Assessment Consistency with Human Rights

Judicial assessment methodology

Hansen 6-step approach

Origin of Hansen approach

R v Hansen

Purpose of Hansen approach

Provide a definitive methodology for evaluating alleged infringements on NZBORA

Hansen approach step 1

Ascertain the natural, ordinary meaning of the statutory provision using standard statutory interpretation techniques, without reference to S6

Hansen approach step 2

Determine whether that natural meaning is prima facie inconsistent with any right or freedom set out in NZBORA. If no inconsistency exists, adopt the natural meaning (End of Inquiry)

Hansen approach step 3

If prima facie inconsistent, apply S5 to determine whether the limit is a reasonable limit demonstrably justified in a free and democratic society

Hansen approach step 4

If the limit IS demonstrably justified under S5, adopt the natural meaning, as it represents a lawful limit (End of Inquiry)

Hansen approach step 5

If the limit IS NOT demonstrably justified under S5, apply S6 to examine whether a more rights-consistent alternative meaning is reasonably open on the text

Hansen approach step 6

If a rights-consistent meaning IS available under S6, adopt that meaning. If NO rights-consistent meaning can be extracted without impermissibly amending the statute, apply S4 (apply the natural meaning despite the unjustified infringement)

Origin of Hansen approach

Oakes Test, adopted from Canadian case

Oakes test origin

R v Oakes

Stage 1 of Oakes test

The legislative objective must relate to concerns that are pressing and substantial in a free and democratic society. 

Stage 2 of Oakes tes

Three sub-tests

Oakes test Stage 2 sub-test 1

Rational Connection: The limiting measure must be rationally connected to the objective, rather than arbitrary, unfair, or irrational

Oakes test Stage 2 sub-test 2

Minimum Impairment: The measure must impair the right as little as possible. If less restrictive alternative means exist to achieve the objective, minimum impairment is failed

Oakes test Stage 2 sub-test 3

New cards

Oakes test Stage 2 sub-test 3

Proportionate Effect / Overall Balance: The severe impacts of the limit on the right must be outweighed by the societal benefit derived from achieving the objective

Re AMM and KJO material facts

De facto couple sought to adopt the mother’s 18-year-old so the step-father would become a co-parent

Framework was applied to Re AMM and KJO

Hansen approach

Re AMM and KJO ruling

HC held that "spouses" could be given a rights-consistent interpretation under Section 6 to encompass de facto partners sharing a spouse-like relationship, enabling the court to grant the adoption without triggering S4

Core interpretive principles established by Hansen majority

Purposive Statutory Interpretation Preserved

No Pre-existing Linguistic Ambiguity Required

Availability / "Reasonably Possible" Threshold

Consistency with Reasonably Limited Rights

Purposive Statutory Interpretation Preserved

The S6 search for rights-consistent meanings must strictly accord with the general purpose and legislative intent of the enactment. S6 does not grant a license to abandon grounded, purposive statutory analysis

No Pre-existing Linguistic Ambiguity Required

Statutory text does not need to be ambiguous before S6 applies. Even if the natural meaning of a provision is crystal clear, courts are required to apply S6 rigorously. Post-Hansen law rejected older authorities that required linguistic ambiguity as a prerequisite

Availability / "Reasonably Possible" Threshold

A rights-consistent meaning is available only if it is "reasonably possible" (synonymous terms used by the majority include fair, open, tenable, and intellectually defensible). Words cannot be stretched beyond reasonable limits to achieve consistency; doing so constitutes concealed legislative amendment violating S4

Consistency with Reasonably Limited Rights

S6 only requires finding an interpretation consistent with a reasonably limited version of the right under 5

Hansen dissenting approach

CJ Elias argued that S6 permits any linguistically possible interpretation, including meanings that appear linguistically strained

S6 in Fitzgerald v R legislative context

The Three Strikes regime under the Sentencing Act 2002 (enacted 2010, repealed 2022, reinstated June 2023) established escalating penalties for specified violent offenses

First strike

Judicial warning at sentencing

Second strike

Final warning; full sentence served without parole eligibility

Third strike

Mandatory imposition of the statutory maximum penalty served entirely without parole, unless the court found it "manifestly unjust" 

Fitzgerald v R material facts

Mr. Fitzgerald was convicted of indecent assault as his third strike. Standard sentencing for his conduct was several months imprisonment. However, S86D(2) stated that the High Court must sentence the offender to the maximum term prescribed

Fitzgerald v R rights conflict

Natural meaning required a 7-year sentence, violating S9 NZBORA (protection against disproportionately severe punishment). The limitation was unjustified under S5 

Fitzgerald v R majority ruling

Court read qualifying words into Section 86D(2) under S6: "despite any other enactment but not including NZBOR, the High Court must sentence… but must not do so if this would result in disproportionately severe punishment under S9"

Fitzgerald v R minority ruling

Chief Justice Winkelmann explicitly rejected reading "reasonably" into S6, stating that "reasonable" adds an unwritten limitation. This demonstrated judicial willingness to modify explicit statutory words to protect rights, reflecting strong opposition to statutory mandates removing judicial sentencing discretion

S6 in AMM and KJO issue

S3(1) of the Adoption Act 1955 permitted joint adoption applications by "spouses."

S6 in AMM and KJO interpretation

Unambiguous natural meaning in 1955 referred strictly to legally married couples. Applying S6, the court interpreted "spouses" to include heterosexual de facto couples in stable relationships

Two Modalities of Section 6 Interpretive Activity

Discrete selection

Reading down/inserting qualifications

Declaration of inconsistency definition

A formal judicial remedy declaring an enactment or executive action inconsistent with NZBORA rights

Pre-2017 declaration of inconsistency position

Senior courts refused to issue formal declaratory orders, preferring informal "Hansen declarations"

Attorney-General v Taylor material facts

Challenge to an amendment to the Electoral Act 19931993 imposing a blanket ban on voting for all incarcerated prisoners

AG v Taylor SC ruling

Senior courts possess inherent jurisdiction to grant formal declarations of inconsistency as a logical outcome of providing effective remedies for rights breaches, despite NZBOR lacking an express remedies clause

AG v Taylor legal effect

A declaration determines no legal rights, creates no actionable private legal remedies, and does not affect statutory validity

Borrowdale v Director-General of Health material facts

Judicial review challenging COVID-19 Level 4 lockdown orders. Public stay-at-home directions announced in press conferences by Prime Minister Ardern preceded formal legal orders under the Health Act 1956

Borrowdale v Director-General of Health ruling

Ground 1 succeeded—public announcements limited NZBOR rights (freedom of movement, assembly, association) without being "prescribed by law." However, restrictions were substantively justified on public health grounds

Muldoon v Fadden ruling

Claims of unlawful suspension of laws under the Bill of Rights 1688 were rejected

Borrowdale v Director-General of Health significance

HC granted a formal declaration of inconsistency despite the plaintiff achieving nominal success, showing a lower threshold for declarations against executive action compared to primary legislation