Ministry of Justice, New Zealand

PART I: An Introduction to the Bill of Rights Act
Appendix : Incorporating Bill of Rights Considerations into Your Policy Development Process

The Bill of Rights Act sets out to:

1. affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
2. affirm New Zealand's commitment to the International Covenant on Civil and Political Rights (ICCPR).

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

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

What is the purpose behind the Bill of Rights Act?

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

provide a set of minimum standards to which public decision making must conform. In that sense a Bill of Rights is a mechanism by which governments are made more accountable by being held to a set of standards.

Who is subject to the Bill of Rights Act?

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

1. the legislative, executive and judicial branches of government; or
2. a person or body performing a public function, power or duty conferred or imposed by or pursuant to law.

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

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

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

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

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

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

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

Relevant factors

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

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

In applying these factors, it can be seen that organisations operating in different spheres of activity may be subject to the Bill of Rights Act as a result of applying the public function test. [14] Examples of these activities may include (but are not limited to):

1. The administration of a public welfare regulatory framework:

Organisations that regulate the media (Press Council, Advertising Standards Authority, Films and Videos Labelling Body) Organisations that administer liquor licensing laws (Alcohol Liquor Advisory Council)

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

Organisations that deliver health or education services [15] (District Health Boards, [16] School Boards of Trustees, [17] Tertiary Institutions)

3. The regulation of professional bodies:

Professional bodies that have responsibility for regulating the professional activities of members and for taking disciplinary action (Medical Council, [18] District Law Societies [19])

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

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

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

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

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

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

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

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

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

Advising departments

All submissions to Cabinet Committees on policy proposals and government bills must include a statement on the consistency of the proposal or legislation with both the Bill of Rights Act and the Human Rights Act 1993.

In addition, all papers seeking a priority on the Government's legislation programme should include a statement about any inconsistencies with the rights and freedoms contained in the Bill of Rights Act and the Human Rights Act 1993. At the legislative bid stage, it is not always possible to finally determine consistency. However, where possible, any potential areas of inconsistency should be identified in the legislative bid.

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

Vetting and section 7 of the Bill of Rights Act

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

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

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

If you satisfy the Ministry that a proposal which appears to be inconsistent with the Bill of Rights Act is justifiable, it is said that the Bill does not appear to be inconsistent with the Bill of Rights Act. If the apparent inconsistency cannot be justified, the Ministry is likely to help you explore ways of amending the provision or to consider other means of achieving the same objective that do not give rise to Bill of Rights issues. Failing that, the Ministry will ask you to consider whether the provision can be omitted from the Bill on the basis that the provision appears to be inconsistent with the Bill of Rights Act.

Although the Ministry's primary aim is to assist government departments in the process of developing legislation that is consistent with the Bill of Rights Act, the Ministry does have to provide the Attorney-General with legal advice if it considers a provision in the bill is inconsistent with the Bill of Rights Act. The Attorney-General is then likely to table a "section 7" report in the House on the Bill's introduction stating that the provision is inconsistent with the Bill of Rights Act.

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

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

Appendix : Incorporating Bill of Rights Considerations into Your Policy Development Process

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

Defining the policy problem within the strategic context		Does your problem definition raise any Bill of Rights issues?		Consider discussing with in-house counsel and/or the Ministry of Justice, including how to rework the problem definition so it does not raise Bill of Rights issues.
Identifying and assessing options to achieve the policy objective		Do any of the options that you have identified have any Bill of Rights implications? If so, how do you propose to address those implications?		Seek the advice of your in-house counsel. Consider seeking input from the Ministry of Justice, including help with identifying Bill of Rights implications; advice on how to avoid or minimise those implications.
Forming recommendations		Do any of your recommendations raise any Bill of Rights issues?		Ensure the Ministry of Justice is consulted and their views considered.
Presenting your advice to the Minister		Does your advice have Bill of Rights implications?		Advise the Minister of these implications and how they are to be resolved / managed. Be sure to include the Ministry of Justice's views.
Presenting your advice to Cabinet		Does your advice have Bill of Rights implications?		Cabinet Office requires all Cabinet policy papers to include a Human Rights Implication statement describing the consistency of your proposals with both the Bill of Rights Act and the Human Rights Act 1993, and advising how any issues are to be resolved.
Implementation of the policy - legislation		Does your legislation have Bill of Rights implications?		Cabinet Office requires the Cabinet legislation paper to include a statement describing the consistency of your proposals with the Bill of Rights Act and the Human Rights Act 1993 and advising how any issues are to be resolved. The Bill of Rights Act requires the Attorney-General to draw to the attention of the House the introduction of any Bill that is inconsistent with the Bill of Rights Act. The Ministry of Justice, which prepares this advice for the Attorney-General, requires a minimum of two weeks to review the draft legislation.
Implementation of the policy - operational issues		Even if your policy or legislation does not raise Bill of Rights issues, the way it is implemented may do so.		Ensure your evaluation strategy for your policy includes consideration of Bill of Rights issues.

Footnotes:

7. Mendelssohn v Attorney-General [1999] 2 NZLR 268.
8. 1985 White Paper "A Bill of Rights for New Zealand", tabled in the House of Representatives by the then Minister of Justice, Hon Geoffrey Palmer (the "White Paper").
9. The White Paper, p 5.
10. The White Paper, p 5.
11. Section 29 of the Bill of Rights Act.
12. See Monica Carss-Frisk (2002) "Public Authorities: The Developing Definition" (2002) European Human Rights Law Review, Vol 3 pp 319-326.
13. Electoral Commission v Cameron & Ors [1997] 2 NZLR 421 (CA).
14. Further guidance may be obtained from the decision by the UK Court of Appeal in Poplar Housing & Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595; [2001] 3 WLR 183 (CA) from paragraphs 58. These guidelines are referred to in Carss-Frisk "Public Authorities: The Developing Definition", p 323-324.
15. Andrew and Petra Butler have observed that "the education sector is a field in which the application of public law values through the New Zealand Bill of Rights Act 1990 is likely to be complex because of the mixed education delivery systems in place, and the diverse range of facilities offered by various educational institutions." See Laws of New Zealand "Human Rights" Part I para 23.
16. S v Midcentral District Health Board Master Gendall 18/03/2003, HC Wellington, CP237/02.
17. In McGuin v Board of Trustees of Palmerston North Boys' High School [1997] 2 NZLR 60 it was held that as student boarding was a private commercial arrangement the Board of Trustees could not be regarded as exercising a public function or power conferred by or pursuant to law.
18. Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 para. 64.
19. Lawn v Waikato Bay of Plenty District Law Society Master Gambrill 30/03/2001, HC Auckland CP No 229-IM00 para 67; Sheehan v Valuers Registration [1998] DCR 159.
20. The phrase "conferred or imposed pursuant to law" is discussed in more detail in the part of the guidelines on section 5 of the Bill of Rights Act headed "Prescribed by law".
21. Drew v Attorney-General [2002] 1 NZLR 58.
22. You also need to be aware that as a result of changes made to the Human Rights Act, the Human Rights Review Tribunal may issue a declaration of inconsistency if it considers that the legislation it has been asked to rule on is discriminatory and therefore inconsistent with the Bill of Rights Act. For more information see Part IV of these guidelines on Remedies.