New Zealand and constitutional Validity of Statute
Similarly, Supreme Court of New Zealand has stated clearly that:” If the natural meaning of a statutory provision does appear to limit a guaranteed right, the appropriate next step is to consider whether that limit is a justified one in terms of s 5. If it is, the meaning is not inconsistent with the Bill of Rights in the sense envisaged by s 6, and should be adopted by the court. It is only when that natural meaning fails the s 5 test that it is necessary to consider whether another meaning could legitimately be given to the provision in issue. If the words of the provision in their context are not capable of supporting a different and Bill of Rights consistent meaning, s 4 requires the court to give effect to the provision in accordance with its natural meaning notwithstanding the resulting inconsistency with the Bill of Rights.[1]’This was summed up in the following five steps by TIPPING J in the same case Paul Rodney Hansen v The Queen[supra] as follows: The initial interpretation exercise should proceed according to all relevant construction principles, including the proposition inherent in s 6 that a meaning inconsistent with the rights and freedoms affirmed by the Bill of Rights should not lightly be attributed to Parliament. Once the resulting meaning, which I will call Parliament’s intended meaning, has been identified, the next step is to determine whether there is any inconsistency between that meaning and the Bill of Rights. If there is none, the matter rests there. If there is an inconsistency, and this can conveniently be called apparent inconsistency, the question which then arises is whether the court’s next step is to examine whether a consistent or less inconsistent meaning can be given to the statutory language to accord with the s 6 preference; or rather, whether the next step is to examine the apparent inconsistency to see whether it is nevertheless reasonable and a demonstrably justified limit and thus permitted by s 5 of the Bill of Rights. I say "permitted" in the sense that by enacting a provision with that meaning Parliament is not acting inconsistently with the Bill of Rights of which s 5 forms an integral part.” I consider the latter is the appropriate course. The court does not move straight from an apparently inconsistent meaning to look for another meaning. The court first examines the apparently inconsistent meaning to see whether it constitutes a justified limit[134] [2]on the right or freedom in question. If it does not constitute a justified limit, the court goes back to s 6 to see if a consistent or more consistent meaning is reasonably possible. If, however, the apparently inconsistent meaning does constitute a justified limit, the apparent inconsistency is overtaken by the justification afforded by s 5. In effect, s 5 has legitimised the inconsistency.[135][3] If this sequence were not followed, there would be the potential for subversion of a deliberate policy choice by Parliament and its (at least implicit) view that the ensuing limitation of a right or freedom was justified. This would occur if there was a reasonably possible but unintended meaning which could be given to the statutory words. Such would be the consequence of going straight from Parliament’s intended but apparently inconsistent meaning to another meaning which was reasonably possible but unintended.”
“‘To approach the matter in this way would give the limitation involved in Parliament’s intended meaning no chance of being justified under s 5, if there was a tenable and more consistent meaning. If Parliament’s intended meaning is not justified under s 5 then, and only then, should the court look for a reasonably possible alternative meaning under s 6. This is not to subvert s 6 but rather to say that if a meaning which is apparently inconsistent is nevertheless justified under s 5, it is no longer inconsistent for the purposes of s 6. Section 5 makes the inconsistency legitimate. This construction recognises Parliament’s ability to legislate in terms which constitute a justified limit without having its purpose frustrated by a tenable but unintended s 6 interpretation. Section 4 comes into play only if Parliament’s intended meaning constitutes an unjustified limit and no other tenable meaning can be given to the words in issue. This approach, which I regard as principled rather than prescriptive, best reflects the interrelationship between ss 4, 5 and 6. It is consistent with Parliament’s plenary law making powers as emphasised by s 4. It also gives s 5 an appropriate role in the interpretation exercise entrusted to the courts.”
A summary may be helpful:
- Step 1. Ascertain Parliament’s intended meaning.
- Step 2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
- Step 3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
- Step 4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament’s intended meaning prevails.
- Step 5. If Parliament’s intended meaning represents an unjustified limit under s 5, the court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
- Step 6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.[4]
‘Despite the considerable authority of these views, I am unable to accept that there is any material difference between the New Zealand and United Kingdom models. The direction to give an enactment a meaning that accords with the rights and freedoms contained in the New Zealand Bill of Rights Act where such interpretation "can" be given may as equally entail an interpretation which "linguistically may appear strained", as where such interpretation is "possible". Nor is this heretical. Apparent "linguistic" interpretation is not uncommonly displaced by context. Where fundamental rights are affected, particularly those protected by international covenants to which New Zealand is a party, apparent meaning yields to less obvious meaning under common law presumptions protective of bedrock values.[19] The common law had, I think, already evolved beyond requiring ambiguity before interpreting legislation to conform wherever possible with human rights instruments and fundamental values of the common law.[20] In any event, s 6 of the New Zealand Bill of Rights Act now makes it clear that textual ambiguity is not required; if an enactment "can" be given a meaning consistent with the New Zealand Bill of Rights Act, it must be given that meaning.[21] Section 6 is key to the policy of the New Zealand Bill of Rights Act to "promote" as well as "affirm" and "protect" human rights and fundamental freedoms in New Zealand.[5]’
Section 5 of the New Zealand Bill of Rights Act 1990 has two principal functions – defining and protective, observed ANDERSON J, in the case of Paul Rodney [supra]
Part 2 of the Bill of Rights Act refers to human rights and fundamental freedoms with varying degrees of qualification. The right not to be deprived of life,[6] for example, is subject to the exception of such grounds as are established by law and are consistent with the principles of fundamental justice. The right to be secure against search or seizure[[7] is limited to unreasonable search or seizure. On the other hand, freedom of expression,[8]freedom of association, [9]and freedom of movement[[10] are expressed without qualification. Yet those freedoms have never been considered absolute. The laws of defamation, confidentiality, and indecency limit freedom of expression. Freedom of association and of movement are limited by penal provisions, parental authority and family laws. Such limitations are permissible because of s 5. The effect is that although rights and freedoms are identified by Part 2, their scope is or may become defined in particular situations by s 5.
There are some rights and freedoms in respect of which no limitation could be justified in a free and democratic society. Take, for example, the rights affirmed by s 9. What free and democratic society could contemplate as reasonable the infliction of torture or cruel, degrading or disproportionately severe punishment? The right to a fair trial][11] is another example. Whether in a particular case errors of law, or procedural deficiencies or other aberrations, do or do not render the trial unfair is a matter of degree and judgment. But should a trial properly be stigmatised as unfair, s 5 could not be invoked to redeem it. It is also fairly arguable that the burden of persuasion carried by the prosecution in criminal cases is so integral to a fair trial that no relaxation or reversal of it can be justified.
The protective function of s 5 operates in two ways. The section reinforces the primacy of the rights and freedoms as defined in Part 2. It also enjoins the legislative, executive and judicial branches of the government of New Zealand, and those charged with public functions, powers or duties, against limiting those rights and freedoms in a way that cannot be demonstrably justified in a free and democratic society.
In my view s 5 does not have an interpretative purpose or effect. That function is served by s 6. There may, however, be situations where, in order to give effect to s 6, consideration needs to be given to s 5. Suppose that on one interpretation an enactment would abrogate a right or freedom, and on another interpretation it would have a limiting but not abrogating effect. If, on the second possibility, the limitation were reasonable, and could be demonstrably justified in a free and democratic society, s 6 would mandate that interpretation.
In some cases that method may involve a finding by a court that Parliament has enacted legislation that cannot be demonstrably justified in a free and democratic society. Although such legislation cannot be struck down, the court’s opinion will have a social value in bringing to notice an enactment which is inconsistent with fundamental rights and freedoms. It is indicative of the strength of our democratic institutions that Parliament, although not countenancing its being overruled, has, by the terms of the Bill of Rights Act, accepted the prospect of judicial assessment of the consistency of its enactments with affirmed rights and freedoms.
It is important to understand that although a court may express what amounts to an advisory opinion, its perspective may be constrained by the limits of its own process and the scope of its inquiry. Its process will have the advantage of legal expertise but, sometimes, the disadvantage of lack of generality. The scope of its inquiry will be constrained by the nature of its judicial process. These limitations may warrant a margin of appreciation in circumstances where they significantly affect the court’s inquiry. For the reasons I have expressed in, it must be recognised that in respect of some rights and freedoms there will be little or no room for marginalisation. In any event, the courts should not be diffident about calling attention to encroachment on fundamental rights and freedoms.[12]’
[1]Paul Rodney Hansen v The Queen [2007] NZSC 7 (20 February 2007) per BLANCHARD J
[2] I use this expression as shorthand for the statutory requirement in s 5 that a limit must be reasonable and demonstrably justified in a free and democratic society ,per TIPPING J
[3] It is clear that some rights and freedoms have more potential for justified limitation than others. Some have no such potential. A limitation on the right to fair trial (s 25(a)) which renders a trial unfair could hardly qualify as a justified limitation under s 5.;Per TIPPING J
[4]S.4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a)Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective ;or
(b)Decline to apply any provision of the enactment —by reason only that the provision is inconsistent with any provision of this Bill of Rights
S.5 Justified limitations
Subject to section 4 of this Bill of Rights, 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.
S. 6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights,that meaning shall be preferred to any other meaning.
[5] Paul Rodney Hansen v The Queen [2007] NZSC 7 (20 February 2007) [supra] per Elias CJ
[6] Section 8
[7] Section 21
[8] Section 14
[9] Section 17
[10] Section 18
[11] Section 25(a)
[12] See Paul Rodney [supra] per ANDERSON j
No comments:
Post a Comment