Canterbury Law Review
Today's speech could be subtitled 'The Search for a Democratic Balance under Bill of Rights Instruments.' The balance is between the individual, minorities, sectional interests and the state, which brings in the respective roles of the legislature, the executive and the judiciary. Human rights issues are complex. And over the last 50 years the various waves of thinking about rights and about the functioning of government have led to inevitable successive rebalancing in working democracies, here and elsewhere. It is in that context that I will be setting out what I see as some crucial considerations for discussion.
My own exposure to the Bill of Rights field and the accompanying focus on the inter-relationship of the three branches of government began in the United States. As a post-graduate student in the mid 1950s, I was seeking to understand the constitutional and international law implications of human rights developments through the United Nations, which drew on the long experience of the United States under its constitution. Interest in these questions continued in a variety of contexts in New Zealand over the next 30 years. It became central to my working life in the Court of Appeal when our Bill of Rights statute was enacted in 1990 and continued through to my retirement in 2002. Since then, I have benefited from the testing of ideas with law staff and students at Otago, and particularly Victoria universities, and from addresses (and the lively ensuing discussion), first, at the Australian and New Zealand Judges Conference in January 2004 and, second, to the judiciary, practitioners and academics for the Judicial Studies Board in Hong Kong when I was sitting in the Final Court there in July; and from individual discussions and commentaries on successive drafts of this paper. The New Zealand Bill of Rights had an awkward start in life from which it has not yet wholly recovered. That explains the title of the address with the last phrase referring to the implications for commerce added to emphasise the breadth of application, and significantly for the commercial community, of our statute.
I begin by explaining the background to the statute as eventually enacted on 28 August 1990, how that led to a narrow focus on criminal justice and why it has only recently begun to be considered across the range of common law and statute. That history contrasts with the United Kingdom which drew on and learnt from our experience when enacting and implementing the Human Rights Act 1998 (UK).
I then outline five key features of the New Zealand statute. These include the responsibility of the courts as the judicial branch of government to interpret and apply both the legislation and the common law; and that responsibility includes any statutory discretion given by the Bill of Rights. Lastly, that leads me to a necessarily brief summary of the impact of the Bill of Rights in criminal processes and pointers to its as yet largely unrealised impact in the civil justice system. To facilitate discussion I have prepared a schedule commenting further on the criminal processes and listing a range of civil justice questions.
Two factors significantly affected the early history of the Bill of Rights. First, the statute was not the product of a constitutional settlement or cataclysmic event. There was significant public and political opposition to its enactment. The Labour Government, elected in 1984, had included a promise of constitutional reform in its election manifesto. In April 1985 it released a White Paper proposing and detailing a bill of rights as supreme law for New Zealand. Extended hearings before a Select Committee of Parliament demonstrated a high level of opposition to that proposal. It was seen as undemocratic, as transferring political power to unelected judges and as introducing unacceptable uncertainty into the law. Far from a groundswell of support, there was no particular constituency in favour. The New Zealand Law Society was strongly opposed, as were many political and public and special interests, including Maori who objected to having the Treaty of Waitangi brought into the legal system in that way. The Select Committee concluded that the Bill should not proceed in that form but that a modified set of provisions should be passed as an ordinary statute. The other major political party, the National Party, opposed a bill of rights in any form but the modified Bill was passed in the dying stages of the Labour Government after a vote in the House of Representatives which divided along party lines.
In fact, the Bill of Rights quickly became a significant part of the workload of the Court of Appeal and in the first 13 years there were 577 appeals raising Bill of Rights issues. But, and this is the second factor affecting its early history in the courts, the subject content of those appeals was limited. Until fairly recently, cases were almost wholly focussed on criminal justice (including prison administration), but with free expression cases notable exceptions. That concentration on criminal cases was due in part to a failure to provide at the outset an adequate education program to develop an understanding of the reach of a bill of rights across the board. When the United Kingdom came to enact the Human Rights Act 1998 (UK) implementing as domestic legislation the European Convention on Human Rights, those directly concerned in developing their legislation had been made aware of that handicap and in various respects also drew from our statute. Importantly they allowed two years following its enactment before it came into force and during that period a concerted education program for judges, lawyers and officers of public authorities gave early understanding of the wide reach of their statute. That is reflected in the United Kingdom experience since the 1998 Act came into force in 2000. A recent Lexis search of United Kingdom law journals for the Human Rights Act 1998 (UK) yielded 1919 references including 554 articles and comments on the interaction of the 1998 Act and the common law.
Lord Irvine, as Lord Chancellor, reviewed the respective roles of Parliament, the executive and the courts in his Durham lecture published in 2003 under the title 'The Impact of the Human Rights Act Two Years On'. He said:
Parliament has two principal interests in the Human Rights Act. The first is to defend its legislation and its right to legislate - if it wishes - in spite of the Act; that is to maintain Parliamentary sovereignty. The second is Parliament's role in scrutinising legislation. The former shapes Parliament's relationship with the Courts, the latter with the Executive.
Next, he said:
the Executive must continue to build Convention standards into decision-making at all levels, so that decisions are proportionate, rational and respectful of fundamental rights. And it means it must be robust in the face of human rights challenges, so that it can vigorously demonstrate and defend the merits of its decisions. After all, contested cases are sometimes necessary to help develop the rights-based culture we want.
Then, as to the role of the courts, at he said:
In examining what impact the Act has had on the Courts, and on our system of law, the overriding theme that emerges is balance: balance between scrutiny and deference; between the individual and the community; and between interpretation and declarations of incompatability.
The balance between intense judicial scrutiny and reasonable deference to elected decision-makers is a delicate one to strike. But the judiciary have struck it well; and I welcome that. Whilst scrutiny is undoubtedly an important aid to better governance, there are areas in which decisions are best taken by the decision-makers entrusted by Parliament to make them. This may be for reasons of democratic accountability, expertise or complexity. But we recognise that we cannot simply recite the need for 'deference' or 'self-restraint'. Rather, we must, where appropriate, argue the case for it carefully and persuasively. This often involves 'political advocacy' - the equivalent of 'Brandeis briefs' in the US Supreme Court - by which Government counsel gives the Court a thorough analysis of the policy behind legislation.
In my view those considerations are equally relevant under the New Zealand Bill of Rights.
What is required is a reconciliation of the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured. And, given the breadth of the language of human rights instruments, the nature of the issues arising under a bill of rights and the need for balancing rights and interests, there will inevitably be a diversity of judicial views on various issues in any appellate court. That diversity is certainly reflected in judgments of the United Kingdom Court of Appeal and the House of Lords under the Human Rights Act 1998, and in Canadian, United States and Privy Council decisions. A clear example of this can be seen in the judgments delivered in the House of Lords in R (Pro-Life Alliance) v British Broadcasting Corporation. It is also reflected in the Privy Council where Roodal v State of Trinidad and Tobago was over-ruled within 5 months by a five to four majority in Boyce, Matthew and Watson.
Reverting to the New Zealand experience, there were two important early consequences of the awkward start in life of the Bill of Rights. The first was that the Bill of Rights came to be perceived by many as a rogues' charter, rather than as a balanced protection of our liberties reflected through private law and public law as well as crime.
The second was that time pressures in criminal appeals — particularly given our wide pre-trial ruling regime — when the appeals were not comprehensively researched and argued, affected some early decisions. That was unfortunately compounded when several cases, which set the early tone, had come before three judge courts, but were later reversed or modified by five or seven judge courts - to the dismay of many academics who viewed the later majority judges as dinosaurs. In practice, however, at the same time the Bill of Rights has had a major but less publicised impact on the regular functioning of government — and not restricted to the duty of the Attorney-General under s 7 to report to Parliament any provision in a Bill which appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights. The s 7 process allows the legislature to make its own informed ultimate judgment — whether to accept the Attorney-General's report and modify the provision or whether, notwithstanding that advice, to enact the provision the subject of the s 7 report.
The important further point going beyond s 7, and which cannot be overemphasised, is that all governmental agencies, including local government agencies, are required to build Bill of Rights standards into decision-making at all levels. So that wider impact affects day to day administration and policy development within government.
That reflects the important reality that developing a culture of respect for human rights depends primarily and ultimately on influencing all our institutional policies and practices through a widely shared sense of entitlement to those rights and a shared sense of personal responsibility and respect for the rights of others in the society of which all New Zealanders are part.
Litigation plays an important lesser part in assuring compliance with basic legal standards and challenging ways of thinking. But litigation should not lead to lawyers and judges assuming responsibility for training public authorities and for general awareness raising — and it should not lead to judges assuming responsibility for determining the ultimate balancing of values where, as we have every reason in New Zealand for believing is the case, the legislature, the executive, bodies and persons performing public functions and officials conscientiously seek to meet their responsibilities under the Bill of Rights.
In that regard, reflect, too, on Senator Fulbright's conclusion: 'You can't change society too much through the courts. Most of it has to come through the political system. Even if it takes longer, it's more likely to stick.'
I turn to five key features of the 1990 Act. First, it is more limited in its express listing of particular affirmed rights than the United Kingdom Act or the Canadian Charter or the International Covenant on Civil and Political Rights. Thus, there is nothing comparable with the much utilized Article 8 in the United Kingdom explicitly focussing on '...the right to respect for his private and family life, his home and his correspondence'. Again, the New Zealand counterpart of Article 6(1) entitling everyone to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law is confined to criminal charges. It does not extend, as Article 6 of the United Kingdom Act does, to the determination of civil rights and obligations. Further, the 1990 Act does not speak of equality rights or property rights or economic or social rights. The obvious point is the clear need for care in invoking overseas decisions. And, while a similarity in various respects of the New Zealand Bill of Rights to the Canadian Charter initially prompted ready reference to Canadian Supreme Court decisions, experience led to a more cautious use of that material and greater drawing on American, international and, now, United Kingdom decisions. As well, there are obvious differences in legal and social backgrounds and in societies and cultures. Jurisprudence in other jurisdictions provides valuable insights but cannot and should not be determinative of New Zealand law. Second, the long title states the purpose of the 1990 Act as being:
(a) To affirm, protect and promote human rights and fundamental freedoms in New Zealand; and (b) To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights.
Section 2 goes on to affirm the rights and freedoms contained in the Bill of Rights. The governing words in para (a), 'affirm', 'protect' and 'promote' express a positive commitment to existing human rights. But they do not resolve the difficult questions of which of the specified rights require social support and the respective roles of the legislature, the executive and the courts in those assessments. One current question is whether the s 8 right not to be deprived of life requires positive public health steps to reduce infant mortality and to increase life expectancy.
Para (b), too, necessarily affects the approach to interpretation in affirming New Zealand's commitment to international standards and norms. That linkage is reinforced by New Zealand's accession to the First Optional Protocol to the International Covenant which gives individual access to the United Nations Human Rights Committee where domestic remedies are exhausted or such remedies are not available.
Given that rights based focus it is not surprising that, although the Act lacks an express remedies provision, adequate remedies are available including, and where appropriate in the absence of other adequate remedy, public law damages for violation of rights.
The third key feature is that s 3 is crucial and s 27 links with s 3(b). Section 3 works in two ways. First, s 3(a) requires acts of each branch of government to be Bill of Rights compliant. Second, s 3(b) requires acts of bodies and persons exercising public functions and powers to be Bill of Rights compliant.
Historically bills of rights were viewed as restraints on the powers of the state. But developments in the last 20 to 30 years have required reconsideration of that narrow focus. Erosion of the welfare state, the world wide trend towards privatising and contracting out various activities, the expanding strength of multi-nationals and national corporations far beyond state boundaries, mobility of capital, and investment flows in the electronic age — they have changed the landscape and led to an increased focus on the application of the Bill of Rights to private entities. In turn, this has led to a wider focus under s 3(a) on acts of government extending to government emanations; under s 3(b) to bodies and persons non-governmental in terms of s 3(a) but performing a public function under s 3(b); and an overlap where a private body is exercising powers under contract with the executive government. In that third overlap situation at least two questions require consideration. First, do Bill of Rights responsibilities remain with the executive and/or are Bill of Rights compliance standards contractually imposed on the private body explicitly or by implication? Second, can performance by a private body of regulatory obligations, or self-regulation constitute a public function?
Easier questions arise under s 3(a). Decisions of courts are acts of the judicial branch of government. Courts interpret and apply common law (including equity) and legislation. It follows that a court's act in interpreting and applying common law must be Bill of Rights compliant. A court's act in interpreting legislation and in exercising statutory discretion must also be Bill of Rights compliant. In advising clients lawyers need to have in mind that ultimately the court will determine the common law and statutory interpretation answers, which will be Bill of Rights compliant even though only private parties may be involved in the dispute. But, s 3(a) is not a charter to rewrite the whole of the common law. There are two limitations. First, a court's role is confined to the common law rule engaged by a specific provision of the Bill of Rights - for example, process (s 27), defamation (s 14), discrimination (s 19), and extending to public policy assessments under s 5, for example in tort (duty of care, nuisance) and contract (restraint of trade, exclusion clauses, standard terms). In that extended category under s 5, Fairgrieve, discusses the impact of the 1998 United Kingdom Act on the liability of public authorities in negligence and nuisance. The second limitation is the general limitation suggested by Brennan J in Mabo v Queensland (No 2) that the departure must not fracture the skeleton of principle of the particular doctrine of law. The s 27 link with s 3(b) invites consideration of the scope and content of 'the principles of natural justice' which tribunals and public authorities must observe. The White Paper, noted that those 'principles will have a varying application in different circumstances'. They clearly require notice of the case, opportunity to answer and an unbiased decision maker. Difficulty arises in determining in the particular case whether the substantive decision, as distinct from pure process can be challenged only for irrationality, or less stringently for Wednesbury unreasonableness, or reflecting a human rights overlay for proportionality, which in turn involves balancing scrutiny and deference and individual rights and other rights and interests. Where along that spectrum the answer lies in the particular case has been a fertile field for debate in England. Lord Irvine's conclusion noted earlier suggests that in those early years the balance had been appropriately struck in the English cases.
In New Zealand these difficult questions may be resolved through s 5, to which I shall come shortly.
Next, the focus of s 3(b) on the nature of the function or power being exercised in determining whether it is 'public', raises some difficult questions. For example, some health, education, housing and welfare provision has been made historically and for longer by private providers, as well as by public providers. Again, what sports, media, religious, professional and trade organisations are amenable to judicial review and have their functions 'conferred or imposed ... by or pursuant to law'? Turning back to s 3(a), do acts of the legislative branch include resolutions and decisions relating, for example, to privilege and contempt and how far do the requirements of natural justice (s 27) extend? Do acts of the executive branch extend to government entities and what yardstick is applicable? And, as earlier noted, s 3(b) provides a flow through to other bodies and officials. Finally under this head, rather than assuming that the high point of the welfare state is the natural order which governs consideration of the impact of all subsequent change, I suggest we need to ask whether values are contestable, that is debatable, in the balancing processes. After all, different societies arrive at different balances and at different times as between, for example, individuality and community, competition and cooperation, diversity and uniformity, economic well-being and social cohesion, efficiency and fairness, rights and responsibilities. The fourth key to the working out of the 1990 Act is ss 4, 5 and 6. While they occur in the same part of the statute, each serves a different function. Section 6 is an interpretation provision. It requires that '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.' It emphasises that a finding that another statutory provision is inconsistent with the Bill of Rights, and for a possible declaration of inconsistency, is a rare and carefully considered decision. It parallels s 3 of the United Kingdom Act.
Section 5 prescribes the justification process for limiting the Bill of Rights in particular cases. Subject ultimately to s 4, it requires that the prescribed rights and freedoms 'may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.' The same test is applied as appropriate to each of the separate freedoms. It departs from the International Covenant and European Convention models under which each specific freedom provision contains a separate statement of the permitted limits. It calls for a balancing 'proportionality' process (discussed in the two Moonen cases). It parallels the European Convention model processes and considerations of proportionality and democratic balancing discussed by Lord Irvine in his Durham lecture. In passing, I note two further, as yet unexplored, questions which may arise on a s 5 assessment. First, what would be the impact of a binding market commitment for the efficient provision of public services, given that the contractor could be expected to have demanded a higher price had there been any risk of court-ordered non-enforcement of the contract? Second, what would be the impact on regulatory regimes (for example, consumer credit) of a court-determined response to breach?
Section 4 bars a court from holding any statutory provision invalid for inconsistency with any provision of the Bill of Rights. It is a last resort where the interpretation and justifiable limitation processes mandated by ss 6 and 5 have still left inconsistency. The Moonen cases recognised the potential for resulting declarations of inconsistency and the Human Rights Act 1993, as amended in 2001, expressly allows for such declarations under s 19, the non-discrimination provision of the Bill of Rights. The previous discussion highlights the crucial importance of definitional balancing which was at the heart of the careful assessment by Dickson CJ in Oakes adopted by the majority in Noort. Referring to the Canadian counterpart of our s 5, Hogg points out:
It may well be that it makes little difference in result whether the courts opt for a stringent standard of justification coupled with a purposive interpretation of rights, or for a relaxed standard of justification coupled with a broad interpretation of rights. However, it certainly makes a great deal of difference to the scope of judicial review. If the rights are broad, and the standard of justification is low, then many more Charter challenges will come before the courts, and will fall to be determined under s1. Since the standard of justification under s1 would be low, it would be difficult to devise meaningful constraints on the process of judicial review. The result would be that judicial review would become even more pervasive, even more policy-laden, and even more unpredictable than it is now. In my view, therefore, the courts should adhere to the strict standard of justification prescribed by Oakes, and should give a purposive (rather than a generous) interpretation to the guaranteed rights.
Some of the turbulence in appellate jurisprudence in various jurisdictions in recent years reflect large philosophical differences in judicial thinking on human rights and on institutional constraints stemming from the dictates of political reality. In turn, that has led both to greater unpredictability of decisions and criticism of over-reaching on the part of the judiciary and to tension with the other branches of government and to some reactive legislative responses. In my judgment, much of that breakdown is due to a departure from a sharp focus on the importance of definitional balancing, of confining the right to its true purpose in the particular context. Next, the approach of the Bill of Rights and of the United Kingdom Human Rights Act points to a half-way house between extreme theories of absolute legislative power of Parliament and of judicial review striking down legislation as inconsistent with democratic values and the rule of law. Rather than theoretically anticipating confrontation, I expect that the ordinary processes of Parliament and the courts with ample opportunities for consideration and reconsideration should lead to cooperative dialogue between the two branches of government and so will avoid unnecessary speculation about unrealistic possibilities of either branch of government taking an extremist exclusive stance.
It is also important to tailor that cooperative dialogue to the occasion; and so in the case of the judiciary for judges to reflect in their judgments that they are not engaged in an adversary relationship with the other branches of government. It follows that, where a court finds breach and provides an appropriate remedy it does so in a positive non-inflammatory way. There is a related point. As has so often happened down the ages, those asserting their rights are not always congenial souls. They may be obnoxious to the great majority and the ideas they espouse repugnant. Judges find themselves carefully explaining how important for our democratic well-being, protecting the rights of such a claimant ultimately guarantees the rights of all. It is through affirming and protecting the rights of the publicly maligned, who may seem despicable to the vast majority, that we guarantee our democratic freedoms.
The fifth key feature of the 1990 Act has been reflected in the earlier discussion and is central to the implications for commerce of the Bill of Rights. It is how the statute applies for the benefit of legal persons. Unlike many Bill of Rights instruments, s 29 explicitly applies the Act's provisions '...so far as practicable for the benefit of all legal persons as well as for the benefit of all natural persons.' As well, s 16 of the Companies Act 1993 adds in relation to the capacity and powers of companies:
(1) Subject to this Act, any other enactment, and the general law, a company has, both within and outside New Zealand,
(a) Full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction; and
(b) For the purposes of paragraph (a) of this subsection, full rights, powers, and privileges.
(2) The constitution of a company may contain a provision relating to the capacity, rights, powers, or privileges of the company only if the provision restricts the capacity of the company or those rights, powers, and privileges.
Whether or not a provision applies for the benefit of a corporate depends on the nature of that provision. There are many rights which cannot be enjoyed by corporates because they are unique to human beings, e.g. the right not to be subjected to cruel or degrading treatment. Even in that category, it does not follow that a corporate cannot seek a remedy for its breach. For example, in R v Big M Drug Mart a corporate charged with Sunday trading argued successfully that the law violated the Canadian Charter of Rights and Freedoms because it constituted an unjustified limitation of the freedom of religion, and so the company succeeded in its constitutional defence. Rishworth, Huscroft, Optican, and Mahoney, lists, as rights applying for the benefit of legal as well as natural persons, those affirmed under ss 9, 14, 17, 21, 24, 25, 26 and 27. And s 27 requires the application of the principles of natural justice which tribunals and public authorities must observe, including the right to apply, in accordance with law, for judicial review of their determinations.
Courts are well-used in judicial review to scrutinising the decisions of tribunals, public authorities and officials. In that context, it is not surprising that James Allan devotes chapter 11 of his book Sympathy and Antipathy: Essays Legal and Philosophical to the topic, 'Why Business Learns to Love Bills of Rights'.
Sections 21 to 26 are largely directed to criminal processes: s 21, unreasonable search and seizure; s 22, arbitrary arrest and detention; s 23, rights arising at various points in the process following arrest or statutory detention, including information rights and the right to consult and instruct a lawyer without delay, to be charged promptly and brought before a court or released, to refrain from making a statement and to be treated with humanity and with respect for inherent dignity; s 24, rights following charge; and s 25, minimum standards of criminal procedure essentially affirming rights reflected in the Crimes Act 1963. Many of the early cases concerned the right to counsel and what constitutes arrest and detention. After the jurisprudence settled down and the ground rules became understood my impression is that by and large Police practice incorporated Bill of Rights requirements. Search and seizure has proved more difficult. But after numerous cases the Court of Appeal set out a list of principles to assist those working in the field, including busy trial judges, and eventually replaced the prima facie exclusion rule where evidence was obtained in breach of s 21 with a wider test weighing factors for and against admissibility. Difficult problems continue to arise from the use of modern technology allowing off-premises recording of persons and their activities. Overall the Bill of Rights has already made an important balanced contribution to the administration of criminal justice in New Zealand. On the civil and public law side there is a developing awareness, assisted by information on the breadth of coverage under the United Kingdom Act, of the potential reach of the Bill of Rights in statutory interpretation and the exercise of statutory discretion and on the development of the common law in fields as varied as free expression, administrative law, commercial law, employment law, environmental and planning law, family law, education, health, housing and social welfare law, intellectual property and sports law. Reading through the schedule will bring home some of the specific implications for commerce.
A final comment on the inter-relationship of the three branches of government. When required to do so, members of one branch rightly critique decisions of another branch of government firmly and positively. They should do so with civility recognising the respective roles of each in the common endeavour in which all are engaged. They are all contributing within their respective spheres.
So, judges focus on the particular cases of the parties before them and exercise their judgment in respect of the matters before them. It is a mistake to be trying to further a vision of the rule of law. But it is not a mistake to look carefully at the implications of a potential decision, where it will take the law. However, we delude ourselves if we are thinking of our place in posterity, seeking to have an effect on future generations. The inevitable reality is that the changing tides soon wash over the great majority of our judgments - as they do over the great majority of decisions of the custodians of the other branches of government. And that is healthy for democracy in a changing world.
Early litigation concerned the right to counsel, what constitutes arrest and detention (factual detention under s 22 and 'detained under any enactment' under s 23), and the consequences of breach by executive action, usually by Police, of the particular Bill of Rights Act (BORA) provision. An early high profile case (Noort) had a major impact on drinking and driving charges.
Applying s 23(1) to the Transport Act 1962, the Court of Appeal held that persons stopped at the roadside for evidential breath or blood tests had the right to be advised without delay of their right to consult a lawyer. There was room in the scheme of the Transport Act for the reasonable time delays (measured in practical terms by the 10 or so minutes to access a lawyer by telephone) that that would involve. In consequence of the breach of that requirement many cases were dismissed and the BORA came to be seen as having stopped the prosecution of many drunken drivers. Further questions arose in later cases. Must arrestees or detainees be given assistance in contacting lawyers? Must they be afforded privacy? Another set of questions affected the impact of the BORA on interviewing of suspects and accused persons. That gave rise to considerable debate as to what constitutes arrest and detention under s 22 and s 23 respectively. By a majority a five judge court in Goodwin rejected the more expansive approach that had been taken in early three judge court decisions. Search and seizure is complex and difficult. New Zealand is not alone in that experience. The continuing flow of cases in the United States and Canada and the multi-volume texts on search and seizure in those jurisdictions testify to the difficulties. In Jefferies the majority in a court of seven held that unlawfulness was not the touchstone under s 21 and that a search might be unlawful but not unreasonable. A flood of search and seizure cases continued to reach the Court and in Grayson and Taylor a five judge court judgment reviewed and listed a set of principles, leaving for later re-examination the by then vexed question of whether there should be a prima facie exclusion rule where evidence was obtained in breach of s 21. In listing a set of principles the Court followed the course it had taken in the right to a lawyer cases of eventually setting out such a check list to assist those working in the field including busy trial judges. Then, in Shaheed the majority (six out of seven) concluded that the practically mechanical operation of the prima facie exclusion rule had not produced a satisfactory balance and that a test weighing factors for and against admissibility was required. My reading of post-Shaheed cases suggests that the anxieties expressed by some academics that the new test would create uncertainty and a flood of cases and that the balance would be tilted too far the other way have, by and large, not been borne out. More difficult continuing problems flow from modern technology which allows off-premises intrusive and constant recording of persons and their activities, effectively denying any reasonable zone of privacy. Related questions arise in relation to the commercially-driven permanent photographic, audio and video recording and publication in the media affecting celebrities and their children and others under the rubric of freedom of the press. This raises the difficult question as to whether there is a qualitative difference, attracting under a s 5 balancing the privacy values underlying s 21, between observing people in public places and permanently recording and publishing to a wider world, and, elevating privacy to a new high as in Princess Caroline of Monaco's case, von Hannover v Germany.
In relation to other specified rights, and subject to ss 4, 5 and 6, the following issues arise under particular sections of the BORA:
• Whether there is any right to fire and ambulance services? Whether there is liability in tort for emergency service workers for strike action in contemplation, or furtherance, of a trade dispute (and see s 17)?
• Suicides in custody.
• Shortland v Northland Health Ltd - refusal of dialysis was seen as a clinical judgment rather than rationing and so there was no breach of duty to supply the necessaries of life under s 151 of the Crimes Act 1961 or of s 8 BORA.
• Blood transfusions of children and parents' religious rights (ss 13 and 15; ReJ).
• Whether there is a distinction between being alive and quality of life? This has implications in respect of health, housing and income support.
• Intervention by state agencies in at risk families.
• Whether there is any obligation to take positive steps to secure any such right?
• Bullying at schools and rest homes.
• Whether there is a correlative obligation to support and protect rights under s 9 by requiring anti-bullying programmes?
• Chastisement of children at home.
• Religious support for chastisement of children.
• Degrading implementation of 'dismissal'.
• Whether prolonging life support is 'degrading treatment' ?
• Drug/alcohol testing in employment: NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd.
• Airport noise interfering with sleep.
• Whether pilot schemes involving aerial spraying (or untested quality improving) of water supplies are 'scientific experimentation'?
• New medication.
• (Public safety) vaccinations.
• Whether application is to a particular individual or a whole class (i.e. micro or macro)?
• Whether there is an obligation to facilitate and support informed exercise of suffrage?
• Voting disqualifications and party candidates and rules as in the Donna Awatere-Huata saga.
• Freedom of expression.
• Defamation: Lange and Jennings v Buchanan.
• Commercial speech, pornography, hate expression?
• Prior restraint: TV3 v Fahey.
• The relationship between freedom of expression and censorship legislation (ss 14 and 19). Living Word Distributors v Human Rights Action Group emphasises that expression that is never published cannot contribute in any way to the democratic process, to the market place of ideas, or to personal fulfilment.
• The relationship with contractual rights (e.g. confidentiality agreements) and privacy. Wainwright v Home Office and Campbell v M GN Ltd hold there is no general invasion of privacy tort at common law. In the wake of von Hannover v Germany (if that is the outcome in the United Kingdom and New Zealand) then media law is heading for a shake-up in two respects. First, photographs of celebrities going about their daily business (e.g. shopping) will be treated as not contributing to democratic debate on matters of concern. Second, 'image' rights against abuse of the celebrity's name or likeness will have greater protection.
• Common law contempt: Gisborne Herald and Duffv Communicado Ltd.
• Whether s 14 (along with ss 12 and 19) arguably require some modification of the common law exclusion of political purpose trusts as charitable trusts?
s 15 (and s 13):
• Propagation of religious beliefs and activities to win converts by door knocking and religious meetings in public places.
• Religious meetings in public places.
• Religion in armed forces, prisons and schools (and minorities: s 20).
• Dress requirements imposed by schools.
• Ceremonial cannabis (and s 20).
• Bylaws restricting demonstrations and marches (and s 3(b)).
• The freedom not to associate and the freeloader complication.
• The effect of s 8 in relation to emergency services. s18:
• Freedom of movement and access to foreshore and seabed.
• Family law and relocation. Residence of children of mixed faith parents (and s 19).
• Parole and bail conditions.
• Contract and restraint of trade.
• The prohibited grounds under the Human Rights Act 1993 are sex; marital status; religious belief; ethical belief; colour; race; ethnic or national origins; disability; age; political opinion; employment; status; family status; sexual orientation.
• A threshold question is the meaning of discrimination. Does it refer to any differentiation? Or, differentiation by reference to a characteristic which does not justify the difference? Or, the disadvantages for a differentiated group not being imposed on others?
• Lending practices - can they be said to be discriminatory?
• Assumptions as to care and welfare of children in custody and access.
s 22 (and s 27):
• Detention and processing and support of asylum seekers and immigrants.
ss 27 and 29:
• With respect to legal persons, whether a particular provision applies for the benefit of a corporate body? Whether there is consistency with applicable international standards and norms and Optional Protocol obligations?
(As noted earlier, ss 4, 5, and 6 may require consideration and so the justifiable limitation analysis under s 5 may mediate the BORA application to the common law and render resort to s 4 unnecessary.)
[*] Former President of New Zealand Court of Appeal. This paper is adapted from a lecture delivered to the Centre for Commercial and Corporate Law, Christchurch on 14 October 2004.
 New Zealand Bill of Rights Act 1990.
 Department of Justice, A Bill of Rights for New Zealand: A White Paper (1985).
  Public Law 308.
 Ibid 309.
 Ibid 323.
 Ibid 315-316.
  UKHL 23;  1 AC 185.
  UKPC 78;  2 WLR 652.
 Boyce & Anor v R (Barbadoes) 3 WLR 786; Matthew v The State (Trinidad & Tobago)  3 WLR 817; Watson v R (Jamaica)  UKPC 34;  3 WLR 841.
 Quoted in Bill Clinton, My Life (2004) 127.
 New Zealand Bill of Rights Act 1990, s 25(a), (b).
 See Mendelssohn v Attorney General  2 NZLR 269.
 Simpson & Anor (Baigent (dec'd) v Attorney-General & Anor  3 NZLR 667, ('Baigent's Case').
 R (Heather) v Leonard Cheshire Foundation  EWHC 1424;  2 All ER 936,946.
 Duncan Fairgrieve, State Liability in Tort (2002).
  HCA 23; (1992) 175 CLR 1, 29-30.
 Above n 2, para 101.68.
 Associated Provincial Picture Houses Ltd v Wednesbury Corporation  EWCA Civ 1;  1 KB 223.
 Police v Beggs  3 NZLR 615.
 Moonen v Film & Literature Board of Review  NZCA 329;  2 NZLR 9; Moonen v Film & Literature Board of Review  NZCA 69;  2 NZLR 754.
 R v Oakes 1986] 1 SCR 103.
 Ministry of Transport v Noort  NZCA 51;  3 NZLR 260.
 Peter W Hogg, Constitutional Law of Canada (4th ed, 1997), para 35.3.
 1985 CANLII 69;  1 SCR 295.
 Paul Rishworth, Grant Huscroft, Scott Optican, and Richard Mahoney, The New Zealand Bill of Rights (2003) 112.
 James Allan, Sympathy and Antipathy: Essays Legal and Philosophical (2004).
 Ministry of Transport v Noort  NZCA 51;  3 NZLR 260.
 R v Goodwin  2 NZLR 153.
 R v Jefferies  1 NZLR 290.
 R v Grayson & Anor  1 NZLR 399.
 R v Mallinson  NZCA 163;  1 NZLR 528.
 R v Shaheed  2 NZLR 377.
 Hosking v Runting & Ors  NZCA34; and Campbell v M G N Ltd  UKHL 22;  2 WLR 1232.
 European Court of Human Rights, 24 June 2004.
  1NZLR 433.
  2 NZLR 134.
  NZEmpC 32; (2004) 7 NZELC 97,367.
 Lange v Atkinson  NZCA 95;  3 NZLR 385.
  UKPC 36.
 TV3 Network Services Ltd v Fahey  2 NZLR 129.
 Living Word Distributors Ltd v Human Rights Action Group (Inc) Wellington  NZCA 179;  3 NZLR 570.
  3 WLR 1137.
  UKHL 22;  2 WLR 1232.
 Gisborne Herald v Solicitor-General  3 NZLR 563.
  2 NZLR 89.