Sunday, 8 October 2017

The Need for a Written Constitution

Towards the tail-end of our recent campaign for the general election, Government Minister Paula Bennett declared that some people should have less human rights. At around the same time, Prime Minister Bill English picked up on this and said, commented that "it was good that new Zealand lacked a written constitution as it gave governments flexibility."

French political philosopher Montesquieu has pointed out that ‘there is no liberty, if the power of judgment be not separated from the legislative and executive powers’. Alexander Hamilton, following Montesquieu, described an independent Judiciary as ‘the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws’. 

Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. The problem with New Zealand, is that we lack an entrenched Constitution to "ring fence" people as individuals from the arbitrary exercise of power by the legislature. In other words what the Prime Minister calls, "flexibility", means the untrammelled ability for Parliament to take away the rights of citizens.

This power, if not checked, can lead to the arbitrary use of power, often fuelled by populism. However, with no check the exercise of the popular will can lead to the arbitrary exercise of power, leading to what one commentator has called, "the Tyranny of the Majority".  In New Zealand, where we have no written Constitution, Parliament has an unfettered ability to pass laws, even if they offend against fundamental liberties and human rights.

But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment.

Parliament can pass laws and our Courts enforce them. However, the risk in our system, is that while Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy. 

A written Constitution empowers the judiciary and can operate as a check on the Legislature. In the Australian case of Clunies-Ross v The Commonwealth ((1984) 155 CLR 193 at 204.) the High Court said: 

It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law ... according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. ... As a matter of constitutional duty, that question must be considered objectively and answered in this Court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case. The rule of law would be a hollow phrase if the Courts were not bound to ignore popularity as an influence on a decision

Alexander Hamilton in the Federalist Papers over 200 years ago observed of the US Constitution: 

Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and to introduce in its stead universal distrust and distress. Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. Confidence is based on faithful adherence to the law by the Courts which are charged with its declaration and application. Our Constitution, rooted in the common law, does not need to express the proposition that the nation is under the rule of law and that the Courts are the organ of government responsible ultimately for the enforcing of the rule of law. 

Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. The problem with this from a New Zealand perspective, is that we do not have a written Constitution, thus often where the Courts arrive at a decision that upholds human rights, this may be seen as politically unpopular, and Parliament can therefore by dint of a mere majority appeal to populism and erode the principle that the Court sought to uphold.

Sadly, because of this we have seen the right to elect trial by jury, voting rights, the loss of the partial defence of provocation for murder, the equality of arms (in terms of fair trial rights), and a host of other rights eroded by our Legislature in recent years. 

While most people have little sympathy for gang-members and might believe, they deserve less human rights protections than others; I have no doubt that that these same people would be aghast if Police used their road side check-point power as a ruse to obtain the details of elderly New Zealanders on their way home at night from attending a pro-euthanasia meeting at their local community hall (this actually happened in Lower Hutt last year). You see, once you say, some people have less rights than others, where does it stop? Who decides?

So the comments of Ms Bennett and the Prime Minister are equally concerning. Just replace "gang member" with "euthanasia supporter" and you see the risk. Human rights don't attach to people because of their standing in society.  They attach because we are human. 

The logic behind the Prime Minister's stated delight for "flexibility" is a slippery slope and smacks of populism. That our politicians have sacrificed so easily, fundamental bulwarks against the abuse of state power, speaks not only of their ignorance of Constitutional conventions; but also of the fundamental weakness of a Constitution that is unwritten and relies for its survival upon the quality and character of those who occupy the driver's seat at any given time.

“The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788).

Thursday, 3 August 2017


The article “Do I let my boss microchip me” (Dompost 2 August), told the story of Melissa Timmins an employee of a firm in the States where the employer offered staff the the option of  having microchips inserted in their hands, rather than having to carry around swipe cards. Some 50 of the 85 staff were expected to take up the offer. The chips will be inserted at a "chip party" where staff will celebrate with corn chips and salsa.

The story raised some interesting issues about people being implanted with microchips. Certainly, it may seem convenient to carry all you need in a microchip implanted in the tip of your finger, rather than a wallet stuffed with credit and loyalty cards, but there are huge risks with microchipping people. Yes, it will mean no more getting away with riding the train or bus for free, or driving faster than permitted, making up an excuse for why we got to work late as machines monitors where we are and when we arrive.

Rather than payWave all you need do is flip your finger as you pass by a sensor, and payments will be automatically deducted from your account. However, with this, service providers will have more access to more information, which will also severely limit our freedoms. For instance, will we still be able to choose to pay with cash or our credit card or will we be forced to pay with chip?  The information on our chips could be corrupted, wiped or copied. Criminals could use your data, copy it onto another chip or replace it with their own data, altering your digital identity. It would make it very easy for Big Brother to continuously track where we are, what we do, how we do it and whom we’re doing it with. Further, what if a scammer takes your finger, and goes on a spending spree, you will be stumped?

Then there are potential health concerns. One review of academic literature found an increased risk of cancer in eight of eleven studies following the microchipping of animals; "In almost all cases, the malignant tumors, typically sarcomas, arose at the site of the implants and grew to surround and fully encase the devices. In several cases the tumors also metastasized or spread to other parts of the animals. The tumors generally occurred in the second year of the studies, during middle age or older for the animals.” (Synopsis of “Microchip Induced Tumors in Laboratory Rodents and Dogs: A Review of the Literature 
1990–2006” Katherine Albrecht, Ed.D.)

Microchipping the population raises more problems than it solves, both in terms of health but also in terms of the erosion of privacy while providing valuable information to corporations and governments. It seems that as we advance in terms of technology we simultaneously surrender hard fought for rights and freedoms. As Joni Mitchell sang, “Don’t it always seem to go, that you don’t know what you’ve got, till it’s gone”. I hope it is not too late. 

Saturday, 22 July 2017

What Might A Charge Against Donald J Trump Look Like?

The New York Times reports, "President Trump on Saturday asserted the “complete power to pardon” relatives, aides and possibly even himself in response to investigations into Russia’s meddling in last year’s election, as he came to the defense of Attorney General Jeff Sessions just days after expressing regret about appointing him."  This is a clear expression of how Mr Trump sees himself within the Constitution. He is above it and not beholden to it. 

Why is this a concern? Does Mr Trump have absolute power, and is he a source of unchecked power?  In many ways the current president behaves more like a monarch and not a constitutional one at that. This probably explains his affinity with tyrants who wield power unchecked by Law.

Trump claims his legitimacy from the Constitution and his winning the Electoral College vote authorised by it, to be President. However, as the Trump train progressively careens off the tracks of the Constitution, it departs from it. I believe as he does so, he loses his claim to any legitimacy.

In many ways his actions remind me of King Charles I, who held himself apart from his people and their Parliament. Perhaps the process adopted to charge Charles I, could be amended to charge Mr Trump, after all he wishes to assert a form of sovereignty, whereby he is answerable to no one except himself.

I have adapted the charge against that Monarch to fit Mr Trump:
The original text is taken from: The Charge against the King.
 [January 20, 1648/9. Rushworth, vii. 1396. See Great Civil War, iv. 299.]
“That the said Donald J Trump, being admitted President of the United States of America, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, yea, to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this Commonwealth were reserved on the people's behalf in the right and power of Congress; he, the said Donald J Trump, for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same ends hath traitorously and maliciously levied war against the present Congress, and the people therein represented ….. , particularly from 21 January 2017. At and after which, at countless other times within the year(s) aforementioned he, the said Donald J Trump, hath caused by divisions, parties, and insurrections within this land, by hacking invasions from foreign parts, and countless lies and misrepresentations endeavoured and procured by him, and by many other evil ways and means, he, the said Donald J Trump, hath not only maintained and carried on the said war both by land and sea, during the years beforementioned, but also hath renewed, or caused to be renewed, the said war against the Congress. And particularly he, the said Donald J Trump, hath for that purpose given commissions to his sons Donald Trump Jr and Eric Trump and others, whereby, besides multitudes of other persons, many such as were by the Congress entrusted and employed for the safety of the nation (being by him or his agents corrupted to the betraying of their trust, and revolting from the Congress), have had entertainment and commission for the continuing and renewing of war and hostility against the said Congress and people as aforesaid. By which cruel and unnatural wars, by him, the said Donald J Trump, levied, continued, and renewed as aforesaid, much innocent blood of the free people of this nation hath been spilt, many families have been undone, the public treasure wasted and exhausted, trade obstructed and miserably decayed, vast expense and damage to the nation incurred, and many parts of this land spoiled, some of them even to desolation. And for further prosecution of his said evil designs, he, the said Donald J Trump, doth still continue his commissions to the said sons, and other rebels and revolters, both American and foreigners, upon the procurement, and on the behalf of the said Donald J Trump.
All which wicked designs, wars, and evil practices of him, the said Donald J Trump, have been, and are carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation and Planet, by and from whom he was entrusted as aforesaid.

By all which it appeareth that the said Donald J Trump hath been, and is the occasioner, author, and continuer of the said unnatural, cruel and bloody practices; and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation and the Planet, acted and committed in the said wars, or occasioned thereby.”

Sunday, 19 March 2017

Private Giving and the Welfare State

At a time when the new US misAdministration, is cutting back on national and international welfare we should be thinking about why we have the welfare state. It is true that in times of need private generosity can offer welcome relief. But is is haphazard and often poorly thought out. Surely the point of the welfare state, should be to free the needy from dependence on private generosity? Private generosity often goes on the easy or palatable cases of need: homeless cats, stray dogs, cancer relief etc.. Such an approach will often miss out the less attractive and less obvious. 

Proper and equitable taxation and redistribution by the state gives  a a sense of security and dignity that the less fortunate had never previously enjoyed. Massive inequality and a loss of confidence in the integrity of Government can lead to insecurity and in large part bred fascism - the belief that hard times calls for a dynamic and strong leader, who will be hard and deliver justice to all. 

People who volunteer at hospitals, the RSPCA or collect for Greenpeace are to be appreciated. But so to are those who pay their taxes without demur. A society where there is a culture of private giving may be admirable, but surely more so is a society where people receive free health care, a good education and where workers receive living wages, pensions and safe working conditions and enjoy reasonable job security; where executives receive reasonable and proportionate salaries as opposed to stratospheric ones.

Thursday, 5 May 2016

7 Sharp and the Tyranny of the Majority

Last night (5 May 2016) TV One on its 7 Sharp programme aired the sad story of New Plymouth mayor Andrew Judd. Mr Judd was like a number of politicians and knew nothing about Maori history and how Maori were systemically robbed of their land and effectively became aliens in what was once their own land. Unlike a number of politicians he decided to find things out for himself and he was prepared to admit he was wrong.
On being elected he was faced with Maori land claim issues and started for the first time in his life to read about Maori history and was shocked at what he read. He now describes himself as "a recovering racist". He knew he had to do what was right, not what the majority wanted. In one small way he wanted to address the low participation of Maori in local government with the by establishing of a Maori Ward, whereby of the 14 seats there would be one for a Maori representative providing a wholly Maori perspective on issues that arise within New Plymouth. Not a big change - just a start. 
New Plymouth Grey Power were up in arms, one councillor resigned in protest. A referendum was held and the citizens, the majority of whom are Pakeha, soundly rejected the idea of Maori having a dedicated voice on council. The argument being, the Maori Ward was favouritism, and an affront to democracy, if Maori want to get a voice, they can put themselves forward like every other candidate. It mattered not that Maori participation in local government is low or that New Plymouth had only one popularly elected Maori councillor on the council. With 83 percent rejecting the idea of a dedicated Maori ward position the electorate showed they had no openness to Maori issues.
In the meanwhile Mayor Judd became the target of abuse from members of the public. One day while at the supermarket with his children, a woman approached him and spat in his face. He was routinely abused, sworn at. Eventually he stopped going out in public with his family. He kept a notebook in which he recorded every time he was assaulted and or abused. The notebook is full.
He has now decided that he will not seek reelection. The personal cost being too high.
The 7 Sharp clip of his story was just over 4 minutes in length. What especially interested me were the comments of show host Mike Hosking immediately after the story. In remarks of less than a minute in length, he effectively dismissed Mr Judd's position and ignored completely the thuggish behaviour he was subjected to. Effectively what Mr Hosking said, was that personally he had no problem with Maori being on council, or even having a Maori Ward, you merely have to put these things before the electorate first. In other words - if the Pakeha majority in the electorate reject the proposition - there's an end of it.
This amounts to what is popularly known as the mandate theory of legitimacy. What the majority says goes. What they chose is right. Is this correct?
In the 1930s Hitler went to the German people and the Nazi Party became the largest party in the Reichstag. Eventually, through alliances, he was appointed chancellor. Arguably at the start at least, Hitler had a mandate. He published a manifesto - Mein Kampf, in which his anti-semitic views, were advanced as being essential to the national reconstruction of Germany. Applying Mr Hosking's reasoning Hitler's election and the policies he implemented, at least at the start, reflected his mandate. Does that therefore make it right? I do not think so. Sometimes the will of the people, can in fact become what has been called, "the Tyranny of the Majority."
I first read French political philosopher, Alexis de Tocqueville on the Tyranny of the Majority, from his book Democracy in America:
There is no power on earth so worthy of honour in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.
In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.
But Tocqueville did prescribe some solutions. He hoped that those having read his prescient book would become alive to the defects of modern democracy and show great attention and careful management. Specifically, he hoped, we would strive “to preserve for the individual the little independence, force, and originality” that remains to him.
In other words, when looking at any given policy, lawmakers might look not at the benefits for their electorate, or vainly calculate poll swings as a result of the latest PR stunt or slogan – but instead look at what any given policy proposal’s long-term effect will be on securing freedom and rights. The goal being to make individuals more independent, stronger, more able to properly resist the tyranny of the majority and the constant encroachments of the administrative state. Over time, he feared, the state would take away citizens’ free will, their capacity to think and act, reducing them to “a herd of timid and industrious animals of which the government is the shepherd.” 
Given the absence of intelligent political analysis, the dumbing down of media comment and the triumph of political spin over reporting, and the apparent acceptance of the comfortable populism of the likes of Mike Hosking in support of this state of affairs; it appears that Tocqueville's cautions are coming home to roost.

Wednesday, 13 April 2016

Begging and the Right to Freedom of Expression
1.             Currently some right wing candidates in local body elections are advocating the criminalisation of begging. Does this make sense and will it help anything?

2.               Pursuant to section 14 BORA all persons have the right to freedom of expression, including the right to seek, receive and impart information through any media, including orally, in writing or in the form of art.

3.             As a first principle I consider that the proscription and criminalisation of begging constitutes an infraction of the fundamental human right to freedom of expression.

4.             Such restrictions violate the right to freedom of expression in two basic respects. First, the proscription of begging renders peaceful verbal or written communication unlawful. Anti-begging provisions apply whether a person adopts passive begging techniques (such as sitting or standing in one spot with a cup, a hat or a sign) or more active begging techniques (such as approaching passers-by and entreating them to donate money). In each case, it is the act of expressing a need for money, rather than the conduct associated with that expression, that is the target of anti-begging provisions.

5.           If people begging begin to directly and forcefully approach people and inhibit the movement of citizens as they walk along footpaths with aggressive demands for alms or financial assistance that can be easily controlled via bylaws. However banning the poor from seeking help from others more fortunate is overkill.

6.             Anti-begging provisions infringe the right to freedom of expression in that they proscribe the imparting (and, by extension, the receiving) of communications regarding the way in which society treats its poor and disenfranchised. In many cases, begging amounts to an expression of poverty, alienation, homelessness, dislocation and the effects of inadequate social security, public housing and public health systems.  In the US, many anti-begging provisions have been struck down or narrowed on the basis of inconsistency with the First Amendment right to freedom of expression: see, eg, Benefit v Cambridge, 424 Mass 918 (1997) per Greaney J:
We conclude that no compelling State interest has been demonstrated that would warrant punishing a beggar's peaceful communication with his or her fellow citizens in a public place. (6) As one writer on the subject has observed: "At the least, for some panhandlers, begging is a way to augment their meager sources. For a few, it may be their only source of income. Panhandling is therefore close to the center of the personal liberty of some people in contemporary American society." Munzer, Response to Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers, 32 Harv. C.R.-C.L. L. Rev. 1, 11 (1997). The statute intrudes not only on the right of free communication, but it also implicates and suppresses an even broader right -- the right to engage fellow human beings with the hope of receiving aid and compassion. The streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we legitimately may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time. If such a basic transaction as peacefully requesting or giving casual help to the needy may be forbidden in all such places, then we may belong to the government that regulates us and not the other way around. (7) [emphasis added]

7.             The criminalisation of begging denies to persons who beg a form of expression that may be necessary for survival. It also denies the truly poor the right to impart, and society the right to receive, information regarding poverty, inequality, structural inadequacies and the need for urgent social reform. By silencing people who beg, anti-begging provisions stifle debate about social policies regarding the poor.

Tuesday, 25 August 2015


A Christchurch man was refused entry to a bar because of his facial tattoos. He was not wearing gang patches, nor was he intoxicated. Can bars refuse anyone on the basis of tattoos? What about tā mokothe permanent body and face marking by Māori?

Technically, the refusal of entry to a bar amount to a revocation of the implied licence for a member of the public to enter the premise. At that point, the person refused entry, should they remain, commits a trespass. Pubs and bars are private businesses and they at first blush appear to have the right to determine who can enter their premises or not. However, it may not be as simple as that.

The sale of alcohol to the public is an activity that is tightly regulated. You cannot serve alcohol to the public without meeting strict regulatory criteria. You must be licenced to supply and serve alcohol.

Arguably the Human Rights Act 1993 applies:

133  Licences and registration
(1)   Where any person is licensed or registered under any enactment to carry on any occupation or activity or where any premises or vehicle are registered or licensed for any purpose under any enactment, and where the person or other authority authorised to renew, revoke, cancel, or review any such licence or registration is satisfied—
(a) that in the carrying on of the occupation or activity; or
(b) that in the use of the premises or vehicle,—

there has been a breach of any of the provisions of Part 2, the person or authority, in addition to any other powers which that person or authority has, but subject to subsection (2), may refuse to renew or may revoke or cancel any such licence or registration, as the case may require, or may impose any other penalty authorised by the enactment, whether by way of censure, fine, or otherwise.

(2)  Any procedural requirements of the enactment, including any whereby a complaint is a prerequisite to the exercise by the person or authority of its powers under the enactment, shall be observed.

(3)  In any case in which any of the powers conferred by subsection (1) are exercised,—
(a) the person or authority shall in giving its decision state that the decision is being made pursuant to subsection (1); and
(b) any person who would have been entitled to appeal against that decision if it had been made on other grounds shall be entitled to appeal against the decision made pursuant to subsection (1).
(4)  In this section the term enactment means any provision of any Act, regulations, or bylaws.

This being so, a bar or pub clearly conduct a business that requires a licence pursuant to the Sale of Liquor Act 1989. Part 2 of the HRA states:

21A Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies
(1) The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2) are—
(a) sections 21 to 35 (which relate to discrimination in employment matters), 61 to 64 (which relate to racial disharmony, and social and racial harassment) and 66 (which relates to victimisation); and
(b) sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any of the provisions referred to in paragraph (a).
(2) The persons and bodies referred to in subsection (1) are the ones referred to in section 3 of the New Zealand Bill       of Rights Act 1990, namely—
(a) the legislative, executive, and judicial branches of the Government of New Zealand; and
 (b) every 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.

Pubs and bars are private businesses but it can be argued they conduct a public function, and have  duties, imposed on them pursuant to law (the sale and supply of alcohol to the public). This interpretation is consistent with a purposive and rights affirming reading of the Bill of Rights Act, as expressed in the Acts long title:
An Act - (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand

This being said the bar or pub a person may well fall foul of the HRA and the New Zealand Bill of Rights Act 1990 if it can be shown that the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation.

So in the case of a Christchurch man excluded from a bar because of his facial tattoos, it is arguable that the bar must conduct its business, that is in serving the public alcohol, in a manner consistent with the Bill of Rights Act 1990.

It is axiomatic that persons subject to BORA are bound by the BORA and must exercise their discretionary powers consistently with the BORA. This is explicitly required by s6 BORA.

Section 5 of the BORA provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In determining whether a limitation on a right is “demonstrably justified”, the Court of Appeal in its Moonen decision set out its own test to determine whether or not a limitation is “demonstrably justified” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 234 Para [18]):

1) Identify objective which the Legislature was endeavouring to achieve by the provision in question;

2) Assess the importance and significance of that objective;

3) The way in which the objective is statutorily achieved must be in   reasonable proportion to the importance of the objective;

4) The means used must also have a rational relationship with the objective;

5) In achieving the objective there must be as little interference as possible with the right or freedom affected;

6) The limitation involved must be justifiable in light of the objective.

In Moonen the Court stated, “where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted” (Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 233 Para [16]).

When considering the meaning of the words “promotes or supports” in Section 3 of the Films, Videos, and Publications Classification Act 1993 the Court emphasised that a Bill of Rights consistent approach was required and that those words had to be given such available meaning which impinges as little as possible on freedom of expression. 

The Moonen test underwent a slight refinement in Hansen v The Queen [2007] NZSC 7; [2007] 3 NZLR 1; (2007). The majority of the Court approved the methodology of Richardson J in Noort. McGrath J gave the most thorough outline of the approach to be taken, which was broadly consistent with that of Blanchard, Tipping and Anderson JJ (at [192]). The Court recognised that an obvious first step was to ascertain whether there was a prima facie conflict between an enactment and a Part II right (at [92]).

If an inconsistency does arise, the Court will apply s 5 to determine whether the limitation upon the Part II right is demonstrably justified. 

Further, where someone is barred from a pub they may have a legal ground of challenge where the decision to bar them was discriminatory on grounds of sex, race, disability, religion, freedom of expression or sexual orientation and therefore would fall foul of laws which prohibit discrimination on those grounds in the provision of goods and services.

Obviously there are occasions where these rights can be limited. But such limitations must be demonstrably justified. So it may not be clear-cut. Human rights are engaged. Pubs and bars are private businesses but they have public duties imposed by law. Watch this space