Limiting Rights

Abstract

This article discusses the relationship between rights and their limitations, particularly focusing on the interpretation and application of s 5 New Zealand Bill of Rights Act 1990 ('NZBORA'). The author notes that rights are not absolute and compares the NZBORA-internal "definitional balancing" and the broader "ad hoc" balancing approaches to limiting rights. After discussing the nature of "conflicting rights" and onuses of proof, the author argues in favour of the former, advocating a "culture of justification" in New Zealand. The author then goes onto discuss some general considerations as to what "reasonable limits" to rights are, ultimately arguing that limitations on rights are just as fundamental as rights themselves. The term "reasonable limits" is also discussed from both an international and New Zealand perspective, as well as the relationship of s 5 to the interpretation of other enactments.