New Zealand Human Rights Commission Submission to the CAT in relation to NZ’s 6th periodic review appeared to be inconsistent with the right not to be subjected to disproportionately severe treatment. Neither the courts nor the Parole Board have the ability to consider individual circumstances in any given case. 37. The New Zealand Law Society has suggested that legislation enacted despite a negative section 7 report should be subject to a “sunset clause” to enable it to be periodically reconsidered. The Commission supports this recommendation. 38. A further complication is that a section 7 report is not tabled where a provision appears to be inconsistent with BORA. Rather it is tabled where it is considered that it is in fact inconsistent. This entails consideration not only of prima facie inconsistency but also justification under section 5 of BORA. Section 5 of BORA provides:18 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. 39. What is justifiable in a free and democratic society is a question for Parliament and will potentially change over time depending on the political, social and economic environment. 40. The Commission believes that the current approach is inconsistent with the purpose and wording of section 7, which states:19 Where any Bill is introduced into the House of Representatives, the Attorney-General shall….. Bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in the Bill of Rights. (emphasis added) 18 New Zealand Bill of Rights Act 1990, section 5. http://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html 19 Ibid, s7. 16