Human rights in New Zealand

Human rights in New Zealand

This article is part of a series on the
politics and government of
New Zealand
Constitution

Human rights in New Zealand are addressed in the various documents which make up the constitution. Specifically, the two main laws which protect human rights are the New Zealand Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.[1] In addition, New Zealand has also ratified numerous international United Nations treaties. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the indigenous population.[2]

Contents

  • History 1
  • International treaties 2
  • Legal system 3
  • Civil liberties 4
    • Freedom of speech 4.1
      • Limitations 4.1.1
      • Freedom of the media 4.1.2
    • Right to a fair trial 4.2
      • Origin 4.2.1
        • Magna Carta 4.2.1.1
        • Rule of law 4.2.1.2
      • International covenants recognised by New Zealand 4.2.2
      • New Zealand legislation 4.2.3
        • New Zealand Bill of Rights Act 1990 4.2.3.1
        • Criminal Procedure Act 2011 4.2.3.2
      • Right to a fair trial and the media 4.2.4
    • Freedom of religion 4.3
    • Political rights 4.4
      • Constitution 4.4.1
      • Electoral rights 4.4.2
      • New Zealand context 4.4.3
      • Framework for political rights protection 4.4.4
  • Indigenous peoples 5
  • Refugees 6
  • Human Rights Commission 7
  • Limits on human rights in New Zealand 8
    • New Zealand Bill of Rights 1990 8.1
    • New Zealand's unwritten constitution 8.2
  • Notes 9
  • References 10
  • External links 11

History

Universal suffrage for Māori men over 21 was granted in 1867, and extended to European males in 1879.[3] In 1893, New Zealand was the first self-governing nation to grant universal suffrage;[4] however, women were not eligible to stand for parliament until 1919.

A distinctive feature of New Zealand's electoral system is a form of special representation for Maori in parliament. Initially considered a temporary solution on its creation in 1867, this separate system has survived debate as to its appropriateness and effectiveness. Critics have described special representation as a form of apartheid.[3] In 1992, when the Royal Commission on the Electoral System recommended the abolishment of the separate system, strong representations from Maori organisations resulted in its survival.[5]

Human rights in New Zealand are addressed in the constitution. In addition, New Zealand has also ratified numerous international treaties as part of the United Nations. The 2009 Human Rights Report by the United States Department of State noted that the government generally respected the rights of individuals, but voiced concerns regarding the social status of the indigenous population.[2]

In May 2009, for the first time New Zealand prepared a national Universal Periodic Review (UPR) at the United Nations Human Rights Council in Geneva, Switzerland.[6] During this peer review process many countries praised New Zealand's human rights record and identified that the perception of New Zealand as a comparatively fair and equal society is crucial to its international reputation. Areas where the nation was directed to make improvements include disparities experienced by Maori as demonstrated by key social and economic indicators and the extent of family violence and violence against women and children.[7]

International treaties

Having joined the United Nations in 1945, New Zealand has ratified seven of the nine core key human rights treaties, namely ICERD, ICCPR, ICESCR, CEDAW, CRC, CAT and CRPD.[8]

In 2009 New Zealand was seeking a position on the United Nations Human Rights Council. The bid was withdrawn in March of that year to allow a clear path for the United States to win the seat, after US President Barack Obama reversed his country's previous position that the council had lost its credibility. Then New Zealand Foreign Minister Murray McCully stated "We believe that US membership of the council will strengthen it and make it more effective... By any objective measure, membership of the council by the US is more likely to create positive changes more quickly than we could have hoped to achieve them."[9]

In May 2009, for the first time New Zealand prepared a national Universal Periodic Review (UPR) at the United Nations Human Rights Council in Geneva, Switzerland.[6] During this peer review process many countries praised New Zealand's human rights record and identified that the perception of New Zealand as a comparatively fair and equal society is crucial to its international reputation. Areas where the nation was directed to make improvements include disparities experienced by Māori as demonstrated by key social and economic indicators and the extent of family violence and violence against women and children.[7]

Treaty[8] Signed [nb 1] Ratified
Convention on the Elimination of All Forms of Racial Discrimination 25 Oct 1966 22 Nov 1972
International Covenant on Civil and Political Rights 12 Nov 1968 28 Dec 1978
Convention on the Elimination of All Forms of Discrimination against Woman 17 Jul 1980 10 Jan 1985
Convention on the Rights of the Child[nb 2] 1 Oct 1990 6 Apr 1993
Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment 14 Jan 1986 10 Dec 1989

Legal system

The legal system takes the framework of a parliamentary representative democratic monarchy. In the absence of a single constitution, various legislative documents such as the Constitution Act 1986, Imperial Laws Application Act 1988 and New Zealand Bill of Rights Act 1990 have been implemented to cover such areas. Human rights in New Zealand have never been protected by any single constitutional document or legislation, and no single institution has been primarily responsible for enforcement. Because New Zealand's human rights obligations are not entrenched and are simply part of common law, Parliament can simply ignore them if it chooses. The Human Rights Commission has identified this constitutional arrangement as an area in need of action to identify opportunities for giving greater effect to human rights protections.[10]

The 2009 report by the U.S. Department of State noted that, "[t]he law provides for an independent judiciary, and the government generally respected judicial independence in practice".[2]

Civil liberties

Freedom of speech

The right to freedom of speech is not explicitly protected by common law in New Zealand but is encompassed in a wide range of doctrines aimed at protecting free speech.[11] An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press.[12] In particular, freedom of expression is preserved in section 14 of the New Zealand Bill of Rights Act 1990 (BORA) which states that:

“Everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind in any form”.

This provision reflects the more detailed one in Article 19 of the ICCPR. The significance of this right and its importance to democracy has been emphasised by the New Zealand courts. It has been described as the primary right without which the rule of law cannot effectively operate.[13] The right is not only the cornerstone of democracy; it also guarantees the self-fulfilment of its members by advancing knowledge and revealing truth.[14] As such, the right has been given a wide interpretation. The Court of Appeal has said that section 14 is “as wide as human thought and imagination”.[15] Freedom of expression embraces free speech, a free press, transmission and receipt of ideas and information, freedom of expression in art, and the right to silence.[16] The right to freedom of expression also extends to the right to seek access to official records. This is provided for in the Official Information Act 1982.

Limitations

There are limitations on this right, as with all other rights contained in BORA.

“It would not be in society’s interests to allow freedom of expression to become a licence irresponsibly to ignore or discount other rights and freedoms”.[17]

Under article 19(3) ICCPR, freedom of expression can be limited in order to:

  • respect the rights and reputations of others; and
  • protect national security, public order, or public health and morals.

Jurisprudence under BORA closely follows these grounds.[18] Freedom of expression is restricted only so far as is necessary to protect a countervailing right or interest.[19] The Court of Appeal has held that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom to the least possible amount.[20] The right to freedom of expression may also be limited by societal values which are not in BORA, such as the right to privacy and the right to reputation.

Hate speech is prohibited in New Zealand under the Human Rights Act 1993 under sections 61 and 131. These sections give effect to article 20 ICCPR. These sections and their predecessors have rarely been used.[21] They require the consent of the Attorney-General to prosecute. Incitement to racial disharmony has been a criminal offence since the enactment of the Race Relations Act 1971. Complaints about racial disharmony often concern statements made publicly about Maori-Pakeha relations and immigration, and comments made by politicians or other public figures regarding minority communities.[21]

Freedom of the media

Freedom of the media is also recognised as an important democratic principle. New Zealand is ranked eighth on the Press Freedom Index 2010 and there tends to be strong legal, public and media comment where this right is infringed.[22] Section 68 of the Evidence Act 2006 provides a qualified form of privilege for journalists who wish to protect the identity of their sources. The Court of Appeal has also laid down guidelines for the police when searching media premises for law enforcement reasons, so that their sources remain protected.[23]

The Courts may order that publication of information be withheld in whole or part, in the interests of justice. Often this is to protect the right to a fair trial, to protect the interests of the parties, or to uphold public confidence in the integrity of the justice system. It is not uncommon for New Zealand Courts to suppress names and evidence in civil and criminal proceedings so as to protect the right to a fair trial.[24]

"The law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not to be interfered with lightly and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial".[24]

The Broadcasting Act 1989 is a statute limiting the media’s right to freedom of expression. Broadcasters have a responsibility to maintain programme standards that are consistent with: the observation of good taste and decency, the maintenance of law and order, the privacy of the individual, the principle of balance when controversial issues of public importance are discussed, and approved code of broadcasting practice applying to programmes.[25] The Broadcasting Standards Authority is a Crown Entity that hears complaints from the public where codes of practice have been breached. Print news media are self-regulated through the Press Council.

Right to a fair trial

A fair trial in New Zealand has been defined as “a court hearing that is procedurally just to both parties”;[26] it is all encompassing for every citizen in New Zealand, and is pinnacle in the functionality of the justice system. The area this civil and criminal right has the most influence in is criminal procedures,[27] however it still holds great influence in other realms of New Zealand law, such as administration law (due to the use of the Rule of Law). This essential right has been in practice from the early beginnings of New Zealand due to the continuation of English Law during its colonisation,[28] and has continued to develop over the years with the international community.

Origin

Magna Carta

The Magna Carta (1215) is seen as one of the earlier instruments to clearly set out the rights to a fair trial to all free men. It is applicable to New Zealand law due to it being listed in the Imperial Laws Application Act 1988, which allows a handful of English Status to be legally binding.

The important clause is Clause 39:[29]

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

It was found to have paved the way for jury by trial, equality before the law, habeas corpus and arbitrary imprisonment; all rights that are within the shadow of the right to a fair trial.[30]

Rule of law

The rule of law, found in every democratic society including New Zealand,[31] is essentially the authority the law has on every citizen, regardless of their status. It has been defined as a doctrine that holds the law above all citizens in an equal manner, and even government officials are accountable to the ordinary courts of law.[32]

The rule of law is a source of the right to a fair trial, as the doctrine protects the process of the court and national equality when considering the application of the law.[33]

International covenants recognised by New Zealand

The International Covenant on Civil and Political Rights is the main international treaty which lays out the right to a fair trial. Article 14(1) says:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children"

New Zealand has also made a commitment to uphold the Universal Declaration of Human Rights (UDHR) and support the efforts of the Office of the United Nations High Commissioner for Human Rights (OHCHR), and has put in place the Human Rights Commission (Te Kahui Tangata) to ensure this.[34]

In regards to the right to a fair trial, article 10 of the UDHR states:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

New Zealand legislation

New Zealand Bill of Rights Act 1990

It is thought that New Zealand passed the Bill of Rights Act to fulfil its obligations to the International Convention of Civil and Political Rights (ICCPR), as a state party, section 25 of this Act essential replicates Article 14 of the ICCPR.[35]

"Section 25 Minimum of Criminal Procedure Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (a)the right to a fair and public hearing by an independent and impartial court: (b)the right to be tried without undue delay: (c)the right to be presumed innocent until proved guilty according to law: (d)the right not to be compelled to be a witness or to confess guilt: (e)the right to be present at the trial and to present a defence: (f)the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution: (g)the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty: (h)the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both: (i)the right, in the case of a child, to be dealt with in a manner that takes account of the child's age.”
Criminal Procedure Act 2011

Although the The Criminal Procedure Act 2011[36] does not initially set out the right to a fair trial, it can however be seen that the right to a fair trial is the key reason behind particular actions.

The following table lists some of the sections, where the right to a fair trial is essential for the courts to consider.

Section Contents The link to Fair Trial
s18 Court ordering further particulars. The court must be satisfied that it is necessary for a fair trial.
s197 The power to clear the court. For a court to be cleared the court must be satisfied that there is “a real risk of prejudice to a fair trial”.
s200 The suppression of the defendant’s identity. For suppression of the defendant’s identity to occur, the court must be satisfied that the publication of the name would “create a real risk of prejudice to a fair trial”.
s202 The suppression of the identities of any witnesses, victims, and connected persons. The court may only do this if the court is satisfied that the publication of the identity would be likely to “create a real risk of prejudice to a fair trial”.
s205 The suppression of evidence and submissions. Suppression may only occur when the court is satisfied that the publication would “create a real risk of prejudice to a fair trial”.
s232 Appeals Appeals must be accepted when there has been any miscarriage of justice, which may include a result that is seen as an unfair trial.

Right to a fair trial and the media

Aside from the limits of sections 4, 5 and 6 of the Bill of Rights, and New Zealand’s “unwritten” constitution, other rights may impede on the right to a fair trial where one right can overrule another. The best example is the relationship between freedom of speech and the right to a fair trial. These two rights are always conflicting, due to the nature of the media.

In New Zealand, there is a focus on finding a balance between the contrasting rights; courts focus on a balance between one person’s right and another’s.[37] Although there is nothing expressly stating a hierarchy of rights, the court does in fact have the ability to limit one right so as to uphold another.[38] In New Zealand there is full recognition of the importance of freedom of speech.[39] However, it has been seen in numerous occasions, court have upheld the right to a fair trial over the freedom of speech through media.

It has been said that in the event of a conflict, if all other things are equal between the two rights, the right to fair trial should prevail.[40] However it has been argued that greater tolerance should be given to freedom of speech when the issue involves something of “substantial public interest”.[41] Overall, the freedom of the press and of speech is not a right to be lightly interfered with, and when interference happens it must be seen as a justified limitation,[38] but also, if publication was to occur regarding the case, serious prejudice would arise.[42]

Freedom of religion

Freedom of religion is addressed specifically in the New Zealand Bill of Rights Act 1990, and the government has generally respected this in practice.[2]

Political rights

New Zealand is a parliamentary democracy, and as such acquires rights generally associated with such a system. Democratic rights include electoral rights, the right for citizens to take part (directly or indirectly) in government, and the right to equal access to the public service. There is an associated duty of responsible citizenship, or being willing to play one’s part in public affairs and to respect the rights and freedoms of others. These rights give the ability to participate in both public and political life when considered together.[43]

Constitution

Political and democratic rights are purported to be upheld by the ‘unwritten’ Constitution of New Zealand. One of the many sources that make up the constitution is the New Zealand Bill of Rights Act 1990. This legislation was the first aspect of the New Zealand constitution to specially refer to the International Covenant on Civil and Political Rights (ICCPR) with the rights contained within. Together with the New Zealand Human Rights Act 1993, these two statutes make up a basis for Human Rights protection in New Zealand. They were not incorporated directly into the legal system, however many of the rights within the ICCPR were replicated in the Bill of Rights Act 1990. These include electoral rights under section 12, and freedom of association under section 17.[44] The Human Rights Act 1993 also concerns non-discrimination based on political opinion under section 21.[45]

There has been concern expressed that due to the nature of the New Zealand constitution, and the lack of full integration into the legal system, rights under the ICCPR are not sufficiently protected.[46] The Bill of Rights Act 1990 is not entrenched legislation, and this means that it can effectively be overturned by a simple majority in Parliament. A counter to this concern is that rights do exist in the New Zealand constitution regardless; however it is the finding of them that is the difficult part.

Electoral rights

Electoral rights include the right to vote in Members of Parliament, and the right to run for the House of Representatives. This is done by way of a secret ballot, and there is universal suffrage, with voting rights given to both men and women of the age 18 and over who are New Zealand citizens or permanent residents.[46] Freedom of association allows people to join with other individuals into groups that express, promote, pursue and defend common interests collectively. The Electoral Act 1993 is also important because it is one of the few ‘constitutional’ documents to contain entrenched provisions. These maintain the rights to voting and the size of the electorates which represent 'the people'. In the New Zealand context, entrenching provisions is one of the most effective ways to protect rights, as there is no possibility of total protection due to the doctrine of Parliamentary Sovereignty. However entrenching provisions would appear to indicate intent to protect rights. Section 6 of the Bill of Rights Act provides for judicial interpretation in favour of right-protecting interests, which allows judges to interpret around provisions in other legislation that may appear to impede human rights.[46]

This in itself had opposition, with arguments that allowing such a provision to exist undermines the doctrine of Parliamentary Sovereignty and impinged on the political rights of citizens as it allowed un-elected and non-representative judges to interpret rights somewhat at their discretion.[46] The universality of rights under the Universal Declaration of Human Rights would then be threatened also under this critique, as those who could afford good lawyers would then be at a greater advantage. Whether this is true in practice has not been proven, however it was one of the biggest points of opposition to the Bill of Rights Act prior to its inception.[46]

New Zealand context

The ICCPR also contains statements on all peoples having a right to self-determination. Part of this right to self-determination is the right to determine political status freely. International human rights standards recognise that democratic and political rights require the protection of a range of other rights and freedoms, including the right to justice, freedom of expression, the right to peaceful assembly and freedom of association contained in the ICCPR. They must also be enjoyed without discrimination. This is stated in the ICCPR (as well as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Elimination of Racial Discrimination (CERD). Both CEDAW and CERD provide with specificity that the State should take steps to ensure the equal representation and participation of women, and of all ethnic and racial groups, in political processes and institutions (Article 7 of CEDAW and Article 5c of CERD).[43]

New Zealand portrays a system by which these political rights are maintained. Equal possibility for representation exists for any citizen, regardless of gender or race. In this respect, the democratic rights standard under the ICCPR (and other UN conventions) is fulfilled with women and minority groups being able to vote, and be elected to Parliament. For example, New Zealand has female Members of Parliament, as well as those in the Maori, Pacific Islander, Asian, homosexual and Muslim minorities. Maori political rights are further protected by giving Maori people the option to be on the General or Maori electoral roll, and by having reserved seats in the House of Representatives. This formula in turn projects the number of Maori electorates, General electorates and thus party list seats under the Mixed member proportional representation electoral system.

Citizens are also given a further ability to participate in the system and exercise some democratic rights by way of ‘citizen initiated referenda’(or citizen initiative). However these are not binding on Parliament and as such do not necessarily have a large degree of influence. It does however provide for assistance on public opinion for policy makers, and results can be taken into consideration when formulating Bills at various stages.[43] Political and democratic rights are also protected under the Treaty of Waitangi, one of New Zealand's founding documents and a source of law under the unwritten constitution. Article 1 of the Treaty infers the right to govern in New Zealand being the basis for the Westminster system of government. The rights of Maori to govern their own affairs where necessary is inferred by Article 2, and the extent to which all New Zealanders are proportionately represented in the institutions of the State, and which New Zealanders participate in political processes such as voting is covered by Article 3.[43]

Framework for political rights protection

Human rights and democracy are internationally recognised as interdependent and provide a framework for assessing the extent to which democratic rights are respected in law and practice.[47] According to this framework, there are two key democratic principles. The principle of popular control is the right to a controlling influence over public decisions and decision-makers. The principle of political equality is the right to be treated with equal respect and as of equal worth in the context of such decisions. Recognition of the above principles requires a framework for guaranteed citizens' rights, a system of representative and accountable political institutions subject to popular authorisation, and active channeling of popular opinion and engagement with government by the people.[47] Under this model, New Zealand recognises the political rights of its citizens in both law and practice. It does so by way of the Human Rights Commission, which provides a framework within the legal and political system; the ability to communicate and participate in the political system, and processes such as judicial review and complaints to the Office of the Ombudsman hold government and governmental departments accountable where necessary in order to maintain political rights.

Indigenous peoples

There are concerns regarding inequality between Māori and other ethnic groups, in terms of the disproportionate numbers of Māori people in the penitentiary system and on welfare support.[2] The UN Committee on the Elimination of Racial Discrimination highlighted issues regarding the government handling of Māori land claims, suggesting that amendments should be made to the Treaty of Waitangi and the New Zealand Bill of Rights Act 1990.[2]

Māori population on average run greater risks of many negative economic and social outcomes. Over 50% of Māori live in areas in the three highest deprivation deciles, compared with 24% of the rest of the population.[48] Although Māori make up only 14% of the population, they make up almost 50% of the prison population.[49] Other issues include higher unemployment-rates than the general population in New Zealand[50] There are also issues regarding health, including higher levels of alcohol and drug abuse, smoking and obesity. Less frequent use of healthcare services mean that late diagnosis and treatment intervention lead to higher levels of morbidity and mortality in many manageable conditions, such as cervical cancer[51] diabetes[52] per head of population than Pākehā (non-Māori)[53] Māori also have considerably lower life expectancies compared to non-Māori. In 2005-2007, at birth Māori male life expectancy was 70.4 years versus 79 years for non-Māori males (a difference of 8.6 years), while the life expectancy for Māori females was 75.1 years versus 83 years for non-Māori females (a difference of 7.9 years).[54]

Others have voiced concern for the area of 'linguistic human rights', due to the degree of prejudice against the use of Māori language.[55]

In 2010, Maori Affairs Minister Pita Sharples announced that the New Zealand Government would now support the Declaration on the Rights of Indigenous Peoples.[56]

Refugees

New Zealand was a signatory to the 1951 UN Convention Relating to the Status of Refugees and the 1967 protocol.[2] In 2009, the government proposed an immigration bill which had provisions for passenger screening. In addition, the bill would permit the withholding of reasons for the denial of entry, and would deny the applicant access to judicial review. Such developments caused concern that the bill could lead to the possibility for prolonged detention.[57]

Human Rights Commission

The primary watchdog for human rights in New Zealand is the Human Rights Commission. Its stated mission is to work "for a fair, safe and just society, where diversity is valued, human rights are respected, and everyone is able to live free from prejudice and unlawful discrimination."[58] The body is a member of Asia Pacific Forum of National Human Rights Institutions and of the International Coordinating Committee of national human rights institutions.

In 2010 the Commission conducted a publicly available review of human rights in New Zealand in order to both identify the areas in which New Zealand does well, and where it could do better to combat persistent social problems. The 'report card' is an update of the Commissions' first report in 2004, and will lead its work for the next five years.[59] The report notes steady improvements in New Zealand's human rights record since 2004, but also "the fragility of some of the gains and areas where there has been deterioration."[10] In the report, the Commission identifies thirty priority areas for action on human rights in New Zealand under a number of sections: general; civil and political rights; economic, social and cultural rights; and rights of specific groups.[10]

Limits on human rights in New Zealand

New Zealand Bill of Rights 1990

In part one of the Bill of Rights, under general provisions, there are clear warnings that any of the rights found in the Act are not supreme law and can fall to Acts inconsistent with any of the rights mentioned.

Section 4 states that were there is inconsistencies between Acts, the Bill of Rights will bow.[60] Section 5 states that all rights and freedoms are subject to reasonable limits prescribed by law in a democratic society.[61]

It is important to note that within the Act, there are still procedures in place to up hold all rights where possible. Section 6 of the Bill of Rights Act[62] allows the Court interpret all other enactment’s meanings to be consistent with all rights.[63] This section could perhaps be seen as an immediate remedy to any possible basic or unintentional inconsistencies with can take away an individual’s rights.

Section 7 of the Bill of Rights Act is also important for upholding human rights, as it creates the mechanism where the Attorney-General is obligated to report an inconsistencies to the Bill of Rights to parliament.[64] This is a paramount section as it keeps the legislator accountable to uphold New Zealanders’ individual rights, but it also mitigates any unintentional breaches on any rights.

New Zealand's unwritten constitution

New Zealand is seen as one of the few countries in the world which does not have a physical document which acts as the state’s constitution.[65] New Zealand’s unwritten constitution can be seen as a collective of many different acts, including the New Zealand Bill of Rights Act 1990. There are no entrenched Acts or Bills in New Zealand law, therefore the highest power is given to parliament. This therefore means that, if parliament has a majority vote, any piece of legislation can be overturned regardless of how much emphasis the court puts on it.

There has been criticism, over the years, in regards to this “unwritten constitution” and much encouragement from the international community to change this. The 2009 Universal Periodic Review[66] on New Zealand, through the Human Rights Council, is a good demonstration of this. In this review concerns were expressed that, due to constitution, not entrenched, there was no overarching protection for human rights.[67] Within the review multiple states[68] expressed their concerns over the lack of protection human rights had, due to the constitutional framework; all states were seen to highly recommend New Zealand taking steps towards constitutional entrenchment, and therefore protected human rights. Aside from these issues brought up, the international community collectively commended New Zealand's work in upholding human rights, such as the amount of ratifications completed and the work with the Maori peoples.

There has been small glimmers of movement towards an entrenched and written constitution in the past few years. The “Constitutional Conversation”[69] in 2013, a nation-wide forum, was a select panel which considered what should be done, whilst also taking into consideration the views of the public. Nothing as of yet has come out of this. There is an opinion that it is not a question about “if” but of “when” the change will happen, as New Zealand is continually developing in its own individual identity.

Notes

  1. ^ Unless otherwise indicated, the declarations and reservations were made upon ratification, accession or succession
  2. ^ The instrument of ratification also specifies that "such ratification shall extend to Tokelau only upon notification to the Secretary-General of the United Nations of such extension

References

  1. ^ "What are human rights?". The Human Rights Commission. Retrieved 11 August 2011. 
  2. ^ a b c d e f g 2009 U.S Dept of State Human Rights Report: New Zealand
  3. ^ a b "Māori and the Vote". Elections.org.nz. Retrieved 10 August 2011. 
  4. ^ Byrnes, A, Connors, JF & L Bik (1997). Advancing the Human Rights of Women: Using International Human Rights Standards in Domestic Litigation. Commonwealth Secretariat. p. 192.  
  5. ^ "Change in the 20th century - Maori and the vote". NZ History online. Retrieved 14 April 2008. 
  6. ^ a b "NZs National Universal Periodic Review (UPR) Report". Human Rights Commission. Retrieved 7 May 2008. 
  7. ^ a b Wong, Gilbert. "NZ makes clear stand for human rights at UN". Human Rights Commission. Retrieved 11 May 11, 2009. 
  8. ^ a b , UN Treaty Collection: New Zealand
  9. ^ "New Zealand drops Human Rights Council bid, steps aside for US". EarthTimes. Retrieved 31 Mar 2009. 
  10. ^ a b c Human Rights in New Zealand 2010, Human Rights Commission 
  11. ^ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis NZ Ltd, Wellington, 2005) at 305
  12. ^ http://www.state.gov/g/drl/rls/hrrpt/2004/41654.htm
  13. ^ R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at p125
  14. ^ A Bill of Rights for New Zealand: A White Paper (New Zealand Parliament House of Representatives) 1985. AJHR. 6 , p 79.
  15. ^ Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 para 15
  16. ^ http://www.hrc.co.nz/report/chapters/chapter08/expression01.html
  17. ^ Tipping J in Hosking v Runting [2005] 1 NZLR 1
  18. ^ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (LexisNexis NZ Ltd, Wellington, 2005) at 323
  19. ^ Police v Geiringer [1990-1992] 1 NZBORR 331
  20. ^ Moonen v Film and Literature Board of Review [2000] 2 NZLR 9
  21. ^ a b http://www.hrc.co.nz/report/chapters/chapter08/expression02.html#hat
  22. ^ http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/Human_Rights_Review_2010_Full.pdf
  23. ^ TVNZ Ltd v Attorney-General [1995] 2 NZLR 641
  24. ^ a b Television New Zealand Ltd v Solicitor-General [1989] 1 NZLR 1 (CA) at 3
  25. ^ http://www.hrc.co.nz/report/chapters/chapter08/expression04.html#med
  26. ^ Peter Spiller Butterworths New Zealand Dictionary (7th ed, LexisNexis, Wellington, 2011) at 113.
  27. ^ Seen through the large focus in the Criminal Procedure Act 2011, and the ICJ’s Trial Observation Manual of Criminal Proceedings (2009)
  28. ^ Imperial Laws Application Act 1988
  29. ^ The full text of the Magna Carta
  30. ^ Fair Trial from a UK perspective
  31. ^ Found through the use of it in legislation, such as the Supreme Court Act 2003, s3(2).
  32. ^ Peter Spiller Butterworths New Zealand Dictionary (7th ed, LexisNexis, Wellington, 2011) at 272.
  33. ^ BNZ v Savril Contractors Ltd [2005] 2 NZLR 475 (CA).
  34. ^ New Zealand History: Universal Declaration of Human Rights
  35. ^ Chris Gullivan “Reliability, Hearsay and the Right to a Fair Trial in New Zealand” in P Roberts and J Hunter (ed) Criminal Evidence and Human Rights (Hart Publishing Ltd, Oxford, 2012) at 327.
  36. ^ The Criminal Procedure Act 2011
  37. ^ Crown Law Office “Contempt and the Media: Constitutional Safeguard or State Censorship” (1 January 1998)
  38. ^ a b New Zealand Bill of Rights Act 1990, section 5.
  39. ^ Solicitor-General v Avon Ltd [1978] 1 NZLR 225, 230.
  40. ^ Solicitor-General v Wellington Newspaper Ltd [1995] 1 NZLR 45.
  41. ^ J F Borrows in “Freedom of the Press under the NZBORA” in Joseph: Essays on the Constitution (1995) 286 at 303.
  42. ^ Solicitor-General v TVNZ [1989] 1 NZLR (CA).
  43. ^ a b c d Human Rights Commission of New Zealand 'Human Rights in New Zealand today'
  44. ^ New Zealand Bill of Rights Act 1990
  45. ^ Human Rights Act 1993
  46. ^ a b c d e Elections New Zealand website 'Civil and political rights in New Zealand'
  47. ^ a b Beetham, D. (2002). Democracy and human rights: Contrast and convergence. Seminar on the Interdependence between Democracy and Human Rights, Conference papers. Geneva: Office of the High Commissioner for Human Rights
  48. ^ Maori Health Web Page: Socioeconomic Determinants of Health - Deprivation. Retrieved 12 June 2007.
  49. ^ "Over-representation of Maori in the criminal justice system". Department of Corrections. September 2007. p. 4. 
  50. ^ Department of Labour, NZ, Māori Labour Market Outlook
  51. ^ Raeburn, J & Rootman I (1998). People-centred Health Promotion. John Wiley and Sons. pp. 106–109. 
  52. ^ Diabetes in New Zealand - Models And Forecasts 1996 - 2011
  53. ^ "Cultural linkage: treating Maori with alcohol and drug problems in dedicated Maori treatment programs". Department of Psychological Medicine, Christchurch School of Medicine, New Zealand.  
  54. ^ "Social Report: 2010". Ministry of Social Development. Retrieved 12 August 2011. 
  55. ^ Skutnabb-Kangas, T, Phillipson, R & Rannut M (1995). Linguistic Human Rights: Overcoming Linguistic Discrimination. Walter de Gruyter. pp. 209–213. 
  56. ^ Tracy Watkins. "NZ does U-turn on rights charter". Stuff.co.nz. Retrieved 11 August 2011. 
  57. ^ "Human rights in New Zealand: Report 2009". Amnesty International. Retrieved 30 September 2010. 
  58. ^ "About the Human Rights Commission". Human Rights Commission. Retrieved 11 August 2011. 
  59. ^ "Human Rights in New Zealand 2010". Human Rights Commission. Retrieved 11 August 2011. 
  60. ^ New Zealand Bill of Rights Act 1990, s4.
  61. ^ New Zealand Bill of Rights Act 1990, s5.
  62. ^ New Zealand Bill of Rights Act 1990, s6
  63. ^ An example of the court using this section is R v Rangi [1993] 1 NZLR 385.
  64. ^ New Zealand Bill of Rights Act 1990, s7
  65. ^ PA Joseph Constitutional and Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007), at 134.
  66. ^ 2009 Universal Review Documentation
  67. ^ See the original documents for further information
  68. ^ Such as India, the Islamic Republic of Iran, Pakistan, Bangladesh and Turkey.
  69. ^ The Constitutional Conversation

External links

  • Freedom in the World 2006 Report: New Zealand
  • Amnesty International Report 2009: New Zealand
  • Human Rights in New Zealand 2010Human Rights Commission report
  • NZ Action Plan for Human Rights
  • Office of the High Commissioner of Human Rights: New Zealand
  • NZ Human Rights COmmission: International Covenant on Civil and Political Rights
  • Human Rights Commission: The New Zealand Bill of Rights
  • New Zealand Bill of Rights Legislation
  • Other Fair Trial Authority