█ The Act (government legislation): http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html
MINISTRY OF JUSTICE
About the New Zealand Bill of Rights Act 1990 (Guidelines) Link
The New Zealand Bill of Rights Act 1990 [NZBORA] was enacted to affirm, protect and promote human rights and fundamental freedoms in New Zealand. The Act also affirms New Zealand’s commitment to the International Convention on Civil and Political Rights (ICCPR) on which the rights and freedoms it contains are based.
When it was enacted, the Bill of Rights Act did not create any new rights but merely confirmed existing common law rights. The Act does not reflect all ICCPR rights; however, section 28 provides that, just because a right or freedom is not expressly provided for in the Act, that does not mean that the right or freedom does not exist or is otherwise restricted. The right or freedom is given effect by other legislation and by common law. For instance, while the ICCPR contains a right to privacy, the Bill of Rights does not. Nonetheless, the Privacy Act 1993, together with the common law tort of privacy, provides for rights of personal privacy.
The rights and freedoms
The Bill of Rights Act affirms the following rights and freedoms:
● the right not to be deprived of life (section 8)
● the right not to be subjected to torture or cruel treatment (section 9)
● the right not to be subjected to medical or scientific experimentation (section 10)
● the right to refuse to undergo medical treatment (section 11)
● electoral rights (section 12)
● the freedom of thought, conscience, and religion (section 13)
● the freedom of expression (section 14)
● the right to manifest religion and belief (section 15)
● the freedom of peaceful assembly (section 16)
● the freedom of association (section 17)
● the freedom of movement (section 18)
● the right to freedom from discrimination (section 19)
● rights of minorities (section 20)
● the right to be secure against unreasonable search and seizure (section 21)
● the right not to be arbitrarily arrested or detained (section 22)
● rights of persons arrested or detained (section 23)
● rights of persons charged with an offence (section 24)
● rights to minimum standards of criminal procedure (section 25)
● the right not to be liable to retroactive penalties or double jeopardy (section 26), and
● the right to natural justice (section 27).
The Bill of Rights Act is designed to protect individuals (natural persons) and legal persons (such as corporations) from the actions of the State (section 29). The Act applies to any acts done by the legislative, executive or judicial branches of the government, or by any person or body performing a public function, power or duty conferred or imposed by or pursuant to law (section 3).
The rights and freedoms contained in the Bill of Rights Act are not absolute but may only be subject to reasonable limits that are prescribed by law and can be “demonstrably justified in a free and democratic society”. If a limitation does not satisfy this test then the legislative provision, policy or practice is inconsistent with the relevant section of the Bill of Rights Act.
The Bill of Rights Act does not have the status of supreme law. This means that the Courts cannot use the Act to repeal, revoke, or invalidate other legislation. In the event of an inconsistency between the Bill of Rights Act and another enactment, the other enactment must prevail (section 4). The Bill of Rights Act, however, includes two important safeguards to help protect human rights.
Introduction to sections 12 – 18: Democratic and Civil Rights Link
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 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
█ Section 14 – Freedom of expression Link
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.
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.
█ In Brief: Your rights under the New Zealand Bill of Rights Act (PDF)
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Posted by Elizabeth Kerr