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University of Otago Law Theses and Dissertations |
Last Updated: 13 May 2025
Interpreting New Zealand Bill of Rights Act 1990 Section 5: A Substantive Limit or a Mandatory Consideration?
Sam Hewson
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Ōtākou Whakaihu Waka
11 October 2024
Acknowledgements
To my supervisor, Professor Andrew Geddis, thank you for your helpful comments and edits throughout the year.
To my second marker, Associate Professor Ed Willis, thank you for your comments at my seminar and helping to steer me away (to a degree) from the rabbit hole of Canadian administrative law.
To my friends, Declan, Ronan and Elena for listening to my ramblings throughout the year (or at least pretending to) and bouncing ideas off each other.
To my old teachers at Otago Boys’ High School; Mr Hooper, Mr Campbell, Mr King, Mr Pratley and Mr Swan. For always supporting and pushing me to do my best and more importantly, helping me to realise calculus and engineering wasn’t for me.
Most importantly, to Mum and Dad for always being there for me.
Introduction
This dissertation addresses the role s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA) plays in administrative decision-making. What this section requires of decision-makers remains unclear thirty-four years after NZBORA was enacted. There is debate among commentators whether s 5 requires consideration of NZBORA affirmed rights and freedoms (NZBORA rights) by the decision-maker or for the substantive decision to be consistent with NZBORA rights — or some combination of both.
The Supreme Court in Moncrief-Spittle v Regional Facilities Auckland Ltd recently settled part of the debate by holding “reasonable limits” must be a legal question, interpreting NZBORA rights as a substantive limit on decision-making.1 The Court preferred for a decision-maker to consider NZBORA rights but left discussion of the role of the Court when this does not happen for another day.2 This issue came to a head in 2023 in New Health New Zealand Inc v Director-General of Health.3 This case held that alongside s 5 constraining the substantive outcome a decision-maker can reach, s 5 requires a decision-maker to consider NZBORA rights in their decision-making. In that case, the Director-General failed to consider NZBORA rights and the decision was therefore unlawful.
This paper makes the argument that a decision-maker should not be required to consider NZBORA rights as part of their decision-making process and calls on the Court of Appeal to overturn New Health v Director-General of Health when the appeal is heard next year. Inflating s 5 to require procedural consideration of NZBORA rights is an act of judicial activism which does not align with Parliament’s intentions for NZBORA as a statutory rights instrument. An approach which only considers the substantive outcome of the decision allows the Court to give successful applicants a meaningful remedy that protects against unjustified breaches of NZBORA.
1 Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [80]–
[84].
3 New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183, [2024] 2 NZLR 1.
Chapter I examines the commentary on s 5 and explores how support for a process element of NZBORA has grown overtime. It also explores initial judicial hesitancy towards using s 5 in administrative law and how this reluctance left the role of s 5 in administrative decision-making unclear.
Chapter II explores Anglo-Commonwealth responses to judicial review under various forms of rights instruments. This chapter assesses the similarities and differences between British, Canadian and Victorian rights instruments and NZBORA — with emphasis on the text of the instruments and the effect of entrenchment.
Chapter III considers recent NZBORA cases following the Supreme Court’s decision in Moncrief-Spittle. This chapter assesses the line of High Court cases emerging from this decision culminating in New Health v Director-General of Health.
Lastly, chapter IV challenges the desirability of s 5 requiring a process element and concludes NZBORA rights are best protected by the Court applying a proportionality test to constrain the substantive result a decision-maker can make. This is supported by the place NZBORA occupies in wider administrative law and by reframing previous cases such as Moonen v Film and Literature Board (No 1) as cases which involve a duty to give reasons.4 When a duty to give reasons exists, sui generis of NZBORA and the decision touches on an NZBORA right, the decision-maker may need to detail NZBORA consideration in their reasoning. What this means is that some decision- makers who are making impactful decisions on individuals will need to give reasons — which may include consideration of NZBORA rights. But this would not impact high level policy decisions such as the decision to order fluoridation of drinking water in New Health v Director-General of Health.
4 Moonen v Film and Literature Board of Review (No 1) [1999] NZCA 329; [2000] 2 NZLR 9 (CA).
I Early Commentary and Judicial Approaches to Section 5
This chapter explores the development of NZBORA as a statutory rights instrument and the growing, but at times uncertain, role NZBORA rights play in administrative law through s 5. NZBORA is a compromise instrument and the role Parliament expected it to play in judicial reasoning was initially unclear.
Uncertainty regarding the role of s 5 led to two main schools of thought emerging among commentators. The orthodox approach championed by Michael Taggart, Paul Rishworth and at times Janet McLean considers s 5 a “constitutional trump” where the Court must analyse the substantive outcome using a proportionality analysis.5 Claudia Geiringer and Hana Wilberg argue alternatively for a more contextual approach that additionally places some form of process requirement on the decision-maker.6 This chapter will set the scene prior to the Supreme Court’s decision in Moncrief-Spittle by analysing the key cases that commentators have cited in their arguments.
A Legislative History
In 1979 Sir Geoffrey Palmer, triggered by the “quickened” interest in New Zealand’s governance since the 1975 election of Sir Robert Muldoon, set out to propose ways to reform New Zealand’s constitution.7 Palmer believed in the need for a bill of rights to form part of the basic law, writing “a bill of rights would involve the most radical alterations to our existing constitution.” 8
5 Janet McLean, Paul Rishworth and Michael Taggart “The Impact of the New Zealand Bill of Rights on
Administrative Law” in Legal Research Foundation The New Zealand Bill of Rights Act 1990 (Legal Research Foundation, Auckland, 1992) 62 at 68.
6 Hanna Wilberg “The Bill of Rights in Administrative Law Cases: Taking Stock and Suggesting Some Reassessment” (2013) 25 NZULR 866; Claudia Geiringer “Sources of Resistance to Proportionality Review of Administrative Power under the New Zealand Bill Of Rights Act” (2013) 11 NZJPIL 123; and Claudia Geiringer “Process and Outcome in Judicial Review of Public Authority Compatibility with Human Rights: A Comparative Perspective” in Hanna Wilberg and Mark Elliot (eds) The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford, 2015) 329.
7 Geoffrey Palmer Unbridled Power? An interpretation of New Zealand’s constitution and government
(Oxford University Press, Wellington, 1979) preface.
Palmer also believed to achieve change it was better to be the Minister than the Minister’s advisor.9 So upon becoming Minister of Justice and Attorney-General in the Fourth Labour Government, Palmer presented a white paper to the House of Representatives calling for an entrenched and supreme bill of rights.10 The White Paper drew heavily on the entrenched and supreme Canadian Charter of Rights and Freedoms (Canadian Charter).11 The main thrust of the White Paper was that the Bill of Rights would have supreme status and all other laws and law making bodies would subject to section 1:12
As is well known, NZBORA was enacted as a compromise instrument after Palmer’s initial proposal was rejected in the court of public opinion.13 NZBORA is unentrenched and recognises parliamentary sovereignty through s 4. As will be seen in the remainder of this chapter and chapter III, it has taken time for courts and practitioners to see the potential of NZBORA in administrative law.
B Orthodox Commentators’ View Emerges
The orthodox view of NZBORA’s operative provisions and administrative law emerged in the writings of Janet McLean, Paul Rishworth and Michael Taggart.14 Their seminal
9 Geoffrey Palmer Reform: A Memoir (Victoria University Press, Wellington, 2013) at 227.
10 Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6.
11 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK), cited at 6. See also Paul Rishworth “A Canadian Bill of Rights for New Zealand: The Justice and Law Reform Committee’s Final Report” [1989] NZ Recent Law Review 83 at 85.
13 Michael Taggart “Tugging on Superman’s Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990” [1998] PL 266 at 266.
14 McLean, Rishworth and Taggart, above n 5. See discussion in Wilberg, above n 6, at 866.
1992 article built on foundations laid by Paul Rishworth in earlier articles.15 The authors continued to refine their thesis regarding s 5 in later contributions.16Michael Taggart later summarised the 1992 claim:17
In outline the argument is that a public authority must comply with the [NZBORA] unless required to do so otherwise by statute or where it would frustrate the purpose behind the statutory provision conferring the discretion. Within those broad limits, however, the authority must exercise its discretion in accordance with the dictates of the [NZBORA].
As McLean, Rishworth and Taggart explained in their original article:18
... the right is a constitutional trump which cannot be interfered with by the decision-maker. In contradiction with ordinary administrative law theory, this is not merely something a decision-maker must have regard to, it is a valid constitutional impediment to exercising the power in a certain way.
This view of NZBORA as a “constitutional trump” means that substantive outcomes of statutory discretions are constrained. McLean, Rishworth and Taggart were writing in a period where Wednesbury unreasonableness was the dominant form for substantive review of decision-making.19 That is an unreasonable decision must be so unreasonable that no reasonable decision-maker could have made that decision. The orthodox commentators’ approach calls for a proportionality assessment — the demonstrably justified test. This approach uses NZBORA to enhance attacks on substantive exercise of discretion beyond what Wednesbury allows for.20 The authors considered five case
15 Rishworth, above n 11; and Paul Rishworth “The New Zealand Bill of Rights Act 1990: The First
Fifteen Months” in Paul Rishworth and David Paciocco Essays on the New Zealand Bill of Rights Act 1990 (Legal Research Foundation, 1992).
16 Most recently Janet McLean “The Impact of the Bill of Rights on Administrative Law Revisited: Rights, Utility, and Administration” [2008] NZ L Rev 377. See also Taggart, above n 13; and Michael Taggart “Proportionality, Deference, Wednesbury” [2008] NZ L Rev 423.
17 Taggart, above n 13, at 277.
18 McLean, Rishworth and Taggart, above n 5, at 68.
19 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 (HL); and see McLean, above n 16, at 380.
20 David Mullan “A Comparison of the Impact of the New Zealand Bill of Rights Act and the Canadian Charter of Rights and Freedoms on Judicial Review of Administrative Action” (2003) 1 NZJPIL 115
at 151.
studies to compare how their NZBORA methodology would invalidate exercises of discretionary power that would otherwise survive administrative law scrutiny.21
C Early Judicial Consideration and Commentators’ Response
NZBORA’s first decade saw several significant decisions relating to civil and criminal procedure.22 The Court of Appeal under the guidance of Cooke P showed an incredible willingness to elevate the statutory rights instrument to be a core part of New Zealand’s legal landscape.23 James Allan and Taggart likened this to the Court piece by piece turning Clark Kent into Superman.24 Yet against this backdrop, NZBORA was rarely invoked to challenge administrative decisions.25 McLean, Taggart and Rishworth’s predicted wave of cases over the criminal bar into the realm of administrative law never came.26
One of the few such cases was Federated Farmers of New Zealand (Inc) v New Zealand Post Ltd.27 Federated Farmers challenged the decision of state-owned enterprise New Zealand Post to increase the rural delivery service fee (RDSF) from $40 to $80 against the backdrop of New Zealand Post suffering substantial annual losses.28 This fee was required for rural households to receive mail. Justice McGechan agreed with Federated Farmers’ submission that s 14 extends to the right to receive and send mail and increasing the RDSF was a limitation on this right.29 However, the question then arose if this was demonstrably justified under s 5.30 Justice McGechan found that it was, drawing comparisons to other user pay systems that preclude access to rights such as
21 Taggart, above n 13, at 278.
22 For example Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 275; and Simpson v Attorney-General [1994] NZCA 287; [1994] 3 NZLR 667 [Baigent’s case]. See discussion in James Allan “Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990” [2000] OLR 613 at 619–620.
23 Allan, above n 22, at 617.
24 Allan, above n 22, at 613–614; and Taggart, above n 13, at 267.
25 Paul Rishworth “Lord Cooke and the Bill of Rights” in Paul Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon (Butterworths, Wellington, 1997) 295 at 329–330.
26 McLean, Rishworth and Taggart, above n 5, at 62; and Marcelo Rodriguez Ferrere “The New Zealand Bill of Rights Act 1990 and Administrative Law: A History of Confusion and Inertia” [2021] NZ L Rev 71 at 78.
27 Federated Farmers of New Zealand (Inc) v New Zealand Post Ltd [1990–92] [1992] NZHC 3003; 3 NZBORR 339.
court filing fees.31 With surprising ease Justice McGechan applied s 5 to the substantive result noting that the Court needs to “make difficult assessments, involving value judgments and social balances.”32 Although holding New Zealand Post was demonstrably justified in raising the RDSF, this was an acknowledgment that NZBORA had the potential to constrain administrative decision-making in the way envisioned by Mclean, Rishworth and Taggart.33The Court looked to the substantive outcome of the decision and engaged in proportionality analysis of the impact the decision had on NZBORA rights. Justice McGechan’s willingness to engage in substantive proportionality review must be seen in the pre-Wolf v Minister of Immigration context where Wednesbury unreasonableness did not allow for variable intensity of review.34 While McGechan J lacks the structure of an Oakes/Hansen test which later Courts have for guidance, his Honour acknowledges s 5 requires the Court to undertake a balancing exercise.35
The Court revisited NZBORA s 5 in Moonen v Film and Literature Board (No 1).36 Moonen concerned the Office of Film and Literature Classification's classification of a book containing stories of sexual activity between men and boys along with photos of naked boys as “objectionable”.37 The governing legislation requires that a publication must be deemed objectionable if it “promotes or supports... the exploitation of children, or young persons, or both, for sexual purposes.”38
In the pre-Hansen era, Justice Tipping grappled with the ss 4, 5, and 6 puzzle. His Honour concludes that the “combined effect of ss 5 and 6” requires the Board give “promotes or supports” a meaning that least infringes on Mr Moonen’s freedom of expression.39 Since the Board was not clear in their reasons on how they approached
33 At 58. See also Rodriguez Ferrere, above n 26, at 77.
34 Wolf v Minister of Immigration [2004] NZAR 414 (HC); and Associated Provincial Picture Houses Ltd v Wednesbury Corporation, above n 19.
35 R v Oakes [1986] 1 SCR 103; and Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
36 Moonen v Film and Literature Board of Review (No 1), above n 4.
38 Films, Videos, and Publications Classification Act 1993, s 3(2)(a).
the meaning of “promotes or supports”, and the Board was required to give reasons,40 the decision was sent for reconsideration.41
Justice Tipping concluded the Board had “erroneously regarded [NZBORA] considerations as having no part to play” in interpreting the s 3(2)(a) “promotes or supports” test. 42 The Board was wrong in their NZBORA reasoning to conclude s 4 prevailed over ss 13 and 14.43 The Board’s decision was ultra vires because the Board did not give reasons — which they were required to give — as to why they adopted their meaning of “promotes or supports” with reference to NZBORA.44
Moonen and Federated Farmers illustrate that after NZBORA’s first decade, the role of s 5 in administrative law was still unclear. Other cases such as Drew v Attorney- General eschew NZBORA analysis where there are overlapping common law grounds of review.45
These early cases led McLean to revisit her original theory in 2008.46 McLean notes that a s 5 analysis depends more on the content of the NZBORA right itself than she, Rishworth and Taggart had originally predicted.47 Some NZBORA rights do not lend themselves to a proportionality inquiry — such as the s 9 right not to be subjected to torture.48 The difficulty with the early cases was that many involved NZBORA rights that lent themselves to more traditional administrative law methodologies.49 McLean concludes by distancing herself from her 1992 views, writing:50
I tentatively suggest that given the proliferation of rights and their sources, the range of administrative law methodologies may be better placed to respond than a rigid "s 5 analysis."
40 Films, Videos, and Publications Classification Act, s 55(1)(c). See discussion at [26].
44 At [28]. See Moonen v Film and Literature Board of Review (No 2) [2002] NZCA 69; [2002] 2 NZLR 754 (CA) at [8].
45 Drew v Attorney-General [2001] NZCA 207; [2002] 1 NZLR 58 (HC) at [66]–[67].
46 McLean, above n 16.
48 At 385–386. See Hansen v R, above n 35, at [65].
The lack of a uniform approach to the different NZBORA rights and freedoms and the risk of excessive deference to decision-makers led McLean to “recant” her earlier views on the desirability of proportionality analysis under s 5 in favour of more traditional grounds of review.51Meanwhile, Taggart remained steadfast in his support for a proportionality ground of review in human rights cases.52 Writing in the same issue of the New Zealand Law Review as McLean, Taggart in his “last word on the subject”,53 stood by the thrust of the 1992 paper arguing proportionality review is “anchored” in rights.54 Taggart observed:55
As far as the rights in the New Zealand Bill of Rights are concerned, proportionality has been adopted by the New Zealand courts
At the time Taggart was writing, doubt could be cast upon his claim that proportionality had been adopted by the New Zealand courts, with Geiringer noting in 2013 that there was a “striking absence of judicial practice to support it”.56
D Wilberg and Geiringer’s Reconsideration
With no overwhelming support for McLean, Taggart and Rishworth’s approach to s 5 in the courts, Hana Wilberg and Claudia Geiringer reconsidered s 5 in the context of administrative decision-making.57 Examining McLean’s newfound scepticism of proportionality review under s 5, Geiringer suggested that a proportionality analysis may not need to follow a strict Oakes/Hansen test and should incorporate process elements as part of a more contextual review.58 Wilberg agreed, theorising that s 5 can
51 Geiringer “Sources of Resistance”, above n 6, at 130.
52 Taggart, above n 16, at 448–449.
56 Geiringer “Sources of Resistance”, above n 6, at 131.
57 Wilberg, above n 6; Geiringer “Sources of Resistance”, above n 6; and Geiringer “Process and Outcome”, above n 6.
58 Geiringer “Sources of Resistance”, above n 6, at 157; and Geiringer “Process and Outcome”, above n 6, at 359–360.
be both a mandatory test and a substantive constraint.59 As will be discussed in chapter III, this argument has found some favour with the courts.
Geiringer in her 2013 paper focused on how Taggart’s argument for proportionality review is not reflected in the case law and suggests why the New Zealand administrative law landscape does not tend towards proportionality review.60 Geiringer credits a judicial hesitance to engage in proportionality analysis to New Zealand appellate courts’ preference for contextualism over formalism.61 Lord Cooke’s “simplicity project” has created a judiciary sceptical of formalism in administrative law.62
Yet the “dominant” form associated with proportionality in New Zealand is the formalistic Oakes/Hansen test.63 Geiringer acknowledges this is “ironic” as this form creates the most tension with New Zealand’s administrative law culture, suggesting some form of the more contextual Canadian Doré v Barreau du Québec approach might instead find more traction with New Zealand courts.64 While the Canadian jurisprudence will be considered in more depth in chapter II, the Supreme Court in Doré rejected the role of the Oakes test in administrative law in favour of a less formalistic proportionality test to be undertaken by the decision-maker themselves, rather than solely by a reviewing court.65 While recognising the uniqueness of Canadian administrative law, Geiringer sees no reason why a mixed ‘process and outcome’ approach cannot be developed in New Zealand.66
In surveying the New Zealand authorities, Wilberg agrees with Geiringer and McLean that the orthodox commentators’ approach has found little favour with the Courts.67 However, Wilberg reframes the New Zealand cases as the Court recognising s 5 creates
59 Wilberg, above n 6, at 896.
60 Geiringer “Sources of Resistance”, above n 6, at 123.
62 Geiringer “Process and Outcome”, above n 6, at 358.
63 Geiringer “Sources of Resistance, above n 6, at 158.
64 Doré v Barreau du Québec 2012 SCC 12, [2012] 1 SCR 395 as cited in Geiringer “Sources of Resistance, above n 6, at 158. See also Geiringer “Process and Outcome”, above n 6, at 359.
65 Doré, above n 64. The Oakes test was initially adopted in Canadian administrative law by Slaight Communications Inc v Davidson [1989] 1 SCR 1038.
66 Geiringer “Process and Outcome”, above n 6, at 360.
67 Wilberg, above n 6, at 868.
a process element for decision-makers.68 Wilberg stresses that this process element differs from the administrative law view of mandatory considerations. Instead of the decision-maker merely taking the s 5 balancing exercise into account, they need to be “satisfied” the limit is justified under s 5.69 This approach acts as a “mandatory test”.70 The difference between the orthodox commentators’ approach and the mandatory test approach according to Wilberg is the role of the court.71 On the orthodox commentators’ approach the Court is to undertake proportionality analysis of the decision with reference to s 5. Whereas on the mandatory test approach the balancing exercise is for the decision-maker and the Court will undertake variable intensity review of that balance.72
E Support for Reconsideration in the High Court?
Television New Zealand v West concerns s 14 in relation to two decisions of the Broadcasting Standards Authority finding that both TVNZ and TVWorks had breached broadcasting standards under the Broadcasting Act 1989.73 Among other grounds of appeal, the appellants argued the Authority had failed to properly take into account NZBORA considerations.74 Justice Asher holds:75
[T]he application of the provisions of the NZBORA is a mandatory relevant consideration, and must be taken into account by the Authority if it is considering upholding a complaint.
The decision-maker needs to balance the right to freedom of expression against upholding the complaint in light of the breaches of the broadcasting standards.76 The appellants argued that the Authority failed to complete this balancing exercise as the reasons given by the Authority did not show a full Oakes/Hansen analysis.77 Justice Asher disagreed, drawing on R (SB) v Governors of Denbigh High School as authority
73 Television New Zealand Ltd v West [2011] NZHC 435; [2011] 3 NZLR 825 (HC).
for the proposition that the degree of formalism required in reasons varies according to the nature of the decision-maker. 78 This claim is surprising as their Lordships explicitly reject the notion that decision-makers need to take European Conventions rights into account.79 Justice Asher goes on to conclude the nature of the Authority does not demand a full Oakes/Hansen analysis and a succinct set of reasons would show this.80 Importantly, Asher J does not carry out his own balancing exercise:81
In the absence of any relevant error of fact or principle, and in the absence of a conclusion which is plainly wrong, the Court will not interfere with the Authority’s decision. For this Court to carry out the process would be to usurp the role of the Authority and to apply its own judgment.
While Asher J may have reached this conclusion with misplaced reliance on Governors of Denbigh High School, his conclusions echo the modern Canadian approach expressed in Doré a year later.82 Justice Asher leaves the proportionality analysis to the initial decision-maker, with the Court only intervening if the decision is “plainly wrong”.83 The formality of the decision-maker’s balancing exercise will depend on their characteristics. While not expressly acknowledging variable intensity review, this is effectively the backstop Asher J is leaving to assess the Authority’s proportionality analysis.
West is used by both Wilberg and Geiringer to illustrate support for a process and outcome approach to s 5.84 Geiringer argues West has “seeds” of a Doré approach but is “uncoordinated and poorly articulated.”85 West was also heavily cited by Radich J in New Health v Director-General of Health as authority for a process and outcome approach in contrast to the orthodox commentators approach exemplified in that case by Governors of Denbigh High School.86
78 At [97] citing R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.
79 R (SB) v Denbigh High School, above n 78, at [29]–[30].
80 Television New Zealand Ltd v West, above n 73, at [104]–[105].
82 Doré v Barreau du Québec, above n 64, at 64.
83 Television New Zealand Ltd v West, above n 73, at [110].
84 Geiringer “Process and Outcomes”, above n 6, at 357 and Wilberg, above n 6, at 879.
86 New Health New Zealand Inc v Director-General of Health, above n 3, at [51].
F The Prisoners’ Cases
The ‘prisoners’ cases’ involve various claims by prisoners that their s 14 right to freedom of expression was breached by prison officials when applying a number of different prison regulations.87 These cases are notable because of the complete lack of judicial consistency as to how to approach the s 5 issue. Marcelo Rodriguez Ferrere surveyed these cases in depth in 2021 concluding:88
[T]here is no uniformity whatsoever. Despite the Smith cases, Taylor, Watson and Hudson all involving the same context, the same decision-maker and the same right being infringed, there were three different approaches to the relevance of the NZBORA. That multiplicity of approaches only serves to confuse all actors. A decision-maker does not have any clarity as to whether they should be engaging in NZBORA analysis, or whether that is a task for the court.
Smith v Attorney-General involved the revocation of permission for a prisoner to wear a hair piece.89 Mr Smith argued prison authorities should have acknowledged wearing the hair piece was a form of expression and therefore considered if revoking the permission was a demonstrably justified limitation of that right. Justice Wylie considered West and concluded that the prison authorities erred in not being aware of NZBORA considerations and failing to undertake a s 5 analysis.90 A full Oakes/Hansen analysis was not required, just succinct reasons.91 While, the Attorney-General successfully appealed the decision on the grounds that wearing the hair piece did not engage s 14,92 the Court of Appeal declined to answer the question of whether s 5
87 Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017] 2 NZLR
704; Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899; Chief Executive of Department of Corrections v Smith [2020] NZCA 675; Taylor v Chief Executive of Department of Corrections [2015] NZCA 477, [2015] NZAR 1648; Hudson v Attorney-General [2020] NZHC 1608 [Hudson (HC)]; Hudson v Attorney-General [2023] NZCA 653 [Hudson (CA)]; and Watson v Chief Executive of Department of Corrections [2015] NZHC 1227, [2015] NZAR 1049.
88 Rodriguez Ferrere, above n 26, at 99.
89 Smith v Attorney-General on behalf of Department of Corrections, above n 87, at [27].
92 Attorney-General v Smith, above n 87, at [52].
required the prison authorities to undertake a proportionality inquiry or if s 5 instead requires the decision ultimately be demonstrably justified.93
Taylor, Watson and Smith all involve prison authorities rejecting requests by media to interview the prisoners.94 Each case is decided using different approaches to s 5 for what is effectively the same decision. These cases illustrate a reluctance by the Court of Appeal to settle the correct approach under s 5.
The Court of Appeal in Taylor held that s 5 “required at least some form of proportionality analysis” by the decision-maker before declining an interview request, but declined to comment on whether NZBORA demands an Oakes/Hansen analysis.95 The Court acknowledged Geiringer’s observation that the authorities do not support a proportionality analysis in administrative decision-making under NZBORA, but continued the Court of Appeal’s practice of refusing to settle the area.96 In discussing the necessary intensity of review, the Court noted prison authorities need to be “supervised intensively” when human rights are involved yet, substituting the Court’s view for that of the decision-maker would be an “exceptional step”.97
While Taylor made tentative steps towards Wilberg’s mandatory test approach, Watson and Smith were not as clear. The High Court in Watson considered the decision involved was unreasonable and therefore did not need to considered proportionality under s 5.98 The appeal in Smith was allowed on the basis that Doogue J had misapplied the s 5 test by reaching an incorrect conclusion on the facts.99 Justice Doogue assessed the decision to refuse an interview request using both a Taylor and a Watson approach — that is assessing reasonableness alongside NZBORA proportionality.100 The Court of Appeal found Doogue J was wrong to conclude the decision was unreasonable and
94 Taylor v Chief Executive of Department of Corrections, above n 87; Watson v Chief Executive of Department of Corrections, above n 87; and Chief Executive of Department of Corrections v Smith, above n 87.
95 Taylor v Chief Executive of Department of Corrections, above n 87, at [84].
96 At [81]. The Court was citing observations in Geiringer “Sources of Resistance”, above n 6.
98 Watson v Chief Executive of Department of Corrections, above n 87, at [66]–[67]. 99 Chief Executive of Department of Corrections v Smith, above n 87, at [39] and [49]. 100 Rodriguez Ferrere, above n 26, at 96.
disproportionate yet passes no comment on which legal tests should be used — despite the conflict between Taylor and Watson.101
By comparison Dobson J in Hudson undertook a proportionality analysis of the prison manager’s decision to deny Mr Hudson access to two soft-porn magazines.102 Hudson “buck[ed] the trend” and used the Oakes/Hansen test to analyse the decision.103 This follows the orthodox commentators’ approach and McGeechan J in Federated Farmers but with the structure of Oakes/Hansen to guide the proportionality analysis.104 Hudson was successfully appealed, with the Court of Appeal considering the Crown had failed to establish a “causal nexus between the access to the magazines and the claimed harms.”105 The Court of Appeal noted Dobson J was not required to undertake a strict Oakes/Hansen analysis but passed no comment on engaging solely with the substantive decision and not necessarily the decision-making process.
The prisoners’ cases leave a lot to be desired in terms of appellate court engagement with the role of s 5 in administrative decision-making. These High Court decisions illustrate there was no clear view as to how s 5 was to apply and the Court of Appeal repeatedly failed to resolve the issue. Both courts drew attention to the gulf between academic literature and the jurisprudence yet refused to engage with the literature in any meaningful way. However, this would soon change with the Supreme Court’s decision in Moncrief-Spittle.106
101 Watson is applied without comment at [33] and [34], and Taylor is applied at [44]–[46].
102 Hudson (HC), above n 87, at [36] and [37].
103 Rodriguez Ferrere, above n 26, at 97.
105 Hudson (CA), above n 87, at [71].
106 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1.
II Overseas Approaches to Statutory Rights Instruments and Discretionary Powers
This chapter explores Anglo-Commonwealth approaches to administrative law and statutory rights instruments. For the purposes of this paper the comparative exercise will be limited to the United Kingdom, Canada and the state of Victoria. Approaches from these jurisdictions can be used to assess the effectiveness of NZBORA s 5 demanding a decision-maker consider NZBORA rights rather than being a pure substantive limit on the outcomes that can be reached.
A United Kingdom
The United Kingdom Human Rights Act 1998 (HRA) gives legal recognition to rights guaranteed under the European Convention on Human Rights 1950,107 thereby ‘bringing rights home’ from the Strasbourg Court by creating domestic remedies for breach of Convention rights.108
Section 6 provides:
6 Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
The HRA does not contain an equivalent provision to NZBORA s 5. However, most Convention rights contain an internal qualifier that acts similarly to s 5 to justify a prima facie breach that is necessary in a democratic society.109 The HRA is similar to NZBORA in that it is a statutory rights instrument that recognises parliamentary sovereignty.110
Governors of Denbigh High School is the leading authority for judicial review under the HRA.111 Unlike New Zealand courts of the time, their Lordships were willing to lay down clear appellate authority to settle the process and outcome debate under the HRA.
107 Human Rights Act 1998 (UK).
108 R (SB) v Governors of Denbigh High School, above n 78, at [29]; and Home Office “Rights Brought Home: The Human Rights Bill” (Stationery Office, London, 1997) at 3.
109 Halsbury’s Laws of England (5th ed, 2023) vol 61A Judicial Review at [52].
110 Human Rights Act 1998, s 3(2)(b); and New Zealand Bill of Rights Act 1990, s 4.
111 R (SB) v Governors of Denbigh High School, above n 78.
This decision concerned Muslim school girl Shabina Begum who was turned away from school for wearing a jilbab rather than the prescribed shalwar kameeze uniform item — which was approved as a uniform item after consultation with local Imams.112 Miss Begum claimed her beliefs required her to wear the jilbab and sought judicial review of the decision under s 6 for alleged breaches of art 9 of the Convention (guaranteeing freedom of thought, conscience and religion) and art 2 of the First Protocol (the right to an education).113While art 9(1) contains a broad guarantee of “the right to freedom ... of religion”, art 9(2) contains an internal qualifier equivalent to NZBORA s 5. The effect of art 9, therefore, required their Lordships to first examine whether the school uniform restrictions interfered with Miss Begum’s freedom to manifest her religious beliefs and then whether this interference was justified.114 The majority of their Lordships found the decision did not interfere with Miss Begum’s rights under art 9(1).115 However, their Lordships continued on to consider, had art 9(1) been engaged, whether such an infringement was justified.
Lord Bingham considered a justified interference “must be necessary in a democratic society of a permissible purpose, that is, it must be directed to a legitimate purpose and be proportionate in scope and effect.”116 This raised the question of how the Court is to assess the proportionality in the internal qualifier.117 Lord Justice Brooke in the Court of Appeal had held that the proportionality question requires the decision-maker to ask and answer a series of six procedural questions before making a decision that effects Convention rights.118 This attracted criticisms from various commentators including Thomas Poole.119 Poole argued proportionality is a test for judges to apply and that the text of the HRA does not require decision-makers to undertake a proportionality
115 At [25] per Lord Bingham, [41] per Lord Nicholls, and [55] per Lord Hoffmann.
118 At [27]. See R (SB) v Governors of Denbigh High School [2005] EWCA Civ 199, [2005], 1 WLR
3372 at [75].
119 Thomas Poole “Of headscarves and heresies: the Denbigh High School case and public authority decision-making under the Human Rights Act” [2005] PL 685.
analysis.120 Section 6 is results orientated and therefore the primary question a Court should ask is whether the claimant’s Convention rights have been infringed.121 Poole warned:122
But striking down decisions of public authorities on “pure” procedural grounds would amount, I suggest, not to the imposition of a higher standard of rights protection but rather to the erection of a new formalism which, in seeking to avoid coming to a conclusion about the substance of the decision or policy at issue, will threaten to make a fetish of procedure.
Poole’s arguments persuaded Lord Bingham, who agreed a public authority acts unlawfully under s 6 when the decision itself is incompatible with a Convention right.123 Incompatibility cannot arise from a defective process. Proportionality under the HRA goes further than traditional judicial review as the Court must “make a value judgment”.124 The Court must confront difficult proportionality questions and cannot “retreat to procedure” to avoid these questions.125 Lord Justice Brooke’s approach would lead to new formalism if decision-makers were required to follow the Court of Appeal’s six step test, with Lord Bingham concluding: “[W]hat matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”126
Lord Hoffmann agreed, writing:127
The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows.
123 R (SB) v Governors of Denbigh High School, above n 78, at [29].
Their Lordships confirmed the HRA required the reviewing Court to undertake a proportionality analysis and that the decision-maker was not required to consider the claimant’s Convention rights. However, the majority considered if a decision-maker did turn their mind to a complainant’s Convention rights then this may be persuasive to the Court when undertaking its proportionality inquiry.128Section 6 came before the House of Lords again in Belfast City Council v Miss Behavin’ Ltd.129 This case concerned the refusal of a licence to operate a sex shop in Belfast.130 The Court of Appeal held the Council had failed to sufficiently consider the applicant’s art 10 right to freedom of expression.131 Belfast City Council had not directed itself on engagement of Convention rights.132 Lord Hoffmann, drawing on Governors of Denbigh High School, again takes issue with the Court of Appeal’s reasoning writing:133
Either the refusal infringed the applicant’s Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councilors had never heard of article 10.
Baroness Hale notes the different role the Court must take in rights adjudication compared to traditional judicial review.134 The Court is to be concerned with the substance of the decision, which is whether the claimant’s rights had been infringed by the decision or not.135 But Baroness Hale acknowledged that had the Council expressly balanced the rights of expression against the interests of the wider community, the Court “would find it hard to upset the balance the local authority had struck.”136 Consideration of the rights at issue by the decision-maker shows the court where the decision-maker saw the balance lying and the court will show some degree of deference to this. If the
129 Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19, [2007] 1 WLR 1420.
decision-maker has not considered Convention rights, the Court must strike the balance itself.137
Governors of Denbigh High School and Belfast City Council still represent the position of the United Kingdom jurisprudence on judicial review of decisions involving Convention rights.138 The United Kingdom proportionality approach to Convention rights goes beyond traditional grounds of review.139 A proportionality review may very well lead to different results as it is a more precise and sophisticated test than Wednesbury unreasonableness or heightened intensity of review.140 While proportionality may be becoming more common place in other areas of English administrative law, 141 this does not diminish the relevance of HRA cases application of proportionality in interpreting NZBORA s 5.
B Victoria
The Charter of Human Rights and Responsibilities Act 2006 (“Victorian Charter”) is relevant to this paper for the inclusion of a process element for decision-makers in the text of the statutory rights instrument itself. Conduct of public authorities is constrained through s 38:142
38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
While s 38(1) draws on s 6 of the HRA, the Victorian Parliament chose to include a process element alongside a substantive obligation to act consistently with human
138 Ghaoui v Waltham Forest London Borough Council [2024] EWCA Civ 405 at [36]. See also
Halsbury’s Laws of England, above n 109, at [19] and [52].
139 R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at [26].
141 Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591 at [104]– [106]. See discussion in Halsbury’s Laws of England, above n 109, at [19].
142 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38.
rights.143 Section 7(2) is an equivalent of NZBORA s 5, requiring rights are only subject to reasonable limits that are demonstrably justified in a free and democratic society.
The motivation for enacting the Victorian Charter differs from that of NZBORA. While NZBORA was enacted against the backdrop of the Muldoon era, Parliament and the public were uneasy with the idea of a powerful rights instrument constraining the actions of Parliament.144 New Zealand then enacted a compromise instrument. While still enacting a statutory rights instrument, Victoria’s motivation was to cultivate a “human rights culture” in government.145 A human rights culture is achieved when officials are addressing human rights in their everyday decision-making processes.146
Section 38(1) requires a decision-maker to give “proper consideration” to relevant human rights — putting consideration of human rights at the heart of officials’ decision- making. Victorian courts have been required to interpret s 38(1) in light of Parliament’s desire to create a human rights culture. Justice Emerton considered ‘proper consideration’ is not a “sophisticated legal exercise”, commenting:147
Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. ... There is no formula for such exercise, and it should not be scrutinised over-zealously by the courts.
A decision-maker will need to “seriously” turn their mind to the human rights impact of their decision and balance the competing interests.148 Justice Emerton was more concerned with a decision-maker making some effort to engage with and balance rights generally than the correct section and right being identified. The level of scrutiny the Court would apply is unclear, but Emerton J seems to suggest ‘proper consideration’ would not require the standard of consideration suggested by Brooke LJ in Governors
143 Charter of Human Rights and Responsibilities Bill 2006 (Vic) (Explanatory memorandum) at 27.
144 Geoffrey Palmer New Zealand’s Constitution in Crisis: Reforming our Political System (John McIndoe, Dunedin, 1992) at 55–56.
145 Melanie Schleiger “One size fits all: The obligation of public authorities to consider human rights under the Victorian Charter” (2011) 19 AJ Admin L 17 at 24.
146 Human Rights Consultation Committee (Victoria) Rights Responsibilities and Respect: The Report of the Human Rights Consultation Committee (Department of Justice, Victoria, 2005) at 124; and (4 May 2006) Victoria PD LA 1293.
147 Castles v Secretary to the Department of Justice [2010] VSC 310, (2010) 28 BHRC 641 at [185].
of Denbigh High School. Proper consideration is contextual. In the case before Emerton J, proper consideration was satisfied by the decision-maker being conscious of a possible rights issue, seeking legal advice and then referenced in briefings the need to balance the identified human rights and requirements under the Corrections Act 1986 (Vic).149Section 38(1) has been used to strike down decisions solely for failure by the decision- maker to give proper consideration to human rights. Bare v Independent Broad-Base Anti-Corruption Commission concerns a decision by the Office of Police Integrity (OPI) to decline to investigate a complaint of racial abuse by Victorian Police.150 Mr Bare sought judicial review of the decision on the basis the OPI had failed to give “proper consideration” to his human rights under s 38(1).151 The decision of the OPI not to investigate did not substantively breach Mr Bare’s ss 8(3) and 10(b) rights but rather the case focuses on the OPI’s consideration of these rights.152 The Court clarifies the meaning of ‘proper consideration’ in s 38(1) by building off Emerton J’s test in Castles, noting s 38(1) demands more than the traditional administrative law approach to mandatory considerations.153 While the decision-maker had made reference to human rights, Tate JA considering this was insufficient writing:154
His reference to having considered ‘the complainant’s reference to section 10’ of the Charter amounted to nothing more than a recitation of the Charter as a mantra, precisely that which, under the Castles test, is insufficient to amount to ‘proper’ consideration.
Justice Tate’s concern that the Victorian Charter would be recited as a mantra echoes Poole’s concerns around new formalism under the HRA. Where a process element is demanded by a statutory rights instrument, the process element risks devolving into
150 Bare v Independent Broad-Based Anti-Corruption Commission [2015] VSCA 197, (2015) 326 ALR
198 at [8] and [16].
151 Namely s 8(3) “Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination” and s 10(b) “A person must not be— (b) treated or punished in a cruel, inhuman or degrading way.”
152 At [214], [457] and [631]. See discussion in Janina Boughey “The Charter’s Effect on Administrative Decision-Making” (2016) 27 PLR 3 at 5.
nothing more than a box ticking exercise. Justice Tate avoids this by requiring more from a decision-maker than simply declaring that human rights had been considered.
Overall, the approach taken by Victorian courts is a holistic approach where engagement with rights generally is the key inquiry for a decision-maker and a decision- maker’s process will not fail from a lack of formalism, although a boilerplate statement is not sufficient. The Victorian Charter shows how a process element can be explicitly incorporated into a statutory rights instrument in an attempt to change the culture of government decision-making. The Victorian Charter’s purpose to reform government decision-making sets the motivation for the Victorian Charter apart from NZBORA and the HRA.
C Canada
The Canadian administrative law landscape differs greatly to New Zealand due to the role of the entrenched and supreme Canadian Charter. Relevantly, ss 1 and 52(1) read:
52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
While NZBORA’s drafting was heavily influenced by the Canadian Charter, the removal of clause 1 of the White Paper — the equivalent of s 52(1) — changed the very nature of Palmer’s initial proposal for a Bill of Rights. The compromise NZBORA contains s 5 as an equivalent of s 1 of the Canadian Charter.
Initially courts reviewing administrative decisions under the Canadian Charter assessed the decision’s compliance with Charter rights using the Oakes test.155 A reviewing Court was to apply the same test to determine whether a limit was justified under s 1 as when undertaking constitutional review of a statute. This involved the Court engaging with the question of whether the result of the decision is demonstrably justified, with limited deference to the decision-maker. Over time the application of the Oakes test in
155 Slaight Communications Inc v Davidson, above n 65, at [15]–[24].
administrative law began failing out of favour with the lower courts and this approach was revisited by the Supreme Court in Doré.
However, in the meantime the Canadian administrative law landscape was shifted by the Supreme Court’s decision in Baker v Canada.156 Baker considered procedural fairness may demand the decision-maker give written reasons for their decision.157 The Court noted the traditional common law position that there is no duty to give reasons.158 But the Court considered requiring the provision of reasons in some cases ensures “fair and transparent decision-making” and the process of giving reasons may led to better decisions.159 While acknowledging a requirement to give reasons may lead to cost and delay,160 the Court concluded:161
The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.
The Supreme Court of Cananda revisited Baker in Doré.162 Justice Abella noted that post-Baker courts had trended away from using the Oakes test to review administrative decisions in favour of a more contextual approach.163 The Court in Doré agreed:164
Under this approach, it is unnecessary to retreat to a s. 1 Oakes analysis in order to protect Charter values. Rather, administrative decisions are always required to consider fundamental values. The Charter simply acts as "a reminder that some values are clearly fundamental and ... cannot be violated lightly” (references removed.)
This approach shifts the substantive consideration of Charter rights from the Court to the decision-maker. Moving away from the Court striking the s 1 balance means the
156 Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817.
162 Doré v Barreau du Québec, above n 64.
Court will apply a degree of deference to the decision-maker’s assessment of the balance shown in their reasons.165 To avoid considering the decision de novo, the Court will exercise a degree of deference:166
If, in exercising its statutory discretion, the decision-maker has properly balanced the relevant Charter value with the statutory objectives, the decision will be found to be reasonable.
The approach in Doré was reconfirmed last year by the Supreme Court.167 However, Côté J held that the nature of the Canadian Charter not only requires a decision-maker to consider Charter rights but the underpinning values that led to the rights being entrenched:168
[T]he choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government.
The case at hand dealt with an alleged breach of s 23, which protects minority language rights in education for children whose parents were educated in French or English.169 The applicants had no constitutional right under s 23 to a French education as they did not meet the qualifications.170 But Côté J considered s 23 stood for the “values of preservation and development of minority language communities” and the Minister had to consider the value of more francophones in the Norwest Territory and undertake a balancing exercise.171 It was insufficient to just consider the black letter text of s 23.
Doré establishes that decision-makers are required to undertake a balancing exercise while considering Charter rights and the underlying values behind the rights. The Court will then undertake a reasonableness review of the decision using the decision-maker’s
167 Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment) 2023 SCC 31, [2023] SCJ No 31 at [59].
169 Canadian Charter of Rights and Freedoms, s 23.
170 Commission scolaire francophone, above 167, at [84].
reasons. The Canadian approach places a process element at the very heart of the contextual review of decisions under the Canadian Charter.
III Recent Developments in New Zealand Judicial Approaches
This chapter explores the effect of the Supreme Court’s decision in Moncrief-Spittle, focusing on how it attempted to settle the debate among commentators on the role of s 5 in administrative law.172 While this case provides the most authoritative decision yet on the role of s 5 in administrative law, the Court explicitly left open the question of what happens when a decision-maker fails to consider NZBORA rights.173 This gap subsequently has been considered by the High Court in three 2023 cases.174 In the most recent case, New Health v Director-General of Health, Radich J held a decision to be ultra vires for lack of consideration of NZBORA s 11. The Director-General has appealed this decision which will be heard before a Full Court of the Court of Appeal in June 2025.175 This chapter seeks to illustrate that in practice a process element under s 5 creates difficulties, whereas chapter IV will call on the Court of Appeal to reassess the High Court’s interpretation of s 5 post Moncrief-Spittle.
A Moncrief-Spittle v Regional Facilities Auckland Ltd
Moncrief-Spittle concerned the cancellation of a venue hire agreement by Regional Facilities Auckland Ltd (RFAL). A RFAL venue had been hired to host two far right speakers. RFAL was told who the speakers were but were not informed of security issues faced on the Australian leg of the tour.176 RAFL became aware of proposed protest action and cancelled the hire agreement on security grounds.177 Mr Moncrief- Spittle had purchased a ticket for the event and sought judicial review of RFAL’s decision to cancel on the basis of irrationality and failure to act consistently with his NZBORA rights.178
Finding NZBORA applied to RFAL, the Supreme Court turned their attention to the effect of s 5 on discretionary powers, noting the issue has been “subject of debate in
172 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1.
174 New Health New Zealand Ltd v Minister for COVID-19 Response [2023] NZHC 2647; Wallace v Chief Executive of the Department of Corrections [2023] NZHC 592; and New Health New Zealand Inc v Director-General of Health, above n 3.
175 Fluoride Action Network (NZ) Inc v Hastings District Council [2024] NZHC 1313 at [11].
176 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at [8]–[10].
academic commentary.”179 Despite Zaoui v Attorney-General (No 2) involving rights that are not subject to s 5,180 it was held to support the submission that s 5 is a substantive constraint on discretionary decision-making.181 The Court briefly notes the approaches in Governors of Denbigh High School and Doré support a substantive constraint interpretation before concluding:182
In this passage, the Supreme Court confirmed s 5 is a substantive constraint on the outcomes a decision-maker can reach. As McLean, Rishworth and Taggart predicted, s 5 is a “constitutional trump”.183
By confirming s 5 imposes a substantive limit on decision-making, the Supreme Court goes a long way to settle the role of s 5 in administrative law. But the exact role this takes remains more unsettled than it should. Justice Ellen France, delivering the judgment of the Court, held Mr Macrae of RFAL “had to turn his mind and engage with
180 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289. Zaoui concerned ss 8 and 9.
181 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at [82].
183 McLean, Rishworth and Taggart, above n 5, at 68.
the question of whether it was a reasonable limit”.184 Here the Court is mandating a process element along the lines suggested by Wilberg and Geiringer based on the Doré approach. Under Wilberg’s “mandatory test” the decision-maker must undertake a balancing exercise and be satisfied their decision is justified.185The reviewing Court must then also be “satisfied the decision was reasonable limit” on NZBORA rights and freedoms.186 Justice Ellen France says this is a question of law, but the Court would “expect” to see evidence of the decision-maker weighing the right and what consideration was given to outweigh the right.187 But if s 5 creates a mandatory process element as her Honour had suggested the previous paragraph,188 the Court would have to see this evidence to be satisfied the decision-maker had not committed an error of law by failing to consider NZBORA, before the Court begins its own analysis. Justice Ellen France acknowledges this tension, writing in the footnotes:189
118 We leave for an occasion on which it arises the approach to be taken by the courts in the situation where the decision-maker does not engage with the effect of the Bill of Rights. That does not in any event affect the court’s role.
This leaves open the approach the Court must take when undertaking a judicial review of a discretionary power where the decision-maker has failed to consider NZBORA. If the Supreme Court was laying down the principle of how s 5 applies, then a decision would be ultra vires if the decision-maker had failed to consider the s 5 balancing exercise. But this footnote suggests that the Court believes that a decision-maker considering the s 5 balancing exercise is best practice yet may be uncomfortable with a decision being unlawful solely on the basis that the decision-maker failed to engage with NZBORA. The apparent inconsistency in Ellen France J’s reasoning is amplified by her Honour eschewing any in depth analysis of the New Zealand or Anglo- Commonwealth jurisprudence.
184 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at [83].
185 Wilberg, above n 6, at 881.
Governors of Denbigh High School is positively cited as supporting s 5 as a substantive constraint on discretionary powers, yet in that case their Lordships rejected the HRA places any process requirements on a decision-maker — s 6 of the HRA is concerned solely with outcomes.190 The requirement for Mr Macrae to engage with whether cancelling the venue hire agreement was a reasonable limitation on free speech is inconsistent with the Governors of Denbigh High School approach.
In the Court’s brief consideration of Doré, Ellen France J notes the Supreme Court of Canada’s approach under the Charter “to some extent at least, merges consideration of both substantive and procedural issues.”191 Doré is being cited to support NZBORA imposing a substantive constraint on decision-making. Justice Ellen France acknowledges Doré takes a differing view to Zaoui and Governors of Denbigh High School — noting that Doré has a process element — yet does not explore what this means or why the Court then adopts what appears to be the Doré approach.
Regardless of where the Court will eventually settle on the process limb, the role of the reviewing Court is to satisfy itself of the reasonableness of the limit.192 “Leeway” is to be accorded based on the decision-maker’s expertise and the context.193 The Court may have some regard and give respect to where the decision-maker saw the balance lying.194 This goes beyond an increased intensity of review and starts hinting at deference to the decision-maker. However, the Court does not elaborate on what regard and respect to the decision-maker’s view looks like in this context, concluding:195
The extent to which this is so will depend on the context. It is accordingly not appropriate particularly at this, still relatively early, stage in the development of this aspect of the Bill of Rights jurisprudence to attempt to be more definitive on these matters.
On the required form for the proportionality analysis, the Court discussed the role of the Oakes/Hansen test.196 The required proportionality analysis needs to reflect the
particular context.197 A strict Oakes/Hansen analysis may not be appropriate in all circumstance, including the present case.198 Justice Ellen France is content with the established health and safety issues around the event outweighing the freedom of speech concerns.199 The Court is happy to show deference to Mr Macrae in the assessment of security concerns and risk to the event.200 The decision to cancel the venue hire agreement was a reasonable limit to Mr Moncrief-Spittle’s right to freedom of expression.201
Moncrief-Spittle laid down the most coherent and authoritative approach to s 5 yet by confirming s 5 requires the Court to apply a proportionality test. However, the Court acknowledged s 5 may additionally impose a procedural requirement on the decision- maker but did not confirm this role. The declaratory nature of the Court’s reasoning, with lack of analysis of the jurisprudence, left questions of how s 5 is to be applied when faced with a decision-maker who has failed to consider NZBORA rights.
B High Court Cases
This part discusses the three recent High Court cases that grapple with the test for s 5 laid down by the Supreme Court in Moncrief-Spittle.202
New Health v Minister for COVID-19 Response concerns a challenge to two orders under the COVID-19 Public Health Response Act 2020 creating the traffic light system and mask mandate.203 New Health argued the orders were unjustified limitations on the rights contained in ss 11 and 14.204
202 New Health New Zealand Ltd v Minister for COVID-19 Response, above n 174; Wallace v Chief Executive of the Department of Corrections, above n 174; and New Health New Zealand Inc v Director- General of Health, above n 3, citing Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at [83]–[84].
203 New Health New Zealand Ltd v Minister for COVID-19 Response, above n 174, at [1].
204 At [3]. Being the right to refuse to undergo medical treatment and freedom of thought, conscience and religion.
The empowering legislation required:205
(ba) the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990.
Justice Cooke additionally considered the test for s 5 from Moncrief-Spittle constrains decision-making in two ways:206
(a) subjectively: the decision-maker must be satisfied that a limitation of the right is justified; and
(b) objectively: the Court must assess whether there has been an unjustified limitation of the right.
Breaking down the s 5 test into subjective and objective elements is a novel interpretation in the s 5 debate. But Cooke J nevertheless identifies and articulates the process and outcome elements of the test from Moncrief-Spittle. This is despite the enabling legislation creating a sui generis approach to NZBORA for COVID-19 orders.207 Justice Cooke pays little attention to the Act’s requirements once he has articulated the Moncrief-Spittle test in a manner consistent with ss 9(1)(ba) and 13(b). Yet the language differs. Justice Ellen France in Moncrief-Spittle speaks of the decision-maker turning their mind to and engaging with the s 5 question.208 The decision-maker being “satisfied” there is no actual breach of NZBORA rights comes from s 9(1)(ba) — Cooke J has borrowed language from s 9(1)(ba) and imposed it upon the Moncrief-Spittle test.
The requirement for the decision-maker to be “satisfied” only appears in the COVID- 19 Public Health Response Act.209 Parliament has only taken the step to legislate a process requirement in the rights acute situation of COVID-19 legislation and has not extended this requirement to other discretionary powers enacted in the same period or post Moncrief-Spittle. Parliament made an explicit choice to require consideration of
205 COVID-19 Public Health Response Act 2020, s 9(1)(ba).
206 New Health New Zealand Ltd v Minister for COVID-19 Response, above n 174, at [71].
207 Sections 9(1)(ba) and 13(2).
208 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at [83].
209 Section 12(3)(b) of the Terrorism Suppression (Control Orders) Act 2019 requires the court to consider NZBORA: see discussion in Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 450.
NZBORA in s 9(1)(ba) and the effect of this empowering provision will be discussed further in chapter IV.
Justice Cooke considered face masks engaged s 14 as masks limit verbal communication.210 Both relevant Ministers had considered s 14 was engaged but was a minimal intrusion upon the right and was therefore justified.211 Justice Cooke then undertook his own analysis of the decision, noting this analysis can take the form of an Oakes/Hansen test or a less structured analysis and concluded the decision was justified.212
Justice Cooke makes some interesting obiter comments when discussing the challenge under the s 11 right to refuse medical treatment. His Honour considers s 11 is not engaged by the mask mandate, as did both Ministers.213 But had Cooke J found s 11 was engaged, he may not have necessarily found the Minister’s lack of consideration of s 11 to be fatal to the order.214 Justice Cooke considered that “both Ministers were conscious that they were making decisions that were rights restrictive in this more general sense.”215 Between the Ministers being aware generally of the rights space and Cooke J’s belief the limit would be demonstrably justified, the decision may be salvageable had s 11 been engaged.216
The application of s 5 again came before Cooke J in Wallace v Chief Executive of the Department of Corrections.217 This case concerned a judicial review of a decision by the Department of Corrections to close Arohata Prison in Wellington and relocate female prisoners to prisons in Christchurch or Auckland.218 Arohata Prison was closed to non-remand prisoners to free up staff to go to the nearby Rimutaka men’s Prison.219 Ms Wallace challenged the decision on the grounds decision-makers had failed to take
210 New Health New Zealand Ltd v Minister for COVID-19 Response, above n 174, at [75].
217 Wallace v Chief Executive of the Department of Corrections, above n 174.
into account mandatory relevant considerations under the Corrections Act 2004 and was unlawful discrimination on the basis of sex under NZBORA s 19.220
Justice Cooke upheld the grounds of review under the Corrections Act. Corrections had failed to take into account requirements in ss 53 and 54 of the Act.221 On the NZBORA ground, Cooke J turned to Moncrief-Spittle, formulating the s 5 test differently than in New Health v Minister for COVID-19 Response:222
(a) [When a right is being limited] the decision-maker must turn their mind to this, and engage with the question whether the limitation involves a reasonable limit on that right.
(b) The outcome that the decision-maker may reach is also constrained. If the Court concludes that the decision is an unjustified limitation on the right it is unlawful.
Compared to New Health v Minister for COVID-19 Response,223 this formulation more clearly states the role of the decision-maker and the Court. Without a statutory requirement to be “satisfied” NZBORA rights are not limited, Cooke J refers to the need for the decision-maker to turn their mind to and engage with whether the decision is a proportionate limit. This is consistent with the Court’s approach in Moncrief-Spittle so begs the question why Cooke J passed off elements from the COVID-19 Public Health Response Act as part of the Moncrief-Spittle framework.
Curiously, Cooke J begins his analysis with consideration of the second limb.224 The Court set out to determine if the decisions to move women prisoners was discriminatory; and if so, was it demonstrably justified.225 Concluding the treatment was discriminatory under s 19, Cooke J undertook an “analogous” Oakes/Hansen s 5
223 New Health New Zealand Ltd v Minister for COVID-19 Response, above n 174, at [71].
224 Wallace v Chief Executive of the Department of Corrections, above n 174, at [99]
analysis.226 His Honour was not convinced by Corrections’ arguments that the lack of staffing resources was beyond its control:227
A limitation of a fundamental right in the NZBORA by resource constraints could not be justified if the constraints were of the Crown’s own making.
On the appropriate structure of the s 5 assessment Cooke J further added:228
[T]he key point is that the Crown has not limited the right as little as possible, and proportionality between the limit and what the Crown has been seeking to achieve has not been maintained.
By considering the second limb first, the process limb becomes irrelevant. Corrections had not considered the treatment of women prisoners to be discriminatory and therefore had not considered whether this discrimination was demonstrably justified. At the point the Court is having to consider whether a NZBORA right is engaged, it makes sense for the Court to take the step Cooke J took in then asking whether the prima facie breach is justified. Once the Court had reached the conclusion the decision was not demonstrably justified, the first limb is irrelevant. Had Cooke J considered the limit on Ms Wallace’s right to be free from discrimination was justified, it would seem odd for the Court to then invalidate and send the decision back to Corrections to reconsider the decision with reference to Ms Wallace’s rights when the same outcome would be reached.
New Health v Director-General of Health is a key case in this paper.229 It concerns the review of a decision solely based on the lack of consideration of NZBORA rights and freedoms by the Director-General — the situation the Supreme Court in Moncrief- Spittle choose to leave for another occasion.230 This subpart will address the contents and outcome of the case and I will return to the desirability of Radich J’s approach in chapter IV.
229 New Health New Zealand Inc v Director-General of Health, above n 3.
230 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1, at 495, n 118.
New Health challenged the decision of the Director-General to order 14 local authorities to fluoridate their water supply under s 116E of the Health Act 1956.231 Part 5A of the Health Act was enacted in response to a previous challenge to fluoridation in New Health v South Taranaki District Council.232 New Health v Director-General of Health differs from Wallace in that Radich J did not have to first consider if a NZBORA right was engaged. The Supreme Court had already established fluoridation engages s 11 in South Taranaki District Council.233 While the fluoridation order was also challenged on more “orthodox” judicial review grounds, the parties agreed the Director-General’s lack of consideration of NZBORA rights and freedoms should be dealt with as a preliminary issue.234 Justice Radich summarised the issue:235
[I]s a Bill of Rights Act assessment a mandatory relevant consideration such that a failure to undertake it, in the event that rights are engaged, is a flaw which, in and of itself, could warrant a remedy? Or, is a Bill of Rights Act assessment by the decision-maker something that, while it might be useful all round, is not required on the basis that the Bill of Rights Act operates as a substantive constraint — exercisable through public law proceedings — to ensure that the ultimate decision is rights-compliant? (emphasis added)
The Crown argued the latter approach is correct, citing authority from the United Kingdom’s approach under the HRA.236 New Health argued failure to consider whether any limitation on s 11 is justified is an error of law.237 Justice Radich turned to Cooke J’s interpretation of Moncrief-Spittle in Wallace.238 Agreeing with Cooke J, Radich J suggests a decision-maker must turn their mind to the question of rights limitation.239
In considering the United Kingdom outcome focused approach, the Crown draws Radich J’s attention to Governors of Denbigh High School and Belfast City Council.240
231 New Health New Zealand Inc v Director-General of Health, above n 3, at [1].
232 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948.
234 New Health New Zealand Inc v Director-General of Health, above n 3, at [4]–[7].
His Honour considered the role of the Strasbourg Court in the United Kingdom’s legal system and the general absence of proportionality as a distinct ground of review in New Zealand administrative law as reasons to be cautious of the United Kingdom approach.241 Persuaded by Andrew and Petra Butler’s promotion of a “culture of justification” — where decision-makers must providing reasons leads to good government242 — and the writings of Claudia Geiringer, Radich J distances himself from the United Kingdom approach:243
There are, as I see it, sound reasons for us not to push the pendulum away from a process obligation to the same extent as has been the case in the United Kingdom.
While concerned with the influence the Strasbourg Court has over domestic courts in the United Kingdom and proportionality, when considering the Canadian jurisprudence, no concern was shown by Radich J for the supreme nature of the Canadian Charter or the bifurcated correctness and reasonableness grounds of review in Canada.244 His Honour was happy to accept Doré at face value.245
Justice Radich considered the obligation to consider NZBORA rights is not a burden but rather “a positive and integral part of a society in which fundamental rights are defined and cannot be limited arbitrarily.”246 The Director-General had not turned his mind to NZBORA rights and the ground of review was made out.247
Relief in New Health v Director-General of Health was subject to a separate relief decision.248 At the time of writing, Radich J had reserved his decision in a separate hearing to recall his February relief decision.249 Justice Radich grappled with providing
242 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 181.
243 New Health New Zealand Inc v Director-General of Health, above n 3, at [70]–[74] citing Geiringer “Process and Outcome”, above n 6.
248 New Health New Zealand Inc v Director-General of Health [2024] NZHC 196 [New Health New Zealand Inc v Director-General of Health (relief)].
249 New Health New Zealand Inc v Director-General of Health [2024] NZHC 1717 [New Health New Zealand Inc v Director-General of Health (recall)].
a remedy that was of “practical value” and did not exercise the Court’s coercive powers for no reason.250 Despite O’Regan and Ellen France JJ in South Taranaki District Council holding that fluoridation of water would be a demonstrably justified limitation on s 11 and William Young J concluding s 11 is not even engaged,251 Radich J concludes the substantive issue remains at large as the remainder of the Supreme Court had not considered the s 5 issue.252 However, he concludes the decision should not be quashed and instead the Director-General must reconsider and determine the fluoridation decision.253
Section 5 came before the Supreme Court in A v Minister of Internal Affairs.254 This case involved the cancellation of A’s passport by the Minister based on intelligence that she intended to travel to join ISIL.255 The facts of this case are highly classified and the Court issued both an open and closed judgment.256 The cancellation decision was challenged on multiple grounds, relevantly for this paper:257
(d) Did the Minister fail to address whether the cancellation decision was a reasonable limit to the rights of the appellant under [NZBORA] and, if so, what are the consequences of that?
The Minister’s briefing paper was silent on NZBORA however the Minister noted in his affidavit he was “aware” and “mindful” of the effect cancellation of a passport can have on a person’s freedom of movement.258 The Court turned to its decision in Moncrief-Spittle, reemphasising that NZBORA s 5 requires the decision-maker to
250 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [9].
251 New Health New Zealand Inc v South Taranaki District Council, above n 232, at [126]–[143] per O’Regan and Ellen France JJ and [178] per William Young J.
252 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [28].
254 A v Minister of Internal Affairs [2024] NZSC 63.
256 A v Minister of Internal Affairs, above n 254; and A v Minister of Internal Affairs [2024] NZSC 64.
257 A v Minister of Internal Affairs, above n 254, at [39].
engage with whether the decision was a reasonable limitation.259 The Minister did not do this.260 However, O’Regan J goes on to say:261
We agree that, if the statutory grounds for cancellation are made out, it is likely a decision to cancel would be a justified limit on rights. In that event, a failure to address the issue would not be fatal to the validity of the decision. But that does not mean those advising the Minister should feel free not to address the issue.
Had the cancellation decision not been ultra vires other grounds, it would have been a justified limit. If so, the Minister’s failure to consider NZBORA would not be fatal to the decision. Effectively the Court is standing by a process element from Moncrief- Spittle for s 5 but acknowledging failure to consider and engage with this element will not invalidate a decision, suggesting the process element is not then a standalone enforceable duty.
A v Minister of Internal Affairs is a difficult case as the Court is constrained by national security complications in their public judgment. Whether the Court intended for the process limb of Moncrief-Spittle to be unenforceable remains to be seen, but A v Minister of Internal Affairs nevertheless casts serious doubt upon its efficacy.
IV Back to the Future
The Bill of Rights is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s23(1)(b). And anyone complaining of a breach of the Bill of Rights must, as the Canadian Courts say, invest the complaint with an air of reality.262
This Chapter advances that the desired approach to judicial review of administrative decision-making under s 5 of NZBORA is a requirement for the Court to undertake a proportionality analysis of the decision. This approach draws on the academic writings of Michael Taggart and Thomas Poole, as well as United Kingdom jurisprudence. It is a return to the orthodox commentators’ view and that of McGechan J in Federated Farmers. If New Health v Director-General of Health is allowed to stand — in that a decision can be challenged solely on failure to consider NZBORA rights — the Courts will be failing to apply NZBORA in a realistic way. There is no “air of reality” in holding a decision to be invalid on process grounds where the decision itself is a justifiable limitation of NZBORA rights.
A A Culture of Justification — Required by NZBORA or a Cloak for Judicial Activism?
The idea of a culture of justification finds its roots in post-apartheid South Africa. Etienne Mureinik theorised that the interim South African constitution created a bridge from a culture of authority to a culture of justification:263
If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification -a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions,
262 R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 (CA) at 531 per Richardson J.
263 Etienne Mureinik “A Bridge to Where? Introducing the Interim Bill of Rights” (1994) 10 SAJHR 31 at 32.
not the fear inspired by the force at its command. The new order must be a community built on persuasion, not coercion.
Mureinik challenges the Diceyan theory of parliamentary sovereignty where Parliament justifies itself to no one, noting parliamentary sovereignty was used to perpetrate apartheid.264 Parliament needs to be able to justify laws to the courts and the people governed by the law.265
South Africa’s interim constitution created a culture of justification through s 24.266 This section gave every South African the right to lawful administrative action, procedural fairness, reasons for a decision and for the decision to be justifiable.267 This had the effect of annulling ouster clauses and required decision-makers to put their case to the affected person to allow a response and once a decision was made, reasons needed to be provided.268 The Court then has a power through s 24(d) to determine if that decision is then justified. Together the four elements of s 24 create a culture of justification. Mureinik concludes:269
The point of the Bill of Rights is to foster a culture of justification. This is something which appears not only from our history, but from the text of the Bill itself.
When considering the origin and purpose of NZBORA, one cannot escape the fact it is a compromise instrument. It is a statutory rights instrument that arose from the remains of the unpopular White Paper proposal to enact a constitutionalised rights instrument. There was no consensus on the role NZBORA was to play, with Palmer himself acknowledging in the House the Bill created no new remedies.270
267 Constitution of the Republic of South Africa Act 1993 (RSA), s 24.
268 Etienne Mureinik, above n 263, at 38–39.
270 (14 August 1990) 510 NZPD 3450.
In New Health v Director-General of Health Radich J speaks of the need to create a culture of justification.271 Yet s 5 does not give any textual support for such a culture of justification nor does the parliamentary history — unlike comparable Anglo- Commonwealth instruments.272 Both the South African and Victorian instruments spell out a requirement to either give reasons for the decision which affects rights or give proper consideration to a claimant’s rights. A decision-maker in South Africa and Victoria must be justifying their decision throughout the decision-making process. The motivation for both comes from a clear parliamentary desire to reform decision-making processes in government.
Butler and Butler’s advocacy for a ‘culture of justification’ in New Zealand does not necessarily translate into a mandatory requirement for a decision-maker to consider NZBORA rights as part of their decision-making process. For Butler and Butler, the Crown will be called upon to justify the prima facie breach:273
[Section] 5 will lead to a position that when rights are implicated inferences are deliberate, measured and (one would hope) closely scrutinised before the interference occurs. (emphasis added)
Where Butler and Butler are cited in New Health v Director-General of Health, the emphasised text was dropped from the above quotation.274 Without that qualification, the meaning of Butler and Butler’s argument completely changes. Butler and Butler, much like Ellen France J in Moncrief-Spittle, argue that best practice is for a decision- maker to consider NZBORA rights. But it should not be fatal to the decision if the Crown can nevertheless justify the decision ex post facto.
New Zealand’s Parliament has seen fit at times to demand a more intensive culture of justification for certain decisions. As previously mentioned, the COVID-19 Public Health Response Act required a decision-maker exercising powers under the Act to be satisfied there was no actual infringement of NZBORA rights. This sui generis
271 New Health New Zealand Inc v Director-General of Health, above n 3, at [70]–[74] citing Butler and
Butler, above n 242.
272 Constitution of the Republic of South Africa Act 1993, s 24(c); and Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1).
273 Butler and Butler, above n 242, at 181.
274 New Health New Zealand Inc v Director-General of Health, above n 3, at [54] and [103]; and New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [20].
legislation shows Parliament is willing to create a culture of justification in emergencies where rights are at a heightened risk of being brushed aside by decision-makers. But this shows that generally Parliament does not expect NZBORA to create a culture of justification analogous to Victoria or South Africa.
James Allan has criticised the Court of Appeal’s early NZBORA jurisprudence, especially under Cooke P’s leadership, for attempting to essentially upgrade NZBORA into some form of “half constitutionalised” bill of rights.275 A supreme bill of rights was rejected by Parliament in favour of a statutory rights instrument. In other words, Parliament choose not to have a ‘Superman’ bill of rights and elected instead for a mild- mannered Clark Kent ordinary statute.276 The Court cannot then pretend NZBORA is as an instrument as powerful as a supreme and entrenched bill of rights.
Allan observed the desire to strengthen NZBORA diminished with Cooke P’s retirement.277 The Court declined an opportunity to interpret the Marriage Act 1956 consistently with s 19 in Quilter to allow gay marriage and in Grayson were cautious of the prima facie evidence rule applied in Noort, calling for a possible rethink of the rule laid down by Cooke P.278 Momentum to strengthen NZBORA had stalled.279
However, the upgrading of NZBORA into a more powerful instrument by the courts has recently begun to again pick up pace. The Supreme Court in Fitzgerald used s 6 to conclude NZBORA would not be captured by “despite any other enactment” in the three strikes legislation.280 Justice William Young in his dissent was scathing of majority’s NZBORA consistent interpretation arguing “I construe s 86D as meaning
275 Allan, above n 22, at 617–620 citing Ministry of Transport v Noort, above n 22, and Baigent's case,
above n 22.
276 At 613–614. Allan has borrowed the Superman metaphor from Michael Taggart: see Taggart, above n 13.
278 At 621–622 citing Ministry of Transport v Noort, above n 22, R v Grayson and Taylor [1996] NZCA 565; [1997] 1 NZLR 399 (CA), and Quilter v Attorney-General [1997] NZCA 412; [1998] 1 NZLR 523 (CA).
280 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
what it says”,281 arguing that ordinary tools of interpretation were unavailable to support s 86D being read as requiring a NZBORA consistent sentence to be imposed.
The Court in Fitzgerlad may have been comfortable expanding s 6 and the common law principle of legality to interpret a section that appeared inconsistent with NZBORA rights. But this should not be taken as an opportunity to turn NZBORA into something it is not. Imposing a procedural requirement on a decision-maker to consider NZBORA rights through the guise of s 5 would be turning NZBORA into something Parliament did not intend.
Canada, Victoria and South Africa all require a decision-maker to consider the relevant protected rights when making a decision. However, the origins of the process requirement vary across the three jurisdictions. Consideration of Canadian Charter rights — and values — arises “in light of constitutional guarantees” and acts as "a reminder that some values are clearly fundamental”.282 The decision to entrench the Charter rights means “the purpose of these rights is important for Canadian society as a whole” and must be considered in decision-making.283 Canada does not bring a requirement to consider rights through the text of s 1 but rather the role Charter rights have in Canadian society through entrenchment in s 52. While decision-makers under the statutory Victorian Charter must consider Victorian Charter rights, this procedural requirement does not come from the bit-by-bit expansion of the Victorian Charter but rather the express words of the Parliament of Victoria in s 38(1). Likewise, the South African procedural requirement comes from the explicit words of the Interim Constitution.
Adopting a process requirement upgrades NZBORA beyond its scope as a statutory rights instrument and goes beyond the text of s 5. Section 5 concerns “reasonable limits” and limits speak to outcomes. Through s 3 — NZBORA applying to the Executive and those exercising public power — an administrative decision must be subject to the demonstrably justified test found in s 5. These limits create a range of possible rights consistent outcomes that a decision-maker can reach and what matters is that the decision-maker lands in this range — not how they got there. Unlike Canada, South
282 Doré v Barreau du Québec, above n 64, at [34]–[35].
283 Commission scolaire francophone, above n 170, at [75].
Africa and Victoria, the purpose and text of NZBORA do not call for a process requirement. NZBORA constrains the outcome a decision-maker can reach but without entrenchment NZBORA rights are not constitutionalised to the degree they are required to be considered by decision-makers.
This reading of s 5 is consistent with the United Kingdom’s approach to the HRA, where the cases recognise the analogous internal qualifier in Convention rights refers to the outcome of a decision, not a right to have a decision made in a particular way.284 The United Kingdom has refused to turn the statutory ‘Clark Kent’ HRA into a ‘Superman’ bill of rights by adding a cape in the form of process requirement on decision-makers.
The courts will be engaging in an act of judicial activism by requiring a decision-maker to consider NZBORA rights under s 5. By creating a process requirement, New Zealand courts would be acknowledging NZBORA rights and freedoms play such an important role in New Zealand society that they demand a decision-maker to consider them by virtue of their fundamental nature rather than the text of s 5. This status of rights should not be achievable by a statutory rights bill without clear textual support. Clark Kent cannot be turned into Superman by the Court fashioning a new cape through demanding decision-makers engage with s 5.
B Lack of Meaningful Relief: Lessons to be Learnt from Wider Administrative Law
This subpart explores appropriate relief in a situation as seen in New Health v Director- General of Health where a decision is challenged strictly on a process element of failing to consider NZBORA rights. Imposing a process requirement under s 5 leads to inconsistency within wider administrative as a breach of a process element will rarely demand relief.
The starting point is that relief in judicial review is discretionary.285 However, there is a presumption towards granting a remedy when public power has been exercised unlawfully.286 There must be “extremely strong reasons” for the Court to decline
284 R (SB) v Governors of Denbigh High School, above n 78, at [68]; and Belfast City Council v Miss
Behavin’ Ltd, above n 129, at [90].
285 Air Nelson v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [59].
relief.287 However, Casey J in Turner v Pickering held the Court will only exercise its discretion if the order is to have some utility.288 The Court will not grant an order just so the applicant “has the satisfaction of being told that they were right.”289Justice Radich grappled with the issue of declining relief after concluding the Director- General had failed to engage with NZBORA considerations.290 Counsel for the Crown argued the ultimate question in the case was whether the decision was justified — which the Court was yet to assess — in which case a process error will be immaterial.291 New Health argued the Director-General’s error is more than simply a process error and that the decision is fundamentally flawed.292
Justice Radich considered the “orthodox outcome” for failure to consider NZBORA rights and freedoms is for the Court to grant a remedy.293 However, this orthodox position can be challenged. Moonen concerned a statutory basis to give reasons for a decision to classify material as objectionable.294 The reasons given were insufficient and the Board was expected to be alive to freedom of expression in these reasons. Relief was granted as the reasons were insufficient and it was unclear if the Board would reach the same conclusion if they had followed the correct process.
Justice Radich’s reliance on Schubert v Wanganui District Council is misleading. Schubert concerns a bylaw banning gang patches in all public places in the Wanganui District.295 The Council was authorised to make bylaws banning gang patches in some public places.296 Justice Clifford held the bylaw was ultra vires the empowering provision as s 5(6) did not allow the Council to extend the ban to all public places.297 His Honour, after completing an Oakes/Hansen analysis,298 concluded the bylaw was
288 Turner v Pickering [1976] 1 NZLR 129 (SC) at 141.
290 New Health New Zealand Inc v Director-General of Health (relief), above n 248.
293 At [19] citing Moonen v Film and Literature Board of Review (No 1), above n 4, Schubert v Wanganui District Council [2011] NZHC 48; [2011] NZAR 233, and Television New Zealand v West, above n 73.
294 Moonen v Film and Literature Board of Review (No 1), above n 4.
295 Schubert v Wanganui District Council, above n 293, at [1].
296 Wanganui District Council (Prohibition of Gang Insignia) Act 2009, s 5.
297 Schubert v Wanganui District Council, above n 293, at [54].
an unjustified limitation on freedom of expression.299 The empowering legislation also required the Council to be satisfied the bylaw was “reasonably necessary”.300 Interpreting this power, Clifford J concluded the Council needed to properly consider NZBORA in their decision-making process and failed to do so.301 Justice Radich failed to note the remedy was granted in Schubert not solely on the basis of failure to consider NZBORA rights, but rather this was just one factor. The bylaw was ultra vires the Act and was not demonstrably justified.302 The requirement to consider NZBORA did not arise from NZBORA itself but a requirement in the enabling Act. These factors mean Schubert cannot support the “orthodox outcome” for failure to consider NZBORA rights being a remedy.
Television New Zealand v West involved two appeals from the Broadcasting Standards Authority.303 The appeal by TVNZ was allowed and the decision of the Authority was reversed.304 However, the TVNZ appeal was allowed on the grounds the Authority had failed to consider the context in which the episode had appeared in, which was a mandatory consideration under the Free-to-Air Television Code of Broadcasting Practice.305 Justice Asher explicitly states he has not considered the NZBORA aspects of the TVNZ appeal.306 NZBORA analysis in the judgment is constrained to the TVWorks appeal, where the Authority had sufficiently considered NZBORA rights and the appeal was dismissed.307 West cannot then stand for a right to a remedy where NZBORA has not been considered.
Victorian authorities were also considered by Radich J to support quashing a decision by solely relying on breach of a process element.308 However, the origin of that process requirement comes from the express text of the Victorian Charter. Victoria has a strong parliamentary intent to allow a remedy for breach of the process limb of s 38(1) through
300 Wanganui District Council (Prohibition of Gang Insignia) Act 2009, s 5(5).
303 Television New Zealand v West, above n 73, at [1].
308 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [21]–[23].
Parliament’s desire to create a culture of justification. Despite this parliamentary intent, the Victorian Court of Appeal in Bare considered a procedural breach of s 38(1) does not necessarily invalidate the decision.309If the substantive NZBORA outcome is “sufficiently clear” then it may be inappropriate to send the decision for reconsideration.310 What then does Radich J mean by a “sufficiently clear”? As discussed, there is Supreme Court obiter from O’Regan and Ellen France JJ in South Taranaki District Council that fluoridation of drinking water is a demonstrably justified limitation of s 11.311 Justice Radich considered the silence on the issue from the remainder of the Court in South Taranaki District Council means the substantive issue “remains at large”.312 Supreme Court obiter comments are then insufficient to be “sufficiently clear”. It would then require explicit judicial authority on point to suggest the NZBORA outcome would be “sufficiently clear”. Rather than the Court going through this strained analysis to predict whether the NZBORA outcome may be sufficiently clear, the reviewing Court should undertake the proportionality analysis themselves to determine the substantive NZBORA outcome.
Justice Cooke in Wallace avoided this mental gymnastics by considering the substantive issue first.313 As already discussed, had Cooke J considered the process limb of Moncrief-Spittle first he would have needed to predict whether s 19 was engaged when assessing if Corrections should have considered s 19. This was avoided by first reaching the conclusion that the Correction’s decision to relocate the female prisoners was not demonstrably justified. Of course, this then makes any process element redundant.
If the Court has already assessed the substantive outcome, sending the decision back for reconsideration will be unduly formulistic and provide no utility. The remedy provided by Radich J in New Health v Director-General of Health is of questionable utility. The decision was not quashed.314 The order remains in force until reconsidered
309 Bare v Independent Broad-based Anti-Corruption Commission, above n 150, at [151].
310 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [8].
311 New Health New Zealand Inc v South Taranaki District Council, above n 232, at [126]–[143].
312 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [27] and [28].
313 Wallace v Chief Executive of the Department of Corrections, above n 174.
314 New Health New Zealand Inc v Director-General of Health (relief), above n 248, at [29].
by the Director-General.315 It is unlikely the Director-General after conducting a NZBORA balancing exercise will reach a different conclusion. The Director-General had turned his mind to the scientific evidence — as required by the Health Act — and was satisfied fluoridation was safe and effective in preventing dental decay.316 Having reached this point, any consideration of s 11 will be a box ticking exercise — the outcome will not change.
Imposing a procedural obligation on decision-makers under s 5 is inconsistent with the remedies scheme in wider administrative law. To give a remedy for failing to consider NZBORA rights the Court would need to undertake a predictive exercise as to whether the substantive result is sufficiently clear, but without undertaking a proportionality test to such a degree that the procedural limb is redundant. This approach is artificial and unduly formalistic. The struggle Radich J experienced when determining whether or not to grant a remedy in New Health v Director-General of Health illustrates that while a process element and a culture of justification are well and good in theory, in practice they cannot lead to meaningful relief. The likelihood that there could be a decision where the outcome is demonstrably justified where the decision-maker upon proper consideration of NZBORA rights would reach a different outcome is low. When reviewing a decision, the Court ultimately will turn its mind to whether the outcome is demonstrably justified — this inquiry should be bought front and centre as it is best suited to protect against unjustified limitations of NZBORA rights. Assessing a process requirement only detracts from this inquiry.
C Reframing Moonen: A Duty to Give Reasons
This subpart looks to reframe Moonen, which has been read to support a requirement for a decision-maker to consider NZBORA rights.317 Rather Moonen should read as requiring certain decision-makers to give reasons for their decisions which are then subject to variable intensity review. The context of the empowering provision or the decision may require a decision-maker to give some consideration to NZBORA in their reasons. However, Moonen cannot stand for a general duty to consider NZBORA rights during the decision-making process. Moonen, and subsequent cases, are instead cases
315 At [33] citing Judicial Review Procedure Act 2016, s 17(6)(a).
316 New Health New Zealand Inc v Director-General of Health, above n 3, at [28].
317 Moonen v Film and Literature Board of Review (No 1), above n 4.
where procedural fairness or the empowering provision have required the decision- maker to give reasons. Once this duty to give reasons is imposed on the decision-maker, if NZBORA rights are incidental to the decision — they must be considered.There is no general duty on decision-makers to give reasons.318 The empowering statute may explicitly require a decision-maker to give reasons. However, there has been increasing recognition in New Zealand that procedural fairness may require a decision- maker to give reasons for their decision in specific circumstances.319
The duty to give reasons is often considered in the context of censorship.320 The Film, Videos, and Publications Classification Act 1993 requires reasons be given when a classification is made.321 It is through this underlying duty to give reasons combined with the inherent nature of censorship that the Board needs to consider NZBORA s 14 in their reasoning. Additionally, there is a direct avenue of appeal from the Board to the High Court.322 This would increase the need for the Board to give reasons that showed how the decision was reached, with reference to how the Board gave meaning to the requirements in the Act. The Board’s interpretation of s 3 — the classification provision
— needs to be informed by NZBORA s 6 and this must be evident in the Board’s reasoning.323 At their heart, Moonen, Society for the Promotion of Community Standards and Vixen are reasons cases, they are not cases standing for s 5 requiring consideration of NZBORA rights.
The censorship cases cannot be extrapolated out to a general duty to give reasons when NZBORA rights are prima facie engaged. A blanket requirement on all decision-makers to consider NZBORA rights and illustrate this consideration in contemporary documents is inconsistent with the current New Zealand position on reasons. As a starting point, reasons are not required at common law, however, fairness may demand
318 Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA) at [75].
319 Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council
[2015] NZCA 23, [2015] NZAR 302 at [69]–[70].
320 Moonen v Film and Literature Board of Review (No 1), above n 4; Society for the Promotion of Community Standards Inc v Film and Literature Review Board [2005] NZCA 176; [2005] 3 NZLR 403 (CA); and Re Vixen Digital Ltd [2003] NZAR 418 (HC).
321 The Film, Videos, and Publications Classification Act, s 55.
323 Moonen v Film and Literature Board of Review (No 1), above n 4, at [26]–[28].
them in some circumstances.324 Reasons may be required in circumstances where the decision has the potential to be heavily impact the livelihood of the applicant, such as in professional misconduct cases.325 It could be expected that New Zealand courts could be persuaded in an immigration context that sufficient reasons for the decision could be required, as seen in Doré. This may draw in an expectation that where a decision-maker is making a fundamental decision about a person’s life, they may need to show evidence of NZBORA consideration in their reasoning. This is not to say all decision-makers must give reasons every time NZBORA is prima facie engaged.
Whereas the prisoners’ cases all concern a prison official making an adjudication that constrains the actions of a prisoner already deprived of other liberties. Requiring these decision-makers to give reasons protects against arbitrary exercises of power by prison officials and gives prisoners a basis to review the decision, satisfying two of the three justifications for reasons from Lewis v Wilson & Horton.326
The approach of Radich J in New Health v Director-General of Health, by requiring contemporary documentation from the Director-General’s decision-making process, is effectively expanding the ambit of the duty to give reasons to include senior policy makers exercising discretionary powers. This is an incredible widening of the duty to give reasons which leads to a bifurcation of the duty to give reasons — reasons would be required when NZBORA rights are engaged yet are not required in other administrative decisions. The Director-General was not making a decision that would impact a specific individual. He made a high-level policy decision to exercise his power under s 116E of the Health Act to order local authorities to fluoridate their water.
The wheels of public administration would grind to a halt if every decision of a senior public servant or minister that engaged a NZBORA right was required to be supported by reasons detailing why the prima facie breach was justified. Instead, the duty to give reasons should be contained within mainstream administrative law — if a decision-
324 Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Māori Heritage Council,
above n 319, at [70].
325 ANZ Sky Tours Ltd v New Zealand Tourism Board [2019] NZHC 925, [2019] NZAR 951 at [124].
326 Lewis v Wilson & Horton Ltd, above n 318, at [76]–[82].
maker is making a decision where procedural fairness demands reasons, NZBORA rights may need to be considered in those reasons.
D Section 5 Demands a Proportionality Analysis
Drawing the threads together, s 5 requires a proportionality analysis to be performed by the reviewing Court. The exact form this inquiry must take is a question for another day. What matters is the Court engages with s 5 as a constitutional trump and balances the outcome against the claimant’s NZBORA rights. Any attempt to impose a blanket process requirement on decision-makers to consider NZBORA rights is unwise. By attempting to incorporate a ‘culture of justification’ into NZBORA decision-making the Court has created a disjointed process requirement under s 5 that lacks a meaningful remedy. The recent cases have shown that a process element of NZBORA cannot be considered without some consideration of the substantive outcome — either in discussion of prima facie breach or predicting the substantive result in deciding whether to grant a remedy. Rather than accepting these difficulties with a process element under s 5, the Court must stop hiding behind process and make the “difficult assessments” McGechan J spoke of in Federated Farmers.327
When the appeal in New Health v Director-General of Health is heard by the Court of Appeal next year, the Court must take the opportunity to reflect on the previous s 5 cases. The Supreme Court has avoided analysing the authorities in both recent cases where they have had the opportunity to settle this issue.328 Using a reasons lens to explain the early censorship cases, where a statutory requirement to give reasons led to consideration of NZBORA being required, gives the Court room to reconsider the efficacy of a process requirement for s 5 afresh. When pleaded with a claimed substantive breach of NZBORA rights, the process limb falls by the wayside, as illustrated in Wallace.329 Pleaded as a pure procedural failure to consider NZBORA rights the court is unable to give a meaningful remedy without retreating to first analysing the substantive result before giving a remedy. NZBORA does not create a
327 Federated Farmers of New Zealand (Inc) v New Zealand Post Ltd, above n 27, at 57.
328 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 1; and A v Minister of Internal Affairs, above n 254.
329 Wallace v Chief Executive of the Department of Corrections, above n 174.
culture of justification where mere failure to consider NZBORA rights invalidates a decision that is otherwise justifiable.
Conclusion
[W]hat matters in any case is the practical outcome, not the quality of the decision- making process that led to it.330
Uncertainty still remains about the role NZBORA plays in review of administrative decision-making. Recent attempts by the Supreme Court to settle the issue have made steps towards resolving the question of whether s 5 is a substantive or procedural constraint. However, the Court left the door open as to the extent of a process element. Now that a process element has been tested in multiple High Court cases, the efficacy of such a requirement must be questioned.
In other words, New Health v Director-General of Health must be reconsidered. A procedural element must give way to substantive proportionality analysis by the Court. Reasons, which may include a NZBORA analysis, are required when a decision-maker is making an impactful decision about an individual, but they are not required in the Director-General’s case. A culture of justification of the type envisioned by Mureinik is not supported by the text or the history of NZBORA, and even if it was required, it is not advanced where a failure to comply solely with a process requirement lacks a meaningful remedy. What matters is that the outcome can be justified, which substantively protects NZBORA affirmed rights and freedoms.
330 R (SB) v Governors of Denbigh High School, above n 78, at [31] per Lord Bingham.
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H Other
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