f w guest memorial lecture a bill of rights for …

F W GUEST MEMORIAL LECTURE

A BILL OF RIGHTS FOR NEW ZEALAND?AN ALTERNATIVE PROPOSAL

J A SMILLIE*

The F W Guest Memorial Trust was established to honour the memoryofFrancis William Guest, MA, LLM, who was the first Professor ofLawand the first full-time Dean of the Faculty of Law at the University ofOtago, serving from 1959 until his death in November 1967.

It was felt that the most fitting memorial to Professor Guest was a publicaddress upon some aspect of law or some related topic which would beof interest to the practitioners and the students of law alike.

Introduction

In April 1985 the Government published a White Paper containing adraft Bill of Rights intended to guarantee to all New Zealanders certainfundamental human rights and freedoms. l

Adoption of the Government's proposal would mark an importantchange in the New Zealand Constitution. The proposed Bill of Rights wouldconstitute a superior body of law which would bind Parliament and theExecutive, and the courts would be given the power to strike down legislation and other government action which violated the rights conferred inthe Bill.

I do not propose to discuss the technical legal arguments as to whetherand how such a law can be effectively entrenched in the sense of beingplaced beyond the capacity of Parliament to amend by a simple majorityvote. 2 For present purposes I will assume that all obstacles to effectiveentrenchment can be overcome.

My intention is to offer some observations about the structure and formof the draft Bill, assess its likely effectiveness and, in particular, attemptto identify the political philosophy which underlies the document and provides the key to its interpretation and application. Finally, I will offer analternative approach to drafting a Bill of Rights for New Zealand and present the result of my own attempt to draft a Bill of Rights that satisfiesthe criteria set out in my paper.

* LLM (Otago) LLM JSD (Yale), Professor and Dean of the Faculty of Law, Universityof Otago. This paper is an expanded version of the F W Guest Memorial Lecture deliveredby Professor Smillie at the University of Otago on 10 October 1985.

A Bill ofRights for New Zealand. A White Paper. Government Printer, Wellington, 1985(hereafter referred to as White Paper).

2 See eg Harris, "The Law-Making Powers of the New Zealand General Assembly: Timeto Think About Change" (1984) 5 Otago LR 565; Brookfield, "Parliamentary Supremacyand Constitutional Entrenchment: A Jurisprudential Approach" (1984) 5 Otago LR 603.

176 Otago Law Review (1986) Vol 6 No 2

The Role of the Courts

Most of the arguments for and against a constitutional Bill of Rightsare well known and I do not propose to restate them. 3 However, I do wantto outline the different attitudes towards the new role which the courtswould be required to perform in interpreting and applying a Bill of Rights.

Supporters of the Bill acknowledge that by giving the courts power toreview the constitutional validity of Acts of Parliament, the Bill will transferpolitical power from the elected representatives of the people to a smallgroup of appointed judges. 4 However, they insist that the courts' new rolewould be neither as novel nor as far-reaching as many claim. They pointout that the courts already decide many controversial disputes betweengovernment and individual citizens in the exercise of their power to reviewthe validity of delegated legislation and the actions of administrativetribunals and officials, and the courts have developed principles to assistthese determinations. They also claim that overseas experience shows thatcourts in fact exercise wider constitutional powers to review the validityof legislation responsibly and with restraint. 5

However, opponents of the Bill of Rights maintain that it will requirejudges to make overtly political value judgments which, by virtue of theirstatus, their background and training, and the limited nature of the forensicprocesses available to them, judges are poorly equipped to make. Somebelieve that judges, conscious of their limitations and of the undemocraticnature of their authority, and brought up in a tradition of absolute parliamentary sovereignty, will show overwhelming deference to the will of themajority as enacted by Parliament. According to this view, a Bill of Rightswill turn out to be no more than a declaration of high-sounding platitudeswhich creates a mere illusion of security for individual rights against theState. Conversely, it is argued that to the extent that judges do attemptto give real meaning and substance to the freedoms guaranteed by a Billof Rights, they will be drawn into heated political controversies and exposedto charges that they are giving effect to their own personal politicalpreferences. Governments will be tempted to exert a more active role inthe process of judicial appointments, and this will tend to erode the highreputation traditionally enjoyed by New Zealand courts for independence,impartiality and fairness. 6

Viewed in the abstract, each of these contradictory arguments as to theeffectiveness of a Bill of Rights and the suitability of the courts to undertake the function of constitutional review can claim some validity. In practical terms, their relative strength depends very much on the particular

3 Compare Chapman, "A Bill of Wrongs" [1985] NZLJ 226 with Keith, "The Bill of Rights:Reply to Criticism" [1985] NZLJ 270 and "A Bill of Rights for New Zealand? JudicialReview Versus Democracy" (1985) 11 NZULR 307.

4 Article 28 of the draft Bill provides for repeal or amendment of provisions of the Billof Rights by a proposal that is supported by a 75 percent majority of the House of Representatives or by a simple majority of electors at a referendum. In practice, these conditionswill very seldom be met.

5 See White Paper paras 6.4-6.11, 6.30; Keith, "A Bill of Rights for New Zealand? JudicialReview Versus Democracy" (1985) 11 NZULR 307 at 320-322.

6 Eg East, "The Proposed Bill of Rights" [1985] NZLJ 268 at 269.

Smillie: Bill of Rights 177

political philosophy upon which a Bill of Rights is founded, and intendedto reflect and promote. The choice of a particular underlying philosophywill dictate the nature and specificity of the expressly guaranteed rights,and also the relative strength of those guaranteed rights where they conflict with one another or with interests which receive no express recognitionin the Bill. My intention is to discuss the nature and implications of thepolitical philosophy which underlies the draft New Zealand Bill of Rights.For this purpose, I will focus my attention on the broad assertions of rightsand freedoms contained in Parts II, III and IV of the draft Bill. I will largelyignore the more limited "due process" guarantees in Part V of the Bill.The main object of these more specific provisions is to give entrenchedconstitutional status to existing safeguards against abuse of criminal andadministrative processes.

The Importance of Article 3

The rights conferred in Parts II, III and IV of the draft Bill are expressedin sweeping terms with few qualifications. For example, Article 7 assertsthat:

Everyone has the right to freedom of expression, including thefreedom to seek, receive and impart information and opinions of anykind in any form.

Read literally, Article 7 would automatically invalidate a large number ofexisting laws which place restraints on freedom of expression in order toprotect competing interests which receive no express recognition in the draftBill. For example, the law of defamation limits free expression in orderto protect the individual's interest in preserving his reputation; the IndecentPublications Act 1963 and certain provisions of the Summary OffencesAct 1981 prohibit expression which threatens the community's interest inpreserving standards of morality and decency; the crime of blasphemouslibel protects the religious sensibilities of Christians; and the ConsumerInformation Act 1969 controls advertising to safeguard the economicinterests of consumers. Together, the Crimes Act 1961, the Public ServiceRegulations 1964 and the Official Information Act 1982 restrict communication of and access to government information in order to protecta wide range of State and private interests, while the common law actionfor breach of confidence protects private interests in confidentiality. Readliterally, Article 7 would invalidate all of these existing laws. Similarly, thebroad right to freedom of association contained in Article 10 would invalidate the laws prohibiting restrictive trade practices and conspiracy toinflict economic harm. Article 4, which gives constitutional status to therights conferred on Maoris by the Treaty of Waitangi, would require Maoriland to be exempt from the whole range of legal restraints upon land use.

However, it is clear that these broad statements of rights are not intendedto be read literally. Article 3, which adopts section 1 of the CanadianCharter of Rights and Freedoms,7 provides that:

, 7 Canada Act 1982, ell, Part I (UK).


The rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This general limitation provision provides the key to interpretation of thedraft Bill. It indicates that the guaranteed rights are not absolute: they aresubject to such limits as can be justified by reference to the characteristicsof a free and democratic society. But what are the essential characteristicsof a "free and democratic society" and what limitations on guaranteed rightscan be justified in terms of those characteristics?

A Free and Democratic Society?

It is immediately app £'ent that there are several different conceptionsof a "free and democratic society", each of which supports a different conception of fundamental human rights. So we must consider which particular conception of a free and democratic society is the preferred modelto which the New Zealand legal system is intended to conform.

Democracy may be defined in purely procedural terms as a system ofgovernment by which public policies are determined by the people, eitherdirectly by referendum or indirectly by elected representatives, and in whicha defined plurality (usually a simple majority) is determinative. 8 In thisnarrow procedural sense, democracy has no concern with outcomes orvalues. The prevailing political structure in New Zealand has been describedby one political scientist as being an almost perfect example of a strictmajoritarian model of democracy. 9 Since the whole purpose of anentrenched Bill of Rights is to impose some legal constraints uponimplementation of the political will of the elected representatives of themajority, adoption of a Bill of Rights will mark rejection of this purelyprocedural majoritarian conception of a democratic society. Clearly it isthe broader ideals of democracy that the draft Bill is intended to reflectand promote. This is confirmed by paragraph 1 of the preamble to theBill, which declares that: "New Zealand is a democratic society based onthe rule of law and on principles of freedom, equality and the dignity andworth of the human person." However, political philosophy reveals difft. ent ideal conceptions of democracy based on different notions offreedom and different resolutions of the inherent conflict between freedomand equality.

The basic structure of the draft Bill reflects a view of New Zealand societywhich represents a rather uncertain compromise between the classical liberaland the socialist views of freedom and democracy; the kind of society whichone writer10 has described as "post-liberal" in character. Many of the formalor negative political and civil liberties which are fundamental according

8 See eg J R Pennock, Democratic Political Theory (Princeton U Press, 1979) 7.9 Arend Lijphart, Democracies (Yale U Press, 1984) 16, 19.

10 Roberto Unger, Law in Modern Society (The Free Press, 1976) 192-200.


to classical liberal political theoryll - freedom· of expression, assemblyand association, and civil rights to life and physical integrity of the person- are guaranteed in strong and relatively unqualified terms. However, thedraft Bill also reflects the influence of socialist conceptions of freedomand democracy which emphasise substantive and material equality at theexpense of the liberal ideal of equal negative freedom under formallyuniversal laws. The draft Bill does not guarantee the classical liberal rightsto ownership and enjoyment of private property or freedom of contract, 12'and the prohibition upon retrospective legislation is limited to criminalstatutes. And while the draft Bill does not include any general right to theequal protection of the laws which would invite the courts to review thesubstantive fairness of any legislative classification,13 it does reflect someconcern with substantive as opposed to merely formal equality under thelaw by prohibiting legal discrimination on certain specified grounds andby giving constitutional status to the special rights conferred on Maorisby the Treaty of Waitangi.

So we can conclude that some priority is to be given to the specificallyguaranteed political, civil.and equality rights, and the rights of Maoris.But precisely what priority should the courts give to a specificallyguaranteed right in the event of a conflict with other individual orcommunity interests which enjoy no protected constitutional status? Andhow are conflicts between different specifically guaranteed rights to beresolved? The "post-liberal" democratic society is capable of supportinga number of different conceptions of constitutional rights, each of whichattributes a different philosophical justification, and a different weight orstrength, to the guaranteed freedoms. So we must look to the structureand content of the draft Bill read as a whole to ascertain which of thesedifferent conceptual justifications for fundamental constitutional rightsis favoured by the authors of the draft Bill.

A Utilitarian Conception of Constitutional Rights

According to the principle of utility, a political decision is justified ifit promises, on balance, to secure the greatest happiness of the greatestnumber or, in modern parlance, if its benefits in terms of overall publicwelfare exceed its costs. Of course Jeremy Bentham's theory of simple act

11 The classical liberal theory of democracy has traditionally been associated with the notionof a social contract devised by John Locke to justify the Glorious Revolution of 1688and developed by Thomas Jefferson to justify the American Revolution of 1776. In itsmodern form, as espoused by Robert Nozick, Anarchy, State and Utopia (Basic BooksInc, 1974) and F A Hayek, The Constitution ofLiberty (U of Chicago Press, 1960), classicalliberalism is associated with the ideal of a capitalist economy and minimum State regulation of economic activity. Classical liberal theory emphasises individual freedom fromconstraint (negative liberty) at the expense of substantive equality. The liberal conception of the "rule of law" is limited to formal equality which requires only equal applicationof the law without regard to its substantive content.

12 Either in the general terms employed in the Fifth and Fourteenth Amendments to theUnited States Constitution, or in the much more qualified terms adopted in Article Iof the First Protocol to the European Convention on Human Rights.

13 Compare the Fourteenth Amendment to the United States Constitution, and s15(1) ofthe Canadian Charter of Rights and Freedoms.


utilitarianism would deny the very existence of individual rights to engagein conduct which at any time detracts from the aggregate welfare of thecommunity. However, the more sophisticated theory of rule utilitarianismprovides the basis for a weak notion of individual rights against the State.The rule utilitarian chooses as a general rule that which, viewed in termsof its long-term effect as well as its immediate consequences, will producethe greatest aggregate welfare in the majority of cases. Particular conductis then judged by its conformity to that general rule. However, the ruleutilitarian would always leave the way open for this general rule to beamended, qualified or limited upon a showing that the new rule therebyproduced will achieve a significant net increase in overall welfare. I4

A rule utilitarian would have no difficulty making sense of the NewZealand draft Bill. He would argue that the rights specifically guaranteedby the Bill are not intended to take automatic priority over other conflicting interests which receive no express recognition in the Bill. He wouldfind support for this interpretation in Article 22 of the Bill which provides, under the heading "Other rights and freedoms not affected'; that"An existing right or freedom shall not be held to be abrogated or restrictedby reason only that the right or freedom is not guaranteed, or is guaranteedto a lesser extent, by this Bill of Rights". This general recognition of unspecified rights and freedoms indicates that the authors of the Bill intendthat a full range of relevant non-specified interests which either presentlyor in the future receive some form of legal recognition should be givendue weight by the courts and balanced against the specifically guaranteedrights in order to determine, in accordance with Article 3, what particularlimits upon the guaranteed freedoms are justified in a free and democraticsociety. IS And by reference to what fundamental standard should thisjudicial balancing function be performed? The utilitarian would maintainthat the standard of maximum aggregate welfare is the accepted backgroundjustification for policy-making in a modern democratic society, and theBill, read as a whole, displays no intention to depart from it. The combined effects of Articles 3 and 22 is to transfer from Parliament to thecourts ultimate responsibility for making the utilitarian calculation as towhere the balance of public welfare lies between unrestricted enjoymentof the guaranteed freedoms and any particular limitation on them.

14 Of course John Stuart Mill in his famous essay On Liberty (1859) defended liberty primarilyon utilitarian grounds. Mill opposed legal imposition of majority views in respect of whathe called "self-regarding conduct" (conduct which does not harm the interests of others;comprising essentially thought, opinion, expression and association) not simply becauseof the intrinsic value to the individual of being free to engage in such conduct, but becauseof its beneficial instrumental effect upon society as a whole: see W Conklin, In Defenceof Fundamental Rights (Sijthoff and Noordhoff, 1979) 141-146.

15 It could be argued that Article 22 permits the courts to confer higher constitutional statuson existing rights which receive no express recognition in the Bill of Rights: compare theinterpretation placed on the Ninth Amendment to the United States Constitution inGriswold v Connecticut, 381 US 479 (1965) esp at 488-494 per Justice Goldberg (concurring), and see Tribe, American Constitutional Law (1978) 570-572. The wide scopefor overt judicial law-making associated with this interpretation raises obvious and farreaching problems: see eg the dissenting opinion of Justice Black in Griswold v Connecticut,supra at 518-522.


By this view, the Bill of Rights would place no significant limitation on.the kinds of competing interests which may properly be balanced againstthe guaranteed freedoms. 16 Article 3 would be seen merely as imposingcertain procedural and evidentiary requirements which the courts mustobserve in discharging their balancing function. Thus once the court issatisfied that a particular law does in fact abridge one of the rightsguaranteed by the Bill, Article 3 places the onus on the government tojustify the restraint which that law imposes. In order to discharge thisburden, the government must prove that the limitation is "prescribed bylaw",17 and is both "reasonable" and "demonstrably justified in a free anddemocratic society". Use of the strong term "demonstrably" indicates thatit is not sufficient for the governm.ent to show that the limitation imposedby the challenged law may produce marginally greater aggregate welfarethan will unrestricted enjoyment of the guaranteed freedom. In order tojustify a limitation under Article 3 the court must be persuaded that theoverall public welfare will be clearly and significantly advanced byupholding the challenged law. 18 But subject to these procedural andevidentiary requirements, the courts' opinion as to the outcome of theutilitarian calculation should be decisive.

Clearly this utilitarian conception of the political philosophy underlyingthe draft Bill involves a weak view of the protected rights. The broadstatements of guaranteed freedoms are seen as raising no more than a primafacie presumption that government interference with those freedoms willdetract from the general public welfare. This presumption can be rebuttedby a clear showing that any particular restraint upon a guaranteed rightwill, on balance, promote the overall welfare of the community to asignificant degree.

The official Commentary to the draft Bill of Rights provides manyindications that its authors share this weak utilitarian conception of theguaranteed rights. The Commentary makes it clear that the authors of theBill envisage the courts balancing the specifically guaranteed rights againstthe whole range of non-specified competing interests when applying Article3. For example, they say that "In considering whether inconsistent legislation is justified in terms of Article 3, they [the courts] will have to balancethe rights contained in the Bill of Rights against other important socialand other interests". 19 The later observation that "In some cases the limit[on a guaranteed freedom] may indeed arise from another freedom included

16 This assumes, of course, that the primary purpose of a legislative limit on a guaranteedfreedom is not simply to deny some minority group the right to exercise that freedom:see infra n 37 and accompanying text.

17 The courts can be expected to give meaning to this term by adopting the "overbreadth"and "vagueness" doctrines developed by United States courts (see eg Tribe, American Constitutional Law (The Foundation Press, 1978) 710-720) and adopted in Canada (eg ReOntario Film and Video Appreciation Society and Ontario Board of Censors (1983) 147DLR (3d), 58, affd (1984) 5 DLR (4th) 766 (Ont CA» which invalidate restraints on protected freedoms imposed pursuant to vague discretionary standards which are not sufficiently clear to enable citizens to regulate their conduct within the law.

18 See eg National Citizens' Coalition Inc v Attorney-General for Canada (1984) 11 DLR(4th) 481 at 496 (Alta QB).

19 White Paper para 8.10 (emphasis added).


in the Bill"20 makes the point abundantly clear. The authors of the Billalso anticipate that when called upon to interpret and apply Article 3, NewZealand courts will derive assistance from the experience of the EuropeanCourt of Human Rights in interpreting the limitations to which the rightsconferred by the European Convention are made subject. 21 The terms ofthe European Convention on Human Rights make the utilitarian foundation of the guaranteed rights quite explicit. Each of the guaranteed rightsis made subject to a detailed limitation clause which requires the benefitsto society derived from unrestricted enjoyment of the guaranteed rightsto be balanced against the adverse impact on a wide range of communityinterests. 22 The International Covenant on Civil and Political Rights followsa similar pattern. Yet the White Paper asserts that "the apparently greaterprecision resulting from the greater elaboration of detail in the Covenantand European models is just that - apparent. The particular judgmentto be made [by a New Zealand court applying Article 3] remains essentiallythe same."23

The Commentary to each of the particular guaranteed rights containssimilar observations. For example, the Commentary to Article 4, whichconfers constitutional status on the sweeping guarantees given to the Maoripeople by the Treaty of Waitangi, states that the precise scope andapplication of those rights "must be considered in the light of the wholeambience - social, economic and so on - at the time the questionarises".24 The Commentary to Article 7 acknowledges the existence of awide range of laws which limit freedom of expression to protect competinginterests which receive no express recognition in the Bill. After posing thequestion whether these restraints upon expression are "demonstrablyjustifiable" in terms of Article 3, the confident answer is given: "For themost part in respect of existing law, there would be no doubt that the answerwould be yes."25 The authors of the Bill also seem to assume that the limitsplaced by the law of trespass on the unqualified right to freedom of movement would be upheld under Article 3 as justified in order to protect privateproperty rights - rights which were deliberately denied constitutionalstatus. 26

Again, the Commentary to the draft Bill declares that the unqualifiedright to freedom from discrimination on specified grounds conferred byArticle 12: 27

20 Ibid para 10.24 (emphasis added).21 Ibid para 10.31.22 For example, Article 10(2) of the European Convention provides that the right to freedom

of expression may be subject to such restrictions as are:... necessary in a democratic society, in the interests of national security, territorialintegrity or public safety, for the prevention of disorder or crime, for the protectionof health or morals, for the protection of the rights or reputations of others, forpreventing the disclosure of information given in confidence, or for maintainingthe authority and impartiality of the judiciary.

23 White Paper para 10.26.24 Ibid para 10.42.25 Ibid para 10.58.26 Ibid para 10.72.27 Ibid para 10.80.


does not mean that persons within the categories in respect of which the prohibitionapplies, e.g. men and women, must be treated identically in every respect. The sortof exceptions now contained in the Human Rights Commission Act would doubtlesscontinue to be valid. What is different is that if challenged, the justification for thedistinction will have to be shown.

But what is the standard against which such justification is to be assessed?In view of the structure of the Bill, it can be argued that the ultimatestandard contemplated by its authors is that of overall utility. By this view,the numerous exceptions to the equality provisions of the Human RightsCommission Act 1977 designed to protect interests in public morality,educational preference, and economic efficiency are justifiable exceptionsto Article 12 of the Bill of Rights because the social cost of achievingequality in such areas exceeds the benefits derived from it. Similarly,affirmative action programmes favouring disadvantaged minorities wouldbe justifiable and valid only to the extent that they can be regarded asreflecting the preferences of a majority of the community.

If a utilitarian view of cons.titutional rights is accepted, how should thecourts go about performing the balancing function required of them byArticle 3? What is the appropriate form and level of judicial scrutiny oflegislation which burdens guaranteed rights? A number of differentapproaches are open to the courts.

First, the courts could attempt to approach Article 3 cases in a completely objective and detached manner. This would require the courts toidentify and attach such weight as is warranted by the evidence before themto each of the various implications for the overall welfare of societyassociated with each possible resolution of the conflicting interests raisedby the case. If, on balance, the court is satisfied that the challenged limitation will produce a significant net increase in public welfare beyond thatwhich would be achieved by unrestricted exercise of the guaranteed right,the limitation is justified and valid under Article 3. Some Canadian courtshave interpreted their equivalent of Article 3 as requiring such anapproach,28 and there are indications in the Commentary to the NewZealand draft Bill that its authors anticipate New Zealand courts adoptinga similar line. 29

Of course the most obvious drawback to this approach is the practicaldifficulty of accurately identifying and balancing all the various consequences, both long and short-term, political, social, economic, cultural andotherwise, that will flow from any particular resolution of conflicting

28 See eg Public Service Alliance of Canada v The Queen (1984) 11 DLR (4th) 337 at 358-366(FC); Re Service Employees' International Union, Local 204 and Broadway Manor Nursil1gHome (1983) 4 DLR (4th) 231 (Ont HC); Re Southam Inc and The Queen (1984) 14 DLR(4th) 683 (Ont HC); R v Bryant (1984) 15 DLR (4th) 66 (Ont CA); National Citizens'Coalition Inc v Attorney-General for Canada (1984) 11 DLR (4th) 481 (Alta QB); ReRegina and Videoflicks Ltd (1984) 14 DLR (4th) 10 (Ont CA); Re Blainey and OntarioHockey Association (1985) 21 DLR (4th) 599 at 609-611 (Ont HC); Re Retail Wholesale& Department Store Union and Government of Saskatchewan (1985) 19 DLR (4th) 609at 627-629 per Baydon CJS, 648-652 per Cameron JA (Sask CA); Reference re Section94(2) of the Motor Vehicle Act, RSBC 1979, c288 [1986] 1 WWR 481 at 508-509 per LamerJ (SCC).

29 Eg White Paper paras 10.31-10.33.


interests. For example, whether a limitation on freedom of association consisting of removal of a union's right to strike is justified by the economicbenefit to society as a whole requires a detailed understanding of the theoryand application of "macro-economics". 30 In order to balance the total socialcosts and benefits produced by a legal prohibition on the sale of any particular category of pornographic expression, the court would have to befamiliar with a vast range of statistical, economic, psychological andsociological data and opinion.

But the evidentiary, procedural and time constraints to which the courtsare subject mean that there is little likelihood of a judge being apprisedof, far less conversant with, the full range of material relevant to such issues.The material available to a judge is limited to that supplied by counsel,supplemented by the product of any independent research that he has thetime and will to undertake. The judge does not enjoy the assistance of alarge investigatory staff, and he cannot call for a commission of inquiryinto the matter and delay judgment until he has received the consideredrecommendations of a panel of experts. No doubt counsel would graduallyovercome their traditional reluctance to research social, economic and scientific data, and would present the courts with voluminous "briefs" alongthe American model; judges would tend to take an increasingly active rolein researching relevant material; Article 27 allows the Attorney-General toappear as a party in any proceedings which raise a serious question as toa violation of the Bill of Rights; and further relaxation of standingrequirements would allow representatives of special interest groups to placeadditional relevant material before the courts.

Nevertheless, many judicial attempts at an objective balancing of socialcosts and benefits are likely to be based on incomplete information andunderstanding. In controversial cases, the outcomes will inevitably exposethe courts to charges of incompetence or insensitivity at best; and at worst,of giving effect to their own personal preferences under the guise of anobjective pseudo-scientific calculation. It is not surprising, therefore, thatsome Canadian judges have expressed doubts about the wisdom of suchan unrestricted balancing approach. 31 Many judges will try to avoid complete reliance on their own application of the utilitarian calculus to controversial social issues, and instead fall back upon external indications ofwhere the balance of public welfare lies. A number of different techniquesof this kind are available to them.

30 See eg the detailed analysis of economic evidence by Reed J in Public Service Allianceof Canada v The Queen (1984) 11 DLR (4th) 337 at 358-366.

31 On appeal from the decision of Reed J i~ Public Service Alliance ofCanada v The Queenibid the Federal Court of Appeal expressed serious doubts about the value of expertopinions of economists, and questioned the wisdom of Reed 1's attempt to undertakean objective analysis and assessment of economic evidence: (1984) 11 DLR (4th) 387 at392-393, 395.

-------------Smillie: Bill of Rights 185

A judge may take the view that the overall public interest is best servedby giving legal effect to widely shared contemporary values of society. 32Some Canadian courts have adopted this approach by inquiring whethera challenged limitation on a guaranteed freedom would be accepted by"fair-minded people accustomed to the norms of a free and democraticsociety".33 Some observations in the Commentary to the draft Bill seemto anticipate a similar approach by New Zealand courts. 34 The obviousobjection to this approach is its highly subjective nature. How is the judgeto ascertain the moral convictions of the "fair-minded person"? Onemember of the New Zealand Court of Appeal has lamented that in reallydifficult and controversial cases there is no community consensus on theissue - society is clearly divided and the judge must choose between conflicting sets of values that are widely and strongly held. 35 The abortionand censorship issues, both of which are delegated to the courts for ultimateresolution by the draft Bill of Rights, are obvious examples of such cases.To critics of the outcomes of such controversial cases, judicial claims tobe giving effect to dominant community values will be seen merely as acover for the personal values and prejudices of the judges themselves.

Furthermore, judicial assessment of the constitutional validity of legislation by reference to contemporary community values involves a fundamental contradiction. Judicial appeal to dominant community values makessome sense in the context of common law adjudication where judges areaddressing issues which Parliament has ignored, or addressed imperfectlyor incompletely. However, reliance upon community values to strike downclearly expressed legislative choices is much more difficult to accept. Whileit may sometimes be true that the opinion of a majority of the electedrepresentatives of the people do not truly reflect dominant communityvalues, it is hard to believe that a small group of appointed judges is betterqualified to make this assessment. While a comparative survey of analogouslegislation in other "free and democratic" societies36 may provide some moreobjective extrinsic criteria for assessment of contemporary democraticvalues, the basic criticism remains.

Judicial awareness of the inherent difficulties associated with each ofthese approaches to constitutional review is likely to induce the courts to

32 Lord Devlin has argued that when called upon to make a fundamental value judgment,a court should ascertain and give legal effect to those moral principles "which every rightminded person would accept as valid": The Enforcement of Morals (Oxford U Press,1965) 15. An American advocate of this approach has described the court's task as being"to ascertain the weight of the principle in conventional morality and to convert the moralprinciple to a legal one by connecting it with the body of constitutional law": Wellington,"Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication" (1973) 83 Yale LJ 221 at 284.

33 Re Federal Republic of Germany and Rauca (1982) 141 DLR (3d) 412 at 423 (Ont HC);Re Red Hot Video Ltd and City of Vancouver (1983) 5 DLR (4th) 61 at 66 (BCSC); ReRetail, Wholesale & Department Store Union and Government of Saskatchewan (1984)12 DLR (4th) 10 at 24 (Sask QB), rev'd (1985) 19 DLR (4th) 609 (Sask CA).

34 White Paper paras 3.11, 8.12.35 Mr Justice Richardson, "The Role of Judges as Policy Makers" (1984) 15 VUWLR 46 at 52.36 See eg Re USA and Smith (1984) 44 OR (2d) 705 at 722-727 (Ont CA); Re Southam Inc

and The Queen (No 1) (1983) 146 DLR (3d) 408 at 424-429 (Ont CA); Canadian Newspapers Co Ltd v Attorney-Generalfor Canada (1985) 16 DLR (4th) at 662-664 (Ont CA);and White Paper para 10.34.

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show substantial deference to Parliament's assessment of what particularaccommodation of competip£ interests best reflects community values andmaximises overall public welfare. The courts are likely to take a passivedeferential approach to constitutional review by which they limit themselvesto ensuring that a legislative limit on a guaranteed freedom has a legitimateState purpose (viz the primary motive is not merely to deny some minority group the right to exercise a guaranteed freedom)37; that there is arational connection between that State purpose and the restraint imposedby the challenged law; and that the extent of the restraint is not completelydisproportionate to achievement of the State aim. 38

For the most part, the limited experience of the Canadian courts withinterpretation of the 1982 Charter of Rights supports this analysis.Although the Canadian Charter has generated a large volume of litigation, most successful challenges have been founded on breach of due process provisions which are largely declaratory of existing statutory andcommon law safeguards against abuse of criminal and administrativeprocesses. 39 Successful challenges to legislation for breach of the broadlydefined "fundamental freedoms" listed in section 2 of the Charter havebeen rare. While the Supreme Court of Canada has suggested that not everygovernment interest or policy objective is sufficiently important to warrantconsideration in the balancing exercise required by the general limitationprovision (sl),40 and that some rights may be so "central" or "fundamental"to the political tradition underlying the C.harter that only a vital Stateinterest can override them,41 these ideas have not yet been developed. 42 Atthe same time, one member of the Supreme Court has described the generallimitation provision of the Charter as providing a "mechanism" whichallows the courts to defer to other branches of government on politicallysensitive issues which they choose to label as "non-justiciable" on groundsof political "prudence".43

The Commentary to the New Zealand draft Bill contains many indications that its authors expect New Zealand courts to exercise their powersof review with great restraint44 so that almost all legislation which abridges

37 See eg Attorney-General of Quebec v Quebec Association of Protestant School Boards(No 2) (1983) 1 DLR (4th) 573 esp at 576 (Quebec CA), aff'd (1984) 10 DLR (4th) 321(SCC); R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 366, 373-374 (SCC).

38 See eg R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 366 per Dickson J (SCC);Canadian Newspapers Co Ltd v Attorney-General for Canada (1985) 16 DLR (4th) 642at 661 et seq (Gnt CA); Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983) 4 DLR (4th) 231 (Gnt HC).

39 Viz the "Legal Rights" conferred by ss 7-14 of the Charter which parallel the rights setout in Part V of the New Zealand draft Bill.

40 R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 366 per Dickson J; Re Singh and Ministerof Employment and Immigration (1985) 17 DLR (4th) 422 at 469 per Wilson J.

41 R v Big M Drug Mart Ltd ibid at 362 per Dickson 1.42 The Supreme Court has been content merely to observe that "Principles will have to be

developed for recognising which government objectives are of sufficient importance towarrant overriding a constitutionally protected freedom": R v Big M Drug Mart Ltd ibidat 366. . . •• : ;.; . . ,,.. .

43 Operation Dismantle Inc v The Queen (1985) IS~DLR (4th) 481 at 518-519 per Wilson 1.44 Eg White Paper paras 6.5, 6.17, .1.0.180. ~.-"


rights guaranteed by the Bill will be upheld as valid under Article 3. 45 Theperformance of New Zealand judges sitting as members of the Courts ofAppeal of Pacific Island countries in important constitutional cases tendsto reinforce this expectation. 46 Of course adoption by the courts of a passivedeferential approach of this kind would render the Bill largely ineffectiveas a check upon legislative infringement of the fundamental rights itguarantees.

To the extent that the Bill stipulates basic values which the courts shouldstrive to protect, it will assist the courts in interpreting ambiguous legislation and it will give constitutional force to the courts' inherent powers toreview delegated government action for compliance with legislativeintention. But if this is the extent of the intended practical effect of theBill of Rights, it can be achieved more easily (and more honestly) by asimple amendment to the Acts Interpretation Act 1924 without engagingthe public in protracted debate and raising expectations which have noreasonable prospect of satisfaction.

Given the unsatisfactory consequences attendant upon practical application of these utilitarian approaches to the rights guaranteed by the Bill,what alternative approaches are open to the courts? One possibility is alimited "process-oriented" approach to judicial review of the kind advocatedby Professor John Hart Ely in his recent book Democracy and Distrust:A Theory of Judicial Review. 47

Ely's "Process-Oriented" Approach to Judicial Review

Ely's theory of constitutional interpretation is based on a particular conception of the ideal democratic society. He believes that the best policyoutcomes are achieved by a system of pluralistic representative democracyin which policy decisions are the product of free interaction and competitionbetween diverse minority interest groups which represent the full range ofrelevant viewpoints. The courts are not competent to review the substantivecontent of legislation produced by this process. However, the courts dohave a legitimate role to play in preserving the integrity of the process.They may intervene to remove institutional impediments which cause thesystem to "malfunction". Ely explains that: 48

45 Eg White Paper paras 6.21, 10.52, 10.58, 10.72, 10.78, 10.80, 10.113, 10.134, 10.166.46 See eg A-G v Saipa'ia Olomalu (1982) Court of Appeal of Western Samoa (Cooke P,

Mills and Keith JJ), published in (1984) 14 VUWLR 275 (equality provisions of the Constitution of Western Samoa held not to extend to voting rights); Clarke v Karika (1982)Court of Appeal of the Cook Islands (Cooke P, Speight and Keith JJ) [1985] LRC (Const)732, (equality provision interpreted narrowly: plaintiff bears the onus of proving that adiscriminatory provision is arbitrary and not consonant with achievement of a legitimatelegislative purpose); Tora v R (1978) Fiji Court of Appeal (Henry JA delivering the judgment of the Court), Criminal Appeal No 3 of 1978 (constitutional guarantees of freeexpression and association construed restrictively).

47 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard U Press,1980).

48 Ibid at 103.


Malfunction occurs when the process [by which particular legislation is produced]is undeserving of trust, when (1) the ins are choking off the channels of political changeto ensure that they will stay in and the outs will stay out, or (2) though no one isactually denied a voice or a vote, representatives beholden to an effective majorityare systematically disadvantaging some minority out of simple hostility or a prejudiced,refusal to recognise commonalties of interest, and thereby denying that minority theprotection afforded other groups by a representative system.

So Ely advocates a "participation-oriented, representation-reinforcing"49approach to judicial review. The courts' role is to guard against an entrenched majority coalition abusing its control over the political processby systematically denying representation and recognition to minorityinterests. Accordingly, the courts may properly treat legislative limits onpolitical expression, assembly and association as inherently suspect becausefree exercise of these political rights is "critical to the functioning of an·open and effective democratic process".50 Similarly, the courts may reviewelectoral. apportionments to ensure that each citizen's vote carriesapproximately the same value. Judicial intervention of this kind is justifiedin order to "clear the channels of political change". 51 Constitutional provisions conferring broad equality rights should be so construed as to invalidate legislation which is intended to harm the interests of "discrete andinsular" minority groups "to whose needs and wishes elected officials haveno apparent interest in attending".52 While the actual purpose motivatingthe legislature will be difficult to ascertain, strict judicial scrutiny of legislation which has the effect of harming particularly "suspect" minoritygroups53 will serve to "flush out" illicit motives.

Ely's approach does have some attraction. His conception of democracyas majoritarianism tempered by open political debate and respect forminorities probably accords reasonably well with the New Zealand visionof the democratic ideal. And by directing the courts' attention to theprocesses by which, and the reasons for which legislation is passed, histheory seems to offer the courts a significant role in interpreting openended constitutional provisions, while at the same time providing someinsulation against charges of undemocratic conduct and allowing them toavoid ruling on the merits of the most controversial legislative policychoices. 54

49 Ibid at 87.50 Ibid at 105.51 Ibid (chapter heading).52 Ibid at 151.53 By which the government is required to show that challenged legislation serves a "com

pelling" State purpose and demonstrates "an essentially perfect fit" between that purpose and the legislative classification employed: ibid at 146.

54 For a discussion of the potential for application of Ely's approach to interpretation ofthe Canadian Charter of Rights and Freedoms, see Fairley, "Enforcing the Charter: SomeThoughts oil an Appropriate and Just Standard for Judicial Review" (1982) 4 SupremeCourt LR 215 at 234 et seq. Some Canadian courts have interpreted some of the morebroadly defined Charter rights in a manner consistent with Ely's approach. See eg ReKlein and Law Society of Upper Canada (1985) 16 DLR (4th) 489 at 532, 539 (Ont HC)(the "freedom of expression" guaranteed by s 2(b) of the Charter applies to "expressionof ideas and opinions relating to the political and governmental domains of the country"but does not protect "pure commercial speech" such as advertising); Koumoudouros andMunicipality ofMetropolitan Toronto (1984) 6 DLR (4th) 523 at 533 (Ont HC) per Eberle


There are some indications that the authors of the draft Bill contemplateNew Zealand courts adopting a process-oriented approach to judicial reviewof the kind advocated by Ely. Perhaps the clearest indication is providedby Article 12, the anti-discrimination provision. Article 12 omits any generalright to the "equal protection of the law" on the grounds that such a provision has enabled American courts "to enter into many areas which wouldbe seen in New Zealand as ones of substantive policy". 55 Ely's influencemay also explain the authors' belief that affirmative action programmeswhich offer preferred treatment to minority groups will not infringe Article12, so that there is no need to make express provision for such action. 56

Of course Ely sees "nothing constitutionally suspicious about a majority'sdiscriminating against itself'.57 Other observations in the White Paper suggest that the intended object of the broad Democratic and Civil Rightsenumerated in Part III of the Bill is, in Ely's words, to "keep open thechannels of political change". 58

But if the authors' intention was merely to provide constitutional protection to political expression, -assembly and association, and to prohibitinvidious discrimination against specified minority groups, it would havebeen very easy to say so in clear and express terms. And of course someof the guarantees included in the draft Bill necessarily require the courtsto judge the substantive merits of legislative policy. Obvious examples areprovided by Article 14 which provides that "No one shall be deprived oflife" except on grounds that are "consistent with the principles of fundamental justice", and Article 15(3) which provides that "Everyone deprivedof liberty shall be treated with humanity and with respect for the inherentdignity of the human person".

In any case, Ely claims too much for his theory of judicial review. Whenapplying his approach (by inquiring, for example, whether particular legislation shows so little concern for the interests of a minority group as to,warrant an inference of improper motive), the court must necessarily makea value judgment as to the substantive fairness of the legislative outcome.59

J (suggestion that "artistic expression" is not protected by s 2 (b», but cf R v Saint JohnNews Co Ltd (1984) 16 DLR (4th) 248 at 254 (NBQB). See also cases where the rightto freedom of association guaranteed by s 2 (d) of the Charter has been held not to confereconomic rights to bargain collectively and strike: Dolphin Delivery Ltd v Retail Wholesale& Department Store Union, Local 580 (1984) 10 DLR (4th) 198 (BCCA); Public ServiceAlliance of Canada v The Queen (1984) 11 DLR (4th) 387 (FCA); Reference re PublicService Employee Relations Act (1984) 16 DLR (4th) 359 (Alta CA). But compare casesin which s 2(d) was held to protect a union's right to strike and the courts undertooka utilitarian analysis to determine whether legislative limits on that right are justifiableunder s 1: Re Service Employees' International Union, Local 204 and Broadway ManorNursing Home (1983) 4 DLR (4th) 231 (Ont HC); Re Retail, Wholesale & DepartmentStore Union and Government of Saskatchewan (1985) 19 DLR (4th) 609 (Sask CA).

55 White Paper para 10.82 (emphasis added).56 Ibid para 10.79. Cf s 15(2) of the Canadian Charter of Rights and Freedoms.57 Ely, supra n 47 at 172.58 Eg paras 4.14, 3.12.59 See the criticisms levelled at Ely by Sandalow, "The Distrust of Politics" (1981) 56 NYULR

446 at 461 et seq; and Dworkin, "The Forum of Principle" (1981) 56 NYULR 469 at 500et seq and at 541.

-


-

To summarise my argument to this point, I believe that a weak utilitarianconception of fundamental rights does not provide a sufficient justification for adoption of an entrenched constitutional Bill of Rights. And tothe extent that Ely's "process-based" approach to judicial review invalidatessome outcomes, it must be based on some prior assumption about what"rights" individuals have to resist purely utilitarian policies. 60

A "Strong" View of Fundamental Constitutional Rights

In my view, the most meaningful conception of a constitutional "right"is that provided by the analogy of "rights as trumps" drawn by RonaldDworkin from the world of card games. Dworkin argues that "claims ofpolitical right must be understood functionally, as claims to trump somebackground collective justification [for political decision-making] that isnormally decisive". 61 Since the normal justification for political decisionmaking in a democracy such as ours is the utilitarian goal of securingmaximum overall welfare, rights must be understood as trumps held byindividuals over unrestricted utilitarian justifications for politicaldecisions. 62 If individual citizens are to be recognised as having fundamentalrights against the State, and those rights are to be "taken seriously", theGovernment cannot be entitled to remove or limit a right "on no morethan a judgment that its act is likely to produce, overall, a benefit to thecommunity".63

When constitutional rights are understood in this "strong" sense, it isquite inappropriate for courts to see their role as being to "strike a balance"between the rights of the individual and the welfare of society at large. 64The whole point of the constitutional guarantee is to indicate that thisbalance has already been struck in favour of the individual's claim. Judicial"balancing" is appropriate only where constitutionally guaranteed rightsconflict, so that unrestricted exercise of one such right interferes withenjoyment of another.

The same basic idea underlies the earlier formulation by John Rawlsin his book A Theory ofJustice of two fundamental "principles of justice".Rawls' first principle requires that every person should have "an equal rightto the most extensive basic liberty compatible with a similar liberty forothers".65 He identifies the "basic liberties" as: 66

60 See Dworkin, ibid at 515. See also Sager, Comment (1981) 56 NYULR 543.61 Ronald Dworkin, Taking Rights Seriously (Harvard U Press, 1980) 364, and Introduc

tion p (xi). See also, Dworkin, "Is There a Right to Pornography?" (1981) 1 Oxford JLS177 at 200.

62 Dworkin, Taking Rights Seriously 365.63 Ibid at 192.64 Ibid 197-198.65 John Rawls, A Theory of Justice (Harvard U Press, 1971) 60.66 Ibid at 61. Rawls later defines "the rule of law" as embracing the familiar maxims that

there can be no offence without a law, that laws must be administered impartially andwith procedural fairness, and that similar cases should be treated similarly, as well asthe principle that "ought implies can" (viz laws must be of such a nature that citizenscan reasonably be expected to follow them): ibid at 235-243.


political liberty (the right to vote and to be eligible for public office) together withfreedom of speech and assembly; liberty of conscience and freedom of thought; freedomof the person along with the right to hold (personal) property; and freedom fromarbitrary arrest and seizure as defined by the concept of the rule of law.

Rawls' second principle of justice relates to claims to economic and socialbenefits. It provides that: 67

social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and officesopen to all.

The crucial feature of Rawls' theory is that his first principle of justicetakes priority over the second, so that the basic liberties cannot be restrictedfor greater social and economic advantages. The basic liberties comprisea self-contained set of fundamental rights which can be limited only tothe extent necessary to resolve conflicts between those rights: "liberty canbe restricted only for the sake of liberty".68 It is appropriate to define andguarantee basic liberties by entrenched constitutional provisions, whileeconomic and social policies can be left for determination by the legislature,guided, of course, by Rawls' second principle of justice. 69

In A Theory of Justice Rawls is somewhat vague as to why his basicliberties should have priority, and how conflicts between the basic liberties should be resolved. However, in·· the end he does identify a "mainprimary"70 human good by reference to which these gaps in his theory canbe filled. This is the primary good of "self-respect" which includes twoelements: first, "a person's sense of his own value, his secure convictionthat his conception of his good, his plan of life, is worth carrying out"and second, "a confidence in one's ability, so far as it is in one's power,to fulfil one's intentions".71 Self-respect is fundamental because "Withoutit nothing may seem worth doing, or if some things have value for us, welack the will to strive for them. All desire and activity becomes empty andvain, and we sink into apathy and cynicism."72 Rawls' identification of self-

67 Ibid at 60.68 Ibid at 250. See also 61-64.69 Ibid at 199, and see also Rawls, "The Basic Liberties and Their Priority" published in

The Tanner Lectures on Human Values (University of Utah Press, Cambridge U Press,1982) vol III, p3 at 53.

70 A Theory of Justice 544.71 Ibid at 440 (emphasis added).72 Ibid. In a later essay Rawls falls back upon a particular conception of free and equal

personhood to justify the priority of the basic liberties and resolve conflicts between them.The free and equal citizen must possess two "powers of moral personality": the capacityfor a sense of right and justice (the capacity to honour fair terms of co-operation andthus to be reasonable), and the capacity for a conception of good (and thus to be rational)":Rawls, "The Basic Liberties and Their Priority" supra n 69 at 16. Parties in the "originalposition" would select the basic liberties and give them priority because they are necessaryfor adequate development and exercise of the two moral powers. And conflicts betweenbasic liberties should be resolved by reference to the relative significance of those liberties for development of the moral powers: "a liberty is more or less significant dependingon whether it is more or less essentially involved in, or is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers

192 Otaf!.o Law Review (1986) Vol 6 No 2

respect as the primary human good expresses an idea that lies at the heartof liberal ethical theory. Obviously it bears a close affinity with Kant's imperative that human dignity and autonomy are supreme values which mustbe respected as ends in themselves. 73 Dworkin's identification of theindividual's right to "equal concern and respect in the design andadministration of the political institutions that govern them" as the fundamental background right from which all "particular" rights are derived74expresses the same basic idea,75 as does William Conklin's fundamentalnorm of respect for persons as open-ended potentialities. 76

Self-respect requires some minimum level of public social recognitionof the equal worth of the individual and respect for his personal conception of what is good for him. According to Rawls, this should take theform of equal assignment of his "basic liberties". Rawls does not maintain that this should be the ideal for all societies. His aim is to identifythose forms of institutional recognition of equal worth that are practicaland viable in a western liberal democracy. Since Rawls believes thatinsistence upon equal division of all economic and social benefits is impractical in a pluralistic liberal democracy, equal entitlement to the basicliberties becomes the essential social basis for self-respect. He concludesthat "the best solution is to support the primary good of self-respect asfar as possible by the assignment of the basic liberties that can indeed bemade equal, defining the same status for all". 77

So the particular rights which merit protection in an entrenched constitutional Bill of Rights are those which express the minimum conditionsnecessary to secure individual self-respect. Such constitutional rights mustnot be sacrificed for utilitarian gains in overall welfare, and conflictsbetween these rights must be resolved by giving priority to the right thatbears the closer nexus with the fundamental norm of self-respect, in thesense that public institutional recognition of that right is a more essential

...": ibid at 50. However, the right to self-respect remains truly fundamental because"self-respect presupposes the development and exercise of both moral powers", and "isrooted in our self-confidence as a fully co-operating member of society capable of pursuinga worthwhile conception of the good over a complete life": ibid at 33. So self-respectremains the fundamental norm - it assumes the existence of the capacities identifiedby the two "moral powers", and focuses attention on the minimal conditions necessaryfor their adequate development and exercise. The concept of self-respect has a more concrete and immediate impact and force than the more nebulous capacities it assumes, andtherefore provides a more effective basic norm by which to assess constitutional allocations and adjustments of basic individual liberties.

73 See Rawls, A Theory ofJustice s 40, and Rawls, "Kantian Constructivism in Moral Theory"(1980) 77 Journal of Philosophy 519.

74 Dworkin, Taking Rights Seriously 180, 272-273, 356, and Introduction p (xv).75 In fact Rawls' notion of an equal right to self-respect is preferable to Dworkin's formula

tion because it is immune from the criticism directed at Dworkin that his right to "equalconcern and respect" fails to account for equal infringements of fundamental liberties:see Nickel, "Dworkin on the Nature and Consequence of Rights" (1977) 11 Georgia LR1115 at 1129. In the final chapter of his book Taking Rights Seriously, entitled "A Replyto Critics", Dworkin acknowledges the force of this criticism and seems prepared to reducehis fundamental norm to the proposition that "officials must treat all citizens with respectand concern, or as autonomous human beings": p 356.

76 William E Conklin, In Defence of Fundamental Rights (1979) ch VI.77 Rawls, A Theory ofJustice 546; "The Basic Liberties and Their Priority" supra n 69 at 44.


means to protect individual self-respect. Of course this view of a constitutional Bill of Rights as a self-contained set of basic individual liberties,which can never be limited or overridden by utilitarian considerations ofgreater overall welfare, is incompatible with the structure of the draft NewZealand Bill.

It is true that both Rawls and Dworkin compromise their strong theoriesof rights by acknowledging that in some circumstances even the mostimportant individual freedoms may be overridden by community goals.Rawls conceded that the most fundamental of his "basic liberties" (libertyof conscience) may be limited where this is necessary to protect "thecommon interest in public order and security", because maintenance ofpublic order is a necessary condition for the enjoyment of all basicliberties. 78 He does insist that restrictions on basic liberties are justifiedonly where the expectation of public disorder is "reasonably certain orimminent" and is demonstrated by "evidence and ways of reasoningacceptable to all". 79 However, this vague "common interest" exception tothe priority of basic liberties seriously undermines the strength of the rightsdrawn from Rawls' principles of justice. Clearly it is capable of being usedto justify a wide range of utilitarian limitations on fundamental rights. 80

Dworkin also concedes that fundamental individual rights may be outweighed by collective goals of "special urgency"81 raised by "emergency"conditions where the security of the nation is threatened, or where "a verygreat loss may be prevented, or perhaps, where some major benefit canclearly be secured". 82

Of course the reason why both Rawls and Dworkin compromise theirtheories of rights by reference to these vague welfare criteria is not difficultto grasp. It is because the particular rights which they recognise are so wideranging and expressed in such broad terms that there is no realistic prospectof any particular society (even the most liberal and homogeneousdemocracy) adopting them as a completely self-contained set of individualentitlements which can never be compromised for collective welfare goals. 83

And of course this is also the reason for the inclusion of broad limitationprovisions in the New Zealand draft Bill and the overseas models on which·it is based.

78 A Theory of Justice 212-213.79 Ibid at 213.80 See Scanlon, "Rawls' Theory of Justice" (1973) 121 U of Penn LR 1020; Conklin, In Defence

of Fundamental Rights 171-177. See also Operation Dismantle Inc v The Queen (1985)18 DLR (4th) 481 at 517 where Wilson J cites Rawls in support of her proposition thatCharter rights are not absolute and that, quite apart from s 1, the State may abridge thoserights to guard against "external threats to both its collective well-being and to the individualwell-being of its citizens".

81 Taking Rights Seriously 92, 195, 200, 354.82 Ibid at 195, and see also 200, 354.83 Rawls' list of "basic liberties" consists of broad assertions of all the classical liberal freedoms

except the right to ownership of real property and freedom of contract. It is significantthat when Rawls attempts to demonstrate the concrete practical application of his theoryof justice, he concentrates on freedom of political thought, expression and assembly: "TheBasic Liberties and Their Priority" supra n 69 at 55-79.


Conclusion

If a New Zealand Bill of Rights is to offer meaningful protection offundamental human rights, and the courts are to be spared the need toundertake the kind of unrestricted utilitarian calculation to which they aredirected by Article 3 of the present draft, the guaranteed rights must belimited to those which our society holds to be such essential conditionsof individual self-respect that their integrity and equal distribution mustalways be upheld against utilitarian goals. They would be limited to rightsto resist the most substantial and overt institutional denials of equalindividual worth. Of necessity, such a list of fundamental individual rightswould be short and carefully circumscribed. It would lack the immediatepublic appeal of the broad assertions of freedom contained in the presentdraft Bill. However, such a document would demonstrate that we do indeedtake seriously the particular rights selected for inclusion, and that· thoserights may be limited by reference to the fundamental norm of self-respectonly where they conflict with one another.

Of course it is much easier to criticise the work of others than to translateone's own ideas into concrete practical form. Nevertheless, I have attemptedto draft an alternative Bill of Rights for New Zealand which satisfies myown criteria, and this is set out in the remaining section of this paper.

ALTERNATIVE DRAFT NEW ZEALANDBILL OF RIGHTS AND COMMENTARY

(to be read alongside the draft Bill contained in theWhite Paper "A Bill of Rights for New Zealand")

New Zealand Bill of Rights

An Act to institute as the supreme law of New Zealand a Bill of Rightsin order to affirm, protect and promote human rights and fundamentalfreedoms in New Zealand.

WHEREAS

(1) New Zealand is a democratic society based on the rule of law andrespect for the equal dignity and worth of every human person;

(2) New Zealand in 1978 ratified the International Covenant on Civiland Political Rights;

(3) It is desirable to affirm the human rights and fundamental freedomsof all the people of New Zealand without discrimination and to ensuretheir recognition and observance as part of the supreme law of New Zealandby the Parliament and Government of New Zealand.

BE IT THEREFORE ENACTED by the General Assembly of NewZealand in Parliament assembled, and by the authority of the same, asfollows:

Comment on Preamble

The changes to the preamble of the present draft Bill are designed to:1. Affirm and declare the political philosophy upon which our society isbased. Paragraph (1) emphasises that New Zealand society is committed


/

to equal participation in the process of government, and to impartialapplication of laws which respect the equal dignity and worth of everyhuman person.2. The reference to the Treaty of Waitangi is omitted, as are Articles 4 and26 of the draft Bill. It is clear that the authors of the draft Bill do notintend the sweeping rights conferred on the Maori people by the Treatyto take automatic priority over such non-guaranteed community interestsas those reflected in statutory controls of land and water use. Indeed theauthors concede that the meaning of the Treaty itself is far from clear (seeWhite Paper, paras 10.36, 10.42, 10.44-10.47). Consequently the Treaty ofWaitangi does not satisfy my criteria for inclusion in a constitutional Billof Rights.

What the authors of the draft Bill seem to contemplate as the practicaleffect of Article 4 could be achieved by an amendment to the Acts Interpretation Act 1924 along the following lines:

Every law of New Zealand shall, if possible, be so construed and applied as not toabrogate, abridge or infringe, or to authorise the abrogation, abridgement or infringement of the rights of the Maori people under the Treaty of Waitangi according toits true spirit and intent.

But this would tend to demean the status of the Treaty.A possible alternative, which apparently has the support of many Maoris,

is creation of a second chamber of Parliament, comprising equal numbersof Maori and non-Maori members, which would scrutinise all proposedlegislation for compliance with the terms, spirit and intent of the Treatyof Waitangi. (See the reported comments of Manuka Henare and ProfessorWhatarangi Winiata at a seminar on the draft Bill of Rights held in Wellington on 10 May 1985 under the auspices of the New Zealand Sectionof the International Commission of Jurists: Transcript, pp 61-69.)

PART I

General

1. New Zealand Bill of Rights supreme law

This Bill of Rights is the supreme law of New Zealand, and accordinglyany law (including existing law) inconsistent with this Bill shall, to the extentof the inconsistency, be of no effect.

2. Guamntee of rights and freedoms

(1) This Bill of Rights guarantees the rights and freedoms contained init against acts done

(a) by the legislative, executive or judicial branches of the government of New Zealand; or

(b) in the performance of any public function, power or duty conferred or imposed on any person or body by or pursuant to law.

Comment on Articles 1 and 2

Articles 1 and 2 of the draft Bill are adopted without change.


3. Fundamental right to self-respect

(1) The fundamental human right from which all the particular rightsand freedoms guaranteed in this Bill of Rights are derived, and by referenceto which all conflicts between guaranteed rights and freedoms shall beresolved, is the equal right of all persons to self-respect. Self-respect requiresrecognition that every human person is an autonomous being capable ofchoosing and pursuing a worthwhile conception of his or her own goodover a complete life.

(2) Each of the rights and freedoms guaranteed in this Bill of Rightsmay be subject only to such limits prescribed by law as can be demonstrably justified in order to safeguard other persons in their equal enjoyment of the rights and freedoms guaranteed in this Bill of Rights.

(3) The onus of proof under paragraph (2) of this Article will lie onthe party seeking to justify a limitation on one of the rights or freedomsguaranteed in this Bill of Rights.

Comment on Article 3

There is no place for a general limitation provision such as Article 3of the present draft in a "strong" Bill of Rights of the kind I envisage.My alternative provision provides a clear statement that the fundamentalbackground right which underlies the particular rights guaranteed by theBill, and by reference to which all conflicts between guaranteed rights shallbe resolved, is the equal right of all persons to self-respect. Article 3(1)also defines this term. While it is appropriate, in the context of a constitutional Bill of Rights, to describe the equal right to self-respect as afundamental "right" in positivist terms, it is really a normative postulatethat expresses a fundamental human good which I, like John Rawls, believeinheres in the nature of the human person. Together, Articles 3(1) and 3(2)ensure that a guaranteed right may be limited only to the extent necessaryto resolve a conflict with another guaranteed right which is, in the circumstances, a more essential condition of individual self-respect. Article 3(3)makes it clear that the party seeking to justify a limitation on a guaranteedfreedom bears the onus of proof under Article 3(2).

PART II

Democratic and Civil Rights

4. Electoral rights

Every New Zealand citizen who is of or over the age of 18 years(a) has the right to vote in genuine periodic elections of members of

the House of Representatives, which elections shall be by equalsuffrage and by secret ballot; and

(b) is qualified for membership of the House of Representatives.


Political rights to equal participation in the process of government bywhich the individual's ability to pursue his plan of life is regulated is clearly


an essential condition of self-respect in a pluralistic democracy. The term"equal suffrage" requires that the value of every individual's right to votemust be approximately equal, thus securing what Rawls describes as the"fair value" of this essential political liberty (Rawls, "The Basic Libertiesand Their Priority", Tanner Lectures on Human Values, University of UtahPress, 1982, vol III, pp 41-42).

Article 5 of the draft Bill is acceptable to me personally in its presentform and Article 4 of my Bill adopts its terms without change. However,it should be noted that in this unqualified form Article 4 would guaranteethe right to vote to prison inmates (cf Jolivet and Barker and The Queenand Solicitor-General of Canada (1983) 1 DLR (4th) 604 (BCSC)) and involuntary medical patients. It may also threaten the constitutional validityof certain electorates with disproportionately low numbers of qualifiedvoters.

5. Freedom of thought, conscience and religion

Everyone has the right to free~om of thought, conscience, religion andbelief, including the right to adopt and to hold opinions withoutinterference.


Article 5, which guarantees freedom of thought, conscience, religion andbelief, adopts Article 6 of the draft Bill without change. Governmentrestrictions of these internal, subjective elements of human life obstructthe capacity of individuals to form and change conceptions of their owngood, and so present a direct and major threat to self-respect.

Article 8 of the draft Bill, which confers an unqualified right to manifestone's religion or belief, is omitted from my alternative draft. Article 5,together with guaranteed rights to freedom of expression, a-ssembly andassociation for religious purposes, provides adequate protection of the rightto manifest one's religion or belief. ~

6. Freedom of expressio~'

Everyone has the right to freedom of political, religious and ethicalexpression, subject to limits prescribed by the law of defamation.


In its present unqualified form, Article 7 of the draft Bill is unsuitablefor inclusion in a strong Bill of Rights of the kind I envisage. Clearly thereis no consensus in New Zealand society that unrestricted freedom ofexpression and access to information must always outweigh such collectivewelfare goals as the security of the State, the preservation of moral standardsand the economic interests of consumers, as well as the individual's interestin protecting his trade secrets, his reputation and his public dignity. Theauthors of the draft Bill assu~ the continued validity of a wide rangeof existing laws which restrain expression to protect such interests (WhitePaper paras 10.55-10.58). In particular, it seems that there is no substantialagreement in our society that rights to free commercial and sexual


expression are such essential conditions of individual self-respect that theyshould never be the subject of government restraint.

However, freedom to express political, religious and ethical viewpoints(subject expressly to the limits imposed by the law of defamation to protect the individual's reputation and dignity) does qualify for inclusion undermy criteria. Free dissemination of religious and ethical opinions is essentialin order to provide the background of full information necessary forrational formation, revision and pursuit by the individual of his or herlife plan. Freedom of political expression is necessary in order to makethe right of equal participation in the political process a meaningful one,and overt denial of the value of one's opinions as to how society shouldbe organised and regulated strikes a direct and substantial blow at theindividual's sense of self-worth.

Obviously the courts will still be required to make difficult decisionsof substantive policy in the course of applying this more limited right tofreedom of expression. First, they will be called upon to determine theboundaries of the protected categories of expression. For example, thecourts will be required to distinguish serious ethical discussion of sexualbehaviour (which would be protected even though it may offend thesensibilities of many people) from erotic material with no serious ethicalcontent and purpose, which would fall outside Article 6. (Compare alsoCohen v California, 403 US 15 (1971) where the United States SupremeCourt was required to decide whether the words "Fuck the Draft"emblazoned on the back of a jacket was constitutionally protected politicalspeech or unprotected obscene expression.) Secondly, the right is notabsolute; expression may be restrained to the extent necessary to protectother guaranteed rights which are more essential conditions of the fundamental right to self-respect. So political expression may be restrained wherethis is necessary in order to protect the rights of others to life and theintegrity of their physical persons (see Article 11), and it will be for thecourts to determine when inflammatory speech. raises such a strongexpectation of violent disorder as to justify government restraints. Ofcourse, merely advocating the overthrow of established institutions by forceshould not be sufficient to justify government intervention. The courtsshould insist upon proof that such subversive advocacy was both intendedand likely to produce imminent violent action (See eg Brandenburg v Ohio395 US 444 (1969), and Tribe, American Constitutional Law (1978) ch 12-9.Cf Wallace-Johnson v R [1940] AC 231 (PC) and s 81 of the Crimes Act1961 (NZ).) Legislation which restricts communication of government information falling within the protected categories would be invalid underArticle 6, except where communication of particular information wouldpresent a threat to the life or physical security of other citizens. If it isdeemed necessary to allow the government to restrict dissemination of suchinformation to protect less important State interests, Article 6 must beexpressly qualified in appropriate terms.

Some government regulation of the timing and funding of politicalexpression, and the use of limited facilities for the communication ofpolitical speech (but never its content) may be justified in order to protectthe equal right of others to communicate opposing political argumentsto the public, and generally to safeguard the right to equal participation


in the process of government guaranteed by Article 4. Reasonable regulation of election expenditure, free use of public broadcasting facilities, andaccess to public places for election meetings may be justified on this basis.(See Rawls, "The Basic Liberties and Their Priority", Tanner Lectures onHuman Values, University of Utah Press, 1982, vol III, pp 72-79 whereRawls recognises that government regulation may be justified by the needto ensure the "fair value" of the basic political liberties. But cf NationalCitizens' Coalition Inc v Attorney-Generalfor Canada (1984) 11 DLR (4th)481 (Alta QB).)

There is no doubt that difficult problems of interpretation would remainunder my more limited formulation of the right to freedom of expression.However, at least the courts would be spared the controversial political taskof deciding what substantive limits on expression are justified in order toprotect community interests in preserving standards of morality andpropriety, and commercial expression would be left to unrestricted regulation by Parliament.

7. Freedom of peaceful assembly

Everyone has the right to freedom of peaceful assembly.


Article 7 adopts Article 9 of the draft Bill unchanged. Freedom ofassembly is, of course, an essential condition for effective exercise of therights to equal participation in government and political expression.Inclusion of the word "peaceful" incorporates the essential limitation onthe right in the terms of the freedom itself. An assembly directed to andlikely to incite imminent violent conduct which causes reasonable personsin the vicinity to fear for their safety would not be protected (Cf CrimesAct 1961, s 86). Legal restraints which protect citizens from unreasonableinterference with their physical comfort (eg from noise) would remain valid.Reasonable restrictions to ensure fair allocation of the use of public placesand facilities between different groups would also be valid.

8. Freedom of association

Everyone has the right to freedom of association for political, religious,ethical, social and cultural purposes.


Article 8 has been drafted so as to deny constitutional protection toassociation for purely economic purposes. This will remove from the courtsthe need to consider the constitutional validity of legislative limitationson the rights of both producers and employees to associate for the purpose of promoting their own economic interests. Regulation of unfairtrading practices and trade union activities will remain the exclusive preserveof the legislature. The courts will also be spared the need to resolve thehighly controversial issue of the existence and scope of "negative" rightsto refuse to join trade unions and professional societies.


9. Freedom of movement

(1) Every New Zealand citizen has the right to enter New Zealand.(2) No one shall be prevented from leaving New Zealand except under

a decision taken on grounds prescribed by law.(3) No one who is not a New Zealand citizen and who is lawfully in

New Zealand shall be required to leave New Zealand except under a decisiontaken on grounds prescribed by law.


Paragraph (1) of Article 11 of the present draft Bill has been omittedfrom my draft. The authors of the Bill do not intend this unqualified rightto freedom of movement to be taken seriously. They anticipate that a largenumber of existing laws which restrain freedom of movement to protectnon-guaranteed interests will be upheld by reference to Article 3: eg thelaw of trespass which protects private property interests, and the wholerange of laws which authorise arrest, detention and imprisonment (WhitePaper, para 10.72). Of course my proposed Bill contains no generallimitation provision equivalent to Article 3 of the present draft. In fact Article11(1) is unnecessary. The individual's interest in freedom of movement isadequately protected from State interference by the more specific "dueprocess" rights guaranteed in Part V of the present draft Bill (eg the "rightnot to be arbitrarily arrested or detained" conferred by Article 15(1)).

Article 11(3) of the draft Bill has been amended to make express provision for lawful restrictions upon leaving the country.

PART III

Rights against discrimination

10. Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the groundof colour, race, ethnic or national origins, sex or religious or ethical belief.

(2) Paragraph (1) does not preclude any law, programme or activity thathas as its object the amelioration of conditions of individuals or groupsthat are disadvantaged because of colour, race, ethnic or national origins,sex or religious or ethical belief.


Unfavourable discrimination by government on the basis of unalterableinherited characteristics such as colour, race, ethnic origin and sex, or onthe basis of personal religious or ethical beliefs, strikes a direct and majorblow at individual self-worth by providing overt institutional recognitionthat a particular individual or group is inherently less deserving of concern and respect than other.s. My Article 10(1) adopts the terms of Article12 of the draft Bill. Howeve~·fhe' guarantees provided by my provisionwould be considerably stronger than those afforded by the draft Bill. Article


12 of the draft Bill is, of course, subject to the general limitation providedby Article 3, and the authors anticipate that the exceptions to unlawfuldiscrimination provided in the Human Rights Commission Act 1977 wouldbe upheld under Article 3 (White Paper, para 10.80). Since the rightsguaranteed by my alternative Bill could be limited only in the case of conflict with other guaranteed freedoms, exceptions to protect nonconstitutional interests such as public morality, personal sensitivity, Statesecurity and economic efficiency would not be upheld. This should causefew problems in the case of discrimination on the grounds of colour, raceand ethnic or national origins. Existing legislation provides few exceptionsto the general prohibition of invidious discrimination on these grounds,and their removal in respect of government activity should cause littledifficulty (Cf Race Relations Act 1971, s 5(3), (4) and (5)).

However, removal of the government's right to rely on certain of theexceptions provided by the Human Rights Commission Act in respect ofdiscrimination on the grounds of sex and religious belief raises more seriousdifficulties. My provision would deprive the government in its capacity asemployer and supplier of services of certain exceptions which would remainavailable to private individuals. For example, the Government LifeInsurance Office would be unable to offer differential insurance rates onthe basis of sex (Cf Human Rights Commission Act 1977, s 24(6)). Rigidmaintenance of single-sex schools would be unconstitutional (Cf HumanRights Commission Act 1977, s 26(2)).

Some discrimination may be justified by reference to other fundamentalrights guaranteed by the Bill. For example, men could be denied accessto public lavatories, residential hostels and hospital wards reservedexclusively for women on the grounds of personal security (Cf HumanRights Commission Act 1977, ss 23(2),25(3)). Discriminatory requirementsfor employment in the police, armed forces and like services could possiblybe justified by reference to the relative suitability of the sexes for the roleof protecting others from physical force (Cf Human Rights CommissionAct 1977, s 16). Preferential employment and acceptance practices in Statefunded religious and ethnic educational establishments may be justifiedby reference to the guaranteed rights of association for religious and culturalpurposes, or by reference to Article 10(2) (Cf Human Rights CommissionAct 1977, ss 15(7), 26(2)). So, despite some reservations, I have includedsex and religious or ethical belief among the constitutionally prohibitedgrounds of discrimination.

Article 10(2) of my proposal is adopted from the Canadian Charter ofRights and Freedoms in order to make express provision for affirmativeaction programmes designed to overcome historical disadvantages to whichsome minority groups are subject. I do not have the confidence expressedby the authors of the draft Bill that preferential treatment of this kind doesnot amount to discrimination at all (White Paper, para 10.79), and of coursemy proposal contains no general limitation provision.

Article 13 of the draft Bill has been omitted as redundant. Its intendedeffect is already secured by the guaranteed rights to expression, religionand association, and the rights against discrimination.

202 Otago Law Review

PART IV

Life and integrity of the physical person

(1986) Vol 6 No 2

11. Rights to life and integrity of the physical person

Everyone who is presently capable of survival without artificial supporthas the right to life and to the integrity of his or her physical person, andthe right not to be deprived thereof except on such grounds, and whereapplicable, in accordance with such procedures, as are established by lawand are consistent with the principles of fundamental justice.


Article 11 departs from Article 14 of the draft Bill in two importantrespects. First, the rights are limited to persons who are presently capableof survival without artificial support. This is to spare the courts theunenviable task of deciding when human life begins and ends. Instead,the courts are delegated a difficult and controversial, but nevertheless moremanageable inquiry which can be determined on the basis of medicalevidence alone. While many will disagree strongly with my resolution ofthis most fundamental issue, Article 10 must provide some such explicitdirection for the courts. And it must be emphasised that the purpose ofa Bill of Rights is the limited one of providing minimum constitutionalsafeguards against government interference with fundamental humaninterests.

Secondly, Article 10, unlike the draft Bill, expressly guarantees theindividual's right to the integrity of his or her physical person. While ageneral right to the integrity of the physical person can be inferred fromother provisions of the draft Bill (eg Articles 15(1), 15(3), 20), this is notmade explicit. Clear and express recognition of this right is essential becausethe threat of physical violence provides one of the most important limitations upon the exercise of the political and religious freedoms.

Express provision for limited exceptions to this right consistent with theprinciples of fundamental justice is necessary in order to preserve thevalidity of existing laws which authorise reasonable use of official forcein defence of property, to effect an arrest in circumstances which presentno threat of physical violence to others, and to prevent escape from lawfulcustody.

PART V

Liberty and legal process

Preliminary comment on Part V

Articles 12 to 18 of my proposed Bill adopt the terms of Articles 15 to21 of the present draft, subject to a few minor amendments. The mainobject of these provisions is to give entrenched constitutional status toexisting safeguards against abuse of criminal and administrative processes,and most of the guaranteed rights are declaratory of long-standing commonlaw and statutory requirements with which the courts are already very


familiar. While most of these provisions are couched in quite specificlanguage, a few of the most potentially wide-ranging rights are expresslylimited by such terms as "arbitrarily", "undue" or "unreasonable". Judicialapplication of these standards does involve some balancing of individualinterests against wider community goals which receive no specific recognition in the Bill. However, the function of balancing the limited interestswhich conflict in this context - the individual's interest in liberty and thepublic interest in effective and practicable law enforcement - lies squarelywithin the traditional jurisdiction and competence of the courts. A fewof the rights conferred by Part V of the draft Bill are expressed in unrealistically broad terms. Here the authors anticipate significant judicialcurtailment of the rights pursuant to Article 3. Such provisions have beendeleted from my alternative draft, or made subject to express limitationswhich are incorporated in the terms of the right itself.

l

;

My amendments to Part V of the draft Bill are indicated as follows: wordsdeleted from the draft Bill are enclosed within square brackets, while wordsadded to the draft Bill are printed in italics.

12. Liberty of the person

(1) Everyone has the right not to be arbitrarily arrested or detained.(2) Everyone who is arrested or detained shall ..

(a) be informed at the time of the arrest or detention of the reasonfor it;

(b) have the right to consult and instruct a lawyer without unreasonabledelay and to be informed of that right;

(c) have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be releasedif the arrest or detention is not lawful.

(3) Everyone deprived of liberty shall be treated with humanity and withrespect for the inherent dignity of the human person.(Cf Article 15 draft Bill of Rights)


Article 15(2)(b) of the draft Bill is amended by inserting the word "unreasonable" to qualify "delay". The Supreme Court of Canada has takena wide view of when a person is "detained" for the purpose of the equivalentprovision of the Canadian Charter (R v Therens (1985) 18 DLR (4th) 655).However, the effective exercise of some limited powers of detention whichappear to command general public support would be rendered impracticable if, upon being lawfully detained, a person had a right to consult and instruct a lawyer before complying with a lawful demand to tenderinformation or permit inspection of property. (Eg Tra:psport Act 1962,s 66; Misuse of Drugs Act 1975, s 18(3); Fisheries Amendment Act 1963,s 20; Wildlife Act 1953, s 39(1); Wild Animal Control Act 1977, s 13(1)(e».In the absence of a general limitation provision equivalent to Article 3 ofthe draft Bill, the courts would probably respond by adopting an undesirably narrow interpretation of the term "detained". (Cf Chromiak vR (1979) 102 DLR (3d) 368 (SCC) and see R v Therens, supra at 676 perLe Dain J.) My choice lies between making the right conferred by Article


15(2)(b) conditional upon arrest (but not detention short of arrest), ormaking the broader right subject to an express limitation of reasonableness. I have chosen the second alternative; even in this qualified form theright provides a valuable safeguard against abuse of the increasing numberof statutory powers of detention short of arrest.

13. Rights on arrest

Everyone who is arrested for an offence has the right(a) to be charged promptly or to be released;(b) to refrain from making any statement and to be informed of that right;(c) to be brought promptly before a court or competent tribunal;(d) to be released on reasonable terms and conditions unless there is just

cause for continued detention.(Cf Article 16 draft Bill of Rights)

14. Minimum standards of criminal justice

(1) Everyone charged with an offence has the right(a) to a fair [and public] hearing by a competent, independent and

impartial court;(b) to be presumed innocent until proved guilty according to law,

subject to any rebuttable presumption of law based on a rationalconnection between the proved and presumed facts;

(c) if convicted of the offence and the punishment has been variedbetween the commission of the offence and sentencing, to thebenefit of the lesser punishment;

(d) if convicted of the offence, to appeal to a higher court against theconviction and any sentence according to law.

(2) No one shall be liable to conviction of any offence on account of anyact or omission which did not constitute an offence by such personunder the law of New Zealand at the time it occurred.

(3) No one who has been finally acquitted, convicted of, or pardoned for,an offence shall be tried or punished for it again.(Cf Article 17 draft Bill of Rights)


Article 17(1)(a) of the draft Bill is amended by deletion of the word"public". Existing legislation provides for exclusion of the public fromcriminal trials and for suppression of names and details. The authors ofthe draft Bill anticipate that these provisions would be saved by Article3 (White Paper, para 10.113). There is at present no general right to a publictrial, and the authors of the draft Bill clearly do not intend to confer one.

Article 17(1)(b) of the draft Bill has been amended to give express recog-.nition to the manner in which Canadian courts have treated "reverse onus"and "mandatory presumption" provisions under the Canadian Charter.Canadian courts have held that such provisions violate the equivalentsection of the Canadian Charter (s II(d), but can be saved as justifiedlimitations under section 1 of the Charter if a reasonable connection existsbetween the proved fact and the presumed fact. (See R v Oakes (1983) 145DLR (3d) 123 (Ont CA) and White Paper, paras 10.117-10.120. In New


Zealand compare Collector ofCustoms v Murray [1979] 1 NZLR 76 (CA)and Valensky v Conservator of Forests (1986) CA 39/85.)

15. Rights of persons charged

(1) Every person charged with an offence has the right(a) to be informed promptly and in detail of the nature and cause of

the charge;(b) to have adequate time and facilities to prepare the defence;(c) to consult and instruct a lawyer;(d) to receive legal assistance without cost if the interests of justice so

require and the person does not have sufficient means to providefor that assistance;

(e) to 'be tried without undue delay;(f) to be present at the trial and to present a defence;(g) except in the case of an offence under military law tried before a

military tribunal, to the benefit of a trial by jury when themaximum punishment for the offence is imprisonment for morethan three months;

(h) to examine the. witnesses for the prosecution and to obtain theattendance and examination of witnesses for the defence under thesame conditions as the prosecution;

(i) to have the free assistance of an interpreter if the person cannotunderstand or speak the language used in court;

(j) not to be compelled to be a witness against that person or to confess guilt;

(k) [in the case of a child, to be dealt with in a manner which takesaccount of the child's age.]

(2) This Article shall be read subject to the Children and Young PersonsAct 1974.(Cf Article 18 draft Bill of Rights)


Article 15(2) is substituted for Article 18(1)(k) of the draft Bill. Theapparent object of Article 18(1)(k) is to preserve the validity of the Childrenand Young Persons Act 1974 which provides for special courts and procedures for persons under the age of 17 years. However, the precise scopeof Article 18(1)(k) is unclear (the crucial word "child" is left undefined),and the provision is couched rather misleadingly in the form of a positiveright. My alternative provision secures the apparent object of Article18(1)(k) in terms of an express limitation upon the rights conferred byparagraph (1) of the Article.

16. Search and seizure

Everyone has the right to be secure against unreasonable search or seizurewhether of the person, property, or correspondence or otherwise.(Cf Article 19 draft Bill of Rights)

17. No torture or cruel treatment

(1) Everyone has the right not to be subjected to torture or to cruel,


degrading or disproportionately severe treatment or punishment.(2) Every person has the right not to be subjected to medical or scientific

experimentation without that person's consent.(3) [Everyone has the right to refuse to undergo any medical treatment.)

(Cf Article 20 draft Bill of Rights)


Article 20(3) of the draft Bill is omitted from my alternative draft. Article20(3) is not intended to be read literally. The authors of the draft Billanticipate that existing laws which permit persons to be treated againsttheir will, and allow third parties to authorise treatment on behalf ofpersons who are incapable of giving informed consent, would be upheldas valid limitations under Article 3 (see White Paper, para 10.166). In factthe intended effect of Article 20(3) is already secured by Article 11 of myalternative draft.

18. Right to Justice

(1) Every person has the right to the observance of the principles of naturaljustice by any tribunal or other public authority which has the powerto make a determination in respect of that person's rights, obligations,or interests protected or recognised by law.

(2) Every person whose rights, obligations or interests protected or recognised by law have been affected by a determination of any tribunal orother public authority has the right to apply to the High Court, inaccordance with law, for judicial review of that determination.

(3) Every person has the right to bring civil proceedings against, and todefend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedingsbetween individuals.(Cf Article 21 draft Bill of Rights)

PART VI

Application, enforcement and entrenchment

19. Application to legal persons

The provisions of this Bill of Rights apply so far as practicable and unlessthey otherwise provide for the benefit of all legal persons.

20. Enforcement of guaranteed rights and freedoms

Anyone whose rights or freedoms as guaranteed by this Bill of Rightshave been or will be infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriateand just in the circumstances.

21. Intervention by Attorney-General

(1) The Attorney-General shall be given the opportunity to appear and


participate in any legal proceedings as a party if in the opinion of thejudge or other officer presiding in those proceedings there is a seriousquestion to be argued about the violation of the provisions of this Billof Rights.

(2) Paragraph (1) shall not apply if the Attorney-General or any officeror agency of the Crown is a party to the proceedings.

22. Entrenchment

No provision of this Bill of Rights shall be repealed or amended or inany way affected unless the proposal -(a) is passed by a majority of 75 percent of all the members of the House

of Representatives and contains an express declaration that it repeals,amends or affects this Bill of Rights;or

(b) has been carried by a majority of the valid votes cast at a poll of electorsfor the House of Representatives;

and, in either case, the Act making the change recites that the requiredmajority has been obtained.

23. Short title and commencement

(1) Act may be cited as the New Zealand Bill of Rights 1986.(2) The New Zealand Bill of Rights 1986 shall come into force on the

....... day of 198 .

Comment on Part VI

Articles 24, 27, 28 and 29 of the present draft Bill are adopted withoutchange as Articles 19, 21, 22 and 23 of my alternative draft. My Article20 adopts Article 25 of the draft Bill subject to one minor change intendedto make it clear that a remedy can be sought and issued in respect of athreatened violation of a guaranteed right (see R L Crain Inc v Couture(1983) 6 DLR (4th) 478 at 516-519 (Sask QB)).

Article 22 of the draft Bill (Other rights and freedoms not affected) isomitted from my alternative Bill. The combined effect of Articles 3 and22 of the present draft is to invite the courts to limit a fundamental rightwhich is expressly guaranteed by the Bill by reference to a conflicting legalright which is not given constitutional status. This runs contrary to thewhole rationale of my proposal.

Article 23 of the present draft is also omitted. To the extent that it directsthe courts to prefer, in the case of a truly ambiguous statutory provision,that interpretation which is consistent with the Bill of Rights, it merelyexpresses an accepted principle of constitutional interpretation and is therefore unnecessary. However, Article 23 could be interpreted as directing orinviting the courts to rewrite open-ended statutory provisions in such away as to authorise interference with a guaranteed right to the maximumextent permissible under the Bill. This is undesirable. The Canadian Charterof Rights and Freedoms contains no such provision.

f w guest memorial lecture a bill of rights for …

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