TO: Concerned Citizens Group FROM: Community Law Associates DATE: 15 October 2025 RE: Legality and Constitutionality of the Public Order (Special Powers) Act 2025
Introduction
You have asked for our advice on the legality and constitutionality of two provisions in the new Public Order (Special Powers) Act 2025 (“the Act”). You are facing prosecution under this Act for attending a gathering. This advice will examine the legal avenues available to challenge:
- The power of the Minister of Justice to prohibit public gatherings by regulation; and
- The retrospective application of criminal penalties under the Act.
Our advice is that while the New Zealand Parliament has the ultimate power to pass almost any law it chooses, the courts can and do scrutinise how those laws are implemented. The provisions of the Act are in serious conflict with fundamental constitutional principles and rights affirmed in the New Zealand Bill of Rights Act 1990 (NZBORA). There are strong grounds to challenge the exercise of these powers.
This advice is structured using the Issue, Rule, Application, and Conclusion (IRAC) method to clearly explain your legal position on each provision.
Ministerial Power to Prohibit Gatherings
Issue
The first issue is whether the power granted to the Minister of Justice to prohibit, by regulation, any public gathering they believe may cause “disharmony” or “distress to the Government” is lawful.
Rule
In New Zealand, Parliament can delegate its law-making power to other bodies, such as a Minister, who can then create regulations (also known as delegated or secondary legislation). However, the courts can review these regulations to ensure they are lawful through a process called judicial review.[^1]
A key principle of judicial review is the principle of legality. This means that courts will assume that Parliament does not intend to override fundamental common law rights or constitutional principles unless it uses explicit and unambiguous language to do so.[^2]
Furthermore, the NZBORA is a crucial piece of legislation. It affirms fundamental rights, including freedom of expression (s 14) and freedom of peaceful assembly (s 16). These rights are clearly engaged by the Act. While NZBORA is not supreme law and cannot be used to strike down an Act of Parliament (per s 4 of NZBORA), it has a powerful interpretive role. Section 6 of NZBORA requires that wherever an enactment can be given a meaning that is consistent with the rights and freedoms in NZBORA, that meaning shall be preferred to any other meaning.
Rights are not absolute and can be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s 5, NZBORA). The courts assess whether a limit is justified, often by considering if it serves an important objective and if the limit is a proportionate way of achieving that objective.[^3]
Finally, a court can rule that a regulation is unlawful if the Minister made it for an improper purpose or if the decision was so unreasonable that no reasonable Minister could have made it.[^4]
Application
The power granted to the Minister under the Act directly impacts your rights to freedom of expression and assembly. A court would therefore scrutinise any regulation made under this power very carefully.
Applying the principle of legality, a court would be very hesitant to accept that Parliament intended to allow the Minister to ban protests simply because they are critical of the government. The phrase “distress to the Government” is particularly problematic. It is politically vague and appears to conflict with the democratic value of holding the government to account. A court is likely to interpret this power narrowly, using its s 6 NZBORA duty. For example, it might rule that “distress to the Government” must be read down to mean something more extreme, such as threats to national security, rather than mere political embarrassment.
Similarly, the word “disharmony” is vague. A court would likely interpret it to mean something specific and serious, such as the incitement of violence or hatred against a particular group, not just robust political disagreement.
Therefore, if the Minister issued a regulation banning a peaceful protest that was merely critical of a government policy, we could challenge that regulation in court. We would argue that in making the regulation, the Minister acted for an improper purpose (i.e., to stifle political dissent, not to maintain public order) and that the regulation is an unreasonable and unjustified limit on NZBORA rights. The vagueness of the terms used in the Act supports the argument that the power has not been exercised lawfully.
Conclusion
While the provision in the Act itself is likely immune from being struck down because of parliamentary sovereignty, any regulation the Minister makes under it is highly vulnerable to a legal challenge. We advise that such a challenge would have a strong prospect of success if the gathering prohibited was a peaceful one.
Retrospective Criminal Liability
Issue
The second issue is the legality of the provision making attendance at certain gatherings in the past two years a criminal offence, punishable by imprisonment.
Rule
The rule against retrospective law-making, especially for criminal matters, is a cornerstone of the rule of law.[^5] It provides that people should be able to know the law and act accordingly, without fear that their conduct will be criminalised later.
This principle is explicitly protected in s 26(1) of NZBORA, which states that no one shall be liable to conviction for any act that was not an offence at the time it occurred.
However, as noted above, s 4 of NZBORA prevents the courts from striking down any provision in an Act of Parliament on the grounds that it is inconsistent with NZBORA. This creates a direct conflict. The Act appears to expressly violate a right protected by NZBORA, yet NZBORA itself says the Act must prevail.
The courts have addressed this tension. The leading case is R v Poumako.[^6] In that case, the Court of Appeal used its interpretive duty under s 6 of NZBORA to “read down” a provision that retroactively increased a penalty for murder, so that it did not apply retrospectively. The Court effectively gave the provision a meaning that it could not, on its face, really support, in order to avoid a breach of rights. This shows how far the courts are willing to go to protect fundamental principles.
More recently, the law was changed to allow courts to issue a formal “declaration of inconsistency” when a law cannot be interpreted in a rights-consistent way.[^7] This does not invalidate the law, but it sends a formal signal to Parliament that the Act breaches fundamental human rights, creating political pressure for its repeal or amendment.
Application
The provision in the Act making past attendance at gatherings a crime is a clear and direct breach of s 26(1) of NZBORA. It is a textbook example of retroactive criminal law. The Attorney-General would almost certainly have reported this inconsistency to Parliament under s 7 of NZBORA when the law was being passed.
Based on the precedent in Poumako, our primary legal strategy would be to urge the court to apply s 6 of NZBORA and interpret the provision in a way that removes its retrospective effect. We would argue that despite the apparently clear words, Parliament could not have intended such a drastic departure from a fundamental constitutional principle.
However, we must be realistic. The wording in the Act, “Applies retrospectively to any gathering held in the past two years,” is extremely clear. A court may find that this language is so unambiguous that it cannot be interpreted in any other way without defying Parliament’s express will. Some judges are less willing than others to use s 6 to give a statute a meaning it cannot plausibly have.[^8]
If a court finds that the provision’s meaning is clear and cannot be read down, it will be forced to apply the law as written due to s 4 of NZBORA. This would mean that the prosecutions against you could legally proceed. However, in this scenario, we would strongly request the court to issue a declaration of inconsistency. This formal declaration would be a powerful tool for a public campaign to have this unjust law repealed.
Conclusion
This part of the Act is unconstitutional in spirit, even if it is technically lawful due to parliamentary sovereignty. There is a chance that a court could use its interpretive powers to prevent you from being convicted. However, if the court feels bound by the clear words of the Act, a conviction is possible. In that event, securing a declaration of inconsistency would be an important, albeit partial, victory.
Overall Advice and Next Steps
The Public Order (Special Powers) Act 2025 contains provisions that are hostile to New Zealand’s constitutional traditions and fundamental rights. Our advice is to challenge any prosecution vigorously.
We recommend the following steps:
- Challenge the Regulation: If you have been charged under a specific regulation made by the Minister, we should immediately commence judicial review proceedings to have that regulation declared unlawful.
- Defend the Criminal Charge: In any criminal proceedings under the retrospective provision, we will argue that the Act must be read in line with NZBORA and should not apply to you.
- Seek a Declaration of Inconsistency: If our interpretive argument fails, we will seek a formal declaration from the court that the Act is inconsistent with the New Zealand Bill of Rights Act 1990.
- Public Advocacy: Legal challenges should be combined with political and public pressure. A declaration of inconsistency would assist in arguing for the repeal of this oppressive legislation.
Please contact us to discuss the specific details of your situation so we can begin preparing your defence.
<br> — [^1]: Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis NZ, 2018). [^2]: Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, 2014) at [21.3.2]. [^3]: This approach was adopted from the Canadian case of R v Oakes [1986] 1 SCR 103 and is applied in New Zealand; see Ministry of Transport v Noort [1992] 3 NZLR 260 (CA). [^4]: The classic test is from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA), though New Zealand courts now often apply a more context-sensitive "intensity of review" standard: see Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42. [^5]: Andrew Geddis "Parliamentary Sovereignty and the New Zealand Bill of Rights Act 1990" [2007] NZ L Rev 1 at 14. [^6]: R v Poumako [2000] 2 NZLR 695 (CA). [^7]: New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022. This followed the Supreme Court's decision to create a judicial power to make such declarations in Taylor v Attorney-General [2018] NZSC 104, [2019] 1 NZLR 283. [^8]: See the powerful dissent of Elias CJ in Poumako, who argued that s 6 cannot be a licence for the courts to rewrite statutes.
Bibliography
Cases
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
Ministry of Transport v Noort [1992] 3 NZLR 260 (CA).
R v Poumako [2000] 2 NZLR 695 (CA).
Taylor v Attorney-General [2018] NZSC 104, [2019] 1 NZLR 283.
Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42.
Legislation
New Zealand Bill of Rights Act 1990.
New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Act 2022.
Public Order (Special Powers) Act 2025 (hypothetical).
Books and Articles
Butler, Andrew, and Petra Butler The New Zealand Bill of Rights Act: a commentary (2nd ed, LexisNexis NZ, 2015).
Geddis, Andrew "Parliamentary Sovereignty and the New Zealand Bill of Rights Act 1990" [2007] NZ L Rev 1.
Joseph, Philip A Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, 2014).
Palmer, Matthew "What is New Zealand's constitution and who interprets it? Constitutional realism and the importance of public office-holders" (2006) 17 Public Law Review 133.
Taylor, Graham Judicial Review: A New Zealand Perspective (4th ed, LexisNexis NZ, 2018).
