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How I think the Bill of Rights is supposed to work

By Steven | June 28, 2009

I’ve mentioned an article I wrote with Claudia Geiringer about the Bill of Rights Act for Law, Liberty and Legislation – Essays in Honour of John Burrows QC. It’s called “Moving from Self-Justication to Demonstrable Justification – the Bill of Rights and the Broadcasting Standards Authority”. It has already been cited favourably in a couple of High Court decisions. I’ve posted a copy here.

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 2 Comments »

2 Responses to “How I think the Bill of Rights is supposed to work”

  1. Graeme Edgeler Says:
    July 1st, 2009 at 12:36 pm

    Fantastic slapdown:

    Section 14 of the Bill of Rights protects the right “to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. The broadcasting standards regime limits that right.(33) This point is so obvious that we would not feel the need to articulate it if there were not at least one contrary High Court authority.(34)

    But on to matters of substance.

    1. As you will be aware, the BSA is not a court. In that regard, I have difficulty in seeing any application to it of section 4 of the Bill of Rights Act. Section 4 – beginning with the words “No court shall…” – quite clearly limits its prohibitions to courts. This is not to say that the BSA would have the power to ignore an unjustifiable or unreasonable statutory limit, but I would suggest you’d need a different route.

    [I once raised this point in relation to the Privy Council – also not a court – and postulated the correct route in that case was the 1688 Bill of Rights]

    2. It is often the little inaccuracies (on TV, but also in news media generally) that I find most annoying. I really don’t see the compelling interest in allowing TVNZ to tell me the chance of winning a prize in lotto is 1-in-20 if it’s really 1-in-200, or that United Future is “within the margin of error”. They don’t deserve punishment for doing so, but if they won’t acknowledge the error from an email complaint (or attach a post script to their on-line article) I’m not too concerned to have some outside body enforce what should be good journalistic practice.

    3. I’m sure there was something else, but I read the paper in two sittings, and the other thought is now gone. I may return 🙂

  2. Graeme Edgeler Says:
    July 14th, 2009 at 4:35 pm

    There was another bit:

    Others have drawn attention to the error of this approach in requiring the adoption of “most consistent” rather than simply “consistent” meanings and in failing to give sufficient weight to s 5 of the Bill of Rights.

    At the law school I studied at, we were taught that this was correct 🙂

    There were a number of arguments for it, the one I can recall that I found most persuasive (which I don’t think was the one the lecturer found most persuasive) was around proportionality – requiring that the infringement of the right be the least possible infringement required to meet the aim of the legislation. If you’ve two interpretations, one more consistent with the rights affirmed in BORA than the other, the interpretation that infringes the right least is the more proportionate one. And as the other interpretation infringes more, it’s not really going to be “the least possible infringement” and is likely therefore disproportionate.


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