This is a single section from Chapter 6. Read the full chapter here.

If the limit on a right cannot be justified, but remains the only possible way to achieve the policy objective, is the limit drawn as narrowly as possible to achieve that objective?

Any unjustified limitation should be restricted to that which is necessary to achieve the policy objective.

There may be cases where the Government wishes to proceed with legislation that results in an unjustified limitation on an NZBORA right—one that cannot be regarded as a reasonable limit on that right. This ought to be very rare. In these situations, great care must be taken to ensure the legislative intent of the bill is very clearly stated. Section 6 of NZBORA requires that wherever an enactment can be given a meaning that is consistent with rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning. It follows that clear and unambiguous language must be used to confirm a rights-infringing (and thus inconsistent) intention.

Section 4 of NZBORA makes it clear that courts are prevented from striking down, or refusing to apply, legislation that is inconsistent with NZBORA. However, that provision must not be seen as an invitation to develop legislation inconsistent with NZBORA. Such legislation can have serious consequences:

  • First, the Attorney-General is required by section 7 of NZBORA to notify Parliament if he or she considers a bill imposes a limitation on an NZBORA right that is not a reasonable limit demonstrably justified in a free and democratic society.
  • Secondly, Standing Order 265(5) requires the Attorney-General’s report to be referred to a select committee. The inconsistency may then be the subject of adverse comment during the select committee process, which might attract negative publicity.
  • Thirdly, while the courts are not empowered to strike down an Act, they may declare the existence of the inconsistency in their judgments.
  • Finally, legislation that is inconsistent with NZBORA will place New Zealand at risk of breaching its international human rights obligations (under the International Covenant on Civil and Political Rights and possibly other instruments) and expose it to adverse comment from the international treaty monitoring body, which may have negative political consequences.

In any event, all possible steps must be taken to ensure that any unjustified limitation of rights is the least limitation required to achieve the policy objective. Additional procedures or safeguards that might further mitigate the limitation should also be considered.

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