Abstract
The paper reflects on the place of the New Zealand Bill of Rights Act 1990 in New Zealand and, in particular, on the effectiveness of the Bill of Rights in protecting fundamental rights and freedoms 21 years after it came into force. The paper identifies areas where the Bill of Rights Act could be improved and discusses: the lack of a domestic remedies provision, the Attorney-General vetting procedure, the lack of a right of privacy, and the lack of social and economic rights. Furthermore, the paper examines the question whether a written constitution would make a difference to human rights in New Zealand.
Dr. Andrew Butler is a Partner in the Wellington office of Russell McVeagh. Dr. Petra Butler is Associate Director of the New Zealand Centre of Public Law and a Senior Lecturer in the Faculty of Law, Victoria University of Wellington. The authors sincerely thank Paul Smith for his invaluable help with this paper.
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Notes
- 1.
The Bill of Rights received Royal Assent on 28 August 1990, and came into force 28 days thereafter on 25 September 1990.
- 2.
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) [ICCPR].
- 3.
Ibid, art 2(1).
- 4.
Ibid, art 2(2).
- 5.
Ibid, art 2(3).
- 6.
For example, the Bill of Rights does not guarantee a right to privacy and family life (art 17 of the ICCPR).
- 7.
For further comment see McLay (2008).
- 8.
Concluding Observation of the Human Rights Committee on New Zealand’s Fifth Periodic Report CCPR/C/NZL/CO/5 (2010).
- 9.
Ibid.
- 10.
New Zealand Bill of Rights Act 1990, s 4, and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
- 11.
This argument was rejected in the White Paper. See (1985) AJHR A.6, p. 41 (para 6.7).
- 12.
In fact, despite the relevant Attorney-General reports referencing Hansen (which was delivered by the Supreme Court on 20 February 2007) and stating that there is a problem with reverse onus provisions, on 14 March 2008 Parliament enacted the Misuse of Drugs (Classification of BZP) Amendment Act 2008, and on 22 April 2010 the government introduced the Misuse of Drugs Amendment Bill 2010 (126-1), both of which have the effect of expanding the application of the reverse onus provision in the Misuse of Drugs Act 1975. The reports are Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Misuse of Drugs (Classification of BZP) Amendment Bill 2007 and Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Misuse of Drugs Amendment Bill 2010.
- 13.
See, for example, Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, (1999) 5 HRNZ 224 (CA).
- 14.
Decisions of the Broadcasting Standards Authority are available at http://www.nzlii.org/nz/cases/NZBSA/.
- 15.
See, for example, Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.
- 16.
Part 1A of the Human Rights Act 1993 came into force on 1 January 2002. A breach of Part 1A occurs where, inter alia, an enactment is made that is an unjustified limit on the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act 1990. Under s 92 J of the Human Rights Act 1993, if the Human Rights Review Tribunal finds that an enactment has been made in breach of Part 1A, then the Tribunal may grant a declaration of inconsistency (but may not award any other remedy such as those listed in s 92I(3) of the Human Rights Act 1993).
- 17.
Quilter v Attorney-General [Quilter] [1998] 1 NZLR 523. In Quilter three lesbian couples argued that it was unlawful for the Registrar of Births, Deaths and Marriages to deny them marriage licences under the Marriage Act 1955. The 1955 Act does not define marriage, although the common law understanding of “marriage” has been of a union between members of the opposite sex. The Court of Appeal ruled: first, by a majority (3:2) that a prohibition on same-sex marriage did not amount to a prima facie infringement of the appellants’ right to be free from discrimination; and secondly, unanimously that the concept of marriage contemplated by the Marriage Act was the traditional female–male partnership and, accordingly, it would not be right to interpret the Act in a manner consistently with the right to be free sexual orientation discrimination because that would be to repeal the Act contrary to s 4 of the Bill of Rights.
- 18.
CPAG v Attorney-General [CPAG] [2008] NZHRRT 31 (16 December 2008) at [41].
- 19.
For further comment on our disagreement with the approach in Quilter, see Butler and Butler (2005) at 490.
- 20.
For instance, see CPAG v Attorney-General [CPAG] [2008] NZHRRT 31 (16 December 2008) at [126] and [207] where the Tribunal clearly and succinctly sets out its methodology.
- 21.
Smith v Air New Zealand [2011] NZCA 20. As at the date of writing, no appeal rights have been exercised in respect of the decision of the Court of Appeal.
- 22.
Ministry of Health v Atkinson & Ors HC Wellington CIV-2010-404-000287, 17 December 2010. As at the date of writing, the Ministry of Health has sought leave to appeal the decision of the High Court.
- 23.
Concluding Observation of the Human Rights Committee on New Zealand’s Fifth Periodic Report, above n 8.
- 24.
New Zealand Bill of Rights Act 1990, s 4, and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 [Hansen].
- 25.
Hansen.
- 26.
(1987) AJHR I.14, p 8.
- 27.
Ibid.
- 28.
(1985) AJHR A.6, p44 (paras 6.16 and 6.17).
- 29.
For example, under the First Optional Protocol to the ICCPR, individuals can make complaints to the UNHRC where a State Party has violated one or more rights set forth in the ICCPR.
- 30.
Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, (1999) 5 HRNZ 224 (CA) [Moonen].
- 31.
See A Bill of Rights for New Zealand: A White Paper (1985) AJHR A6.
- 32.
Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act 1982 (Canada)), s 33, which provides:
Exception where express declaration
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
Re-enactment
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
Five year limitation
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
- 33.
Butler (1997) at 340.
- 34.
United Nations Human Rights Committee, Concluding observations on New Zealand’s fourth periodic report (CCPR/CO/75/NZL) 7 August 2002, para 8; and United Nations Human Rights Committee, Concluding observations on New Zealand’s third periodic report (CCPR/C/79/Add.47; A/50/40, paras 166–191) 3 October 1995, para 176.
- 35.
See United Nations Human Rights Committee, Concluding observations on Canada’s fifth periodic report (CCPR/C/CAN/CO/5) 20 April 2006; and United Nations Human Rights Committee, Concluding observations on Canada’s fourth periodic report (CCPR/C/79/Add.105) 7 April 1999.
- 36.
Kelly and Murphy (2001) at 4.
- 37.
Ibid.
- 38.
Cohen (1986) at 69.
- 39.
Human Rights Act 1998 (UK), s 4, which provides:
4 Declaration of incompatibility
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied –
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility
it may make a declaration of that incompatibility.
(5) In this section “court” means –
(a) the House of Lords;
(b) the Judicial Committee of the Privy Council;
(c) the Courts-Martial Appeal Court;
(d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session;
(e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal.
(6) A declaration under this section (“a declaration of incompatibility”) –
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
- 40.
Charter of Human Rights and Responsibilities Act 2006 (Vic), s 36.
- 41.
Human Rights Act 2004 (ACT), s 32.
- 42.
European Convention on Human Rights Act 2003 (Ireland), s 5.
- 43.
Human Rights Act 1998 (UK), s 4.
- 44.
Human Rights Act 1993, s 92J. The Human Rights Amendment Act 2001, which inserted the relevant provisions, came into force on 1 January 2002 (s 2(1)).
- 45.
Joint Committee on Human Rights, Responding to Human Rights Judgments (available from http://www.justice.gov.uk/responding-human-rights-judgements-2009-2010.pdf), page 42). 26 declarations of incompatibility have been made. Of these 26:
• 18 have become final (in whole or in part) and are not subject to further appeal;
• 8 have been overturned on appeal.
Of the 18 declarations of incompatibility that have become final:
• 10 have been remedied by later primary legislation;
• 1 has been remedied by a remedial order under s 10 of the Human Rights Act;
• 4 relate to provisions that had already been remedied by primary legislation at the time of the declaration;
• 3 are under consideration as to how to remedy the incompatibility.
- 46.
Howard v Attorney-General [2008] NZHRRT 10 (15 May 2008).
- 47.
For example, in late 2010 the Attorney-General reported to Parliament, pursuant to s 7 of the Bill of Rights, that the Alcohol Reform Bill 2010 and the Criminal Procedure (Reform and Modernisation) Bill 2010 were inconsistent with the Bill of Rights and that such inconsistency could not be justified in a free and democratic society. Despite those reports from the Attorney-General, both Bills have continued through the legislative process, as yet without any amendment to address the Bill of Rights inconsistencies.
- 48.
In Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case] at 699, Hardie Boys J speculated that the motive for dropping the explicit remedies clause that was contained in the White Paper draft was its close association with the supreme law status for the Bill of Rights that had been envisaged in the White Paper.
- 49.
Ibid.
- 50.
The prima facie exclusionary rule arose in R v Kirifi [1992] 2 NZLR 8 (CA), but the first extensive discussion of the “rule” took place in R v Butcher [1992] 2 NZLR 257 (CA). In R v Shaheed [2002] 2 NZLR 377 (CA) the Court of Appeal replaced the prima facie exclusionary rule with a balancing approach.
- 51.
See R v Williams [2009] NZSC 41, [2009] 2 NZLR 750. In Williams, the Supreme Court affirmed that a stay is available, but that a stay was not the mandatory or even the usual remedy for delay. It would not be appropriate to stay or dismiss the proceeding unless there could no longer be a fair hearing or it would otherwise be unfair to try the accused.
- 52.
For example, in [Moonen].
- 53.
For further comment, see Geiringer (2009).
- 54.
Baigent’s case.
- 55.
See, for example, Manga v Attorney-General [2002] 2 NZLR 65 (CA) [Manga] and Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) [Dunlea], both of which are discussed in McLay (2008) at 345.
- 56.
Ibid.
- 57.
510 NZPD 3450 (14 August 1990).
- 58.
Glazebrook (2004) at [16].
- 59.
Ibid.
- 60.
See for example, Manga and Dunlea.
- 61.
For countries with bills of rights containing express remedies provisions, see, for example: s 24(1) of the Canadian Charter of Rights and Freedoms (1982); s 38 of the South African Constitution (1996); s 8(1) of the Human Rights Act 1998 (UK); art 32 of the Indian Constitution. For countries with bills of rights that do not contain an express remedies provision, see, for example: the United States Constitution (1789); and the Irish Constitution (1937). However, in both the United States and in Ireland, the Supreme Courts of both countries have inferred from their respective consitutions’ supreme law status and the traditional role of Courts as guardians and enforcers of rights that courts have power to order appropriate remedies where a violation of constitutional rights has occurred.
- 62.
The remedies regime under Human Rights Act 1998 (UK) is primarily provided in s 8. Declarations of incompatibility are addressed in s 4 (which is extracted above at n 39). Section 8 of the Human Rights Act 1998 (UK) provides:
8 Judicial remedies
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including –
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining –
(a) whether to award damages, or
(b) the amount of an award
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
(5) A public authority against which damages are awarded is to be treated –
(a) in Scotland, for the purposes of s 3 of the [1940 c. 42.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b) for the purposes of the [1978 c. 47.] Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section –
“court” includes a tribunal;
“damages” means damages for an unlawful act of a public authority; and
“unlawful” means unlawful under s 6(1).
- 63.
Canadian Charter of Rights and Freedoms (1982), s 24, the English version of which provides:
Enforcement of guaranteed rights and freedoms
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Exclusion of evidence bringing administration of justice into disrepute
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
- 64.
The remedies provision that we propose is:
# Remedies
(1) Subject to s 4, a court may grant the relief it considers appropriate for a breach of this Bill of Rights unless –
(a) the breach is the result of an act done or a decision made under an enactment; and
(b) the enactment cannot be given a meaning that is consistent with this Bill of Rights.
(2) A court must not deny relief under subsection (1) by reason only that relief can be sought another enactment or rule of law.
- 65.
New Zealand Bill of Rights Act 1990, s 7.
- 66.
(1985) AJHR A.6.
- 67.
(1998) AJHR 1.8C, 3 and 10.
- 68.
- 69.
That is not to say that the Bill of Rights consistency cannot be addressed at later stages of a Bill’s passage through Parliament. References to the Bill of Rights are becoming more frequent in select committee reports and in Parliamentary Debates more generally: see Hiebert (2004).
- 70.
The Member of Parliament who had promoted the amendments stated, “I would also like to draw the House’s attention to the impact that this will have because, of course, once this Bill becomes law, and it seems that the majority of parliamentarians wish that to be so, then the impact of that provision will affect those who are now before the Courts on murder charges in the context of home invasion.”: 578 NZPD 17687 (24 June 1999) (Emphasis added).
- 71.
502 NZPD 13040 (10 October 1989) (Geoffrey Palmer).
- 72.
510 NZPD 3764 (21 August 1990) (Richard Northey).
- 73.
Post-Legislative Scrutiny (Report) [2006] EWLC 302 (31 October 2006) at 24–26.
- 74.
Ibid.
- 75.
Ibid, at 27.
- 76.
Post-Legislative Scrutiny (Consultation Paper) [2005] EWLC 178 (22 December 2005) at 16. See, for example, Secretary of State for the Home Department v Limbuela, Tesema and Adam [2004] EWCA Civ 540; R v Secretary of State for the Home Department ex parte Adam; R v Secretary of State for the Home Department ex parte Limbuela; R v Secretary of State for the Home Department ex parte Tesema [2005] UKHL 66.
- 77.
New Zealand Bill of Rights Act 1990, s 21.
- 78.
Ibid, ss 9–11.
- 79.
A Bill of Rights for New Zealand: A White Paper (1985) AJHR A6, para 10.144.
- 80.
ICCPR, art 17.
- 81.
European Convention on Human Rights, art 8.
- 82.
Charter of Human Rights and Responsibilities Act 2006 (Vic), s 13.
- 83.
Human Rights Act 2004 (ACT), s 12.
- 84.
Human Rights Act 1998 (UK), Sch 1, Part 1, art 8.
- 85.
Hosking v Runting [2005] 1 NZLR 1 (CA); subsequently applied in Television New Zealand Ltd v Rogers [2007] 1 NZLR 156 (CA) (affirmed Television New Zealand Ltd v Rogers [2008] 2 NZLR 277 (SC)).
- 86.
Constitution of Ireland 1937, art 40.3.2°.
- 87.
See, for example, Human Rights Act 1998 (UK), s 1 (which incorporates art 8 of the European Convention of Human Rights into the ambit of the Act).
- 88.
See Hosking v Runting [2005] 1 NZLR 1 (CA).
- 89.
ICCPR, art 17.
- 90.
Ibid.
- 91.
By social and economic rights we mean the rights guaranteed in the International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) [ICESCR].
- 92.
Harrison (1998).
- 93.
ICESCR, art 25(1). New Zealand ratified the ICESCR on the same day that it ratified the ICCPR, namely 28 December 1978.
- 94.
Ibid, art 26.
- 95.
Ibid, art 25(1).
- 96.
Education Act 1989, s 3.
- 97.
According to the website of the Human Rights Commission (http://www.hrc.co.nz/report/chapters/chapter13/housing01.html, accessed 12 August 2010), the right to housing is not specifically provided for in any New Zealand legislation, although it is addressed in a range of central government housing policies, laws and entitlements, including: Building Act 1991 (including The Building Code, Schedule 1 of the Building Regulations 1992); Housing Improvements Regulations 1947 (under the Health Act 1956); Residential Tenancies Act 1986; Local Government Act 1974 (where still in force); Local Government Act 2002; Resource Management Act 1991; Fire Service Act 1975.
- 98.
According to the website of the Human Rights Commission (http://www.hrc.co.nz/report/chapters/chapter14/health01.html, accessed 12 August 2010), the right to health is expressed in a variety of legislation, including: New Zealand Public Health and Disability Act 2000 (PHDA); Local Government Act 2002; Health Act 1956; Health Practitioners Competence Assurance Act 2003; Mental Health (Compulsory Assessment and Treatment) Act 1992; Protection of Personal and Property Rights Act 1988; Alcoholism and Drug Addiction Act 1966; Health and Safety in Employment Act 1992 (and the 2002 Amendment); Smoke-free Environments Act 1990; Health and Disability Commissioner Act 1994; Privacy Act 1993.
- 99.
Nolan et al. (2007).
- 100.
For further discussion on the relationship between property and the constitution, see McLean (ed) (1999).
- 101.
Universal Declaration of Human Rights, art 17. We note that the ICCPR does not guarantee a right to property.
- 102.
European Convention on Human Rights, Protocol 1, art 1.
- 103.
American Convention on Human Rights, art 21.
- 104.
African Charter on Human and Peoples’ Rights, art 14.
- 105.
Charter of Human Rights and Responsibilities Act 2006 (Vic), s 20.
- 106.
See Evans et al. (2009).
- 107.
The New Zealand Bill of Rights (Private Property Rights) Amendment Bill (a Member’s bill in the name of Gordon Copeland) was defeated at second reading in November 2007 (see 643 NZPD 13352 (21 November 2007)). The New Zealand Bill of Rights (Property Rights) Amendment Bill was defeated at second reading in February 1998 (see 566 NZPD 6809 (25 February 1998)).
- 108.
See, for example, Universal Declaration of Human Rights, art 17 (1).
- 109.
See, for example, European Convention on Human Rights, Protocol 1, art 1; Human Rights Act 1998 (UK), Sch 1, Part 2, art 1.
- 110.
Regulatory Responsibility Bill (as recommended by the Regulatory Responsibility Taskforce), cl 7(1)(c).
- 111.
See, for example, Laing v Waimairi County [1979] 1 NZLR 321 (CA) at 324 per Richardson J, who cites Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 (PC) at 359 per Lord Warrington of Clyffe for the Court, and Hartnell v Minister of Housing and Local Government [1965] AC 1134.
- 112.
Report of the Regulatory Responsibility Taskforce (September 2009) at [2.11].
- 113.
Prime Minister’s Statement to Parliament (8 February 2011). Available at: http://admin.beehive.govt.nz/sites/all/files/PM_Statement_to_Parliament.pdf
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Butler, A., Butler, P. (2011). Protecting Rights. In: Morris, C., Boston, J., Butler, P. (eds) Reconstituting the Constitution. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21572-8_9
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