FAQS

Human rights implications and Bill of Rights Act vetting: FAQs 

This page answers frequently asked questions about:

  • human rights issues and implications in policy development
  • the process of assessing Bills for consistency with the New Zealand Bill of Rights Act 1990 (Bill of Rights Act vetting).

For more information, contact the Ministry of Justice at boravet@justice.govt.nz.

This page covers the following topics:

Human rights in policy development

The Bill of Rights Act vetting process

Bill of Rights Act vetting after introduction

Human rights in policy development

When should I approach the Ministry of Justice about human rights matters?

We encourage agencies to contact the Ministry early in the policy process when they are developing policy in areas that could affect human rights. This enables policy options to be developed with human rights in mind. It can also help avoid issues at the Bill of Rights vetting stage.

The Ministry must be consulted on policy proposals leading to legislation, and on all Bills (except Bills developed by the Ministry of Justice or Te Arawhiti, which are assessed by Crown Law). Government Bills are assessed for consistency with the Bill of Rights Act before they are introduced into the House of Representatives. For more information on developing Bills and consultation requirements, see:

Advice on considering human rights and the Bill of Rights Act is in this Guide. For more information or to arrange Bill of Rights Act vetting, email boravet@justice.govt.nz.

What should I say about human rights implications in the Cabinet paper?

The CabGuide(external link) requires Cabinet papers to have a statement on consistency with human rights. This should consider the consistency of a proposal with Aotearoa New Zealand’s domestic human rights legislation and international human rights obligations, including:

This section of the paper should set out:

  • whether and how the proposal promotes fundamental human rights and freedoms, including the equal enjoyment of those rights by everyone
  • the nature of any potential inconsistencies with the Bill of Rights Act, Human Rights Act and the Privacy Act or New Zealand’s international human rights obligations, or state that there are none
  • the steps taken to address the issues, and
  • any justifications for the policy infringing a right or freedom.

The agency advancing the proposal is responsible for making its own assessment of human rights implications within its area of responsibility. The Ministry of Justice can help agencies consider which rights are relevant and how to assess whether any limitation is justified.  

Human Rights implications in bills and Cabinet papers | Department of the Prime Minister and Cabinet (DPMC)(external link)

How do I know if a policy proposal complies with human rights obligations?

The Ministry of Justice can provide general advice and guidance on human rights issues and implications. The lead agency is ultimately responsible for assessing the human rights implications of a proposal.

If the proposal results in a Bill, the Bill will be vetted for consistency with the Bill of Rights Act. Vetting is done by the Ministry of Justice (or by Crown Law for Ministry of Justice and Te Arawhiti Bills).

How is human rights policy advice different from a Bill of Rights Act vet?

Human rights policy advice:

  • is policy advice, rather than legal advice
  • can consider human rights from a range of sources, including those not in the Bill of Rights Act. The Bill of Rights Act focuses on specific civil and political rights, but policy advice should also consider other rights, such as economic, social and cultural rights, privacy rights(external link), fundamental constitutional principles, and common law rights(external link)
  • can consider policy options that strengthen human rights, even where policy or legislation is already consistent with the Bill of Rights Act
  • means considering human rights at all stages of the policy process, not just in legislation. 

A Bill of Rights Act vet is legal advice provided to the Attorney-General about the consistency of a Bill with the Bill of Rights Act.

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The Bill of Rights Act vetting process

What is Bill of Rights Act vetting?

Bill of Rights Act vetting is the process of assessing whether Bills are consistent with the Bill of Rights Act.

The Attorney-General must notify the House of Representatives of any provision in any Bill introduced to the House that appears to be inconsistent with the Bill of Rights Act.

The Ministry of Justice advises the Attorney-General on Bill of Rights Act consistency for all Bills, except Ministry of Justice and Te Arawhiti Bills, which Crown Law provides advice on. Government Bills are vetted before the Bill is introduced.

How much time do I need to allow for a Bill to be vetted?

Draft Bills should be provided for vetting as soon as you have a substantial draft, particularly for longer Bills. Please email us at boravet@justice.govt.nz to provide the Bill or ask any questions about vetting.

The CabGuide requires final versions of government Bills to be provided to the Ministry of Justice no later than two weeks before the Cabinet Committee meeting (usually Cabinet Legislation Committee, or LEG) on that Bill. If the final version is not with the Ministry at least two weeks before the LEG meeting, the Minister sponsoring the Bill should defer its submission to LEG.

Human Rights implications in bills and Cabinet papers | Department of the Prime Minister and Cabinet (DPMC)(external link)

How do I arrange vetting?

Contact the Ministry of Justice at boravet@justice.govt.nz. Please provide:

  • the draft Bill
  • any updated versions of the Bill as these become available – please provide these in ‘compare’ format showing the differences from the previous version
  • relevant Cabinet papers, which should identify any relevant rights and explain why any limitations on rights are justified
  •  information about expected timing of the LEG meeting (or other Cabinet committee).

The Bill is progressing urgently – what do I do about vetting?

Please contact the Ministry of Justice as soon as possible, ideally when preparing the policy paper. Email us at boravet@justice.govt.nz.

If the Bill raises Bill of Rights Act issues, this may hold it up. It is best to talk to us as soon as possible to help avoid this.

Who is responsible for arranging vetting and providing the draft Bill?

Lawyers or policy advisors working on the Bill should advise the Ministry of Justice about the Bill and expected timeframes before the two-week minimum deadline. Email us at boravet@justice.govt.nz.

Lawyers, policy advisors, or Parliamentary Counsel can provide us with the draft Bill and updated drafts of this. Please provide subsequent drafts in ‘compare’ format so we can see the changes made since the previous version.

The Bill is just making changes consistent with existing legislation – does it need to be vetted?

Yes. All Bills need to be vetted for consistency with the Bill of Rights Act, even if the changes are consequential or consistent with existing legislation.

When vetting a Bill, the Ministry of Justice will ask for information about the justification for limiting rights even if the provisions in the Bill are similar to existing legislation. This is because:

  • all limitations on rights need a policy justification. Consistency with existing legislation is not a sufficient policy justification for limiting rights. A limit that is justified in one context may not be justified in another
  •  pre-existing legislation may not be consistent with the Bill of Rights Act, especially if it was passed before the Bill of Rights Act was enacted (before 1990).

What can I expect during vetting?

A member of the Bill of Rights vetting team at the Ministry of Justice will contact you if they have any questions, concerns or need more information to vet the Bill.

If a Bill raises issues of apparent inconsistency with the Bill of Rights Act:

  • The vetter will usually discuss the issue with you and work with you to find a solution. They will also consult Crown Law.
  • If a solution cannot be found, the Ministry will advise the Attorney-General that the Bill appears to be inconsistent with the Bill of Rights Act.
  • The Attorney-General may seek to meet with the relevant Minister to work to find solutions to the issue.

Inconsistencies may delay the Bill. We recommend contacting boravet@justice.govt.nz early if you have any questions or concerns.

When will I find out if the Bill is consistent with the Bill of Rights Act?

The Ministry of Justice provides legal advice on consistency with the Bill of Rights Act directly to the Attorney-General for consideration. This is usually one week before Cabinet Legislation Committee (LEG) or the relevant Cabinet committee.

The Ministry does not provide the agency with the advice. The Attorney-General usually refers a copy of the signed advice to the responsible Minister, so the agency may be able to access it from their Minister’s Office.

When reviewing the Bill, the Ministry will advise the lead agency of any provisions that they consider appear to be inconsistent with the Bill of Rights Act. Any view provided by the Ministry during the vetting process does not represent a final view of Bill of Rights consistency, as that decision is reserved for the Attorney-General.

What should I put in the LEG paper or departmental disclosure statement about Bill of Rights Act consistency?

The Cabinet Legislation Committee (LEG) paper should include the agency’s analysis of the human rights implications of the proposal, including a summary of any Bill of Rights Act and/or broader human rights issues discussed with the Ministry of Justice.

The LEG paper and departmental disclosure statement will usually be lodged before the Bill of Rights Act vet has been finished and considered by the Attorney-General. If so, the paper should also state that an assessment of the Bill’s consistency with the Bill of Rights Act is in progress.

What happens if the Bill changes after it is vetted?

Please advise boravet@justice.govt.nz of any changes to the Bill after it is vetted. The Ministry will assess whether these changes affect the conclusions of our advice about the Bill.

When and where is the vet published?

If the Bill appears to be consistent with the Bill of Rights Act, the advice is usually published on the Ministry of Justice website when the Bill is introduced: Advice on consistency of bills with the Bill of Rights Act | New Zealand Ministry of Justice

If the Bill appears to be inconsistent with the Bill of Rights Act, a section 7 report will be presented in the House of Representatives: see Current papers - New Zealand Parliament (www.parliament.nz)(external link)

What does it mean if there is a section 7 report?

If the Attorney-General decides the Bill appears to be inconsistent with the Bill of Rights Act, they will present a report in Parliament under section 7 of the Bill of Rights Act.

Parliament can still decide to pass the Bill but the report may attract scrutiny from the media, the public, and through the parliamentary process, including at select committee.

Section 7 reports are published separately on the Ministry of Justice website: Section 7 reports | New Zealand Ministry of Justice 

Does the Ministry of Justice vet regulations or other secondary legislation?

No, there is no formal vetting process for regulations and other secondary legislation.

It is still important that secondary legislation is consistent with the Bill of Rights Act. When developing secondary legislation, agencies need to consider whether any limitation on rights or freedoms in the Bill of Rights Act appears to be justified. Please contact boravet@justice.govt.nz for guidance on what to consider.

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Bill of Rights Act vetting after introduction

Will the select committee receive advice on the consistency of a Bill with the Bill of Rights Act?

If the Bill appears to be inconsistent with the Bill of Rights Act, the report of inconsistency (section 7 report) will be referred to the select committee. The Attorney-General or their officials may be asked to present evidence to the committee on the section 7 report.

If the Bill appears to be consistent with the Bill of Rights Act, the Attorney-General’s officials will not usually be involved in the select committee process. Ministry of Justice officials may help you to identify and address any Bill of Rights issues or questions that arise, for example in relation to proposed amendments to the Bill.

What does it mean if evidence is being given to the select committee about a Bill’s consistency with the Bill of Rights Act?

If the Ministry of Justice or Crown Law gives evidence on a section 7 report to a select committee, they do so as representatives of the Attorney-General, not as advisors on the Bill. The evidence will be confined to the advice in the section 7 report. They will not advise the committee on whether new proposals are consistent with the Bill of Rights Act.

What if the Bill changes after it is introduced, for example if there is an amendment paper (previously known as a supplementary order paper)?

Amendment papers and amendments made at select committee will not generally be vetted for consistency with the Bill of Rights Act.

Occasionally, the Ministry of Justice may advise the Attorney-General on changes to the Bill after it is introduced – for example:

  • if the introduction version of the Bill received a report of inconsistency with the Bill of Rights Act (a section 7 report), and the inconsistent provisions are being changed
  • if changes raise significant rights concerns
  • on request of the Attorney-General.

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