The New Zealand Bill of Rights Act 1990 (NZBORA) and the United Kingdom’s Human Rights Act 1998 (HRA) share common constitutional DNA. Both are “parliamentary bills of rights” that eschew a judicial power to invalidate rights-infringing legislation. However, the two rights instruments historically have diverged in a couple of important ways regarding the form of post-enactment judicial rights review of legislation that they are taken to authorise. First, the HRA, s 4 confers on the courts an express power to issue a formal declaration that a parliamentary enactment that cannot be interpreted consistently with certain rights contained in the Convention is incompatible with that rights instrument. The NZBORA, by comparison, is almost completely silent as to the judicial remedies available in a case involving a breach of its rights guarantees. Second, the UK courts have adopted an approach to interpreting potentially Convention inconsistent legislation using the HRA, s 3, that New Zealand’s Supreme Court described as being akin to “a concealed legislative tool” (Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1 at [158], per Tipping J). That interpretative approach was considered inappropriate for the antipodean constitutional context (Hansen, at [236]-[247], per McGrath J).

For this reason, it sometimes is suggested that the HRA actually authorises “stronger form” judicial review of parliamentary enactments than does the NZBORA. However, recent decisions by the NZ Supreme Court (and responses to those decisions by the political branches of government) have elided these historical differences between the two instruments’ application. First, the Supreme Court affirmed the existence of a judicial power to issue Declarations of Inconsistency (DoIs) under the NZBORA; a declaratory power that Parliament is in the process of endorsing by creating a formal mechanism that requires a response from both the executive and legislative branches. Second, the Supreme Court has revisited its earlier interpretative reticence under the NZBORA, claiming that NZBORA imposes an interpretative obligation on the courts to seek a rights consistent meaning to ambiguous provisions that is more in line with that adopted in the UK. This post outlines these two developments and notes their relevance to the UK’s current discussion of the appropriate role of the courts in conducting post-enactment rights review of legislation.

DoIs and their consequences

Previous posts recount the tale of the New Zealand judiciary’s recognition (or creation) of a power to grant DoIs under the NZBORA (see here and here). Skipping to that story’s conclusion, in 2018 a majority of the NZ Supreme Court ruled in Attorney-General v Taylor [2018] NZSC 104; [2019] 1 NZLR 213 that the higher courts possess jurisdiction to issue a formal DoI in situations where a parliamentary enactment can only be interpreted and applied in a way that unjustifiably limits NZBORA guaranteed rights. Despite the NZBORA’s textual silence, such a power was said to emerge from the NZBORA’s constitutional status as a guarantor of fundamental rights and freedoms, along with the general principle that there can be no effective right absent a remedy when it is breached. And just this month, a unanimous full bench of the Court of Appeal confirmed this remedial power in Chisnall v Attorney General [2021] NZCA 616 through issuing a DoI in relation to legislation that imposes post-release control orders on prisoners considered to pose an ongoing risk to the community.

However, this remedy’s potential efficacy remained somewhat doubtful. As noted by the Supreme Court minority, “a declaration would simply hang in the air and possibly create some sort of moral obligation on the part of the legislature to reconsider. That in turn carries the risk that a formal order of the court may simply be ignored, with the consequential danger of the erosion of respect for the integrity of the law and the institutional standing of the judiciary.” (Taylor, at [134]). Attention thus turned to the political branches of government to see what, if anything, they might do in the face of this newly asserted declaratory power.

The subsequent political response was two-fold. First, the particular legislative provision at issue in Taylor—a blanket prohibition on all sentenced prisoners voting while incarcerated—was amended in order to meet the Court’s rights concerns. Second, a Bill was introduced into the House of Representatives to establish a formal procedure for future consideration of DoIs. Following a report from the House’s Privileges Committee, this Bill was considerably amended to establish a three-step process: the DoI is referred to the most subject-relevant parliamentary select committee for consideration (including public submissions) and a report to the House within four months of it being issued; a statutory requirement for the Government to respond to the DoI within six months of it being issued; and debate in the House on the DoI, the select committee’s report, and the Government’s response. While the Bill establishing this process awaits final passage through the House, the fact that it gained a unanimous endorsement from the all-party Privileges Committee means it will almost certainly be enacted next year with support from across the House.

When that occurs, New Zealand will have a constitutional order in which the higher courts are empowered to directly assess and pronounce on the justifiability of legislative rights limits, with the political branches of government then legislatively required to consider and respond to those views. Admittedly, this is not an exact carbon-copy of the UK declaratory model, in that there is no equivalent of the HRA, s 10 power for ministers to amend rights inconsistent legislative provisions. However, the structure and practice of New Zealand’s Parliament means such a power has not even been considered; a unicameral institution able (and willing) to pass law within a single day does not need to provide for expedited responses to a DoI.

Nevertheless, absent anything like the potential for further scrutiny by the European Court of Human Rights and Council of Europe, there is no guarantee, or even expectation, that New Zealand’s political branches will be as responsive to DoIs as has been the case in the UK. While the New Zealand government and Parliament did move to amend the prisoner voting law following the Supreme Court’s Taylor decision, contra-indicators also exist. For example, the recent legislative response to the Supreme Court’s decision in D v Police [2021] NZSC 2—expressly overturning the judiciary’s narrow interpretation of a retrospectively applying registration requirement for child sex offenders—demonstrates that New Zealand’s Parliament remains prepared to legislate over the top of judicial views on rights. As such, while New Zealand has followed the UK in making DoI’s a part of its constitution, the precise role that these will play in judicial rights review of legislation remains to be seen.

Rights consistent interpretation under the NZBORA

Mirroring the HRA, s 3, the NZBORA also contains an interpretative command provision in section 6. It requires New Zealand judges to adopt a rights consistent interpretation of statutes that may otherwise appear to limit rights in a way that the courts believe cannot be justified, providing that such a meaning “can” be given. The reach of the NZBORA’s interpretative command—when such a reading actually “can” be adopted—was most thoroughly discussed in Hansen v R [2007] NZSC 7; [2007] 3 NZLR 1.

In Hansen, the NZ Supreme Court emphasised that section 6 only authorised the adoption of a “reasonably available” interpretation of statutory language that is “tenable” or “genuinely open” given the statutory text chosen by Parliament. In reaching this conclusion, the Court considered the UK courts’ interpretative approach under what it considered to be the functionally identical HRA, s 3. The UK judiciary’s use of this provision to rework parliamentary language in cases such as R v Lambert [2002] 2 AC 545, R v A (No 2) [2002] 1 AC 45, and Ghaidan v Godin-Mendoza [2004] 2 AC 557 was described by Tipping J in Hansen as a kind of “concealed legislative tool”; one that albeit appropriate in the UK context, is not fit for NZ purposes. Given the existence of NZBORA, s 4, which continues to assert parliamentary supremacy over the law’s content, the Court unanimously considered that section 6 does not grant courts the power to deviate from the words chosen to convey Parliament’s intended (even if rights inconsistent) meaning. Therefore, Hansen established that rights consistent statutory interpretation under the NZBORA, s 6 was to be more constrained than the UK approach using the HRA, s 3.

However, this position recently was revisited in Fitzgerald v R [2021] NZSC 131, with a majority of the Supreme Court adopting a quite different narrative regarding section 6; one that is significantly more in line with the UK approach to rights consistent interpretation. Fitzgerald involved an appeal against the application of New Zealand’s “three strikes law”, which apparently mandated that repeat serious violent or sexual offenders receive mandatory maximum prison sentences for their “third strike” offence. Mr Fitzgerald’s third strike involved a low-level indecent assault (kissing a woman on the cheek) that would normally (having reference to his personal circumstances and offending history) receive a prison sentence of a few months at most. However, the three strikes sentencing provision required that, “[d]espite any other enactment”, the High Court “must sentence [Mr Fitzgerald] to the maximum term of imprisonment prescribed” for the offence, being a term of seven years. In light of both the relatively minor offending involved and Mr Fitzgerald’s extensive mental health challenges, this sentence was deemed to be “so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990.” (Fitzgerald, at [3]). Notably, the Crown did not dispute this conclusion, instead arguing that the seven-year term still must be imposed as the relevant provision clearly conveyed Parliament’s intention that the maximum sentence apply in each and every third strike case. The question for the Supreme Court was whether the section 6 interpretative command could alter this legal outcome.

By a majority of 4-1, the Court concluded that it could. In particular, Winkelmann CJ’s approach to section 6’s application explicitly referenced the UK’s application of the HRA, s 3. (Fitzgerald, at [67]-[71]). Rather than treating section 6 as a mere statutory embodiment of the pre-existing common law principle of legality (Fitzgerald, at [56]-[57]), her honour read section 6 as requiring courts to take a proactive approach to interpretation in order to find a rights consistent meaning. Of note, her honour disapproved of the Hansen court’s requirement that only “reasonable” meanings are available under section 6, as:

“I have concerns that reading in the word ‘reasonably’ imposes a limitation which does not appear in the text and is also unnecessary, as the Act itself provides all necessary limits on the s 6 process. The word ‘reasonable’ also tends to have perambulatory meaning – one person’s strained but available meaning is another’s unreasonable meaning.” (Fitzgerald, at [59]).

Winkelmann CJ also viewed the restatement of parliamentary sovereignty in the NZBORA, s 4, as far less constraining than was the case in Hansen: “Section 4 sets the outer limits of what is possible – the meaning arrived at cannot amount to a refusal to apply the enactment, and nor can it amount to treating the enactment as invalid, ineffective, impliedly repealed or revoked.” (Fitzgerald, at [60]). Within those broad confines, however, the job of the courts is to do what is necessary to make the statute work consistently with the rights guarantees that Parliament itself has recognised through its enactment of the NZBORA.  (Fitzgerald, at [48[).

While not going quite as far in their comments as Winkelmann CJ, the three other members of the Fitzgerald majority also made it clear that the underlying purpose of the legislation in question, rather than the particular text used, is fundamental to its interpretative task. (Fitzgerald, at [185], [218] per O’Regan and Arnold JJ; [250] per Glazebrook J). The majority did not then accept that a New Zealand Parliament could ever have intended to “impose sentences that are so grossly disproportionate that they shock the national conscience and breach s 9 of the Bill of Rights”. (Fitzgerald, at [123], [128]-[130] per Winkelmann CJ; [203] per O’Regan and Arnold JJ; [247] per Glazebrook J). Had Parliament really wanted to create so severe a consequence, it would need to use much more explicit statutory language to achieve its end. The Fitzgerald majority therefore held that the relevant third strike sentencing provision could be read in conjunction with section 9 of NZBORA as an available meaning under section 6, effectively changing it to say:

“Despite any other enactment (but not including the New Zealand Bill of Rights Act 1990) …  the High Court must sentence [Mr Fitzgerald] to the maximum term of imprisonment prescribed … but must not do so if this would result in disproportionately severe punishment under s 9 of the New Zealand Bill of Rights Act.” (Fitzgerald, at [323] per William Young J (emphasis in the original)).

The majority present their interpretative approach as a relatively orthodox “reading down” of statutory text to give proper effect to an underlying parliamentary intent. (Fitzgerald, at [112] per Winkelmann CJ; [182] per O’Regan and Arnold JJ; [250] per Glazebrook J). With respect, that claim seems somewhat stretched. And it is one that did not convince members of Parliament who originally enacted the law in 2010. In a parliamentary debate, the (now) opposition’s Justice spokesperson pointed to the decision as part of “a growing trend from our judiciary in New Zealand seeking to push back against Parliament and assert interpretations that aren’t conventional on parliamentary statutes and powers for themselves that they have never had.” And the shadow Attorney-General similarly lamented that “a number of judges in senior courts have indulged in activism against the relevant provisions within the Sentencing Act – provisions passed by a democratically elected Parliament in May 2010.” (For discussion of these claims, see Andrew Geddis, “Parliament, the courts, and the end of three strikes (for now)”, pundit.co.nz (23 November, 2021).)

NZ and UK confluence

These twin developments are worth noting for at least a couple of reasons. First, they present a case study in iterative constitutional borrowing between jurisdictions. The NZBORA consciously was modelled on the Canadian Bill of Rights Act 1960, following the rejection of an initial proposal to adopt a stronger form rights instrument along the lines of the Canadian Charter of Rights and Freedoms. When looking to “bring rights home” some eight years later, the United Kingdom Parliament consciously modelled the HRA on the NZBORA plus an additional express declaratory power; while the UK courts subsequently adopted a more “adventurous” approach to statutory interpretation under its auspices. Following some twenty years of exposure to the HRA in action, the NZ courts first have incorporated a declaratory power into the NZBORA’s remedial arsenal and now appear prepared to revisit their earlier rejection of the UK’s interpretative approach to ensuring legislative rights consistency. In this way, judicial practice under the two rights instruments looks to be converging on a common understanding of the appropriate approach to post-enactment rights review of legislation.

However, NZ’s judicial developments come at a time when the UK’s political branches actively are reconsidering the HRA and the rights review role it confers upon the courts through the Independent Human Rights Act Review process. In the course of that discussion, the NZBORA has been cited both by those who believe judicial powers should be curbed and those who oppose such a step. What both sides share, however, is a general assumption that the NZBORA imposes a “somewhat weaker interpretative obligation” on the NZ judiciary, and thus provides an alternative constitutional model to the UK’s. (See The Rt Hon Lord Reed, “Response to a Call for Evidence produced by the Independent Human Rights Act Review”, at [20]). That may not actually be the case any longer. Rather, the NZ judiciary may have levelled up their role at a time when the UK’s political branches are considering whether to try and reduce that of the UK’s courts.

Andrew Geddis, Professor, Faculty of Law, University of Otago

Sarah Jocelyn, LLM Candidate, Faculty of Law, University of Otago

(Suggested citation: A. Geddis and S. Jocelyn, ‘Is the NZ Supreme Court Aligning the NZBORA with the HRA?’, U.K. Const. L. Blog (1 December 2021) (available at https://ukconstitutionallaw.org/))