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Consistency with the New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 (the Bill of Rights Act) is designed to affirm, protect and promote human rights and fundamental freedoms in New Zealand, and to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights. The Cabinet Manual expects that Bills will be compliant with the rights and freedoms affirmed in the Bill of Rights Act.

The Attorney-General has a statutory duty to advise the House if any provision of a Bill appears to be inconsistent with any of the rights and freedoms affirmed in the Bill of Rights Act.[18] In the case of a government Bill, this must be done on the Bill's introduction to the House.

In practice the Ministry of Justice (or Crown Law in the case of Bills in the name of a Justice Minister) provides advice to the Attorney-General about the consistency of all Bills with the Bill of Rights Act. The CabGuide expects that sufficient time will be built into the preparation of government Bills to allow the Ministry of Justice at least two weeks to consider a Bill for consistency.

Government agencies preparing draft legislation should consult the Ministry of Justice as soon as possible to find ways of eliminating or mitigating any potential limitations on rights and freedoms, or establish the justification for any limitations (thus reducing the prospect of a section 7 report).

Question 3.3

3.3.  Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990? [YES/NO]

What matters are covered by the question?

This question highlights the advice provided to the Attorney-General to support his/her consideration of consistency with the Bill of Rights Act as required under section 7 of that Act. The CabGuide outlines the process for which such advice is generally provided to the Attorney-General. Agencies should ensure they are familiar with those requirements so that the Ministry of Justice (or Crown Law) can provide their advice to the Attorney-General in a timely way.

Further information about the Ministry's role and how the Bill of Rights Act applies to the development of legislation is available on the Ministry's website,[19] and the Legislation Advisory Committee's, Guidelines on Process and Content of Legislation[20].

What is the nature of the further information sought?

If the answer is YES, please:

  • indicate where a copy of the advice may be (or may soon become) available, if the Attorney-General agrees to waive legal privilege.

All advice to the Attorney-General on consistency with the Bill of Rights Act, or a section 7 report of the Attorney-General, is published at the following location (where the Attorney-General waives legal privilege): http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights.

Agencies completing this disclosure statement should confirm with the Ministry of Justice whether any advice to the Attorney-General is likely to be published. In most instances, a standard response as indicated below will be appropriate.

However, in instances where the Attorney-General tables a section 7 report the Ministry's advice is unlikely to be available. Where possible this should be referred to in the disclosure.

Note that the Ministry will not publish its advice, or a section 7 report, until the Bill has been introduced.

Example: (for a YES answer, applicable for any Bill where advice has been provided)

Advice provided to the Attorney-General by the Ministry of Justice, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice's website upon introduction of a Bill.  Such advice, or reports, will be accessible on the Ministry's website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/

If the answer is NO, no further information is required.

It has not been common practice for advice to be provided to the Attorney-General on government Supplementary Order Papers (SOP).  In the case of a revised (or supplementary) disclosure statement for a government SOP the response to the question is likely to be No (because advice has not been provided for the Bill in its amended form).  However, in this case it would be appropriate to add further information explaining that advice was provided on the Bill as introduced.

Example: (for a NO answer, applicable for a SOP where advice has not been provided)

No advice has been provided to the Attorney-General on this Supplementary Order Paper.  Advice provided on the original Bill can be accessed on the Ministry of Justice’s website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/

Notes

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