Fitzgerald v R
[2021] NZSC 131
•7 October 2021
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| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 67/2020 [2021] NZSC 131 |
| BETWEEN | DANIEL CLINTON FITZGERALD |
| AND | THE QUEEN |
| Hearing: Further submissions: | 23 February 2021 |
Court: | Winkelmann CJ, William Young, Glazebrook, O’Regan and Arnold JJ |
Counsel: | K F Preston and D A Ewen for Appellant |
Judgment: | 7 October 2021 |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The proceeding is remitted to the High Court for re-sentencing.
____________________________________________________________________
SUMMARY OF RESULT
(Given by the Court)
The Court has unanimously dismissed Mr Fitzgerald’s appeal against conviction and, by a majority, allowed his appeal against sentence.
This case concerns the application of the “three strikes” regime in circumstances where the resulting sentence on conviction for a third strike offence under s 86D(2) of the Sentencing Act 2002 is so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). The appeal raised two primary issues. The first was whether, notwithstanding the three strikes regime, the sentencing Judge retained a discretion to discharge the appellant without conviction under s 106 of the Sentencing Act. The second, which arose during the hearing in this Court, was whether s 86D(2) of the Sentencing Act could be interpreted as subject to a limitation that the requirement to sentence an offender to the maximum sentence does not apply where to do so would breach s 9 of the Bill of Rights and New Zealand’s international obligations.
The appeal against sentence is allowed on the basis of the second issue. Winkelmann CJ, Glazebrook, O’Regan and Arnold JJ agree that the appellant’s sentence of seven years’ imprisonment went well beyond excessive punishment and would shock the conscience of properly informed New Zealanders, and was therefore so disproportionately severe as to breach s 9 of the Bill of Rights.[1] Winkelmann CJ, Glazebrook, O’Regan and Arnold JJ are also agreed that this right is not subject to reasonable limits under s 5.[2] They have held that Parliament did not intend, in enacting the three strikes regime, to require judges to impose sentences that breach s 9 of the Bill of Rights and New Zealand’s international obligations.[3] They consider it possible, and thus necessary, to interpret s 86D(2) so that it does not require the imposition of sentences that would breach s 9.[4]
[1]At [79]–[81] per Winkelmann CJ, [239] per Glazebrook J and [167] per O’Regan and Arnold JJ. William Young J agrees that the sentence imposed was contrary to s 9: at [283].
[2]At [38] and [78] per Winkelmann CJ, [241] per Glazebrook J and [160] per O’Regan and Arnold JJ.
[3]At [123] and [128]–[130] per Winkelmann CJ, [247] per Glazebrook J and [203] per O’Regan and Arnold JJ.
[4]At [139] per Winkelmann CJ, [250] per Glazebrook J and [219] per O’Regan and Arnold JJ.
Glazebrook, O’Regan and Arnold JJ have held that in the rare cases where the maximum sentence produced by s 86D(2) would breach s 9, an offender should be sentenced in accordance with ordinary sentencing principles.[5] Winkelmann CJ agrees that the ordinary sentencing principles will apply, but considers that s 86D(2) adds a sentencing principle that recidivism by those caught by the regime is to be viewed as very serious and worthy of a stern sentencing response.[6]
[5]At [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.
[6]At [137]–[138]. Glazebrook, O’Regan and Arnold JJ disagree: see [252], n 366 per Glazebrook J and [231] per O’Regan and Arnold JJ.
William Young J is of the view that the language, scheme and purpose of the three strikes regime do not allow for the interpretation reached by the majority.[7] He would construe s 86D(2) as not being subject to any exception.[8]
[7]At [324]–[329].
[8]At [330]–[332].
As to the discharge without conviction issue, all members of the Court have dismissed the appeal against conviction. Glazebrook, O’Regan and Arnold JJ have held that in the rare cases where s 86D(2) will not apply because the maximum sentence required under it would breach s 9 of the Bill of Rights, a discharge without conviction will be available as part of the usual suite of sentencing options, including in this case.[9] They have found it unnecessary for the purposes of the appeal to determine whether a discharge without conviction is available where a third strike sentence does not breach s 9.[10]
[9]At [245] per Glazebrook J and [236] per O’Regan and Arnold JJ.
[10]At [245] per Glazebrook J and [237] per O’Regan and Arnold JJ.
Winkelmann CJ considers that the discharge without conviction jurisdiction is available for offenders found guilty of a third strike offence, applying the usual principles for the exercise of that discretion, whether or not the resulting sentence would breach s 9 of the Bill of Rights.[11] However, she acknowledges that usually, third strike offending viewed in its overall circumstances will place it outside the category of case where a discharge without conviction would be appropriate.[12] She has found that the present case comes very close to being one in which a discharge would be appropriate, and might have been such a case, were it not for public safety concerns.[13]
[11]At [99]–[100].
[12]At [106].
[13]At [107].
William Young J is of the view that the power to discharge without conviction is not available where the three strikes regime applies because the regime imposes a minimum sentence,[14] and that even if it were available, a discharge would not be appropriate in this case.[15]
[14]At [308].
[15]At [318].
Based on the conclusion of the majority,[16] the matter is remitted to the High Court so that the appellant can be re-sentenced in accordance with ordinary sentencing principles, taking into account his significant mental health issues.
[16]At [252] per Glazebrook J and [231] per O’Regan and Arnold JJ.
The reasons of the Court for this result are given in the separate opinions delivered by:
REASONS
| Para No. | |
| Winkelmann CJ | [11] |
| O’Regan and Arnold JJ | [147] |
| Glazebrook J | [238] |
| William Young J | [254] |
WINKELMANN CJ
Table of Contents
| Para No. | |
| Introduction | [11] |
| The offender and the offence | [15] |
| The three strikes regime | [21] |
| Discharge without conviction | [26] |
| Sentencing of Mr Fitzgerald in the High Court | [28] |
| Court of Appeal | [32] |
| The Bill of Rights | [36] |
| Relationship between the s 6 direction and other possible meanings | [44] |
| Just how far should the courts go to find a rights-consistent meaning? | [58] |
| Section 9 of the Bill of Rights | [74] |
| Section 106 of the Sentencing Act | [83] |
| Argument on appeal | [83] |
| Analysis | [85] |
| Should the appellant be discharged without conviction in this case? | [101] |
| Can s 86D be given a rights-consistent interpretation? | [109] |
| Analysis | [112] |
| Text of the provision | [113] |
| Purpose | [122] |
| Disposition | [143] |
| Result | [146] |
Introduction
The Sentencing Act 2002 was amended in 2010 to incorporate a “three strikes” regime, providing mandatory sentencing for certain categories of repeat offenders. The appellant, Mr Fitzgerald, was sentenced under s 86D(2) of the Sentencing Act for a “third strike” offence under that regime.[17] It is common ground between the parties that the sentence imposed was in breach of s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), which affirms that everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. It is common ground that the appellant’s sentence was disproportionately severe compared to the seriousness of the offending. The issue on this appeal is whether the sentencing Judge was bound by the three strikes regime to impose that sentence, or whether the Bill of Rights itself required otherwise.
[17]R v Fitzgerald [2018] NZHC 1015 (Simon France J) [HC judgment].
The meaning and effect of s 6 of the Bill of Rights lies at the heart of this appeal. The appellant contends the Judge was not bound to impose the maximum sentence – that he retained a discretion under s 106 of the Sentencing Act, interpreted in light of the Bill of Rights, to discharge the appellant without conviction in order to avoid the breach of s 9. During the hearing of the appeal, this Court raised an alternative argument on which it invited and received submissions – that the relevant three strikes provision within the Sentencing Act should, again by virtue of s 6 of the Bill of Rights, be restrictively interpreted as subject to a limitation that it does not require the imposition of a sentence in breach of s 9 of the Bill of Rights.[18]
[18]Leave to appeal the decision of the Court of Appeal (Fitzgerald v R [2020] NZCA 292, (2020) 29 CRNZ 350 (Clifford, Collins and Goddard JJ) [CA judgment]) upholding the original sentence was granted in Fitzgerald v R [2020] NZSC 119 [Leave judgment]. The approved question was whether the Court of Appeal was correct to find that s 106 of the Sentencing Act 2002 does not apply to the appellant.
The Crown acknowledges an interpretation of s 86D(2) that accommodates and upholds s 9 of the Bill of Rights is highly desirable. It says that, were such an interpretation reasonably available, this Court would be bound to apply it. And because the absence of a rights-consistent interpretation leads to an intrusion on a fundamental right, it also accepts that only the clearest of words can prevent a rights‑consistent interpretation being applied. However, the Crown says that a rights‑consistent interpretation of s 86D(2) is not available because of the clear statutory language and statutory purpose. It also says that using s 106 to defeat the application of s 86D(2) would override the clear statutory purpose of the three strikes regime and create perverse outcomes. And in any case, the clear wording of s 106 excludes the exercise of the discretion to discharge without conviction in this case.
The Human Rights Commission | Te Kāhui Tika Tangata (the Human Rights Commission) sought leave to intervene on this appeal on the ground that the appeal raises issues of general principle and importance bearing upon human rights. Leave was granted.[19] We were greatly assisted by the written submissions and oral argument we heard from the Human Rights Commission.
The offender and the offence
[19]Fitzgerald v R SC 67/2020, 3 December 2020.
The appellant suffers from long-standing and serious mental illness, which began when he was aged 15, over 30 years ago. He has been admitted at least 13 times to mental health facilities, but has otherwise been treated in the community. He suffers from schizophrenia and substance (drug and alcohol) abuse. He has a history of paranoid delusions and auditory and visual hallucinations, and needs ongoing mental health care. These health issues have led to difficulty in sustaining accommodation.
On 3 December 2016, the appellant approached two women walking along Cuba Street, Wellington. He grabbed one of the women by both her arms, pulled her towards him and told her he wanted to kiss her, before trying to kiss her mouth. She moved her head so that the kiss fell on her cheek. The appellant was convicted of indecent assault in respect of this conduct.
The appellant also assaulted the second woman. She tried to pull the appellant off her friend, and in response the appellant grabbed the second woman by her arms and pushed her backwards towards a nearby wall, holding her for a moment before letting her go. The appellant was convicted of assault for this conduct.
The overall incident lasted a moment or two, but was distressing nevertheless. The victim of the assault, who had been subject to past trauma, provided a victim impact statement in which she described the continuing emotional impact of the assault.
Although, as described by the sentencing Judge, the kiss fell “at the bottom end of the range” for an indecent assault,[20] this nevertheless counted as the appellant’s third strike for the purposes of s 86D of the Sentencing Act, the provisions of which I come to shortly.
[20]HC judgment, above n 17, at [21].
The appellant’s prior strike offences were also indecent assaults. The first, the most serious, occurred in 2012. The appellant knocked the victim to the ground and, when her skirt rode up through the fall, fell on top of her, burying his face in her buttock area and placing his hands there as well. In 2015, the appellant slapped the buttocks of three women in close succession as they walked past. He received a sentence of 11 months’ imprisonment for the 2012 offence and a sentence of four months’ imprisonment for the 2015 offending.
The three strikes regime
The three strikes regime was introduced to the Sentencing Act by amending legislation, the Sentencing and Parole Reform Act 2010. This amending legislation underwent a number of significant amendments during its passage through the House of Representatives. Most relevantly, at the Bill’s introduction, the three strikes regime was to apply only when an offender was sentenced to a determinate sentence of imprisonment of at least five years, or to an indeterminate sentence (a sentence of preventive detention or life imprisonment) for qualifying offences. While the Bill was in select committee stage, Cabinet agreed to remove this threshold of five years’ imprisonment, so that the regime would apply upon conviction for certain “qualifying offences” regardless of the sentence received.[21] Nevertheless, throughout the passage of the Bill, the responsible Ministers[22] explained that it would be legislation targeted at the “worst repeat violent and sexual offenders”.[23] This was consistent with the Bill’s explanatory note, which said that the “purpose of the Bill is to create a three stage regime of increasing consequences for the worst repeat violent offenders”.[24]
[21]The other significant change made at this stage was the sentence the court must impose upon conviction of a third strike offence: originally this was life imprisonment, but it was reduced to being the maximum term of imprisonment for the particular offence.
[22]As the Bill was progressing, responsibility for the legislation shifted from the Minister of Justice to the Minister of Police and Corrections.
[23](18 February 2009) 652 NZPD 1421 per Hon Simon Power; and (4 May 2010) 662 NZPD 10674 per Hon Judith Collins.
[24]Sentencing and Parole Reform Bill 2009 (17-1) (explanatory note) at 1.
Notwithstanding this purpose, the final legislation is expressed in terms broad enough to capture those who commit offences which are relatively minor and yet fall within the definition of “serious violent offence”. This case is an example of that. The offence of indecent assault falls within the Sentencing Act definition of a “serious violent offence”.[25] The latter is defined by reference to offence provisions in the Crimes Act 1961, rather than by reference to the seriousness of the conduct involved in the particular offending.
[25]Sentencing Act, s 86A definition of “serious violent offence”, para (12).
As to how the regime operates, when first convicted of a “serious violent offence” (defined in the Sentencing Act as a stage-1 offence), an offender is sentenced in the ordinary way but receives a “first warning” about the operation of the three strikes regime.[26] If, after that first warning, an offender is convicted of another “serious violent offence”, that offence counts for the purposes of the regime as a stage‑2 offence.[27] I refer to it as a second strike, the expression commonly used. On a second strike (other than for murder), the judge must give the offender a final warning about the consequences of committing a further qualifying offence.[28] The offender is sentenced in the ordinary way, but if they are sentenced to a term of imprisonment, the judge must order that the offender serve the full term without parole or early release.[29]
[26]Section 86B. The offender must also have been 18 years of age or older at the time of the offending for the offence to qualify as a stage-1 offence: see s 86A definition of “stage-1 offence”, para (b)(ii).
[27]Section 86A definition of “stage-2 offence”.
[28]Section 86C(1).
[29]Section 86C(4). As to the implications of the no-parole rule for sentencing, see Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
If the offender then commits a further “serious violent offence”, s 86D of the Sentencing Act applies to what is treated as a stage-3 offence.[30] This is the stage of the three strikes regime with which this appeal is concerned and I set it out in material part:
[30]Section 86A definition of “stage-3 offence”.
86DStage-3 offences other than murder: offender sentenced to maximum term of imprisonment
(1) Despite any other enactment,—
(a)a proceeding against a defendant charged with a stage-3 offence must be transferred to the High Court when the proceeding is adjourned for trial or trial callover under section 57 of the Criminal Procedure Act 2011 or, as the case may be, in accordance with section 36 of that Act, and the proceeding from that point, including the trial, must be in the High Court; and
(b)no court other than the High Court, or the Court of Appeal or the Supreme Court on an appeal, may sentence an offender for a stage-3 offence.
(2)Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.
(3)When the court sentences the offender under subsection (2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.
…
On its face, s 86D(2) requires that if, after receiving the final warning, an offender is convicted of a further “serious violent offence” (other than murder), the High Court must sentence the offender to the maximum term of imprisonment prescribed for that offence. Section 86D(3) further provides that the court must also order that the offender serve the sentence without parole, unless satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.
Discharge without conviction
Section 106 of the Sentencing Act provides in material part:
106 Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
Section 107 provides the threshold for such a discharge, the “gateway through which any discharge without conviction must pass”:[31]
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
Sentencing of Mr Fitzgerald in the High Court
[31]R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
In the High Court, Simon France J rejected an application to discharge the appellant without conviction for the simple reason that by its terms, s 106 did not apply where the court is required to impose a minimum sentence.[32] The Judge said that s 86D(2) required him to impose a sentence of seven years’ imprisonment.[33]
[32]HC judgment, above n 17, at [11] and [13].
[33]At [17].
The Judge had before him several reports setting out the appellant’s mental health history and addressing his mental health condition. In a report prepared for the Court, Dr Rosie Edwards, an assessing psychiatrist, expressed the view that the most appropriate course of action would be to deal with the appellant under s 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) – the appellant would be “best placed in a rehabilitation unit rather than an acute unit under an In-patient Mental Health Act order”.[34] That disposition was only available upon a conviction, but the mandatory sentence that flowed from the appellant’s conviction under the three strikes regime precluded it. Dr Edwards recorded her observation that the appellant was becoming more unwell in prison, requiring additional medication to manage his condition.
[34]This report was dated 25 August 2017 and was prepared for the purpose of assisting the Court as to whether the appellant was unfit to stand trial.
The Crown conceded it was manifestly unjust to order that the sentence be served without parole. The Judge agreed. He said that the indecent assault was at the bottom end of the range of seriousness, so that, standing alone, and leaving aside any aggravating features of the offender, the offending would not attract a jail term.[35] The Judge also said that while the appellant’s mental health condition was not at a level that provided a defence, there was nevertheless a link between it and his impulsive offending.[36] He observed that the appellant appeared to be developing some insight into his offending, avowing an intention to desist. The Judge considered that the possibility of parole provided an incentive to maintain that insight.[37]
[35]At [21].
[36]At [22]. Four reports were filed under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) during the course of proceedings in the High Court, outlining the mental health history I have set out above. The report writers expressed the opinion that the appellant was fit to stand trial and ruled out a defence of insanity. The appellant was considered to have a mental disorder within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[37]At [26].
However, Mr Fitzgerald has since been declined parole. As Collins J in the Court of Appeal noted, the Parole Board’s decision to decline parole in June 2020 stemmed from Mr Fitzgerald’s continued need for psychological rehabilitation.[38]
Court of Appeal
[38]CA judgment, above n 18, at [138].
The appellant appealed both conviction and sentence, arguing again for a discharge without conviction. Following the hearing, the Court of Appeal invited submissions on whether it could and should make a declaration that s 86D(2) is inconsistent with the Bill of Rights. Ultimately, it declined to do so because the issue only arose in response to an inquiry from that Court; the appeal would need to be segmented so that the issue could be determined by the Full Court of the Court of Appeal; and in any case, a declaration of inconsistency would be of no real benefit to the appellant.[39]
[39]At [89]–[90]. Leave to appeal to this Court on that issue was declined.
By a majority (comprising Clifford and Goddard JJ), the Court of Appeal upheld the High Court’s decision. All Judges agreed that a seven year sentence was manifestly unjust and grossly disproportionate in this case and was therefore inconsistent with the s 9 right not to be subject to such punishment.[40] The majority thought it likely that the three strikes regime is also inconsistent with the right under s 19 of the Bill of Rights to freedom from discrimination on the grounds of disability, as those who are unable to regulate their behaviour in response to warnings will be disproportionately exposed to severe consequences.[41] However, the majority agreed with the High Court Judge that s 106 of the Sentencing Act had no application under the three strikes regime.[42]
[40]At [43] per Clifford and Goddard JJ and [131] per Collins J.
[41]At [45].
[42]At [75].
Collins J dissented. While, in his view, s 86D(2) could not be interpreted consistently with s 9,[43] s 106 could. He said that where there are two interpretations available, the more Bill of Rights-consistent one should apply, so that the proviso to s 106 should be construed to only exclude the jurisdiction to grant a discharge where the offence provision itself requires the imposition of a minimum sentence.[44] Moreover, to give s 106 this meaning would not subvert Parliament’s intention as Parliament should not be presumed to have intended sentencing that breached s 9.[45] Nor did it add an unintended safety valve to the three strikes regime, because that regime is only engaged following a conviction. According to Collins J, this interpretation simply allowed s 106 to continue to operate as intended, unaffected by the three strikes regime.[46]
[43]At [117].
[44]At [111] and [125]–[126].
[45]At [116] and [128].
[46]At [129].
Having concluded that a discharge without conviction was available, Collins J found that the direct and indirect consequences of conviction for Mr Fitzgerald were out of all proportion to the gravity of his offending.[47] Thus, Collins J would have allowed the appeal and discharged the appellant without conviction.[48]
The Bill of Rights
[47]At [139].
[48]At [141].
Because the application, operation and effect of the Bill of Rights is central to the issues on this appeal, I begin my analysis with a discussion of its provisions and some of the case law that touches upon their operation. The long title of the Bill of Rights states that it is an Act:
(a)to affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights
Part 1 of the Bill of Rights (ss 2–7) contains the general provisions applying to legislation which engages the enacted rights. The scheme is as follows. Section 2 affirms the rights and freedoms contained in the Bill of Rights. By virtue of s 3(a), the Bill of Rights applies to acts done by each of the legislative, executive and judicial branches of government.[49] Sections 3 and 6 (the latter discussed below) are the provisions with the most direct application to the judicial branch of government.
[49]It also applies to acts done by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law: s 3(b).
Section 5 provides that the rights and freedoms affirmed are subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This provision efficiently brings into the Bill of Rights the limits on the affirmed rights and freedoms that are recognised as reasonable limits in the International Covenant on Civil and Political Rights (ICCPR)[50] and in the common law. However, some rights are so fundamental that no limit can be justified – it is common ground that s 9 is one such right.[51]
[50]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR].
[51]See below at [43], [78] and [116].
Section 4 makes clear that, notwithstanding ss 3 and 5, the Bill of Rights is not supreme law – the courts cannot decline to apply any provision of any enactment, and cannot hold any provision to be impliedly repealed, revoked, invalid or ineffective, by reason only that the provision is inconsistent with any provision of the Bill of Rights. Parliament is therefore able to legislate in breach of the affirmed rights and freedoms, and if it does so, the courts must apply that law.
Section 6 contains a direction for the judiciary when undertaking its constitutional function of interpreting legislation:
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.
Commentators sometimes suggest that ss 4 and 6 pull in different directions.[52] But I do not consider that they do. Section 4 affirms Parliament’s right to legislate inconsistently with the Bill of Rights, notwithstanding ss 3 and 5. Section 6 is an instruction to the judiciary as to how to interpret Parliament’s legislation. As the Human Rights Commission accepted at the hearing, ss 4 and 6 speak to the constitutional role of Parliament and of the courts in relation to legislation.
[52]See, for example, Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [7.9.1].
The Bill of Rights is therefore a statute of constitutional significance, one which is “intended to be woven into the fabric of New Zealand law”.[53] As a statutory bill of rights, even if not supreme law, the Bill of Rights is to be given a generous interpretation – an interpretation suitable to give individuals the full measure of the enacted fundamental rights and freedoms,[54] and one which renders the rights practical and effective,[55] comprehensible beyond the ranks of judges and human rights academics.
[53]R v Goodwin [1993] 2 NZLR 153 (CA) at 156 per Cooke P.
[54]Minister of Home Affairs v Fisher [1980] AC 319 (PC) at 328 per Lord Wilberforce, cited with approval in R v Mist [2005] NZSC 77, [2006] 3 NZLR 145 at [45] per Elias CJ and Keith J; and Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 268 per Cooke P.
[55]Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26, [2005] 3 NZLR 1 at [25] per Elias CJ and [103] per Tipping J.
In applying and interpreting the Bill of Rights, it is important also to reflect that the Act has common law, statutory and international antecedents.[56] In particular, it must be remembered that its enactment fulfils, in part, New Zealand’s obligations under the ICCPR, which New Zealand has ratified.[57] In this case, for example (and as I come to later), a breach of the s 9 right also entails a breach of art 7 of the ICCPR.[58] If an ICCPR right is violated in New Zealand but not remedied in this jurisdiction, then New Zealand will be in breach of its international obligations and international remedies are available.[59]
[56]Noort, above n 54, at 270 per Cooke P.
[57]New Zealand ratified the ICCPR on 28 December 1978.
[58]See below at [75]–[77].
[59]New Zealand ratified the Optional Protocol to the International Covenant on Civil and Political Rights on 26 May 1989, which provides an individual complaints mechanism for Convention breaches.
Although the Bill of Rights has a relatively simple statutory scheme, its application has caused difficulty, in particular in defining the relationship between ss 4 and 6, ss 5 and 6, and between s 5 of the Interpretation Act 1999 and s 6 of the Bill of Rights. Because of the Crown’s concession in this case that s 9 is an illimitable right – that is, there is no justification for an intrusion upon it – I put the issue of s 5 of the Bill of Rights to one side when addressing the following issues as to the application of the Bill of Rights which are relevant to this appeal:
(a)What is the relationship between the s 6 direction and other possible meanings? In particular, what role does s 5 of the Interpretation Act play in the s 6 interpretive exercise?[60]
(b)Just how far should a court go in the interpretive exercise to find a rights‑compliant interpretation?
Relationship between the s 6 direction and other possible meanings
[60]Section 5 of the Interpretation Act 1999 is soon to be replaced by s 10 of the Legislation Act 2019 (which, at the time of writing, has not yet come into force).
The effect of s 6, particularly when read alongside ss 3, 4 and 5 of the Bill of Rights, as well as s 5 of the Interpretation Act, was the subject of extensive discussion by five Judges of this Court in R v Hansen.[61] The majority’s approach has since been most commonly cited by way of the six‑step test proposed by Tipping J:[62]
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.
[61]R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
[62]At [92].
It is not clear from the judgment whether step one includes consideration of the s 6 direction. There is some suggestion in Tipping J’s reasons that it does,[63] but logic suggests it does not – otherwise no purpose would be fulfilled by step five.
[63]Tipping J says that 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”: at [89].
However, it is important to note that the majority in Hansen did not regard their approach as prescribing a methodology that applies in all circumstances. Blanchard J recognised that “[t]he Bill of Rights does not mandate any one method or sequence of application for applying and reconciling ss 4–6 in a given case”.[64] Tipping J said his approach was suitable for the sort of case then before the Court, where there were two conceptually distinct meanings at issue, but might not be appropriate in other circumstances.[65] McGrath J felt that the Hansen methodology would “generally” be the most appropriate way of applying ss 4, 5 and 6.[66]
[64]At [61].
[65]At [93]–[94].
[66]At [192]. Neither Elias CJ nor Anderson J adopted the majority’s stepped methodology. Elias CJ considered that the steps suggested by the majority would set up a soft form of judicial review of legislation and would distort the interpretive obligation under s 6 from preferring a rights‑consistent meaning, to preferring a meaning consistent with the rights as limited by s 5. She said that if an enactment “can” be given a meaning consistent with the New Zealand Bill of Rights Act 1990 [Bill of Rights], s 6 dictates that it must be given that meaning – s 5 does not form part of the interpretive inquiry: at [6], [13] and [15]. Anderson J was also of the view that s 5 does not have an interpretive purpose or effect, as this function is served by s 6: at [266]. Moreover, since Hansen, this Court has said that the six-step methodology does not apply to the exercise of statutory powers: D v New Zealand Police [2021] NZSC 2, (2021) 29 CRNZ 552 at [101]–[102] per Winkelmann CJ and O’Regan J and [259], n 361 per Glazebrook J.
Since Hansen, various commentators have argued that there is a lack of clarity in the majority’s six-step test[67] and uncertainty as to when it is to apply.[68] In this case, however, no issue arises under s 5. There can be no limits placed upon the s 9 right that could be counted as reasonable. I do not, therefore, propose to apply the Hansen methodology in this case, but rather address myself to the statutory framework of ss 3, 4 and 6.[69]
[67]See, for example, Paul Rishworth “Human Rights” [2012] NZ L Rev 321 at 330; and Claudia Geiringer “The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen” (2008) 6 NZJPIL 59 at 84.
[68]See, for example, R I Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 518.
[69]See Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [33] for an example of this approach.
Taken on its own, in a case such as this, s 6 is naturally read as creating a starting presumption that a rights‑consistent meaning should be given to enactments where the application of that enactment to a particular case engages the affirmed rights and freedoms, in the sense that it touches upon those rights and freedoms. And it makes clear that a rights-infringing interpretation is to be avoided where possible. This construction of s 6 is consistent with the rights-affirming and promoting purpose of the Bill of Rights, placing Bill of Rights-consistency at the heart of the statutory interpretation process.[70] For this reason, I see s 6 as the central provision and the starting point for the interpretive task where the application of an enactment to a particular case engages the affirmed rights and freedoms.[71]
[70]Of course, an interpretation that recognises and gives effect to reasonable limitations upon a right is a rights-consistent interpretation. Again, however, that issue is not addressed in these reasons as it does not arise on the facts.
[71]I therefore disagree with William Young J’s view that s 4 is the starting point for the court in its interpretive task: see below at [292].
What of the relationship between s 6 of the Bill of Rights and s 5 of the Interpretation Act, the latter of which focuses the interpretive task upon text and statutory purpose? Another way of characterising s 6 is that it is a direction to the courts that they should presume a statutory purpose that the application of the enactment that falls to be construed does not breach the affirmed rights or freedoms, unless the language of the statute clearly excludes that possibility. On this approach, s 6 reconciles readily with s 5 of the Interpretation Act in the sense that s 5 is allowed its usual operation. Where legislation engages an affirmed right or freedom, by reason of s 6, one of the purposes to which s 5 of the Interpretation Act directs the court is Bill of Rights-consistency. But where the language is clear enough to exclude the possibility of a rights‑consistent purpose and effect, s 5 of the Interpretation Act applies to give effect to the remaining (rights‑inconsistent) text and purpose.
The latter proposition also flows out of and is consistent with the s 4 direction that the courts cannot decline to apply any provision or enactment and cannot hold any provision to be impliedly repealed, revoked, invalid or ineffective, by reason only that the provision is inconsistent with any provision in the Bill of Rights.
There has been some debate as to the relationship between s 6 and the principle of legality. The latter is a common law principle of statutory interpretation which exists independently of the Bill of Rights, to protect and uphold certain rights and values that the common law has identified as fundamental or as having a constitutional nature. Although it operates to protect the rights and freedoms affirmed in the Bill of Rights, it is not displaced or confined by the Bill of Rights.[72] As a common law principle it continues to develop, as seen in recent decisions of the United Kingdom Supreme Court[73] and the decision of this Court in D v New Zealand Police.[74]
[72]Bill of Rights, s 28. The principle of legality therefore continues to protect common law rights which are not duplicated by the Bill of Rights, such as the right to privacy and the right not to be deprived of property without compensation.
[73]See, for example, J v Welsh Ministers (Mind intervening) [2018] UKSC 66, [2020] AC 757; and R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [2020] AC 491. See also the discussion in Jason NE Varuhas “Conceptualising the Principle(s) of Legality” (2018) 29 PLR 187.
[74]D v New Zealand Police, above n 66.
In R v Secretary of State for the Home Department, ex parte Simms, Lord Hoffmann described the principle of legality in the following terms:[75]
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon [the exercise of this power] by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
[75]R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL) at 131.
The operation of this principle was apparent in D v New Zealand Police, in which the majority of this Court endorsed the statement that Parliament cannot abridge fundamental rights and freedoms by general or ambiguous words. The majority found that parliamentary materials suggesting a rights-infringing purpose were insufficient to abridge those rights and freedoms, in the absence of express words in the statute or a necessary implication arising from the words of the statute.[76]
[76]D v New Zealand Police, above n 66, at [77]–[82] per Winkelmann CJ and O’Regan J, with whom Ellen France J agreed: at [159].
Debate in New Zealand has tended to focus upon whether s 6 is simply a statutory embodiment of the principle of legality which operates in the same manner, or whether it goes further.[77] Similar debates have occurred in the United Kingdom in respect of s 3(1) of the Human Rights Act 1998 (UK), which, while modelled on New Zealand’s s 6, is expressed in slightly different language:
3 Interpretation of legislation
(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.[[78]]
…
[77]See, for example, Geiringer, above n 67; Brookers Human Rights Law (looseleaf ed, Brookers) vol 1 at [BOR6.10]; and Paul Rishworth “Human Rights in the Common Law Tradition” in Margaret Bedggood, Kris Gledhill and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 61 at 73–74.
[78]Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221 (opened for signature 4 November 1950, entered into force 3 September 1953).
Clearly, s 6 incorporates aspects of the principle of legality in relation to the affirmed rights and freedoms, in that courts applying it will proceed on the basis that clear words are needed if legislation is to be construed as abridging fundamental freedoms.[79] Just as with the principle of legality, it is the language of the statute which must be clear enough to exclude the possibility of a rights-consistent purpose and effect – it is not enough that parliamentary materials might suggest this.
[79]See, for example, Ngati Apa Ki Te Waipounamu Trust v The Queen [2000] 2 NZLR 659 (CA) at [82] per Elias CJ; Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case] at 712 per Gault J, and the authorities cited at n 77.
But the s 6 direction is not simply a statutory embodiment of the principle of legality. It requires that when the courts undertake the interpretive exercise, they must presume a rights-consistent purpose. Section 6 therefore mandates a more proactive approach to interpretation – proactively seeking a rights-consistent meaning. Hence, as Jason Varuhas recognises, the interpretive principle contained in rights-charters such as New Zealand’s Bill of Rights is distinct from the orthodox formulation of the principle of legality in that it allows for “reading down otherwise clear statutory language, adopting strained or unnatural meanings of words, and reading limits into provisions”.[80]
[80]Varuhas, above n 73, at 202.
It may be, therefore, that in some cases s 6 will go further than the principle of legality. As I come to, in this case I consider that it does.[81] However, not much is to be gained from seeking to fully define the relationship between the principle of legality and the s 6 interpretive direction for the purposes of this appeal. The critical issue in respect of s 6 is its effect and application. And since this case was argued by all parties in reliance upon s 6, I therefore address the issues on that basis.
Just how far should the courts go to find a rights-consistent meaning?
[81]See below at [139].
The next issue that arises is how far the courts should go in striving for a rights‑consistent meaning. The answer is to be found in a conventional analysis of ss 4 and 6. I start with s 6, which is where the interpretation process should start. The rights-consistent meaning must only be possible – it need not be the most likely meaning or even a likely meaning. In Hansen, “possible” was construed as meaning reasonably possible.[82] I have concerns that reading in the word “reasonably” imposes a limitation which does not appear in the text and is also unnecessary, as the Act itself provides all necessary limits on the s 6 process. The word “reasonable” also tends to have perambulatory meaning – one person’s strained but available meaning is another’s unreasonable meaning. However, if the word means no more than “tenable”, as Tipping J suggests in Hansen,[83] I am content with it, since that is consistent with the words of s 6 itself: a meaning that “can be given”.
[82]Hansen, above n 61, at [90]–[92] and [158] per Tipping J, [252] per McGrath J and [289]–[290] per Anderson J.
[83]Hansen, above n 61, at [158], n 191.
Section 6 makes clear that it must be possible to arrive at the rights‑consistent meaning through the process of interpretation. This is familiar territory for courts. It is the courts’ constitutional function to interpret and apply legislation enacted by Parliament, and the courts have a range of common law techniques to assist with this. Which of these techniques is appropriate in any given case may vary depending upon the nature of the right and upon the nature of the breach that is sought to be avoided. The Bill of Rights operates differently depending on the type of rule in question and the problem it poses to the right at stake. Professor Janet McLean makes this point as follows:[84]
Much depends on how one characterises the problem with the rule — whether it is under-inclusive, over-broad, whether it is itself a justified limit on the rights or whether it is pernicious in all of its applications. Interpretative techniques will vary according to the diagnosis. Moreover, the rights themselves vary greatly — some are themselves more rule-like, while others invite evaluative judgements in determining their meaning. All these factors interact to determine the operation of the Bill of Rights in a particular case.
[84]Janet McLean “Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act” [2001] NZ L Rev 421 at 430.
Section 4 sets the outer limits of what is possible – the meaning arrived at cannot amount to a refusal to apply the enactment, and nor can it amount to treating the enactment as invalid, ineffective, impliedly repealed or revoked.
Reaching a meaning different to the plain or ordinary meaning is a conventional outcome of statutory interpretation, where that is necessary to correct errors in statutory expression and to achieve clear legislative purpose.[85] To use the words of Cooke P, there is a “general principle of statutory interpretation that strict grammatical meaning must yield to sufficiently obvious purpose”.[86]
[85]Carter, above n 68, at 401–406.
[86]McKenzie v Attorney-General [1992] 2 NZLR 14 (CA) at 17. For example, in Service and Food Workers Union Nga Ringa Tota Inc v OCS Ltd [2012] NZSC 69, [2012] 3 NZLR 799, this Court read the word “or” in s 69N(1)(c)(i) of the Employment Relations Act 2000 to mean “and”, to achieve what must have been Parliament’s intended result and to avoid redundancy and contradiction. In Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 (CA), the Court of Appeal departed from the ordinary meaning of a provision by reading a privilege conferred on a patent attorney under the Evidence Amendment Act (No 2) 1980 as also conferred on the client, in line with clear parliamentary purpose. The Court said that “[o]nce satisfied that Parliament intended to confer privilege on both patent attorneys and their clients … the Court should strive to arrive at a meaning which gives effect to that intention”: at [28]. A literal reading of the provision would have deprived it of its purpose.
“Reading in” and “reading down” provisions in order to align with parliamentary purpose are two closely connected and commonly employed techniques of statutory interpretation.[87] Courts have long “read down” broadly expressed statutory powers and provisions so as to align with the purpose of the legislation,[88] including by “reading in” significant qualifications.[89] In R v Wall,[90] for example, the Court of Appeal considered s 26 of the Misuse of Drugs Amendment Act 1978, which read:
Where a private communication intercepted in pursuance of an interception warrant or an emergency permit discloses evidence relating to any offence other than a drug dealing offence, no evidence of that communication, or of its substance, meaning, or purport, shall be given in any Court.
In that case, an interception had revealed evidence of a drug dealing offence inextricably intertwined with evidence of another offence. On a strictly literal interpretation of this provision, the evidence would have been inadmissible. Cooke J, writing for the Court, said that this “could not represent the intention of Parliament”, as the basic purpose of the Act was that evidence of drug dealing may be obtained by lawful interception warrants.[91] If the purpose of the legislation was kept at the forefront, then the implicit meaning of the provision could be easily identified: “[b]y necessary implication the last words of the section are subject to the qualification ‘Except in any criminal proceedings for a drug dealing offence’”.[92]
[87]For a discussion of statutory interpretation techniques of “reading in” and “reading down”, see McLean, above n 84, at 431–439.
[88]See, for example, Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL) at 1030; and Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].
[89]See the discussion in Carter, above n 68, at 418–422.
[90]R v Wall [1983] NZLR 238 (CA).
[91]At 240.
[92]At 241.
Courts have read into the process for the exercise of statutory powers mandatory considerations, such as New Zealand’s international obligations.[93] Most relevantly for present purposes, they have read in qualifications to statutory provisions in order to uphold fundamental common law values,[94] for example by reading statutorily created procedural regimes as subject to certain common law procedural protections, such as the requirements of natural justice and the right to legal representation.[95]
[93]Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 at [91]; and Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) at 266.
[94]See also the discussion of New Zealand Waterside Workers’ Federation Industrial Association of Workers v Frazer [1924] NZLR 689 (SC) and Cropp, above n 69, in the reasons of Arnold J at [212]–[213] and [182]–[184] respectively.
[95]See, for example, Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [118]–[120]; and Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [66]–[67]. See also Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA); and B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326.
The case Drew v Attorney-General is one such example, concerning a provision that empowered the making of regulations “prescribing the procedures for the hearing of … complaints” regarding the discipline of inmates.[96] The Court of Appeal read down the broad words of this provision so as to interpret it as not authorising the making of a regulation which could result in hearings before Visiting Justices being conducted in a manner contrary to the principles of natural justice.[97] The Court reached this conclusion “applying common law principles of construction, guided by the principles of natural justice”,[98] and said that the same outcome would have been reached applying s 6 of the Bill of Rights.[99]
[96]Drew, above n 95, at [27].
[97]At [66].
[98]At [67].
[99]At [68].
As I come to later, these techniques of “reading in” and “reading down” have been used by courts in the United Kingdom to qualify statutory provisions that engage a right or freedom protected by the Human Rights Act, in accordance with the s 3(1) interpretive obligation.
There is, of course, a line to be drawn between what is legitimate interpretation and what is illegitimate judicial amendment of a provision. Just where this line lies is a question of constitutional significance. The most obvious limit on s 6 comes by way of s 4, as I mentioned above at [60] – the rights-consistent meaning must not entail a refusal to apply the legislative provision. In Zaoui v Attorney-General, McGrath J said of this limitation:[100]
Section 4 precludes the Court from reading the legislative text in a way which nullifies it or is so inconsistent with the statutory purpose as to do violence to its scheme.
In Hansen, Tipping J said that “s 6 must not be used as a concealed legislative tool. The Courts may interpret but must not legislate.”[101]
[100]Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [36].
[101]Hansen, above n 61, at [156] (footnote omitted).
Assistance as to appropriate limits to the s 6 interpretive exercise can be found in the United Kingdom cases applying s 3(1) of the Human Rights Act. As discussed by Lord Rodger in Ghaidan v Godin-Mendoza, reading in or reading down a provision to reach a rights‑compliant interpretation will be illegitimate if that interpretation is inconsistent with the scheme of the legislation or with its essential principles.[102] This idea was later summarised by Lord Bingham in a subsequent decision, who said that a rights‑compliant interpretation would not be possible if:[103]
… such an interpretation would be incompatible with the underlying thrust of the legislation, or would not go with the grain of it, … or would change the substance of a provision completely, or would remove its pith and substance, or would violate a cardinal principle of the legislation.
[102]Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 at [121]. It has been suggested that the application of these principles in Ghaidan and other early cases may have been a high‑water mark in the approach to s 3(1) in the United Kingdom: see, for example, Adam Wagner and Gideon Barth “Judicial Interpretation or Judicial Vandalism? Section 3 of the Human Rights Act 1998” [2016] JR 99 at [11]. However, Ghaidan is still treated as the leading case, and the approach it sets out continues to be applied (see, for example, Gilham v Ministry of Justice (Protect intervening) [2019] UKSC 44, [2019] 1 WLR 5905 at [39]–[40]).
[103]Sheldrake v Director of Public Prosecutions [2004] UKHL 43, [2005] 1 AC 264 at [28] (citations omitted).
To express this another way, and in terms of the New Zealand legislation, the purpose of the enactment, as gleaned from the words of the enactment itself and the statutory context, may mean that the rights‑compliant interpretation is not possible without disapplying the legislation in question in some way, which s 4 precludes.
Another recognised limitation is where the rights-consistent interpretation imposes on the court a task beyond its institutional competence. Thus, courts in the United Kingdom have been reluctant to rely on s 3(1) in cases involving complex questions of social policy which the courts are ill-equipped to decide, and which should be left to Parliament.[104] The Crown seems to suggest that such a limitation might be relevant for the purposes of this appeal, as it says that a rights‑consistent interpretation would require the Court “to create its own approach to sentencing in the context of an otherwise tightly codified subpart of the Sentencing Act”.
[104]Diggory Bailey and Luke Norbury Bennion, Bailey and Norbury on Statutory Interpretation (8th ed, LexisNexis, London, 2020) at 924; and Bellinger v Bellinger (Lord Chancellor intervening) [2003] UKHL 21, [2003] 2 AC 467.
The applicability of the United Kingdom approach to s 3(1) in the New Zealand context was the subject of quite full discussion in Hansen. Tipping J was satisfied that the United Kingdom approach, which “appears at times to have been construed as mandating a judicial override of Parliament”, was not appropriate in New Zealand.[105] McGrath J said that although the language of s 3(1) and s 6 was “not materially different”,[106] there was “undoubted difference between the meaning given to the provisions by the Courts of the two jurisdictions”, due, he thought, to “the different constitutional contexts in which the similar broad language is interpreted”.[107]
[105]Hansen, above n 61, at [158].
[106]At [243].
[107]At [244].
On the other hand, Elias CJ said that despite English authority for the view that s 6 is weaker than its United Kingdom equivalent,[108] she was “unable to accept that there is any material difference” between the two models.[109] She considered that the limits set out by the House of Lords in Ghaidan were equally appropriate under the New Zealand Bill of Rights.[110] Anderson J also considered it difficult to distinguish between the two provisions, “whether in terms of essential meaning or in terms of relative potency”.[111]
[108]Referring to R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 at 67–68; Ghaidan, above n 102, at [44]; and R v Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 (HL) at 374.
[109]At [13].
[110]At [25].
[111]At [287]. Blanchard J did not comment on the issue.
For my part, I agree with Elias CJ and Anderson J that the framework principles as to the limits of s 3(1) in the United Kingdom are equally applicable in New Zealand. Having said that, I do not suggest that every case decided in the United Kingdom will be a useful precedent for what is possible in New Zealand for the purposes of the s 6 interpretive exercise. That case law has been developed in the very particular circumstances of the United Kingdom. New Zealand, with its own constitutional history and custom, must develop its own Bill of Rights jurisprudence.
In summary, therefore, s 6 is a powerful interpretive obligation that complements and strengthens the use of common law purposive interpretive techniques together with the principle of legality. But meanings reached by way of s 6 must still be arrived at through the process of interpretation. Where the language of a provision is clear enough to exclude the possibility of a rights-consistent meaning, s 4 requires the courts to give effect to the rights-inconsistent meaning.
Section 9 of the Bill of Rights
In terms of the analysis set out above, it is first necessary to identify the right or freedom engaged. Here, it is s 9 of the Bill of Rights.
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