A culture of justification?

The New Zealand Bill of Rights Act, unlike its Canadian and American equivalents, is not supreme law. If a provision of any enactment is inconsistent with the Bill of Rights Act, section 4 explicitly states that the enactment prevails. This has led some to conclude that our Bill of Rights is “weak”. While it is certainly weaker than other models, the Bill of Rights nevertheless reflects a commitment by the New Zealand government that the rights contained in the Bill should only be subject to limits which “can be demonstrably justified in a free and democratic society”.

In light of this, it is reasonable to expect that government policy will be developed with the Bill of Rights in mind. In the words of two leading commentators, the Bill of Rights was designed to create a “culture of justification”:

A “culture of justification” means a culture in which citizens are entitled to call upon the provision of reasons for measures that affect their rights, are entitled to challenge those reasons, and in a sense more importantly, are entitled to expect that in advance of impairment thought will have been given to the reasonableness of a particular limit. [Butler and Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, 2005) at para 6.8.1.]

Prior to the introduction of the Bill of Rights, Sir Geoffrey Palmer noted that one of the problems with the development of legislative proposals was that government officials are “not required to test them against basic principles and they are not invited to apply a set of standards to them” [510 NZPD 3761 (21 August 1990)]. Sir Geoffrey hoped that the Bill of Rights would change this.

Perhaps picking up on this suggestion, the Ministry of Justice has published Guidelines on the Bill of Rights Act to assist the public sector in the development of government policy. In those guidelines, the Ministry of Justice explains that the requirement that limits be “demonstrably justified” means that the onus is on the government to justify any limits to rights [see Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) at 283]. The guidelines explain:

That means justifying your policy or proposed law with evidence such as research, empirical data, findings from consultation, reports, or the results of inquiries or reviews. As with any good policy development, it is important not to act on assumptions, but to provide a well-argued case – based on high-quality analysis and research – that clearly establishes why a particular course of action is necessary. You should avoid relying solely on comparable overseas developments to justify your proposals. The social/political and cultural context in those countries, which would go to demonstrating the justification in their jurisdictions, may be significantly different to our own.

I think that is good advice and accords with my view that “demonstrably justified” limits are limits that are based on actual evidence and not mere supposition.

Last year a friend sent the Ministry of Justice an Official Information Act request in relation to the electoral finance reform project to find out what evidence the Ministry had collected to support its apparent belief that there is a strong causal relationship between electoral spending and electoral outcomes.

The Ministry of Justice responded by indicating that it holds no documents, reports or studies carried out or procured by it on or after 18 September 2005 (ie in the period where it worked on both the Electoral Finance Act 2007 and the current review of electoral law) concerning:

• the empirical relationship between party expenditure and electoral outcomes in New Zealand;
• the empirical relationship between candidate expenditure and electoral outcomes in New Zealand; and
• the empirical relationship between (non-party and non-candidate) interest group expenditure and electoral outcomes in New Zealand.

This is surprising. The Issues Paper prepared by the Ministry of Justice as part of its review of electoral laws, makes reference to the need to create a “level playing field” and highlights the concern that high spending limits may “’tilt’ the playing field unreasonable”. Given the policy decisions that have been made, these concerns must have been accepted to some degree. In fact, the rationale behind much of the Ministry’s work is that there is a strong link between electoral spending and electoral outcomes.

Has the Ministry followed its own advice? Or has it fallen into the trap it warns of in the guidelines and acted on mere assumptions?