This is a single section from Chapter 4. Read the full chapter here.

The principle of legality—the dignity of the individual and the presumption in favour of liberty

Legislation should be consistent with the dignity of the individual and the presumption in favour of liberty.

All law is made (and, when enacted, will be construed by courts) against a matrix of values and principles that are regarded as fundamentally important to our legal system. These values and principles can be expressed at differing levels of abstraction. Fundamentally, they concern human dignity and liberty but these terms embrace a broader set of rights and freedoms that include:

  • the right not to be deprived of life;
  • physical integrity of one’s body, including freedom from medical treatment or scientific experimentation without consent;
  • freedom from torture, or cruel, degrading, or disproportionately severe treatment or punishment;
  • freedom from discrimination based on immutable characteristics;
  • physical liberty, in the sense of freedom from arbitrary arrest or restraint;
  • freedom of conscience, religion, expression, association, assembly, and movement;
  • liberty, in the sense of freedom to make fundamental personal choices as to how one lives one’s life; and
  • procedural fairness, often referred to as natural justice.

The expectation is that legislation will be construed and applied in light of these abiding values. This has been called the “principle of legality”.

Most of these fundamental rights and freedoms have, since 1990, been affirmed in NZBORA. Section 7 of that Act requires, as part of the process of law making, that the Attorney-General advise the House of Representatives if any provision in a bill appears to be inconsistent with rights and freedoms in NZBORA. For its part, section 5 of NZBORA recognises that limits on rights and freedoms may be appropriate if they are no more than “reasonable limits” that can be “demonstrably justified in a free and democratic society”. Chapter 6 provides guidance on developing legislation that impacts on rights.

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