Why conspiracy theorists are obsessed with the Bill of Rights Act

Lurking behind conspiracy theory party policies on NZBORA are some implicit claims about creeping totalitarianism. We unpick them below. There are also claims that the NZBORA was ignored when it came to lockdowns and mandates. And that’s not true at all.

The NZ Bill of Rights Act (NZBORA) has been ignored or overridden in the public health response to the pandemic, in proposed DIA online content regulation framework, and elsewhere.

• Concern about NZBORA frequently disguises an agenda of conspiracy theory around creeping totalitarianism
• NZBORA allows for rights to be limited when they can be “demonstrably justified in a free and democratic society”
• People do use NZBORA in the courts and win
• NZBORA constitutionally can’t be made higher law because Parliament is sovereign and can’t bind itself

Before we get into the weeds with entrenchment, NZBORA and COVID, it’s worth stepping back to understand the not-so-hidden message some are sending when they call for entrenching NZBORA.

The “freedom movement” conspiracy narrative has always involved a “meta” conspiracy involving an imminent attempt by ‘them’ to impose totalitarian control. Somehow, this attempt is always postponed and in the near future, but not now.

This is often connected to the idea of a manufactured crisis such as the ‘plandemic’ or more recently ‘the climate hoax’. Some groups started by arguing that COVID-19 restrictions were part of a plan to introduce totalitarianism – but three years on, those predictions never came true. So now they have moved on to climate change, for example with claims that “15 minute cities” (planning rules that encourage civic amenities to be located within 15 minutes’ travel of where people live) are actually plots to limit your freedom to travel.

This idea of an imminent threat plays a major role in conspiracy theorists’ mobilisation efforts. The aim is to delegitimise their opponents as not just wrong, but somehow in league with a New World Order (NWO) conspiracy and in favour of totalitarianism. Traitors!

If conspiracy theorists present their ideas honestly and up front they are correctly seen as ridiculous and so only appeal to a tiny minority. So we can see why they have latched on to NZBORA. Arguments about strengthening NZBORA let them present an acceptable face and an unthreatening entry into these theories of NWO directed totalitarianism. The messaging is deliberately designed to attract people with entirely understandable civil liberties concerns, for example about lockdowns and mandates. They draw people on that basis then tell them not to trust alternative sources of information. Then they push the NWO conspiracy theories.

It’s the same dishonest strategy conspiracy theory groups use when they lie about just being pro ‘medical freedom’ rather than admitting they are antivax. They use rhetoric which sounds like mainstream civil rights campaigns, but in the service of advancing bonkers or even dangerous ideas.

The kernel of truth is that it’s not unknown for governments to not let a good crisis go to waste (for example Western countries expanding surveillance powers for the “war on terror”) and also there is a history of totalitarian power expanding in stages (for example the nazi takeover of the Weimar Republic). That’s why groups like Voices For Freedom were circulating distasteful memes about vaccine passports being like the Warsaw ghetto. But they use the slippery slope argument to say that a specific issue around rights eg mandates is actually about stopping their dystopian conspiracy theory prediction from coming true. Groups with a solid track record of serious work around civil liberties are not informed by nor do they want to convince people that they are facing down a secret NWO conspiracy. The reality is far more mundane and boring.

So… what’s the mundane, boring truth about NZBORA?

NZBORA isn’t entrenched because it’s a fundamental constitutional principle in New Zealand that Parliament is sovereign. That means Parliament now can’t make a law that binds Parliament in the future. If Parliament passed a law saying that NZBORA couldn’t be repealed – let’s call it the NZBORA Anti-repeal Act – a future Parliament could repeal the Act, and then go on to repeal NZBORA. And if Parliament amended it to say “no law shall be valid unless consistent with the NZBORA”, a future Parliament could repeal that amendment, or pass a new law saying “Notwithstanding the NZBORA, …”. This is why NZBORA isn’t binding, because it’s constitutionally pointless.

However, since 2020, it’s been possible as a matter of course to seek judicial declarations that a law or regulation contravenes our Bill of Rights. And that generally carries enough moral force for a walk-back or law change to result.

A crucial part of NZBORA is that rights can only be limited when the limit is justified.

Subject to section 4, the rights and freedoms contained in this Bill of

Rights may be subject only to such reasonable limits prescribed by

law as can be demonstrably justified in a free and democratic society

This is part of the law because simplistic and absolute interpretations can cause outcomes nobody wants: child pornography enabled by a right to free expression, for example.

Over the last three years of the COVID-19 pandemic there have been several NZBORA cases seeking declarations that the government was breaching rights. See some of the cases listed here.

Courts looked at claims of people seeking BORA declarations that limits on gathering sizes for religious gatherings were not justified. The courts heard evidence about the scientific and medical basis. They took into account the precautionary principle. And they found that laws and regulations challenged were justified.

The courts aren’t just bending over for the government of the day either. When Grounded Kiwis sought an NZBORA declaration around the management of the border and MIQ places, they won.

And in a case brought by police and Defence workers about vaccination, they also won a declaration.

People who continue to argue that NZBORA isn’t working here are often those who don’t accept the scientific consensus around COVID-19, its dangers and spread, and vaccinations for COVID-19 – so they don’t see that justification can be valid. And beyond that, they sometimes characterise our government as “tyrannical”. This is odd, because the government has let itself be challenged in court, accepted court rulings against it, and over time walked back almost all the measures that people challenged. The government was careful to maintain the rule of law. That seems like the opposite of tyranny.

• COVID-19 related judgments: https://www.courtsofnz.govt.nz/judgments/covid-19-related-judgments/
• Parliamentary Sovereignty: https://en.wikipedia.org/wiki/Parliamentary_sovereignty

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