This is a single section from Chapter 5. Read the full chapter here.

If the limitation cannot be justified, but remains the only possible way to achieve the policy objective, is the limitation only as wide as is necessary to achieve the policy objective?

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

 

There will be cases where the Government wishes to proceed with legislation that results in an unjustified limitation on an NZBORA right. Section 6 of NZBORA requires that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in NZBORA, that meaning shall be preferred to any other meaning.

This means that in cases where the Government wishes to proceed with legislation that is inconsistent with NZBORA, clear and unambiguous language must be used to confirm this intention.

The courts are prevented from striking down, or refusing to apply, legislation that is inconsistent with NZBORA. However, this is not a free pass to develop legislation that is inconsistent with NZBORA. Such legislation can have serious consequences. 

 

  • The Attorney-General is required to notify Parliament when a bill is introduced if a limitation on an NZBORA right is not reasonably justified and that the Bill is inconsistent with NZBORA. 
  • Standing Order 265(5) requires the Attorney-General’s report to be referred to a select committee. The inconsistency may then be the subject of adverse comment during the select committee process, which might attract negative publicity. 
  • The courts may not strike down primary legislation, but may criticise the inconsistency in their judgments. 
  • Legislation that is inconsistent with NZBORA will place New Zealand at risk of breaching its international human rights obligations (under the ICCPR and otherwise) and expose it to any applicable sanctions. 

 

All possible steps must be taken to ensure that the unjustified limitation is the least limitation required to achieve the policy objective. Additional procedures or safeguards that might further mitigate the limitation should also be considered.

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