When Sir Geoffrey Palmer’s Bill of Rights Act was enacted in 1990, it was seen as something that would provide greater protection for fundamental rights and freedoms vital to democracy and New Zealand’s multi-cultural society. It was designed to place limits on the powers of government and restrain abuse of power. Its application and limitations, then and now, have often been the subject of debate and criticism but it became one of the most important changes to our democracy in New Zealand’s history and remains a cornerstone of New Zealand’s human rights framework.

This year the New Zealand Bill of Rights Act (NZBORA) marks its 35th anniversary and it seems fitting to take a moment to reflect on the significance of this enduring legislation.

LawTalk invited James Rapley KC, Executive Dean University of Canterbury Professor Petra Butler and Law Society Manager of Law Reform and Advocacy Aimee Bryant to consider the impact of the 35-year-old act.

What is the most significant impact of the Bill of Rights Act?

James Rapley KC

Barrister Bridgeside Chambers

It was quite revolutionary for Aotearoa New Zealand, an Act of Parliament like no other. It created a set of statutory rights to which all are entitled. Its purpose is to set out values and notions all would subscribe to, rights that always existed but were never set out in one form, in one act, in one document. They existed in other countries, just not in Aotearoa New Zealand. NZBORA’s purpose was grand; to affirm, protect and promote human rights and fundamental freedoms in New Zealand. It was originally intended to be entrenched, a form of superior law, an Act to trump all Acts. The Bill of Rights Act didn’t become superior law, it was passed and has the same status as any other legislation. This is due to Westminster’s constitutional orthodoxy that one Parliament can’t bind another. Parliament is sovereign. Parliament is supreme and if NZBORA was supreme law then power shifts; it shifts from the elected parliamentarian to the unelected judges.

Despite NZBORA being just an Act, like any other, the Court has taken it seriously, particularly in the first few years, and most recently in the last few years. Our highest appellate courts have confirmed it is a document with constitutional significance and casts the court in a supervisory role. Elias CJ said the enactment of NZBORA did indeed effect radical change to New Zealand law. And that the rights affirmed by the NZBORA are enacted as fundamental values of the legal system.

The impact of NZBORA is most clearly seen in the criminal law. It ensures the state behaves and placed a check on its power. It demands that searches are lawful and reasonable, that suspects are treated fairly and appropriately and that trials are fair. If the state breaches those fundamental values and rights, evidence may be ruled inadmissible and the case dismissed. Initially in the early 1990s, breaches of fair trial standards or rights often meant evidence was excluded and cases dismissed. What followed could be described as a period of judicial retreat followed by legislative confirmation in the Evidence Act whereby despite the breach of a right it was held that exclusion of the evidence may not be appropriate and continuing with the trial may not be unfair. So now, at least in the criminal courts, we have this face off and balancing exercise.

Executive Dean Professor, Petra Butler

Faculty of Law, University of Canterbury

Looking back to the 30th anniversary of the Bill of Rights Act, Parliament underscored the Act’s status as one of New Zealand’s constitutional documents. This recognition is significant, harking back to Geoffrey Palmer’s White Paper, which envisioned the Bill of Rights as supreme law. Although it was not entrenched, the Act has transcended its role as a mere statute to become a fundamental part of the constitution.

It has led to law changes that have significantly influenced the legal landscape. Early cases such as Noort and Baigent cemented New Zealanders’ right to a lawyer and the right to compensation for a right’s breach, respectively.

The Bill of Rights Act has also profoundly influenced legislative processes. Government departments, trained in policy development that aligns with the Bill of Rights and Human Rights principles, routinely consider how new legislation can be crafted without infringing on these rights – asking how can we do this without violating the Bill of Rights? This proactive approach is crucial in addressing New Zealand’s access to justice crisis, emphasising prevention over remediation of rights violations.

Moreover, the legal profession has seen a generational shift. The majority of lawyers today are educated in the principles of the Bill of Rights so there’s a heightened awareness. They bring their Bill of Rights Act knowledge to bear inter alia when advising clients, to policy development, and to the vetting of bills.

Aimee Bryant

Law Society Manager of Law Reform and Advocacy and PhD Candidate

One of the Act’s most visible and immediate impacts was on criminal procedure rights. We may have seen this retrench a little, or maybe it has just not sustained our early excitement: I’m thinking here in particular of the admissibility of improperly obtained evidence. I do think the Act, and many of the rights it protects, has entered the public lexicon. That must surely be the dream of many legislative drafters! For me this is a comforting reflection of the Act’s constitutional role.

From my current vantage point, which has me travelling through hundreds of cases from the first years of the Act through to the end of 2024 for my PhD, the Act’s overall impact has been significant yet variable in terms of both the breadth of its impact, and the evolving way in which it has achieved that impact. We’ve seen, for example: the development of remedies in the form of damages through to declarations of inconsistency, and the growing role of the Act within both statutory interpretation and judicial review. As we get further away from the Act’s genesis, it is fair to say there are some areas where hopes might not have been realised, and there’s still a lot we can learn from the last 35 years. So many questions! Has the right-vetting process been sufficiently protective? How does the Act influence or constrain the daily conduct of officials? Do unsuccessful claims tell us anything about rights that are perhaps deserving of inclusion in the Act? I’m hopeful I can address a small part of my curiosity through my PhD, which is a socio-legal approach to considering who the claimants have been and what this can tell us.

Why is it important to reflect on this legislation at this point in time?

Executive Dean Professor Petra Butler

Without delving too deeply into politics, it is an opportune moment to discuss rights once again, particularly the rule of law and adherence to the Bill of Rights, which is designed to protect citizens from government overreach. This is the fundamental purpose of the Bill of Rights.

There are certainly areas where it would be beneficial to pause and consider how to best give full effect to the Bill of Rights. In today’s world, the challenges are becoming more significant, and the rapid advancements in technology present new and unforeseen issues. It is crucial to ensure that our rights discourse remains robust and relevant, adapting to these fast-moving changes while continuing to safeguard the freedoms that are essential to our society.

For example, comparative analysis is important when it comes to analysing the rights enshrined in the Bill of Rights Act. Even though the New Zealand courts have developed their own Bill of Rights Act jurisprudence over the last 35 years, it remains important to draw on the expertise and experience of other jurisdictions and the pronouncements of the UN Human Rights Committee.

Despite an entire generation educated in the Bill of Rights Act there is still a lack of exploration in non-traditional areas. The focus has predominantly been on criminal law, criminal procedure, some aspects of discrimination, and freedom of expression – these are the classic areas.

Supporting the rule of law is essential, and our democracy must engage in these discourses. The Bill of Rights is a crucial instrument in this regard. Ultimately, it acknowledges the necessity of allowing courts to tell Parliament when it has erred.

Aimee Bryant

The Act reflects many of the normative rules and values central to our liberal democratic society. It organises and informs the relationship between the Government and its citizens. In addition to reflecting on policy, legislation, and administrative decision making through the lens of the Bill of Rights Act, we should also reflect on the content and performance of the Act itself. Those protected rights have not undergone any substantive amendment since passage of the Act, but it is not just about reflecting on the Act in terms of whether it requires amendment – it is about reflecting on how we use the Act, other ways in which it can be used and argued, and how it continues to serve the people. Regular post-legislative scrutiny is always the dream, and while maybe that should look a little different for legislation of such constitutional importance, a 35th birthday is as good a time as any to take stock.

James Rapley KC

It is timely that we reflect on our BORA because some of us in the criminal jurisdiction have become weary or flat and wonder what’s the point in bringing a breach of rights argument as the court will let the evidence in anyway. It’s timely because despite it being in force for 35 years many in the police appear to pay it no heed, or give it lip service or worse actively try and get around it. It’s timely because when this is drawn to a court’s attention often there are no consequences. The police will continue to breach a suspect’s rights if no one does anything about it if it is ultimately uncovered.

It is also timely to reflect on NZBORA in a wider sense given the political space that we’re in now. Things are very different politically and socially in 2025 than they were in 1990. In 1990 we had the First Past the Post electoral System. We still had the Privy Council until 2004. It’s timely to reflect on NZBORA because we are now experiencing historic miscarriage of justice cases being brought to light. It’s timely because as a country we are looking at ourselves, our government, our system, our constitution, the Treaty of Waitangi and wondering what sort of nation we want to be.

It is therefore a good time to ask are we happy with the NZBORA that we’ve got; do we all agree with these rights in the first place? And if we do – are we happy that it is just a normal act? Are we happy with how it’s being applied by parliamentarians and by our courts?

Given the modern world in which we now find ourselves living, such rights are turned to more than ever. These rights are something we need to take seriously and cherish – without them our most vulnerable and marginalised people can and will be taken advantage of by others, by those with power and those in power. So, let’s dust off this 1990 Act, read it, think about it, debate it and look at its legacy and what lessons we have learnt over the last 35 years and ask ourselves where to now? 

The University of Canterbury Faculty of Law and the Law Society are collaborating on a seminar series and conference to recognise the 35th anniversary of the New Zealand Bill of Rights Act.

The Bill of Rights Act: Legacy and Lessons – Where to from here? event series will culminate in a two-day conference, 1-2 October at the University of Canterbury in Ōtautahi Christchurch.

With a range of highly regarded speakers and panellists, this is a conference not to be missed.

For more information on the seminars and conference, go to the Law Society website NZLS | Bill of Rights Act: Legacy and Lessons – Where to now?