Alex Conte I. Introduction


Interpretation consistent with Bill of Rights to be preferred



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6. Interpretation consistent with Bill of Rights to be preferred

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

  1. [2000] 2 NZLR 695.

  2. (Unreported, Court of Appeal, Full Bench, 20 December 2000) 20/12/00.

81 Elias CJ, Tipping and Thomas JJ refused to apply the amendment. Gault, Keith and McGrath JJ, held that s 80 did apply retrospectively, but only back to 1 September 1993 (the date from which the Criminal Justice Act 1985 (NZ) was amended). President Richardson agreed that the amendment did not apply before 1 September 1993, but declined to comment on whether the section was retrospective in its effect.

  1. Ibid para 40 (Elias CJ and Tipping J).

  2. See A Butler, 'Judicial Indications of Inconsistency - A New Weapon in the Bill of Rights Armoury?' [2000] New Zealand Law Review 43; P A Joseph, 'Constitutional Law' [2000] New Zealand Law Review 301; Dr J Allan, 'Moonen and McSense' [2002] New Zealand Law Journal 142; J Evan, 'Questioning the Dogmas of Realism' [2001] New Zealand Law Review 145.

  3. A Conte and S Wynn-Williams, 'Declarations of Inconsistency under the Bill of Rights. Part I: Judicial Jurisdiction, Discretion or Obligation?', to be published in late 2002 in Brooker's Human Rights Law & Practice; A Conte, 'Declarations of Inconsistency under the Bill of Rights. Part I: An 'effective remedy?', to be published in early 2003 in Brooker 's Human Rights Law & Practice.

85 Ministry of Foreign Affairs and Trade, 'Fourth Periodic Report', above n 3, para 20- 3; 40-8.

  1. See, eg, R v Bain, Application by Television New Zealand (Unreported, Court of Appeal, 22 July 1996) CA255/95.

  2. A more detailed examination was carried out by the writer in 'From Treaty to Translation: the use of international human rights instruments in the application and enforcement of civil and political rights in New Zealand' (2001) 8 Canterbury Law Review 54.

88 Dr J Allan has referred to them as an 'unholy trinity': Allan J, 'The Operative Provisions

- An Unholy Trinity' [1995] Bill of Rights Bulletin 79.

  1. [1992] 3 NZLR 260.

  1. In brief, s 5 New Zealand Bill of Rights 1990 (NZ) permits the rights and freedoms set out in the Act to be limited by reasonable limits 'prescribed by law as can be demonstrably justified in a free and democratic society'. In the interpretation of an enactment, this can be considered to be the first step towards achieving a reading of the enactment which is consistent with the NZBORA.

91 [2000] 2 NZLR 9.

  1. [2000] 2 NZLR 695, 702.

  2. J F Burrows, Statute Law in New Zealand (2nd ed, 1999) 206.

  3. [1924] NZLR 689. See also Bulk Gas Users Group v Attorney-General [1983] NZLR 129.

95 See, eg, Chester v Bateson [1920] 1 KB 829, 836.

  1. As required by s 6 New Zealand Bill of Rights Act 1990 (NZ).

  2. However a distinction should be drawn between statutes affecting substantive rights, against which the presumption should be applied, and those Acts regulating procedure. For a more detailed discussion on this point, see Burrows, above n 89, 362.

98 It is notable that, until relatively recently, New Zealand and English common law did not find fault with a statute that increased the penalty for an existing offence applying to the commission of offences prior to the coming into force of that statutory provision: see Director of Public Prosecutions v Lamb [1941] 2 KB 89; Campbell v Robins [1959] NZLR 474.

  1. [2001] 2 NZLR 37.

  2. See s 7.

  1. New Zealand ratified in 1989.

  2. New Zealand became party to the First Optional Protocol on 26 May 1989.

  3. Human Rights Committee, Comments on New Zealand, CCPR/C/79/Add.75 (April 1995) para 5.

  4. See the Comments on the Fourth Periodic Report, above n 3, para 36.

  5. Ibid.




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