Abstract:
The purpose of this article is to establish the state of authority on the role of s 5 in applying the New Zealand Bill of Rights Act 1990 – a point on which there is ongoing uncertainty. The leading Supreme Court decision in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 confirms that the justified limits provision in s 5 plays a central role in determining what the Bill of Rights requires, and that the rights-consistent interpretation requirement in s 6 must be read subject to it. It further sets out sequenced tests to use for this purpose. But that decision also contains dicta contemplating exceptions to the approach it sets out, and the Supreme Court’s subsequent decisions in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 and Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1 appear to involve alternative approaches. As a result, the role of s 5 continues to be questioned in the lower courts. On the best reading of these cases, the Hansen dicta contemplating exceptions only apply to the sequenced tests, not to the central role of s 5. The different approach in Brooker and Morse and other cases involving provisions that are capable of a “continuum” of meanings is consistent with that. The “continuum type” provisions are read subject to an “implicit proviso”: the provision applies only where any resulting limits on rights can be justified in terms of s 5. This approach enables s 5 to be given its central role without following the Hansen sequence (either modifying the order in which ss 5 and 6 are applied, or dispensing with the first step in the Hansen sequence).
