason for the cancellation:
(b) For a refusal to amend or renew, the reason for the refusal.
(6) If subsection (4) or subsection (5) applies, the Secretary must also notify
the [licence holder] of-
(a) The right to appeal the decision; and
(b) The process to be followed for an appeal under section 41.
Consistency with principles of natural justice:
administrative decision-making model 2
Consistency with principles of natural justice:
Tribunals
108. Persons entitled to be heard-

(1) Any person who is a party to the proceedings before the Tribunal, and
any person who satisfies the Tribunal that he or she has an interest in the
proceedings greater than the public generally, may appear and may call
evidence on any matter that should be taken into account in determining the
proceedings.
(2) If any person who is not a party to the proceedings before the Tribunal
wishes to appear, the person must give notice to the Tribunal and to every
party before appearing.
(3) A person who has a right to appear or is allowed to appear before the
Tribunal may appear in person or be represented by his or her counsel or
agent.

108A. Tribunal to give notice of proceedings-

The Tribunal must notify the Attorney-General promptly of the bringing of

proceedings before the Tribunal alleging a breach of Part 1A, or alleging a
breach of Part 2 by a person or body referred to in section 3 of the New
Zealand Bill of Rights Act 1990, if the Attorney-General is not a party to the
proceedings.

108B. Submissions in relation to remedies-

(1) Before the Tribunal grants any remedy under Part 3, it must give the
parties to the proceedings and, if the remedy under consideration is a
declaration under section 92J, the Attorney-General, an opportunity to make
submissions on-
(a) The implications of granting that remedy; and
(b) The appropriateness of that remedy.
(2) Subsection (1) does not limit any provision in Part 3 or section 108.