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Liddell, G --- "The New Zealand Bill of Rights" [2004] OtaLawRw 12; (2004) 10 Otago Law Review 679


Book Review - The New Zealand Bill of Rights

(By Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney,

OUP, 2003, lii + 852 pp)

Mr Rishworth and his co-authors have done New Zealand law a great service by writing this work. The Bill of Rights has in the last decade spawned an enormous amount of published material, both judgments and commentary. Making sense of this corpus has become increasing difficult for anyone not a dedicated expert in the area. I came to this book as a public lawyer with a passing acquaintance with Bill of Rights issues, and am delighted to have this work now available as a constant reference. The authors all have established pedigrees in Bill of Rights analysis and have provided a text that canvasses and, where possible, attempts to make sense of the burgeoning case-law. It is a work that will appeal immediately to all practitioners by offering them much easier access to the jurisprudence than has previously been possible. The authors have not been shy in expressing their opinions on the development of the law. They express their views with clarity, which will make for a sharper development of arguments in new cases. The work commences with six chapters, all by Paul Rishworth, that provide the foundation. They concern the history, international context, application and interpretation of the Bill of Rights, how the reasonable limits provision (s 5) works, and the role of the Attorney-General in reporting possible inconsistencies in legislation to Parliament. The chapters that follow concerning particular rights all need to be read by reference to these introductory chapters, especially chapters

4 (“interpreting enactments: sections 4, 5 and 6”) and 5 (“reasonable limits”). I am not confident that the last word has been said on these issues – interpretative problems may well recur because the text of sections 4 and 6 (and, to a lesser extent, that of s 5) remains pregnant with opportunity for argument. In chapter 6, Mr Huscroft may be right that successive Attorneys, as a matter of fact, have failed to bring independent judgment to bear on the section 7 advice

(page 215). The Attorney is of course free not to accept advice she receives from officials. Ministers, including the Attorney, sometimes do so. But if the Attorney receives advice and acts on it, as has customarily occurred in relation to s 7 reports, it does not mean that the function under s 7 has devolved to officials (or Crown Counsel). However, the point that should not be overlooked is that the Attorney, just like other ministers, has accepted and (properly) taken ministerial responsibility for the advice on which the report is based. The interesting legal point that might be followed up is whether an Attorney’s report may properly be employed as an interpretative aid in light of art 9 of the Bill of Rights 1688. On one view, such reports are neither questioning nor impeaching proceedings in Parliament. Rather they may positively promote ascertainment of Parliament’s intention. Perhaps more could be made of Parliament’s ongoing role in relation to the Bill of Rights, particularly as far as the House’s committees are concerned. The Regulations Review Committee is an obvious contender, because it already has a

function of considering complaints that delegated legislation “trespasses unduly on personal rights and liberties”.

Chapters 7 to 27 constitute the bulk of the work and deal with the rights the Act affirms. These chapters will be the immediate point of reference for practitioners. In these chapters, the authors do much more than provide an annotated statute. Their marshalling of the cases enables them to expose the conceptual problems that arise out of both the text of the Act and the Courts’ interpretations. This material should raise the quality of submissions to the Courts, for which we should all be grateful, whether we agree or not with the authors’ views. For instance, Richard Mahoney’s chapters on arrest and detention (ch 17) and offence and charge (ch 21) provide an excellent and necessary framework for the analysis he and his co-authors then provide of the related rights. (This is a personal testament: having been (unsuccessful) counsel in what the authors describe as the leading case on arbitrary arrest and detention (Neilsen v Attorney-General [2001]

3 NZLR 433 (CA)), I think that Mahoney has perceptively identified how, by opening the door to claims second-guessing police decisions to arrest, the Court of Appeal has brought administrative law concepts of review for reasonableness into both Bill of Rights and tort analysis of cases of arrest and detention. Whether this means that damages for administrative law breach are next on the agenda remains to be seen (see, for a prediction, Michael Fordham “Reparation for maladministration: public law’s final frontier” [2003] JR 104, para 19).) The authors’ views are clear, although they do not all cleave consistently in the one direction. There may be a cultural difference here: only Rishworth is not North American in origin. His contributions (for example in ch 8, on the right not to be deprived of life) reflect perhaps how New Zealand has come lately to rights concepts, how our society has not always been comfortable with giving rights meaningful force. His co-authors, by contrast, are much more direct in their advocacy of the jurisprudence of the US and Canadian Supreme Courts, particularly in Optican’s chapter on search and seizure and Huscroft’s on freedom of expression. Whatever one’s views on the authors’ various positions, the debate is here for the engagement. That is one of the aims the authors seek in their preface, and their frank disclosure of individual authorial responsibilities will assist readers (whether they be scholars or practitioners of bar or bench) to take variously from different parts of the book. However, it would have helped the reader if there had been a table of statutes, particularly important for busy practitioners to find references (how easily can one find the discussion concerning s 28 (other rights and freedoms not affected)

– the answer is in ch 2.14, but the reader has to scour the table of contents). Similarly, the authors could have appended the ICCPR, which would have obvious contextual and comparative value. And the index is not as thorough as it could be. For example, there is no index entry for “privacy”. Yet, significant parts of the analysis are all predicated on the identification of privacy concepts, see eg search and seizure ch 16, the right to counsel ch 21, and the right to silence and not to incriminate oneself ch 23. Readers probably will not read the work in its entirety (although they will learn a great deal if they do), and so will not make important links if they cannot find

relevant index entries. Otherwise, the work is well produced, with only one small editorial slip that I detected: there is continuing reference in ch 12 – freedom of expression – to the Complaints Review Tribunal, since renamed, and correctly referred to elsewhere in the book as the Human Rights Review Tribunal.

I had thought also that I would see some more comment on the role of the Human Rights Review Tribunal. The authors succinctly explain the interaction between the Bill of Rights and the Human Rights Act 1993 in ch 1, and offer some brief remarks concerning the Tribunal’s new power to issue declarations of inconsistency in ch 29. The Tribunal is likely to play a significant role in the development of the jurisprudence but the authors largely fail to comment. Particularly important is likely to be s 92P, which will guide the Tribunal in the sorts of relief it might provide. That section enjoins the Tribunal to take account of the social and financial implications of relief, the public interest generally, and, where the actor is a public body (for Bill of Rights purposes), the requirements of fair public administration and the obligation of the government to balance competing demands for resources. I think these express factors will be referred to by the Courts too on appeal from the Tribunal. No doubt this will be a space to watch. But, these are quibbles and do not detract from what is otherwise a tremendous work, prodigiously researched, penetrating and argumentative in its analysis, and one which provides an excellent platform for works yet to come. It will be the first port of call for all lawyers for the foreseeable future.

One enduring message comes to me from this book. Rights are only taken seriously when legislated for. With enactment of the Bill of Rights has come a great number of cases, which are a measure of how seriously rights are taken. For some lawyers cases are (wrongly, I think) what the law is all about. I wonder yet though whether New Zealand’s social fabric has fully subscribed to a rights- oriented approach to law (and politics). There are certainly plenty of signs that New Zealanders are willing to trade rights, especially of those whose voice may not be heard loudly. It may be that the judges the authors criticise are more in tune with this basic sentiment in the New Zealand psyche. Or it may be that the judges are conscious that there are social costs associated with the conferral and enforcement of rights, to be borne by taxpayers on whose behalf judges cannot claim to speak.

Grant Liddell,

Crown Counsel, Crown Law Office Wellington,

(with the usual disclaimer that the views expressed are not those of the

Solicitor-General or the Crown Law Office).


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