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The New Zealand Bill of Rights Act 1990 (NZBORA) requires that the attorney-general report to the New Zealand Parliament on any bills that contain provisions that appear to be inconsistent with the Bill of Rights Act.
Parliament is not constrained by the Bill of Rights Act and is free to ignore an attorney-general's report and enact any legislation it sees fit. In fact, the attorney-general, who prepares the reports, is a Government minister and is bound by Cabinet collective responsibility to support the passage of all Government bills through the House of Representatives.
The Criminal Procedure (Reform and Modernisation) Bill is a Government bill introduced by Simon Power as minister of justice on 15 November 2010. Public submissions on the bill closed on 18 February 2011 and the Justice and Electoral Select Committee was due to report back by 14 July 2011.
Attorney-General Chris Finlayson prepared two reports outlining conflicts between this bill and the Bill of Rights. The main report addressed the majority of the bill and an additional report dealt specifically with a proposed amendment to the Bill of Rights Act.
In New Zealand, offences are classified by the length of the maximum sentence. Offences punishable by less than three months in prison are not required to have a jury trial, but offences punishable by more than three months in prison have the right to a jury trial. This right is enshrined in section 24(e) of the Bill of Rights.
The Criminal Procedure (Reform and Modernisation) Bill proposes to raise the threshold for access to a jury trial from offences with a maximum sentence of three months in prison to offences with a maximum sentence of three years in prison.
The bill includes a provision to amend the Bill of Rights Act to remove the right to a jury trial for this expanded class of offences. This conflict with the Bill of Rights Act is outlined in the Attorney-General's supplemental report on the bill.
Attorney-General's report identifies the following breaches of the right to be present during a trial:
The report also highlights a further provision of the bill that involves hearings for offences that do not carry a prison term. In this situation the bill gives judges the discretion to continue the hearing if the defendant does not turn up. In his report, the Attorney-General, Chris Finlayson defends this provision by asserting that judges will exercise this discretion "in a manner that does not limit section 25(e) of the Bill of Rights Act".
According to the report, the bill contains two provisions that are in conflict with the double jeopardy rule (section 26(2) of the Bill of Rights Act):
The report identifies two places where the onus of proof is reversed by the bill:
Under the bill, defendants are to be required to identify issues they intend to rely on in their case, e.g. the points in their charge that are in dispute and whether they propose to rely on expert evidence. Failure to do so could be interpreted as an indication of guilt.
Finlayson notes that this a "novel step" in New Zealand and identifies a tension between this provision several rights enshrined in the Bill of Right's act: the right to silence, the right to a presumption of innocence, the right not to be compelled to give evidence or incriminate oneself and the right to a fair trial.
Finlayson concludes that there are sufficient safeguards in place for this provision of the bill to be justified under the Bill of Rights.
Bill Name | Date of report | BORA inconsistencies | Refs |
---|---|---|---|
Affordable Healthcare Bill | 16 September 2015 | 19 – Freedom from discrimination (family status, national origins) | [1] |
Alcohol Reform Bill | 8 November 2010 | 14 – Freedom of expression 19 – Freedom from discrimination (family status) 22 – Freedom from arbitrary arrest or detention 25c – Presumption of innocence 27 – Right to justice | |
Auckland Regional Amenities Funding Bill | 19 September 2007 | 19 – Freedom from discrimination (disability) | |
Child Protection (Child Sex Offender Register) Bill | 13 August 2015 | 9 – Right not to be subjected to torture or cruel treatment 26(2) – Double jeopardy | [2] |
Criminal Investigations (Bodily Samples) Amendment Bill | 10 February 2009 | 21 – Unreasonable search and seizure | |
Eden Park Trust Amendment Bill | 8 April 2009 | 19 – Freedom from discrimination (disability) | |
Electoral (Disqualification of Convicted Prisoners) Amendment Bill | 17 March 2010 | 12 – Electoral rights | |
Electronic Monitoring of Offenders Legislation Bill | 13 May 2015 | 18(1) – Freedom of movement 21 – Unreasonable search and seizure 26(2) – Double jeopardy | [3] |
Financial Assistance for Live Organ Donors Bill | 21 July 2015 | 19 – Freedom from discrimination (employment status) | [4] |
Head of State Referenda Bill | 21 April 2010 | 19 – Freedom from discrimination (age) | |
Human Rights (One Law for All) Amendment Bill | 28 June 2006 | 19 – Freedom from discrimination (colour, race, ethnic or national origin) 20 – Rights of minorities | |
Human Tissue (Organ Donation) Amendment Bill | 29 March 2006 | 19 – Freedom from discrimination (age, disability) | |
Land Transport Amendment Bill | 19 November 2013 | 25c – Presumption of innocence | |
Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill | 17 October 2012 | 25c – Presumption of innocence | |
Liquor Advertising (Television and Radio) Bill | 2 July 2009 | 14 – Freedom of expression | |
Lobbying Disclosure Bill | 12 June 2012 | 14 – Freedom of expression | |
Local Electoral (Māori Representation) Amendment Bill | 16 June 2010 | 19 – Freedom from discrimination (race) | |
Manukau City Council (Control of Graffiti) Bill | 7 December 2005 | 19 – Freedom from discrimination (age) 23(4) – Right to refrain from making a statement | |
Manukau City Council (Control of Street Prostitution) Bill | 7 December 2005 | 23(4) – Right to refrain from making a statement | |
Marriage (Gender Clarification) Amendment Bill | 11 May 2005 | 19 – Freedom from discrimination (marital status, sexual orientation) | |
Misuse of Drugs Amendment Bill | 23 April 2010 | 25c – Presumption of innocence | |
Misuse of Drugs (Classification of BZP) Amendment Bill | 22 August 2007 | 25c – Presumption of innocence | |
New Zealand Public Health and Disability Amendment Bill (No 2) | 16 May 2013 | 27(2) – Right to a judicial review of a determination | |
New Zealand Superannuation and Retirement Income (Pro Rata Entitlement) Amendment Bill | 21 July 2015 | 19 – Freedom from discrimination (national origin, age) 18(3) – Right to leave New Zealand | [5] |
Parole (Extended Supervision Orders) Amendment Bill | 2 April 2009 | 22 – Freedom from arbitrary arrest or detention 26 – Retroactive penalties and double jeopardy | |
Parole (Extended Supervision Orders) Amendment Bill | 17 April 2014 | 26 – Retroactive penalties and double jeopardy | |
Prisoners' and Victims' Claims (Redirecting Prisoner Compensation) Amendment Bill | 13 October 2011 | ||
Sentencing and Parole Reform Bill | 18 February 2009 | 9 – Right not to be subjected to torture or cruel treatment | |
Smoke-free Environments (Removing Tobacco Displays) Amendment Bill | 22 September 2010 | 14 – Freedom of expression | |
Social Assistance (Future Focus) Bill | 24 March 2010 | 19 – Freedom from discrimination (sex, marital status, family status) | |
Taxation (Income-sharing Tax Credit) Bill | 16 August 2010 | 19 – Freedom from discrimination (marital status, sex) | |
Wanganui District Council (Prohibition of Gang Insignia) Bill | 20 February 2008 | 14 – Freedom of expression |
In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law. In civil law, a similar concept is that of res judicata. Variation in common law countries is the peremptory plea, which may take the specific forms of autrefois acquit or autrefois convict. These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem.
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanour is regarded as less serious. The term "felony" originated from English common law to describe an offense that resulted in the confiscation of a convicted person's land and goods, to which additional punishments including capital punishment could be added; other crimes were called misdemeanors. Following conviction of a felony in a court of law, a person may be described as a felon or a convicted felon.
An indictment is a formal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offense is a felony; jurisdictions that do not use the felonies concept often use that of an indictable offense, an offense that requires an indictment.
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment.
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
Sedition is overt conduct, such as speech and organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition.
Duncan v. Louisiana, 391 U.S. 145 (1968), was a significant United States Supreme Court decision which incorporated the Sixth Amendment right to a jury trial and applied it to the states.
The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland. Large portions of the act were repealed and replaced by the Sentencing Act 2020.
The New Zealand Bill of Rights Act 1990 is a statute of the Parliament of New Zealand part of New Zealand's uncodified constitution that sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a bill of rights, and imposes a legal requirement on the attorney-general to provide a report to parliament whenever a bill is inconsistent with the bill of rights.
An information is a formal criminal charge which begins a criminal proceeding in the courts. The information is one of the oldest common law pleadings, and is nearly as old as the better-known indictment, with which it has always coexisted.
The Fifth Amendment to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights.
The Gun Court is the branch of the Jamaican judicial system that tries criminal cases involving firearms. The court was established by Parliament in 1974 to combat rising gun violence, and empowered to try suspects in camera, without a jury. The Supreme Court, Circuit Courts, and Resident Magistrate's Courts function as Gun Courts whenever they hear firearms cases. There is also a Western Regional Gun Court in Montego Bay. Those convicted by the Gun Court are imprisoned in a dedicated prison compound at South Camp in Kingston. Until 1999, the Gun Court sessions were also held in the same facility.
Human rights in New Zealand are addressed in the various documents which make up the constitution of the country. Specifically, the two main laws which protect human rights are the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. In addition, New Zealand has also ratified numerous international United Nations treaties. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the indigenous population.
The Vicinage Clause is a provision in the Sixth Amendment to the United States Constitution regulating the vicinity from which a jury pool may be selected. The clause says that the accused shall be entitled to an "impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law". The Vicinage Clause limits the vicinity of criminal jury selection to both the state and the federal judicial district where the crime has been committed. This is distinct from the venue provision of Article Three of the United States Constitution, which regulates the location of the actual trial.
In New Zealand, the presumption of supply is a rebuttable presumption in criminal law which is governed by the New Zealand Misuse of Drugs Act 1975. It provides an assumption in drug-possession cases that if a person is found with more than a specified amount of a controlled drug, they are in possession of it for the purpose of supply or sale. This shifts the burden of proof from the Crown to the person found with the drug, who must prove that they possessed it for personal use and not for supply. Note that once the burden of proof has shifted, the burden is one on the balance of probabilities. This presumption exists to make prosecution for supplying drugs easier.
The voting rights of prisoners in New Zealand have been in a near constant state of flux since the first election in New Zealand in 1853. Prisoners have experienced varying degrees of enfranchisement. In 2010 the Electoral Act 1993 was amended to disqualify all prisoners from voting. In 2020 this law was amended so that only persons serving a sentence of imprisonment for a term of three years or more are disenfranchised. Elections in New Zealand are held every three years.
The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.