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Conte, A. --- "From Treaty to Translation: The Use of International Human Rights Instruments in the Application and Enforcement of Civil and Political Rights in New Zealand" [2001] CanterLawRw 4; (2001) 8 Canterbury Law Review 54


Alex Conte[*]

I. Introduction

New Zealand is party to a great number of international treaties, through which it has assumed various obligations, not the least of all in the area of human rights. The broad aim of this article is to consider how such treaties are translated into effective rights and freedoms for the individual. Commencing with a discussion on the status of international human rights instruments in municipal law, particular consideration is then given to the manner in which the International Covenant on Civil and Political Rights has been implemented and given effect to in New Zealand.

II. International Human Rights Instruments in Context

In examining the translation of treaties into meaningful domestic rights, it is necessary to understand the nature and extent of the human rights treaty obligations in question, followed by discussion of the status of treaties in municipal law and what steps have been taken in New Zealand to incorporate such treaties.

Human rights treaty obligations assumed by New Zealand

Since the end of the second World War, there has been a proliferation of international human rights treaties, with New Zealand now party to a significant number of those instruments.[1] The atrocious events of that War directly and naturally led to the establishment of the United Nations. With its primary mandate to create a co-operative and responsible international community, the United Nations set about establishing a body of multilateral treaties aimed at protecting individuals and preventing a reoccurrence of the atrocities committed under the Nazi regime. Because of the way in which it set about doing this, a distinction has developed between the concepts of human rights law and humanitarian law: the dichotomy is essentially between the declaration and protection of individual rights, versus the imposition of duties upon individuals (largely imposed to prevent human rights abuses).

Certain rights, seen as inherent to being human and having human dignity, were set out in the Universal Declaration of Human Rights.[2] Various further, and more specific, international human rights treaties flowed from this document. New Zealand is party to what are regarded to be the six principal treaties stemming from the Universal Declaration.[3] The most significant of those, at least for the purpose of this article, is the International Covenant on Civil and Political Rights (the ICCPR). The ICCPR consists of 27 articles enunciating a wide range of civil and political rights, from the right to self-determination, to freedom of speech and association, to minimum guarantees for the conduct of criminal processes.

Although the articulation of those rights is significant in itself, it is not just this aspect that makes the ICCPR an important civil liberties document. The ICCPR is the instrument through which the United Nations Human Rights Committee (the HRC) was established.[4] The HRC has three functions, all linked to civil and political rights protection. The first of these is to receive and comment on periodic reports from states party to the ICCPR.[5] Next, the Committee is empowered to make general comments, of its own volition, on any matter touching on the rights set out in the ICCPR.[6] Finally, and significantly in terms of the enforcement of rights, the HRC carries out a quasi-judicial function under the First Optional Protocol to the ICCPR, which establishes a complaints procedure.[7] The Optional Protocol gives individuals within states which are party to the Protocol the right of petition to the Human Rights Committee in certain well-defined circumstances.[8]

Status of treaties under New Zealand domestic law

There are two principal sources of international law: customary international law (also known as custom) and treaties. Custom, as the title suggests, is created through consistent general conduct by the international community over a period of time, accompanied by an understanding that this is being carried out through obligation, rather than mere convenience.[9] Treaties can take various forms and have a number of different effects. For the present purpose, human rights treaties are established by way of multilateral agreements between states and are binding upon those states that have ratified or otherwise accessed to those instruments.

In general terms, once customary international law is created it automatically becomes part of the domestic law of a state, unless specifically protested to by that state. That is certainly the position in New Zealand.[10]

Treaties do not enjoy the same level of application. To be part of the domestic law of a nation, a treaty must be expressly incorporated.[11]

In New Zealand Air Line Pilots' Association Incorporated v Attorney- General,[12] the Court was faced with the question of whether the police were precluded from exercising a search warrant to recover the black boxes of an Ansett aircraft in Palmerston North, which had crashed with the loss of life. The relevant provisions of the Chicago Convention and its annexes seemed to preclude recovery of the black boxes for purposes other than accident investigation, but the Court of Appeal held that the Convention and its annexes had not been fully implemented in New Zealand law by legislation and that, as a consequence, these exceptions were not binding.[13]

In coming to the latter conclusion, the Court of Appeal relied on the Privy Council decision in Attorney-General for Canada v Attorney-General for Ontario,[14] where Lord Atkin drew a distinction between the formation of a treaty on the one hand and the performance of the obligations on the other. He pointed out that in the British Empire, the formation of a treaty was a matter for the executive, while performance of the treaty lay within the purview of the legislature (by enactment of the responsibilities undertaken through the treaty). Lord Atkin observed that "unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law."[15]

A similar position had already been adopted in New Zealand in connection with the Treaty of Waitangi. Chief Justice Myers, in Te Heuheu Tukino v Aotea District Maori Land Board[16] concluded that "a treaty only becomes enforceable as part of the municipal law if and when it is made so by legislative authority". Furthermore, in Ashby v Minister of Immigration[17] Cooke J, as he then was, in referring to the Convention on the Elimination of All Forms of Racial Discrimination refused to accept that the treaty obligations created through the Convention were binding in domestic law since the Convention had not been incorporated into New Zealand law by any Act of Parliament.

Against the background of those decisions, the position at law is quite clear. But this approach has its critics. In an article referring to the 1981 Springbok Tour, Jerome Elkind and Anthony Shaw criticised this traditional rule on the need to incorporate treaties.[18] They argued that a distinction should be drawn between treaties that impose obligations upon the state to act in a particular way in relation to individuals, and treaties which purport to affect private rights between individuals alone. In the latter case, they posit, incorporation should be required to give the treaty effect, but not so where the treaty imposes obligations upon the state vis a vis its citizens. Application of that approach would see the Courts being able to give effect to treaties without the need for legislative implementation in cases where the treaty was concerned with the relationship between the individual and the state.

While that might be an attractive argument, especially for proponents of civil liberties, it contains a number of policy problems. Would the argument apply to duties imposed on individuals as well as rights? And, as a result, could an individual complain if a duty were imposed upon him or her by treaty without legislative sanction (remembering the rule of law doctrine that one should not be punished except where in breach of the law)? From a wider perspective, should the Crown enjoy a de facto legislative power? It does to some extent already, since it can enter into agreements that indirectly affect individuals.[19] However, the consequence of Elkind and Shaw's argument would go further than indirect impact: if, adopting their approach, the Minister of Foreign Affairs signed and ratified a treaty, the treaty would have the same standing in our domestic system as if the contents of the treaty had passed through Parliament and been given Royal Assent. This goes against the notion of Parliamentary sovereignty which, in the author's submission, is given effect to with considerable rigidity in New Zealand.

To an extent, this short-coming has been rectified by procedures adopted in 1998 following a critical report by the New Zealand Law Commission.[20] In its report, entitled "The Treaty Making Process", the Commission complained that the conclusion of treaties lacked adequate democratic oversight and called for greater legislative scrutiny.[21] It made several recommendations which have lead to the adoption of a procedure by which, at the very least, multilateral and significant bilateral treaties must be considered by Cabinet and, ideally and in the absence of urgency, such treaties are tabled before Parliament with an accompanying "National Interest Analysis" by the Foreign Affairs, Defence and Trade Committee.[22] It remains, however, that Cabinet can by-pass Parliamentary involvement if it calls for urgency and/or determines that the treaty need not be implemented by legislation.[23]

On balance, notwithstanding the latter points, the writer would suggest that it is unlikely that the traditional rule requiring incorporation will weaken. In summary, treaties are not law of the land unless incorporated by statute.

Legislative implementation of human rights treaties in New Zealand

The latter conclusion begs the question: given the number of international human rights treaty obligations adopted by the New Zealand Executive, which of those have been incorporated by statute and to what extent, therefore, are our international obligations reflected in domestic law? The question is important in order to determine what rights and freedoms are guaranteed, albeit that some may already find support through the common law.[24] For the purpose of this article, I will focus on the implementation of civil and political rights.

When one talks of implementation, this can mean a number of things. It can mean that a treaty has been implemented in its entirety by a statute. This might be done by translating the terms of the treaty into domestic law or by annexing it to an Act of Parliament. The former can sometimes lead to imperfect implementation if there is a divergence between the text of the treaty and the text of the Act. Implementation is also achieved if, to all intents and purposes, the rules established by the treaty are already given effect to by existing law.[25] Alternatively, it might require modification of existing law.[26]

There have been a number of statutes purporting to give effect to New Zealand's international human rights obligations. The two major enactments are the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human Rights Act 1993 (HRA).[27] Through its preamble, the NZBORA declares itself as:

An Act - (a) To affirm, protect and promote human rights and fundamental freedoms in New Zealand; and (b) To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights.

Similarly, the Human Rights Act provides in its long title that it is:

An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with the United Nations Covenants or Conventions on Human Rights.

III. The New Zealand Bill of Rights Act

As evidenced from the foregoing, the New Zealand Bill of Rights Act is the primary domestic instrument through which New Zealand has incorporated its obligations under the ICCPR and has expressed a commitment to those obligations. what follows is an examination of the manner in which the Act can be and has been interpreted by the Courts, with particular focus on the element of commitment to international obligations.

Preliminary points about the NZBORA

Any reading of the Bill of Rights Act brings out the special characteristics of this piece of legislation. It has already been noted that the enunciation of rights within the Act is declaratory in nature and that, through its preamble, the Act stands as a reflection of international human rights norms.[28] Two further characteristics should be mentioned.

First, the statement of rights in Part II of the Act (entitled "Civil and Political Rights") is in broad and simple language. No doubt this was intended to emphasise the importance Parliament attaches to the clear expression of civil liberties. Following Minister of Home Affairs v Fisher[29] (discussed in more detail below), this calls for a generous interpretation designed to give individuals the full measure of the fundamental rights and freedoms referred to.

Secondly, the Act expressly recognises that there can be limitations on the absoluteness and generality of the rights and freedoms affirmed within the Act. Through s5 of the NZBORA, limitations on civil and political rights are acceptable if they can be demonstrably justified in a free and democratic society. This reflects the fundamental consideration that individual freedoms are necessarily limited by membership of society and by duties to other individuals and to the community.[30]

Basic approaches to statutory interpretation

The basic and well known proposition is that if the terms of a statute are clear and unambiguous, they must be applied by the Courts.[31] While that is a clear enough principle, the question one might raise in the context of this article is this: what if that interpretation would mean that the law is applied in breach of some international legal obligation assumed by New Zealand?

The Courts' answer has been that, notwithstanding the resultant breach of international obligations, there will be no derogation from the doctrine of interpretation enunciated above. In Ashby v Minister of Immigration,[32] Richardson J plainly stated that if the terms of the domestic legislation are clear and unambiguous, they must be given effect to by the Courts whether or not those terms carry out New Zealand's international obligations. Adopting the same approach, this must also be the case even if the statute in question has been passed specifically to give effect to New Zealand's international obligations, particularly if Parliament has chosen to under- incorporate an international obligation.[33] For example, the Court in R v Barlow[34] noted that, while the ICCPR contains a general affirmation of the right to liberty and security of the person, this is not the case within the NZBORA. Richardson J regarded this departure as a deliberate decision on the part of the legislature and declined to extend the meaning of the Bill of Rights.[35]

Having said this, it is clear that (where possible) the Courts will attempt to reconcile the meaning of a statute so as to give effect to New Zealand's treaty obligations. This stems from the basic constitutional presumption that Parliament does not intend to legislate in a manner contrary to its international legal obligations.[36]

The point is illustrated through the various matters raised in the case of Van Gorkom v Attorney-General and Anor? [37] The case concerned the laying down of regulations governing removal expenses for teachers. Under those regulations, women were paid at a lower rate than men and Van Gorkom sought review of the regulations. Although they were found to be invalid on the grounds that there was nothing in the enabling Act permitting discrimination between the sexes, [38] President Cooke observed that:

...reference to certain international documents, though not essential, is not out of place. The Universal Declaration of Human Rights, adopted and promulgated in 1948 by the General Assembly of the United Nations as a common standard of achievement, includes in articles 2 and 23(2) statements that everyone is entitled to all the rights set forth in the Declaration, without distinction of any kind, such as (among other things) sex, and that everyone, without any discrimination, has the right to equal pay for equal work.

Cooke P then went on to make reference to article 10(1)(b) of the Declaration on the Elimination of Discrimination against Women, which speaks of the right of women to equal remuneration with men and to equality of treatment in respect of work of equal value. While these very general statements within the Declaration were not directed specifically to the narrow question of removal expenses, nor are they part of our domestic law, they do represent goals towards which members of the United Nations are expected to work.[39]

However, in relation to certain social rights set out in the Universal Declaration of Human Rights, there is an opinion expressed in Halsbury's Laws of England suggesting that the right in the Universal Declaration can be regarded as representing a legislative policy which might influence the Courts in the interpretation of statute law.[40] This view was cited with approval by the Court of Appeal in Van Gorkom,[41] making the decision significant indeed. One must bear in mind, however, that the decision made by the Court of Appeal was that the provision in question within regulations was ultra vires. Approval of the commentary in Halsbury's Laws of England is obiter only.

Departure from strict canons of statutory interpretation

Notwithstanding the obiter nature of remarks in Van Gorkom, the following discussion tends to illustrate an implicit acceptance of Halsbury's opinion on legislative intent. In interpreting the NZBORA, [42] the Courts have shown a general willingness to depart from the normally strict canons of statutory interpretation.

New Zealand Courts have followed the lead of Lord Wilberforce in Minister of Home Affairs v Fisher.[43] This case involved the human rights provisions of the Bermudan Constitution which had been influenced by the European Convention on Human Rights and the Universal Declaration on Human Rights. Lord Wilberforce stated that the matter called for:[44]

...a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give individuals the full measure of the fundamental rights and freedoms referred to.

This more generous approach to interpretation was later endorsed by President Cooke, who suggested that Lord Wilberforce's statement was destined for judicial immortality: see Ministry of Transport v Noort.[45] Noort was detained for driving while drunk and complained he had not been granted access to a lawyer (as required by s23(1)(b) of the NZBORA). Cooke P said:[46]

.the Bill of Rights Act is on the statute book and it is the duty of the Courts, as laid down by s 5(j) of the Acts Interpretation Act 1924, to give it such fair, large, and liberal construction and interpretation as will best ensure the attainment of its object according to its true intent, meaning, and spirit.

In so doing the President of the Court of Appeal, drawing from the long title to the Bill of Rights, made three significant observations:[47]

(i) In affirming the rights and freedoms contained in the Bill of Rights, the Act requires development of the law where necessary;
(ii) Interpretation and application of the Act should not to be approached as if it did no more than preserve the status quo; and
(iii) Internationally, there is now general recognition that some human rights are fundamental and anterior to any municipal law, although municipal law may fall short of giving effect to them.[48]

A similar approach was taken by Justice Richardson, who also made three points regarding the nature of the Act and principles of interpretation to be applied as a consequence:

(i) The terms "affirm", "protect" and "promote" (contained in the preamble) are all words expressive of a positive commitment to human rights and fundamental freedoms. It is in that spirit that interpretation questions are to be resolved;
(ii) The deliberate reference to "affirm" in the long title and in s2 makes the very important point that the Act is declaratory of existing rights. It does not create new human rights. As basic human rights, the rights and freedoms referred to do not derive from the 1990 Act. That philosophical underpinning has to be taken into account when construing and applying the Bill of Rights Act provisions; and
(iii) Paragraph (b) of the long title affirms New Zealand's commitment to internationally accepted human rights standards through the ICCPR. As recognised in the preamble to the latter document, human rights "derive from the inherent dignity of the human person" and states party to the Covenant are obliged to promote universal respect for, and observance of, human rights and freedoms.

What is evident throughout both judgments is the significant weight placed on the "originating" document, the International Covenant on Civil and Political Rights.

IV. Use of the International Covenant to Interpret the Meaning of Substantive Rights

The willingness of the New Zealand Courts to use the ICCPR for this purpose is evident through the discussion above. I will not focus on that in detail, other than to give an example of where the Covenant has been used to determine the substance of a right.

The case of R v Bain, application by Television New Zealand[49] provides a good illustration. During the Bain murder trial the issue of the admissibility of hearsay evidence arose, concerning evidence of a witness for the defence. The trial judge, Williamson J, considered that the risks of admitting the hearsay evidence in question were not outweighed by its utility and this view was later confirmed by the Court of Appeal. A prohibition was made against the reporting of material relating to the hearsay evidence and the witness. Following final completion of the judicial process (refusal by the Privy Council to allow an appeal), Television New Zealand applied for a lifting of the suppression order.

This raised issues concerning the openness of the justice system and freedom of expression. In examining these rights, Keith J noted that the guarantee of the "openness of the justice system" was mandated by s25(a) of NZBORA and its sibling provision, article 14(1) of the ICCPR.[50] His Honour noted that both these provisions were subject to limitations in the public interest. The question of freedom of expression was analysed in the same way, by examining s14 of NZBORA and the equivalent provision in ICCPR, article 19(3).

Applying these principles to the case, the Court of Appeal found that it was in the public interest and in accord with freedom of expression for the suppression order to be lifted following conclusion of the criminal trial process.

Sir Kenneth Keith later referred to this decision in a public paper:[51]

In this case the provisions of the Bill of Rights, the Covenant and indeed basic common law principles were aligned.

V. Application of the ICCPR to Provide Remedies

The Courts' view that a generous approach should be adopted to the interpretation and application of the NZBORA is clearly evident through the provision of remedies under the Act. A brief account of the early history of the Act is useful. In its White Paper form, the Bill of Rights was to contain a remedies clause (providing for "such remedy as the Court considers appropriate and just in the circumstances").[52] Amendment of the Bill during its passage through Parliament saw this remedies provision removed. The resulting Act had no mention of remedies.[53] Notwithstanding this, remedies have been granted by the Courts where breaches of the rights and freedoms contained in the NZBORA have occurred.

Three broad categories of remedial action can be seen: exclusion of evidence obtained in breach of the NZBORA; civil damages; and the controversial, and as yet unused, remedy of declarations of inconsistency or incompatibility. This article focuses on the latter two forms of damages since exclusionary rules of evidence based on illegal or improper prosecutorial conduct have been extant for some time prior to the NZBORA.

In doing so, however, an important question must be addressed. Given the absence, and indeed the specific removal, of a remedies clause from the Bill, how can this approach be justified? Although not always expressly stated within judgments of the Courts, the approach finds justification through two principles. Firstly through the well established Latin maxim, "where there is a right there is also a remedy."[54] Secondly, and this will be the focus of the following discussion, through the fact that the NZBORA is an Act which implements the international Covenant on Civil and Political Rights.

Some preliminary points should be noted. As opposed to the NZBORA, the Covenant does provide for remedies. Article 2(3) of the ICCPR requires member states to provide "effective remedies" to those whose civil and political rights are violated. As already noted, the Bill of Rights Act, through its preamble, affirms New Zealand's commitment to the ICCPR and can be regarded as the domestic instrument through which the ICCPR is incorporated into New Zealand law. However, as opposed to the Bain case discussed above (to which Sir Kenneth Keith referred to as illustrating an alignment of principles), here there is a lack of congruence between the treaty and the statute which purports to implement it. Whereas the ICCPR does provide for remedies, the NZBORA does not.

Civil damages

Whereas exclusionary rules find roots in the common law existing prior to the Bill of Rights, the idea of damages for breaches of civil liberties is one developed under the Act and in reliance on the Covenant. Two cases, both which involved essentially the same issues, are of relevance: Simpson v Attorney-General (Baigent's Case)[55] and Auckland Unemployed Workers' Rights Centre Inc v Attorney-General.[56]

In Baigent's Case, Mrs Baigent's property had been mistakenly identified as the premises of a drug dealer. The police insisted on executing the search warrant even when they knew, or at least ought reasonably to have known, that they were in error. Indeed, Mrs Baigent claimed that the police had persisted with the search unreasonably, in bad faith and maliciously. She made claims against the Crown alleging negligence in applying for a search warrant for the premises; trespass to land; misfeasance in public office; trespass to goods; and damages for breach of s21 of the NZBORA. Section 2l guarantees a person's right to be secure against unreasonable search and seizure.

In the Auckland Unemployed Workers' case, the plaintiffs had leased premises which were searched by police relying on an illegal search warrant. They similarly brought proceedings alleging malicious abuse of process (in applying for the search warrant); trespass to land; and damages for breach of s21 of the NZBORA.

In response to both claims, the Crown claimed that the police were immune from suit, relying on s 6(5) of the Crown Proceedings Act 1950. This found favour with the High Court, but the New Zealand Court of Appeal allowed the appeals. It held that the Crown could not rely on s6 of the Crown Proceedings Act if the police were not acting in good faith.[57] Of particular relevance, however, is the fact that the Court of Appeal held that a cause of action lay against the Crown directly for breach of the NZBORA and that this was not affected by any of the statutory immunities set out in the Crown Proceedings Act.[58]

In doing so, the majority of the Court rejected the Crown's argument that the absence of any remedies clause from the NZBORA meant that Parliament intended to exclude a right to monetary compensation in the case of violation. In part, they looked at the way in which the New Zealand Courts had fashioned exclusion remedies in cases like R v Goodwin[59] and R v Goodwin (No 2).[60] In particular, however, the Court of Appeal examined New Zealand's international obligations under the ICCPR.

Of particular relevance was article 2(3) of the International Covenant, which provides:

3. Each State Party to the present Covenant undertakes:
To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
To ensure that the competent authorities shall enforce such remedies when granted.

Given the long title to the NZBORA, which expressly refers to New Zealand's commitment to the ICCPR, the Court of Appeal considered that the Courts were under an obligation to provide an effective remedy for breach of the Act, following the specific wording of article 2(3)(a). In the words of Cooke P:[61]

Section 3 of the New Zealand Act makes it clear that the Act binds the Crown in respect of functions of the executive government and its agencies. It "otherwise specially provides" within the meaning of s5(k) of the Acts Interpretation Act 1924. Section 3 also makes it clear that the Bill of Rights applies to acts done by the Courts. The Act is binding on us, and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed. In a case such as the present the only effective remedy is compensation. A mere declaration would be toothless. In other cases a mandatory remedy such as an injunction or an order for return of property might be appropriate: compare Magana v Zaire (1983) 2 Selected Decisions of the Human Rights Committee (under the Optional Protocol) (Communication No 90/1981) 124, 126.

When looking at the extent to which international human rights treaties can impact on the interpretation of domestic law (and, in particular, of the domestic instrument through which a treaty is incorporated), these cases are of considerable significance. As Dr Rodney Harrison observes:[62]

The theme running through the majority judgments, therefore, stresses the role of the Bill of Rights as a means of compliance on the part of this country with its obligations under ... the [ICCPR]. The ability of the Courts to grant appropriate and effective remedies where rights have been infringed is seen as both inherent in a legislative affirmation of specific human rights, and practically necessary (and intended) as a means of ensuring that New Zealand complies with its obligations under the International Covenant as to provision of adequate domestic remedies.

As noted in the Government's recent report to the UN Human Rights Committee, claims for compensation under the Bill of Rights have been subsequently considered by the Courts. Compensation was awarded in Upton v Green (No 2) [63] for breach of the right to natural justice by a Judge; and in Dunlea v Attorney-General[64] for unreasonable searches and arbitrary detention.

Baigent's Case prompted consideration of whether legislative reform was necessary to govern remedies under the NZBORA. Within the context of a broader report on Crown liability, the New Zealand Law Commission issued a study endorsing the approach taken by the Court of Appeal in Baigent's Case and concluding that no legislative intervention was necessary.[65]

Declarations of inconsistency/incompatibility

Dr Harrison's observation is even more valid when one considers the development of the next remedy: the declaration of incompatibility, alternatively known as the declaration of inconsistency. Identification of declarations as a form of remedy under the NZBORA is discussed below, together with the emphasis on the Human Rights Committee in doing so. Of note is the fact that, although this "remedy", if one can call it that, has not yet been used by the Courts, it has nevertheless been accepted by the New Zealand Executive as a remedy at law.

Moonen v Film and Literature Board of Review[66]

Now well known to practitioners in civil liberties, the Court of Appeal decision in Moonen was significant for many reasons. It is the first unanimous decision of a full bench Court of Appeal setting out in clear terms how the operative provisions of the New Zealand Bill of Rights Act are to be applied. It clarified the manner in which ss 4, 5 and 6 of the Act (which have been described as the "unholy trinity"[67] ) were to be applied.[68] Of more importance for present purposes is the fact that this method of applying the Act allows the Court to make declarations of inconsistency. The judgment instructs that a declaration is to be made where there is a provision in an enactment which: first, conflicts with the NZBORA; secondly, cannot be interpreted consistently with the NZBORA (involving application of s6); thirdly, cannot be justified as a reasonable limit in a free and democratic society (involving application of s5); and finally must therefore take precedence over the right contained in the NZBORA (by virtue of s4).[69] In such a situation, the Court said that there are two consequences. Primarily, the inconsistent provision within the enactment takes precedence and must be accorded full effect. In addition, however, the Court is to issue a declaration advising that, although the enactment must be given effect, it is inconsistent with the right(s) or freedom(s) contained in the NZBORA.

Is this a "remedy"?

According to the Executive branch, yes, it is. In its report to the United Nations Human Rights Committee (constituted under the ICCPR), the Ministry of Foreign Affairs and Trade identified the "Declaration of Incompatibility" as a remedy available under the Bill of Rights Act.[70] Technically, categorisation of the Declaration as a remedy under the Act is correct. Declarations, albeit that they are not binding on the Crown, are a form of remedy at law.

Perhaps the more controversial issues are whether the Declaration is a permissible remedy and, if so, whether it is an "effective" one - as mandated by article 2(3) of the ICCPR. These are contentious and complex questions. To answer them within the broader context of this article would be unreasonable, and is not attempted. [71]

What are the implications of the Declaration?

As mentioned above, in the context of civil damages under the Bill of Rights, Cooke P in Baigent's Caes observed that an award of civil damages was the only effective remedy open to the Court, since "a mere declaration would be toothless".[72] In part, given that declarations are not binding on the Crown, the former President was correct. So, what is the point? Why issue a declaration that will have no binding effect? And if this is a toothless remedy, why tax the Court with what is likely to be a detailed and sometimes difficult examination of s5?

In delivering his judgment, following an explanation of how the operative provisions are to be applied, Tipping J addressed these questions. He expressly recognised that it might be considered to be academic to consider the potentially difficult and detailed process involved under s5 of the Act (justified limitations in a free and democratic society) if the Courts are ultimately bound to apply the enactment (due to s4). He pointed out, however, that when s4 was inserted into the Act, thereby removing the power of the Courts to declare legislation invalid, s5 was nevertheless retained. As such, it should be regarded as serving some useful purpose:[73]

That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum. In the light of the presence of s5 in the Bill of Rights, New Zealand society as a whole can rightly expect that on appropriate occasions the Courts will indicate whether a particular legislative provision is or is not justified there under.

Justice Tipping recognised that declarations, while not binding, generally bring considerable pressure on Parliament and/or the Crown to address the issue in question. Declarations certainly bring an issue within the public domain and thereby have the potential to create domestic public and political pressure in the event that the issue is regarded as being a violation of concern. Most significantly, in the context of the ICCPR, such declarations could clearly stand as the basis upon which an individual complaint could be made to the Human Rights Committee under the First Optional Protocol to the ICCPR. That is clearly what was envisaged by His Honour when making reference to the Committee in the above quotation.

The implications of the Declaration are therefore weighty and bear considerable worth in the context of New Zealand's performance of international obligations under the ICCPR.

Judicial retraction?

While the implications of the Declaration are weighty, the Courts have not issued a declaration of incompatibility to date - despite what might be described as the perfect test cases for such action. There may be reason to suspect that the Courts have shied away from the idea.

The case of R v Poumako involved consideration of an amendment to s80 of the Criminal Justice Act 1985, which increased the minimum non- parole period for home invasion offending.[74] The increase in penalty was, in itself, inoffensive. What the Court was concerned with was the fact that this increase in the minimum non-parole period was expressed to be retrospective: as applying to offences committed on or before that amendment to the Criminal Justice Act. Poumako had committed murder, with the aggravating feature that the killing occurred during a home invasion. He did this prior to the amendment of the Criminal Justice Act and, therefore, while the minimum non-parole period for such offenders was 10 years. He pleaded guilty to the charge and was sentenced to the mandatory term of life imprisonment. Between the time of his offending and sentencing, the CJA was amended to increase the minimum non-parole period to 13 years. Pursuant to that amendment, the sentencing Judge ordered Poumako to serve a minimum non-parole period of 13 years imprisonment.

Not surprisingly, Poumako appealed the sentence, relying on s25(g) of the NZBORA, which affirms the right of an accused to incur no greater penalty than existed when the offence was committed. There was a clear inconsistency between the Criminal Justice Act amendment (providing for retrospective effect) and s25(g) of the Bill of Rights. In a dissenting decision, Thomas J took the same approach as that of the Court of Appeal in Moonen and indicated that he was prepared to issue a declaration of inconsistency. Unfortunately, the rest of the Court avoided the issue by saying that it was not necessary to consider the NZBORA because, in the particular circumstances of Poumako's offending, a minimum non-parole period of 13 years was appropriate.

The case of R v Teina Pora[75] is also significant. At first glance, the Court of Appeal took a similarly evasive approach in this case. In fact, the Court entirely side-stepped the NZBORA. Despite the fact that s80 of the Criminal Justice Act states itself to be applicable to offences committed before the amendment of that Act, the Court concluded that s80 is not in fact retrospective.

In what must be seen as a shift in the application of general principles of statutory interpretation, the Court referred to and placed considerable emphasis on s4 of the Criminal Justice Act (a general interpretive provision) which states that penal enactments are not to have retrospective effect to the disadvantage of an offender. The normal position would be that, since s80 is specific (referring to sentencing on convictions for home invasion) and s4 is general (referring to penalties in general), then the more specific provision should take precedence. But the Court took the opposite position and justified this by stating that:[76]

Section 4 [of the Criminal Justice Act] was first enacted ... in deliberate fulfilment by Parliament of the obligations undertaken by New Zealand under Article 15(1) of the International Covenant on Civil and Political Rights [prohibition of retrospective penalties].

Largely for that reason, the Court concluded that, although s80 might be considered as being more specific, it should not prevail over s4 on the basis that s80 did not express itself to be a provision to be applied "notwithstanding s4". By doing so, the Court effectively gave priority to article 15(1) of the ICCPR, which prohibits retrospective penalties. This time the Court used the international human rights treaty to interpret the Criminal Justice Act, not the Bill of Rights Act.

In summary, on the question of whether the Court has retrenched from the position in Moonen, the answer is unclear. Certainly, one might have expected that the facts in R v Poumako would be entirely within the ambit of the scenario envisaged by Moonen as requiring a declaration to be made. Yet, the majority of the Court chose to avoid the issue. Likewise, the facts in R v Teina Pora would appear to invoke the need to consider declarations, but did not result in such reflection.

Nevertheless, Teina Pora is certainly consistent with the broad approach to statutory interpretation discussed above: where the normally strict canons have been set aside in favour of an approach that is consistent with and gives effect to the "parent" treaty (by reading down s80 of the Criminal Justice Act in order to give priority to article 15(1) of the ICCPR).

VI. Conclusion

The process of transformation from treaty to effective rights at domestic law should be an easy enough task, but is in practice a complicated one. unlike customary international law, treaties must be incorporated before they can be relied upon by individuals to claim the benefit of the state's accession to the treaty in question. While that rule is strict, again it appears to be simple enough. However, the Courts are bound by the words of the legislation through which implementation has been effected, even if those words are inconsistent with the treaty in question or if there is an omission of treaty provisions within the enactment. That is the case for legislative provisions that are clear and unambiguous.

The position is different in the situation where the Court is considering civil and political rights and where the wording of the legislation is not quite so clear. Here, the Courts adopt a generous approach to interpretation, with the aim of giving effect to a broad legislative intent on the part of members of the United Nations that have adopted the Universal Declaration of Human Rights: an intent not to legislate inconsistently with the Declaration, which contains the founding principles of humanitarian rights, many of which have been subsequently enunciated through the International Covenant on Civil and Political Rights. This approach can be seen through the manner in which the Courts have examined the meaning of substantive rights within the New Zealand Bill of Rights Act 1990. In particular, this method is evident through the development of remedies under the latter Act, especially civil damages and declarations of inconsistency.

Whether this movement is coming to an end is yet to be seen. However, while recent decisions of the Court of Appeal might signal a retraction from the availability of a remedy of declarations of inconsistency, the Court has not gone as far as saying that such remedies will not be considered in the future. Certainly, the Executive Branch is representing to the international community that such a remedy is one that is available to New Zealanders under the Bill of Rights Act. It is the author's view that the hurdles of the last twelve months will not, and certainly should not, prevent continued progress in the strengthening of the Act.

While challenging, the last decade has shown that the process from treaty to translation is one in which the judiciary take a generous and almost proactive interpretative role in the context of civil and political rights.

[*] Barrister and Lecturer in Law, University of Canterbury

[1] Approximately 970 multilateral treaties and 717 bilateral treaties bind New Zealand. See Sir G Palmer, "Human Rights and the New Zealand Government's Treaty Obligations" (1999) 29 VUWLR 57 at 58.

[2] Adopted by the United Nations in 1948 and ratified by New Zealand the same year. New Zealand played a significant role in the drafting of the Universal Declaration of Human Rights.

[3] Those being the Convention on the Elimination of All Forms of Racial Discrimination 1965 ("CERD") (ratified by New Zealand in 1975), the International Covenant on Civil and Political Rights 1966 ("ICCPR") (ratified in 1978), the International Covenant on Economic, Social and Cultural Rights 1966 ("ICESCR") (ratified in 1978), the Convention on the Elimination of All Forms of Discrimination Against Women 1979 ("CEDAW") (ratified in 1984), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") 1984 (ratified in 1989).

[4] The Human Rights Committee was established under article 28(1) of the ICCPR.

[5] See article 40(1) of the ICCPR. States party are required to submit reports to the Human Rights Committee every five years, detailing the measures adopted to give effect to the rights recognised in the ICCPR and on the progress made in the enjoyment of those rights.

[6] General Comments by the HRC are authorised by article 40(4) of the ICCPR. On reading that provision, it might appear that comments are limited to responses to specific periodic reports submitted by states party to the ICCPR. The HRC has adopted the practice, however, of making its comments open to all states party and in more general terms, with the aim of assisting states with the interpretation and implementation of the Covenant. To view General Comments of the Committee, see <>.

[7] The First Optional Protocol to the ICCPR was adopted in 1966 and ratified by New Zealand in 1989.

[8] For a comprehensive explanation of the communication procedure, see PR Ghandi, The Human Rights Committee and the Right of Individual Communication (England, Ashgate Dartmouth Publishing Ltd , 1998).

[9] MN Shaw, International Law, (England, Grotius, 1997), p 60.

[10] U Bottermann, "Customary International Law in National Courts" (University of Otago, Submission for LLM, 2000), p 118.

[11] By way of an explanatory note, this is linked to the fact that treaties are entered into by executive conduct, often without any significant or effective level of scrutiny by the legislature (although many states' constitutions require legislative approval prior to ratification of a treaty, as is the case in the United States). Adopting the principle of Parliamentary sovereignty, the judiciary sees it as objectionable to allow treaties to become part of domestic law without prior legislative approval, since this would effectively allow the executive branch to legislate by adopting international obligations. See cases discussed in this section of the article.

[12] [1997] 3 NZLR 269.

[13] Chicago Convention on International Civil Aviation 1944. Note that, as a result, New Zealand was not in breach of its obligations under the Convention, because the Chicago Convention appeared to allow selective implementation of the treaty.

[14] [1937] AC 326.

[15] Ibid at 347-8.

[16] [1939] NZLR 107 at 120.

[17] [1981] 1 NZLR 222 at 224.

[18] J Elkind and A Shaw, "The Municipal Enforcement of the Prohibition against Racial Discrimination: A Case Study on New Zealand and the 1981 Springbok Tour" (1984) 55 BYIL 189

[19] For example, trade agreements or the commencement of hostilities.

[20] Law Commission Report No 45 The Treaty Making Process: Reform and the Role of Parliament (New Zealand, 1997).

[21] Ibid at 40.

[22] This procedure is succinctly summarised in the Ministry of Foreign Affairs and Trade publication New Zealand Handbook on Human Rights, (Wellington 1998).

[23] Although, granted, this is a criticism that can be aimed at the Executive Branch in respect of the entire legislative process.

[24] That rights exist in the absence of legislation is implicitly accepted through the wording of the New Zealand Bill of Rights 1990: see ss 2 ("rights affirmed") and 28 ("other rights not affected").

[25] This was arguably the case when New Zealand ratified the two International Covenants in 1978 (the ICCPR and the International Covenant on Economic, Social and Cultural Rights) - i.e., those rights were arguably already being given effect to through various items of legislation, including the Race Relations Act 1971 and Human Rights Commission Act 1977. However, in response to New Zealand's Third Periodic Report to the UN Human Rights Committee, it is notable that the Committee expressed "regret" that some rights guaranteed by the ICCPR remained unrecognised (at least not expressed) by New Zealand law: Ministry of Foreign Affairs and Trade, Human Rights in New Zealand. Report to the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights, Information Bulletin No 54, June 1995, Wellington, p 69.

[26] Aspects of the Crimes Act 1961, for example, were amended to give effect to the Convention Against Torture, and (more recently) to give effect to the Rome Statute of the International Criminal Court.

[27] The Fourth Periodic Report to the HRC identifies the following additional enactments as creating the legislative structure within which human rights are protected in New Zealand: Ombudsman Act 1975, Official Information Act 1982, Privacy Act 1993, Police Complaints Authority Act 1988, Children, Young Persons and Their Families Act 1989, and the Health and Disability Commissioner Act 1994. See Ministry of Foreign Affairs and Trade, New Zealand's Fourth Periodic Report to the Human Rights Committee. Submitted under article 40, para 1(b) of the International Covenant on Civil and Political Rights ( Wellington, 2001, p 13 of the "Core Document").

[28] Op cit n 24. See also Part II of this article.

[29] [1979] UKPC 21; [1980] AC 319 at 328 ( per Lord Wilberforce).

[30] This idea is also reflected in the preamble to the ICCPR which states, in part, that an individual has "duties to other individuals and to the community to which he [or she] belongs".

[31] J Evans, Statutory Interpretation. Problems of Communication ( Auckland, Oxford University Press, 1989), p2.

[32] [1981] 1 NZLR 222 at 229.

[33] This in fact highlights the danger of implementation of a treaty by translating the terms of the treaty into domestic law: if there is an error in translation, the Ashby approach means that the erroneous provision overrides the intended effect of the provision.

[34] (1995) 2 HRNZ 635.

[35] Ibid at 655.

[36] See, for example, Lord Scarman's comments in Attorney-General v British Broadcasting Corp [1981] AC 303 at 354; and R v Chief Immigration Officer, Heathrow Airport, ex parte Salemat Bidi [1961] 1 WLR 919 at 984 (per Denning LJ). This is, however, subordinate to the strict doctrine of statutory interpretation already mentioned. Nevertheless, the idea of searching for consistency is not new. In the 1914 case of Police v Hicks [1914] 1 NZLR 163, the Court readily accepted the relevance of the Single Convention on Narcotics (ratified by New Zealand in 1963) in interpreting the Narcotics Act 1965.

[37] [1911] 1 NZLR 535.

[38] The regulations were therefore ultra vires.

[39] The Declaration was adopted by the United Nations General Assembly in 1961 and should not be confused with the Convention on the Elimination of All Forms of Discrimination Against Women 1919. In general terms, a Declaration at international law is simply a statement of intention by states party to the document pertaining to certain matters. A Convention, on the other hand, is a multilateral agreement through which states normally accede to certain obligations and (in the context of human rights documents) through which certain individual rights are guaranteed.

[40] 8 Halsbury's Laws of England (4th ed), pg 844.

[41] Op cit n 31.

[42] The NZBORA is a domestic instrument that implements the ICCPR, which itself is based on and expands upon the Universal Declaration of Human Rights.

[43] Op cit n 29.

[44] Ibid.

[45] [1992] NZCA 51; [1992] 3 NZLR 260.

[46] Ibid at 270. See also comments of Richardson J at 277.

[47] Ibid at 270.

[48] In making the latter point, his judgment referred to the Australian decision in Mabo v Queensland (1988) 166 CLR 186 at 217-218.

[49] 22/7/96 (CA 255/95).

[50] Ibid.

[51] Keith KJ, "Application of International Human Rights Law in New Zealand" - paper given at the Judicial Colloquium on the Domestic Application of International Human Rights Norms in Georgetown, Guyana, 3-5 september 1996, at p 13.

[52] Department of Justice, A Bill of Rights for New Zealand. A White Paper (Wellington, Government Printer, 1985) p 114.

[53] This was a matter that drew criticism from the Human Rights Committee in response to New Zealand's Third Periodic Report. The Committee recommended that there should be remedies for all persons whose rights under the ICCPR have been violated. See commentary to this effect within the Fourth Periodic Report: op cit n 27, at 8.

[54] As recognised, for example, in Tony Blain Ltd v Splain [1993] 3 NZLR 185 at 187.

[55] [1994] 3 NZLR 667.

[56] [1994] 3 NZLR 720.

[57] In getting around the Crown Proceedings Act, note that the remedy in damages was characterised not as a remedy in tort but as a public law remedy which could be invoked directly against the state: ibid at 676.

[58] Gault J dissenting.

[59] [1993] 2 NZLR 153.

[60] [1992] 2 NZLR 390.

[61] Op cit n 55, at 676.

[62] Dr Rodney Harrison, "Domestic Enforcement of International Human Rights in Courts of Law: Some Recent Developments" [1995] NZLJ 256 at 270-271.

[63] (1996) 3 HRNZ 179. The plaintiff received an award of $15,000.00.

[64] [2000] NZCA 84; [2000] 3 NZLR 136. The highest single award in that case was $18,000.00.

[65] New Zealand Law Commission Report No 37, Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derrick (Wellington, 1997).

[66] [1999] NZCA 329; [2000] 2 NZLR 9.

[67] Dr J Allan, "The Operative Provisions - An Unholy Trinity" [1995] BORB 79.

[68] See Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260, which was often cited as the leading authority on the NZBORA. In reading the four written judgments of the Court (McKay J simply stated that he agreed with the approach of Richardson J), three approaches to the method of applying the "trinity" can be seen, with each placing emphasis on either s4, 5 or 6 - with much debate on the role of s5.

[69] Ibid at 17. It is notable, however, that while this is the first judicial adoption of declarations in the context of the Bill of Rights Act, it is not a new idea. The suggestion that the Act might permit or require the Courts to issue declarations of inconsistency was posited as early as 1992 by Professor Brookfield, who observed that "the very precise wording of s4 leaves it open and indirectly the BORA as a whole arguably requires that a court should, at least in the case of a serious infringement where a provision in an enactment is found to be inconsistent ... formally declare that inconsistency even though it can go no further than that": FM Brookfield, "A Review of Constitutional Law" [1992] NZ Recent Law Review 231 at 239.

[70] Op cit n 27, at 12.

[71] On the question of whether the Declaration is permissible, see A Butler, "Judicial Indications of Inconsistency - A New Weapon in the Bill of Rights Armoury?" NZLR [2000] 43. Note also that the author is due to publish a collaborative two-part article in Brooker's Human Rights Law & Practice with L Callaghan and S Wynn-Williams in which these questions are considered in detail.

[72] Op cit n 55, at 676.

[73] Op cit n 68, at 18.

[74] [2000] NZCA 69; [2000] 2 NZLR 695.

[75] Unreported, CA225/00, Full Bench, 20/12/00.

[76] Ibid at 40 (per Elias CJ and Tipping J).

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