Ministry of Justice, New Zealand

Introduction to sections 12 - 18: Democratic and Civil Rights
Section 12 Electoral Rights
Section 13 - Freedom of Thought
Section 14 Freedom of expression
Section 15 Manifestation of religion and belief
Section 16 Freedom of peaceful assembly
Section 17 Freedom of association
Section 18 Freedom of Movement

 

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

1. 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
2. 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.
  • Consider removing physical or communication difficulties that act as a barrier for persons with disabilities or persons from different ethnicities.
  • Consider ways in which you can target those sectors in the community who are underrepresented on voting statistics.
  • 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:

1. To take part in the conduct of public affairs, directly or through freely chosen representatives;
2. 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;
3. 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:

1. A belief in the supernatural (ie. a belief that reality extends beyond what is capable of perception by the senses);
2. The ideas relate to the nature and place of humans in the universe and their relation to things supernatural;
3. 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;
4. The adherents constitute an identifiable group or groups; and
5. 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:

1. Everyone has the freedom of conscience and religion;
2. 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?

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
  • theistic, non-theistic and atheistic beliefs,
  • moral, ethical or religious beliefs about what is right and wrong that are held with the strength of traditional religious convictions,
  • 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:

1. A belief in the supernatural (i.e., a belief that reality extends beyond what is capable of perception by the senses);
2. The ideas relate to the nature and place of humans in the universe and their relation to things supernatural;
3. 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;
4. The adherents constitute an identifiable group or groups; and
5. 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.

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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.