23
Bills sponso red b y departments other than the Ministry of Justice are vetted by the B ill of Rights team
in that M inistry. Bills sp onso red b y the M inistry are vetted by the Bill of Rights team in the Crown Law
Office. The M inistry will, in carrying out Bill of Rights vetting, consult Crown Co unsel. The Solicitor-
General and Crown C ounsel represent the Government in most litigation before the courts. To the extent that
Bill of Rights issues arise in litigation against the Government (which is where most of them do), it is the
Solicitor-General and C rown Counsel who will appea r and argue those issues. That makes them well placed
to advise the Government on Bill of Rights issues in relation to proposed legislation.
13
the Bill of Rights. Perhaps the not unfamiliar answer from academics and judges
will be to blame the drafters of the statute.
20
Putting that frustration aside, a statement of the approach to analysis of Bill of
Rights issues in New Zealand is necessary because of the significance it has for the
content of legislation. Under section 7 of the Bill of Rights Act, the Attorney-
General must bring to the attention of Parliament any provision of a Government
Bill or of any other Bill that appears to be inconsistent with any of the rights and
freedoms in the Bill of Rights. The requirement is interpreted as requiring a report
on inconsistency only if a prima facie breach cannot be justified under section 5 of
the Act as a reasonable limit in a free and democratic society.
21
All Government Bills undergo vetting . The vetting process involves scrutiny of
policy proposals as they emerge and of draft legislation as it is developed by teams
of specialist lawyers within 2 government agencies.23 They provide the advice to the
Attorney-General in relation to section 7 reports. The robustness of the process has
been enhanced by the relatively recent decision of the Attorney-General to make
publicly available Bill of Rights advice irrespective of whether a section 7 report is
tabled in Parliament. Before this open-minded initiative, in the absence of a section
7 report, neither Parliament, including its select committees, nor anyone else could
know why a Bill was considered not to be inconsistent with the Bill of Rights. The
release of advice means that if a Bill of Rights issue is raised in the course of a Bills
passage through Parliament, the House, select committees, and the public will have
a better appreciation of the Governments thinking a bout the issues and be better