A Slippery Slope or Constitutional Necessity? Analysing Section 5 of the Bill of Rights as a Matter of Law.

Abstract

The Court of Appeal’s decision in R v Morse (Morse) questions the courts’ role in applying s 5 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). William Young P refused to consider whether a conviction for offensive behaviour was justified in terms of s 5.1 His Honour characterised this question as a matter of fact, unassailable in an appeal limited to questions of law. This raises the issue of whether s 5 and the associated proportionality test should be treated as a question of fact or law ... This paper outlines the issue raised in Morse, and examines how New Zealand courts have treated proportionality in appeals limited to questions of law. It then explores the manner in which courts in the United Kingdom and Canada have dealt with proportionality in the context of judicial review. The final part of this paper considers whether it is desirable to treat proportionality as a question of law, with reference to the nature of the test and its wider legal implications. It seeks to address the following questions: what is the proper role of appellate courts vis-à-vis first instance decision makers in determining whether limits on rights are justified? Is there any danger in limiting the courts’ role in a s 5 exercise? This paper warns against dismissing proportionality as a question of fact, unassailable in appeals limited to questions of law, as this will result in an erosion of fundamental rights and an unpredictable application of s 5.