LAWS101: Legal Systems: Legal

Method and Institutions

STATUTORY INTERPRETATION: Lecture 10
Lecture 10 Recap from Last Lecture

Introduction to the NZBORA 1990/its provisions:
 Statutory recognition of Aotearoa NZ’s commitment to International Covenant
on Civil and Political Rights (ICCPR)
 “An ordinary Act”- not supreme law or entrenched in any way, although it is still
an important and guiding piece of legislation
 Act applies to three branches of government, not private citizens/organisations
(generally)
 An Act in three Parts: General/“machinery” provisions; the substantive rights
and freedoms; and a couple of miscellaneous provisions
 Rights are “civil” and “political” rights; NZBORA does not extend to include
“economic”, “social”, or “cultural” rights
Lecture 10 Roadmap

In-depth analysis of the NZBORA’s interpretation principles:
 Section 4 – “Other enactments not affected”
 Section 6 – “NZBORA consistent interpretation to be
preferred”
 Section 5 – “Justified limitations”

Putting it all together- how would a Court approach the issue
of a potential conflict?
Anatomy of the NZBORA 1990

Part 3 “Miscellaneous Provisions”
 Section 28: Other Rights/Freedoms not affected/abrogated only
because they do not appear in NZBORA
 Section 29: NZBORA applies, where relevant, to legal persons as
well as natural persons
Section 4: Other enactments not affected

Section 4 is in the following terms:
 4 Other enactments not affected
 No court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of Rights),

(a) hold any provision of the enactment to be impliedly repealed or
revoked, or to be in any way invalid or ineffective; or

(b) decline to apply any provision of the enactment—
 by reason only that the provision is inconsistent with any provision of
this Bill of Rights.
Section 4: Other enactments not affected

Under s 4(a):
 The terms “impliedly repealed or revoked” relate to the effect of the NZBORA on legislation that
precedes it
 The terms “invalid or ineffective” relate to the effect of the NZBORA on legislation that comes
after it

The principle in s 4 may be seen as the operation of the generalia specialibus rule

Section 4 in action:
 Quilter v Attorney-General (1998): Case involved same sex marriage, and the question of whether
a marriage licence could be granted to a lesbian couple under the Marriage Act 1955. Court
referred to potential inconsistency with freedom from discrimination under s 19 NZBORA, but
considered that there was no way to interpret the Marriage Act 1955 in a manner consistent with
NZBORA. Therefore, s 4 must apply, and the Marriage Act as it then was must continue to apply in
that manner
Section 6: Rights-consistent Interpretation

Section 6 provides:
 6 Interpretation consistent with Bill of Rights to be preferred
 Wherever an enactment can be given a meaning that is consistent
with the rights and freedoms contained in this Bill of Rights, that
meaning shall be preferred to any other meaning
Section 6: Rights-consistent Interpretation

Section 6 is mandatory- a Court must choose a rights-consistent interpretation of an enactment
if it can do so

Where the wording of a provision is ambiguous or uncertain, a NZBORA-consistent
interpretation should be adopted:
 R v Rangi (1992): Section 202A(4)(a) Crimes Act 1961 silent as to where burden of proving the
defence of “reasonable excuse” lay. Court considered that ambiguous/neutral wording
should be interpreted in a manner consistent with NZBORA, per s 6. Accordingly, burden of
proving the absence of the defence rested with prosecution

It will not always be possible to use s 6, e.g. Quilter v Attorney-General (1998)

The phrase "wherever an enactment can be given a NZBORA-consistent meaning it shall be
preferred" means "wherever a NZBORA-consistent interpretation is a reasonable and viable
interpretation...it shall be preferred"- Ministry of Transport v Noort (1992); Quilter v Attorney-
General (1998)
Section 5: Justified Limitations

Section 5 provides:
 5 Justified limitations
 Subject to section 4, the rights and freedoms contained in this Bill
of Rights may be subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic
society.
Section 5: Justified Limitations

Section 5 is similar to a provision in Canadian Charter of Rights and Freedoms,
but exists in a different context (Court has no power to invalidate legislation)

Section 5 allows a court to “read down” NZBORA rights/freedoms, so that not
every infringement of those rights/freedoms is truly inconsistent with
NZBORA

Question of what is “justifiable in a free and democratic society” is always a
matter of context in the individual case

Thomas J’s judgment in Quilter v Attorney-General- considered that right to be
free from discrimination was infringed beyond what could be said to be
“justified limitations”
Some Further Case Examples- Sections 4, 5, and 6

Brooker v Police (2007)
 Disgruntled citizen protesting outside police officer’s home- charged with
“disorderly conduct”
 Unsuccessfully argued in DC, HC, and CA that the offence provision should
be interpreted consistently with s 14 NZBORA “freedom of expression”.
These courts considered that a consistent interpretation was not possible
 SC disagreed. It considered that a rights-consistent meaning was possible,
if the offence provision was read to mean a “high degree of public
disturbance”, in circumstances where genuine protest was involved
(application of s 5 and s 6)
LAWS101: Legal Systems: Legal
Method and Institutions
STATUTORY INTERPRETATION: Lecture 10