The Extraterritorial Application of the New Zealand Bill of Rights Act 1990

Abstract

This paper asks three questions: Could the New Zealand Bill of Rights Act 1990 (BORA) apply to the acts of New Zealand state actors outside New Zealand? Should it? To what extent should BORA have extraterritorial application? It answers the first two questions in the affirmative, based on an analysis of the statutory language, the necessary implication of the Act, and case law. The paper argues that extraterritorial application of BORA is also desirable. It then suggests that control over an individual is the central requirement for applying BORA extraterritorially, due to the words of s 3, the application section. It also suggests that BORA’s language precludes the application of positive rights abroad. Finally, it suggests that the s 5 mechanism of justified limitations is a tool which provides sufficient flexibility to allow BORA to apply overseas both effectively and fairly.