Fighting Tooth and Nail: Raising the Standard for Justifying Limits on Rights

Abstract

This paper assesses the complexities arising from the balance of the courts’ duty to protect human rights and safeguard the realm of public disclosure and action, crucial for New Zealand’s representative democracy. Specifically, the role of s 5 inquiries where a right has been limited. It discusses the relationship between the purpose of s 5 and its application, with the judicial history highlighting concerns with the current approach failing to uphold those purposes. Such concerns are furthered by comparison to jurisdictions with comparable limitation clauses, demonstrating a lower level of justification and judicial scrutiny in New Zealand. It is therefore argued the current approach to the s 5 analysis under the Bill of Rights Act is not adequate to allow for the principles of the NZBORA and the purposes of s 5 to be upheld. It is advocated that the imposition of a higher standard, namely beyond reasonable doubt, should be adopted by the courts to acknowledge the tension in the court’s roles whilst requiring the State to produce great evidence in proving a limit is justified. Such an increase would respond to much of the critiques of the Canadian approach, analogous to New Zealand’s current approach, furthering the culture of justification sought to be established by s 5.