Limiting reasonable rights

Lord Steyn has, at least twice, stated that the New Zealand Bill of Rights Act 1990 ("NZBORA"), requires that legislation has to have a "reasonable" interpretation consistent with NZBORA before that meaning is to be preferred. He did this in R v A (No 2) [2002] 1 AC 45, para 44, comparing s 3 of the Human Rights Act 1998[UK] with s 6 NZBORA:

"The draftsman of the [UK] Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation."

And he did it again in Ghaidan v Godin-Mendoza [2004] UKHL 30 (21 June 2004), also, spookily, at para 44:

"…the draftsman of the [UK] Act had before him the model of the New Zealand Bill of Rights Act which imposes a requirement that the interpretation to be adopted must be reasonable. Parliament specifically rejected the legislative model of requiring a reasonable interpretation."

We note a slight difference in these quotations: the latter no longer describes s 6 of NZBORA as being "slightly weaker", and it no longer claims that the reasonable requirement is imposed by s 6. This is not, therefore, simply a cut-and-paste exercise. Nor, with respect, is it an accurate statement of the law in New Zealand.

Doubtless, the idea that there is a requirement that a meaning be reasonably open, before it can be preferred pursuant to s 6 NZBORA, comes from a cursory reading of s 5. These provisions are as follows:

5.Justified limitations—
Subject to section 4 of this Bill of Rights, 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.

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 4 , to which s 5 is subject, prevents courts from holding enactments ineffective, or declining to apply them, because of their conflict with NZBORA.

Section 5 and s 6 reflect two different concerns. Section 5 addresses the characteristics of rights in any particular case, and s 6 addresses the meaning of legislation. The reasonable limits referred to in s 5 are the limits that might be imposed on the rights, and they are not, pace Lord Steyn, limits on the meaning that shall be given to enactments. Although various approaches to these sections may be viable (as was suggested in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, (1999) 17 CRNZ 159 (CA) at para 17), and academics make much of the potential obscurities, we might sensibly treat the sections in the order in which they appear in the NZBORA.

Doing that, we first consider the nature of the right and what limitations to it are raised, in the circumstances of a given case, as candidates for being called reasonable. Having identified what the scope of the right is, we then turn to s 6 and ask whether the enactment in question can be given a meaning consistent with that right. Not whether it can reasonably be given that meaning. In deciding this, we are guided, not by the so-called "intention" of the legislature, but rather by what is possible in terms of compatibility with the underlying thrust or grain of the legislation (terms used by Lord Nichols in Ghaidan, above, at para 33).

What Lord Steyn has mistakenly called a weakness in the strength of NZBORA, namely the reasonable limitation, is actually, in s 5, a reflection of limitations that are commonly imposed on rights in international law. Examples occur in the applicable law in the UK, the European Convention on Human Rights ("ECHR"). See, for example, Articles 8, 9, 10, 11. Section 5 NZBORA encompasses situations such as those, but it is also capable of including another form of limitation on rights, the power of a state to act so as to derogate from rights in times of national emergency (ECRH, Art 15). While the derogation power in Art 15 does not include all the rights expressed in the Convention, s 5 of BORA does, on its face, appear to permit wider derogation. In this sense, one might correctly say that NZBORA appears to be weaker. But whether NZBORA is saved from that weakness by the common law remains to be determined.