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New Zealand Human Rights Commission Submissions |
Last Updated: 26 March 2015
Human Rights Commission
Submission on the
(Private Property Rights)
Amendment Bill
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Justice
and Electoral Committee
08 August 2005
The Commission
wishes to make an oral submission
Contact person:
Diana
Pickard
Senior Policy Analyst
Human Rights Commission
Direct dial 04
496 9774
CONTENTS PAGE
1. Introduction
4
2. Submission summary
4
3. The process for change: Legislation of
constitutional status 5
4. The nature of property rights:
International, regional and 6
domestic
Protections
for property rights in international human
rights
instruments 7
Protections for property rights in
regional human
rights
instruments 7
Protections for property rights in the
constitutional and human
rights legislation of other
jurisdictions 9
5. Summarising the elements of
property rights 9
6. Issues arising with property
rights 10
How has ‘property’ generally been
defined? 10
What constitutes a ‘deprivation’ of
property and when is a
deprivation
‘arbitrary’? 10
When is a deprivation of
property in the public interest? 11
What is the nature of
compensation? 11
7. Property rights in New Zealand
legislation: Past and Present 12
During the development of the
New Zealand Bill of Rights Bill 12
In the existing New
Zealand Bill of Rights Act 1990 13
In other New
Zealand legislation 15
8. Is the current
protection for property rights in New Zealand
sufficient? 15
9. Is the form of property
rights as drafted in this Member’s Bill
appropriate for
inclusion in the Bill of Rights Act? 16
Is compensation
appropriate for controls over the use and
enjoyment of
property? 16
Is arbitrary deprivation banned in the Bill
or simply compensated? 17
No reference in the Bill to
deprivations only being made in
accordance with the law and in the
public interest 17
CONTENTS
continued PAGE
9 Continued
Is compensation
ensured for total deprivation of property? 17
Using the wording of Article 17 UDHR 18
Is it
appropriate to include explicit provision for compensation
in the Bill of Rights Act? 18
10. Changes
to the Bill recommended by the Commission 19
Appendix 1: Protections for property rights in international
and
regional human rights instruments, and in the constitutional and
human rights legislation of other jurisdictions 20
1. Introduction
1.1 The Human Rights Commission welcomes this
opportunity to make a submission on the New Zealand Bill of Rights (Private
Property
Rights) Amendment Bill - a Member’s Bill in the name of Gordon
Copeland MP.
1.2 The purpose of the Bill is to amend the New Zealand Bill
of Rights Act 1990 to include the property
rights.[1] The Bill proposes to
achieve this purpose through the addition of the following two sections to the
Bill of Rights Act:
Private property rights
11A Right to own property
Everyone has the right to own property, whether alone or in association with others.
11B Right not to be arbitrarily deprived of property
No person is to be deprived of the use or enjoyment of that person’s
property without just compensation.
1.3 The Commission supports the
New Zealand Bill of Rights (Private Property Rights) Amendment Bill subject to
some specific amendments.
2. Submission summary
2.1 The Commission’s submission addresses:
2.2 The Commission recommends:
➢ That property rights be incorporated in the New Zealand Bill of Rights Act, along the following lines:
The right to property
1. Everyone has the right to own property alone as well as in association with others.
2. No person shall be arbitrarily deprived of property.
3. No person shall be deprived of property except in accordance with the law,
in the public interest, and with just and equitable
compensation.
4. Everyone has the right to the use and peaceful enjoyment of their
property. The law may subordinate such use and enjoyment to the
interest of
society.
3. The process for change: Legislation of
constitutional status
3.1 As an initial point for the
Committee’s consideration, the Commission wishes to raise the
constitutional status of New Zealand’s
human rights legislation:
That the Bill of Rights is already part of New Zealand’s constitutional
canon is undeniable. It is identified as such by
commentators,[2] by the
courts[3], and in official
publications of the New Zealand
government.[4]
3.2 This
status is important because it denotes that any amendment to the Bill of Rights
Act is best through a broad participatory
process, as befits constitutional
change. In the Commission’s submission to the Constitutional Arrangements
Committee in April
2005, we stated that:
The Commission sees the Committee’s current call for submissions, on
New Zealand’s existing constitutional arrangements,
as a first step in a
New Zealand discussion – a conversation with the nation – on current
constitutional arrangements
and their necessary development. As indicated
above, that discussion can cover the merits of an entrenched constitutional
document
for New Zealand, [and] the benefits that accrue when it includes the
range of civil, political, economic, social and cultural rights.
...
Further, should New Zealand discussions on entrenchment of constitutional
arrangements reach a Parliamentary level, they must involve
an iterative
process. Consideration of constitutional changes such as these requires clear
cross-party support, informed by public
participation. Select Committee
processes are useful in this regard, and the lengthy, consultative and
participatory process followed
in enacting the Bill of Rights Act may provide a
model.
...
Adopting a human rights approach to constitutional
development ensures:
This approach is vital in constitutional matters. The importance of
employing a participatory process for constitutional examination
and development
- as befits our democracy - cannot be too strongly
stressed.[6]
4. The
nature of property rights: International, regional and domestic
4.1 The right to property, and not to be arbitrarily deprived of it,
are regarded as human rights. They are thought to have been
derived from the
Magna Carta.[7] Today, the right to
ownership and enjoyment of private property is of central importance to the
common law, and has come to be seen
as an important guarantee of individual
liberty. It has given rise to much political debate, and an enormous body of
case law over
two
centuries.[8]
4.2 The focus of
this submission is on the protection of property rights in domestic legislation,
regional conventions and charters
and in international instruments, as opposed
to common law.
Protections for property rights in
international human rights instruments
4.3 Property rights form
Article 17 of the Universal Declaration of Human Rights (UDHR), which states
that:
Everyone has the right to own property alone as well as in association with
others. No-one shall be arbitrarily deprived of his
property.
4.4 Property rights were not included in the two subsequent
international human rights
covenants[9], due to considerable
disagreement at the time on the concept of ‘property’, the
restrictions to which the right should
be subjected, and the formulation of the
right to compensation.[10]
However:
while the right to property, as such, is not protected under the covenants, a
confiscation of private property or the failure by a
state to pay compensation
for such confiscation could still entail a breach of ICCPR [Article] 26 if the
relevant act or omission
was based on discriminatory
grounds.[11]
4.5 In
addition, United Nations human rights instruments that focus on
non-discrimination – such as the International Convention
on the
Elimination of all Forms of Racial Discrimination, and the Convention on the
Elimination of all Forms of Discrimination Against
Women - do explicitly
recognise property rights. The relevant articles from those Conventions are set
out in full in Appendix 1
to this submission.
4.6 International Labour
Organisation conventions also cover several aspects of property rights, with
regard to for example, “trade
union property and various aspects relevant
to the property rights of
workers”.[12] In addition,
intellectual property rights are protected in a number of conventions adopted by
the World Intellectual Property
Organisation.[13]
Protections
for property rights in regional human rights
instruments
4.7 Protections for property rights are repeated in
regional instruments. For example, the First Protocol to the European Convention
for the Protection of Human Rights and Fundamental Freedoms provides as follows:
Article 1 Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions
except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to
control the use of property
in accordance with the general interest or to secure the payment of taxes or
other contributions or penalties.
4.8 The right to peaceful enjoyment
of possessions is, in substance, a guarantee of the right to
property.[14] The European Court of
Human Rights has held that this right to property comprises three distinct (but
connected) rules:
4.9 In general, interference with property rights, carried out in the
public interest, must strike a ‘fair balance’.
This is achieved by
satisfying the following two conditions:
4.10 This is a proportionality test is akin to that
provided by section 5 of the Bill of Rights Act (as interpreted by New Zealand
courts[17]). While this First
Protocol to the European Convention does not include specific reference to
compensation, the European Court has
said that “the taking of property in
the public interest without compensation is treated as justifiable only in
exceptional
circumstances”.[18]
4.11 The African Charter on Human and Peoples' Rights, and the American
Convention on Human Rights also contain property rights.
The former provides a
right to property, while the latter provides a right to the use and enjoyment of
property and compensation
for deprival of property. Both allow interference
with property rights in the public interest and in accordance with law. The
relevant
articles from these regional instruments are set out in full in
Appendix 1 to this submission.
Protections for property rights in
the constitutional and human rights legislation of other
jurisdictions
4.12 Similar protections for property rights exist in
other jurisdictions. For example, the Fifth Amendment to the United States
of
America’s Constitution puts it this
way:
Amendment V - Trial and Punishment,
Compensation for Takings
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury,
except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the
same offense [sic] to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation [emphasis added].
4.13 Appendix 1 also contains
legislative examples from South Africa, Australia and India. The first of these
is the most comprehensive,
including protection against arbitrary deprivation of
property, and provision for just and equitable compensation/redress and guidance
on how that should be calculated.
5. Summarising the elements of
property rights
5.1 Property rights are human rights, protected by a
range of international, and regional human rights instruments, and by domestic
human rights and constitutional statutes. When provided in legislation,
property rights encompass one or more of the following elements:
6. Issues arising with property
rights
6.1 Issues commonly arising in relation to property rights
include:
6.2 Courts have provided substantive answers to the
majority of these issues.
How has ‘property’
generally been defined?
6.3 ‘Property’ has generally been
given a wide and liberal definition. It is not limited to the ownership of
physical
goods, and has been held to include, for example, the right of
management of a company, and a debt by a banker to his
customer.[20] In insolvency
legislation, property will include, for example, money, goods, lands and
interests.
What constitutes a ‘deprivation’ of
property and when is a deprivation arbitrary?
6.4 In a July 2004
submission, the Commission provided some guidance on this issue, as follows:
What is a deprivation of property?
Deprivation of property “means divesting, keeping out of enjoyment, or
causing loss (for example, by taking away, destruction,
or by causing
extinguishment) of a
right.”[21]
When
is a deprivation of property arbitrary?
It is important to note that
property can be taken in the public interest. ...
Restrictions can also be placed over the use of property. ... The right not
to be arbitrarily deprived of property does not preclude
restrictions on the use
of land, so long as they serve objectives of general public interest, and as
long as restrictions do not
constitute a disproportionate and intolerable
interference with the rights of the owner.
New Zealand courts have considered the meaning of ‘arbitrary’ in
the analogous situation of arrest and detention –
involving a deprivation
of liberty, rather than a deprivation of property. Such an action is arbitrary
if:
it is capricious, unreasoned, without reasonable cause: if it is made without
reference to an adequate determining principle or without
following proper
procedures.[22]
Arbitrary actions incorporate elements of inappropriateness, injustice, and
lack of predictability. The Canadian Supreme Court has
held that “a
discretion is arbitrary if there are no criteria, express or implied, which
govern its
existence”.[23]
When is a deprivation of property in the public
interest?
6.5 In New Zealand, the Public Works Act provides an
example of a situation where the public interest may be thought to outweigh an
individual’s property rights. As a rule, a deprivation of property is in
the public interest when:
What
is the nature of compensation?
6.6 The issue of compensation is
probably the most disputed aspect of the right to
property.[25] The Commission, again
in its July 2004 submission, noted the following principles:
The principles which underlie the right of a person not to be deprived of
property without compensation are:
First, that some public interest is necessary to justify the taking of
private property for the benefit of the state and, secondly, that when
the public interest does so require, the loss should not fall upon the
individual whose property is taken but should be
borne by the public as a
whole.[26] [emphasis
added]
6.7 In the context of property, given that compensation means
recompense for loss, compensation is often monetary. The quantum of
compensation is generally ascertained by determining the value of the property
taken. The South African legislation in particular
provides guidance on how
compensation may be
calculated.[27]
7.
Property rights in New Zealand legislation: Past and present
7.1 There is a large body of common law in New Zealand which
addresses property. However the issues raised by this Bill concern the
inclusion of property rights in legislation, and in particular, in New
Zealand’s human rights legislation. The following material
therefore has
a legislative focus.
During the development of the New Zealand
Bill of Rights Bill
7.2 Proposals to include some form of property
rights in New Zealand’s Bill of Rights Act are not new. In 1988, the
Final Report
of the Justice and Law Reform Committee On a White Paper on a
Bill of Rights for New Zealand stated that:
The submissions on the White Paper suggested that the following social and
economic rights should be included in the bill: property;
protection of family
and/or parental rights; health; education; adequate standard of living;
protection for the environment; and
work.
...
The submissions and an examination of the UDHR [the Universal Declaration on
Human Rights] and ICES [the International Covenant on
Economic, Social and
Cultural Rights] suggest that that following social and economic rights should
be included in the bill.
...
[citing Article 17 of the UDHR, Fifth
Amendment to the US Constitution, and section 51 (xxxi) of the Australian
Constitution
Act.][28]
7.3 The
Parliamentary Counsel Office subsequently drafted a 1989 version of the New
Zealand Bill of Rights Bill with the following
clause 30:
Right to own
property
Every person has the right to own property, and the right not to have that
person’s property taken, for public use, without
just compensation.
7.4 The two elements in the Bill currently before the Committee were
therefore present in that early Bill of Rights Bill – namely,
the right to
own property, and the right not to be deprived of property without compensation.
However, this property clause (and
the other clauses with economic and social
rights) were opposed by the Government of the day, and did not survive in the
draft Bill
of Rights Bill though to its introduction into the House. The then
Prime Minister, Sir Geoffrey Palmer stated in the Bill’s
introductory
speech on 10 October 1989, that:
The select committee recommended the inclusion of some social and economic
rights as principles to aim at. Such rights would not have
been enforceable, and
it was decided not to include any of them in the Bill. Bills of Rights are
traditionally about putting restraints
on the powers of the State. Hence, they
tend to focus on procedural rather than substantive rights. Social and economic
rights are
in a different category. That does not mean that those rights are of
lesser importance, but, rather, that they should be protected
in a different
way.[29]
In the existing
New Zealand Bill of Rights Act 1990
7.5 While explicit protection for
property rights was not included in the Bill of Rights Act, there has been
subsequent debate about
whether property rights are indirectly protected by
other the provisions of the Act. That debate has centred on section 21, which
provides that:
Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search and seizure,
whether of the person, property, or correspondence or
otherwise.
7.6 The Court of Appeal held in 1997 that the intention of section 21 is:
...to ensure that governmental power is not exercised unreasonably... The
guarantee under section 21 to be free from unreasonable
search and seizure
reflects an amalgam of values. A search of premises is an invasion of property
rights and an intrusion on privacy.
It may also involve a restraint on
individual liberty and an affront to
dignity.[30]
7.7 However,
despite the reference in section 21 to "seizure...of property", the general
consensus has been that it does not confer
a right to property, or protection
from the State seizing property. The High Court in Westco Lagan v
Attorney-General stated that:
The portion of the Act in which s 21 occurs goes on to deal with liberty of
the person, rights of persons arrested or detained, rights
of persons charged,
minimum standards of criminal procedure, retroactive penalties and double
jeopardy, and right to justice. These
... all focus plainly on prosecution and
judicial process. It would be distinctly odd if the legislature had plonked a
provision
intended to deal in a general way with seizure of property without
compensation into such a
matrix.[31]
7.8 While the
courts are clear that the primary focus of section 21 is on preventing the
unreasonable intrusion of the State into
citizens’ privacy, they will
nonetheless consider how enforcement agencies treat property seized during the
exercise of law
enforcement functions.
Because a seizure extends beyond the initial taking
possession of property, the state must assume a responsibility for the safe and
proper storage of the thing seized. A seizure may be unreasonable if, for
example, the property is damaged by enforcement
officers.[32]
7.9 Consequently,
while section 21 of the Bill of Rights Act may protect property rights to a
small degree during a search and seizure
- usually in the law enforcement
context - it falls well short of providing the protection for property envisaged
by the proposals
in the Bill of Rights (Private Property Rights) Amendment Bill.
In other New Zealand legislation
7.10 While New Zealand’s domestic human rights legislation is
silent in relation to explicit property rights, other New Zealand
legislation
supports the domestic existence of such rights. This can be seen in the
following examples:
8. Is the current protection for
property rights in New Zealand sufficient?
8.1 Having considered the
protections for property rights provided both in New Zealand and elsewhere, the
question is whether New
Zealand’s current, rather piecemeal, approach
provides sufficient protection for those rights.
8.2 Property rights
cover matters which, in human rights terms, encompass both civil and political
rights (e.g. non-discrimination,
and fair processes), and economic and social
rights (e.g. the ability of individuals “to enjoy a certain minimum of
property
needed for living a life in dignity, including social security and
social assistance”[33]).
8.3 The Commission’s preference is to protect human rights by
inclusion in New Zealand’s human rights legislation. This
view has
remained steady since 1989, where in relation to the New Zealand Bill of Rights
Bill we stated that:
Our preference would have been for an .. Act which also included economic, social and cultural rights.
...
The Commission recommends, however, that a widening of [the Bill’s]
provisions as outlined above be considered at some future
time.[34]
8.4 The
Commission’s recent submission to the Constitutional Arrangements
Committee is also apposite. In that
submission[35] we stated
that:
Although economic, social and cultural rights are addressed in government
legislation, and in many government strategies, policies
and programmes, they do
not generally have the same level of legislative protection as civil and
political rights.
The UN Committee on Economic Social and Cultural Rights comments
that:
Direct incorporation avoids problems that might arise in the translation of
treaty obligations into national law, and provides a basis
for the direct
invocation of the Covenant rights by individuals in national courts. For these
reasons, the Committee strongly encourages
the formal adoption or incorporation
of the Covenant in national law.[36]
8.5 While, during the development of the New Zealand Bill of Rights
Act, economic, social and cultural rights (including the right
to property) were
considered non-justiciable, some 15 years later that view is now difficult to
sustain. This is ably demonstrated
by the jurisprudence of the Constitutional
Court of South Africa.
8.6 Consequently, the Commission supports the
inclusion of property rights in the New Zealand Bill of Rights Act. However,
the form
these rights might appropriately take in that Act is now
addressed.
9. Is the form of property rights as drafted in this
Member’s Bill appropriate for inclusion in the Bill of Rights
Act?
9.1 The Commission has specifically considered whether the
property rights as drafted in this Member’s Bill are appropriate
for
inclusion on the Bill of Rights Act, or whether the drafting might be improved.
We have looked to the examples provided by the
international and regional
instruments, and the legislation of other jurisdictions.
9.2 As a
result, we have the following concerns, which arise from the current form of the
Bill and from the proposed section 11B in
particular.
Is
compensation appropriate for controls over the use and enjoyment of
property?
9.3 It is important to note that many controls placed on
the use (and, to a lesser extent, on the peaceful enjoyment) of property
are
everyday occurrences – for example, through the zoning and rating of land.
As such, it is not appropriate that compensation
be mandatory, as set out in the
proposed section 11B. To take an extreme but illustrative example, under
section 11B the owner of
land who is denied permission to use their property to
build a nuclear weapons factory will be entitled to compensation. Although
it
is possible that the phrase in section 11B of “just compensation”
may limit the sum payable in such instances to a
token, we consider it
preferable to avoid a requirement for compensation for legitimate controls over
the use and peaceful enjoyment
of property. Instead, the Bill should be
explicit that the use and peaceful enjoyment of property may be controlled and
limited
in the public interest.[37]
9.4 The Bill of Rights Act itself provides adequate protection where
such restrictions exist over the use and peaceful enjoyment of
property. This
is because section 5 of the Bill of Rights Act requires that those restrictions
– those limits placed on a
right – be reasonable and
justifiable.[38] This is akin to
the proportionality test applied in many other jurisdictions, in order to strike
a fair balance between the interests
of the State and the rights of the
individual.
9.5 Compensation should be retained in the Bill solely for
deprivations of property.
Is arbitrary deprivation banned in the
Bill or simply compensated?
9.6 It is possible that in its current
form section 11B will give rise to unnecessary legal argument to determine
whether the section
bans arbitrary deprivations of property, or just allows them
to be compensated. This is because the proposed section 11B includes
the term
‘arbitrary’ in the section heading, but does not include the term in
the text of the section itself. The Interpretation
Act 1999 (section 5) makes
it clear that the text is a primary source of a statute’s meaning, whilst
“indications”
such as section headings can be
“considered” when interpreting a statute.
No
reference in the Bill to deprivations only being made in accordance with the law
and in the public interest
9.7 The above problem of interpretation is
exacerbated by the lack in the proposed section 11B of an explicit requirement
that deprivations
of property are carried out in accordance with the law. In
addition, there is no express reference to property deprivations only
being made
in the public interest. Consequently, in our view, the Bill lacks important
protections in relation to State action.
Is compensation ensured
for total deprivation of property?
9.8 It is not entirely clear
whether the proposed section 11B ensures compensation for total deprivation of
property, or only directs
that compensation is required where limits are placed
on use and enjoyment.
Using the wording of Article 17
UDHR
9.9 The Commission prefers that, where appropriate and possible,
domestic statutes that implement international human rights obligations
do so in
the words of the international texts. The Law Commission has also recognised
the benefits of the incorporation of treaties
in domestic law, recommending
that, as far as practicable:
Legislation implementing treaties or other international instruments gives
direct effect to the texts, that is, uses the original
wording of the
treaties.[39]
9.10 The
Human Rights Commission therefore favours a minor amendment of the proposed
section 11A to match the text of Article 17 of
the UDHR, in relation to the
right to own property. This change is noted below in our
Recommendation.
Is it appropriate to include explicit provision
for compensation in the Bill of Rights Act?
9.11 The Commission has
also taken a broader view, and considered how the proposed sections might fit
with existing provisions of
the Bill of Rights Act. As noted above, the
Commission supports the inclusion of further economic, social and cultural
rights in
New Zealand’s human rights legislation. However, existing
sections of the Bill of Rights Act do not make explicit provision
for remedies,
whether by way of compensation or otherwise. Therefore the provision of
compensation as proposed by this amendment
sets a new legislative path. The
question is whether this path is, in fact, vastly different from that which now
exists - by virtue
of international human rights obligations and the decisions
of the New Zealand courts.
9.12 For the following reasons, the
Commission considers the legislative path of the Bill to accord with the
existing situation in
New Zealand, in particular given that remedies have
already been made available by the courts for breaches of the Bill of Rights
Act.
9.13 First, as the Commission noted in a February 2005
submission,[40] the ICCPR imposes an
obligation on States to ensure that any person whose rights have been violated
has access to an effective remedy
for the violation. The remedy is to be
decided by a competent authority and is enforceable.
9.14 Secondly,
international jurisprudence is clear that compensation should be available for
breaches of human rights.[41] The
United Nations Human Rights Committee has recommended monetary compensation for
breaches of rights in the ICCPR.[42]
Further, the European Court of Human Rights has consistently affirmed the
principle of full reparation for breach of Convention
rights.[43]
9.15 Thirdly, as
set out Baigent’s
case,[44] New Zealand courts
have developed the concept of a public law remedy for breaches of the Bill of
Rights Act. In that case, the Court
of Appeal granted damages for a breach of
section 21 of the Bill of Rights Act, stating that:
[The Act’s] purpose being the affirmation of New Zealand’s
commitment to the Covenant ... it would be wrong to conclude
that Parliament did
not intend there to be any remedy for those whose rights have been infringed.
... I do not accept that Parliament
intended it to be what most would regard as
no more than legislative window dressing, of no practical consequence, in the
absence
of appropriate remedies for those whose rights and freedoms have been
violated.[45]
10.
Changes to the Bill recommended by the Commission
10.1 Taking the
above concerns and context into account, the Commission recommends:
➢ That property rights be incorporated in the New Zealand Bill of Rights Act along the following lines:
The right to property
1. Everyone has the right to own property alone as well as in association with others.
2. No person shall be arbitrarily deprived of property.
3. No person shall be deprived of property except in accordance with the law,
in the public interest, and with just and equitable
compensation.
4. Everyone has the right to the use and peaceful enjoyment of their
property. The law may subordinate such use and enjoyment to the
interest of
society.
Human Rights Commission
August 2005
Appendix 1: Protections for property rights in international and regional
human rights instruments, and in the constitutional and
human rights legislation
of other jurisdictions
This appendix provides an indicative rather
than an exhaustive list of property rights. Its main purpose is to indicate the
range
and form of such provisions outside New
Zealand.
International instruments
UDHR
Article 17 of the Universal Declaration on Human
Rights:
Everyone has the right to own property alone as well as in association with
others. No-one shall be arbitrarily deprived of his
property.
CERD
Articles 5(d)(v) and (vi) of the
International Convention on the Elimination of all Forms of Racial
Discrimination:
Article 5
In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and
to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour,
or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights:
...
(d) Other
civil rights, in particular:
...
(v) The right to own property alone as well as in association
with others;
(vi) The right to inherit.
CEDAW
Article 15 of the
Convention on the Elimination of all Forms of Discrimination Against Women:
Article 15
1. States Parties shall accord to women equality with men before the
law.
2. States Parties shall accord to women, in civil matters, a legal
capacity identical to that of men and the same opportunities to
exercise that
capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall
treat them equally in all stages
of procedure in courts and tribunals.
3. States Parties agree that all
contracts and all other private instruments of any kind with a legal effect
which is directed at
restricting the legal capacity of women shall be deemed
null and void.
4. States Parties shall accord to men and women the same
rights with regard to the law relating to the movement of persons and the
freedom to choose their residence and domicile.
Article 16(1)(h) of
the Convention on the Elimination of all Forms of Discrimination Against Women:
Article 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage
and family
relations and in particular shall ensure, on a basis of equality of men and
women:
...
(h) The same rights for both spouses in respect of the ownership,
acquisition, management, administration, enjoyment and disposition
of property,
whether free of charge or for a valuable consideration.
Regional
instruments
Europe
The First Protocol to the European
Convention for the Protection of Human Rights and Fundamental Freedoms:
Article 1 Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions
except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to
control the use of property
in accordance with the general interest or to secure the payment of taxes or
other contributions or penalties.
Americas
Article 21
of the American Convention on Human Rights:
Article 21 The
right to property
1. Everyone has the right to the use and enjoyment of his property. The law
may subordinate such use and enjoyment to the interest
of society.
2. No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest,
and in the cases
and according to the forms established by law.
3. Usury and any other form of exploitation of man by man shall be prohibited
by law.
Africa
Article 14 of the African Charter on
Human and Peoples' Rights:
The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest
of the community and in
accordance with the provisions of appropriate laws.
Legislation
from other jurisdictions
USA
The Fifth Amendment to the
United States of America’s Constitution:
Amendment V - Trial and
Punishment, Compensation for Takings
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury,
except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the
same offense [sic] to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself, nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public use, without just
compensation [emphasis added].
South Africa
Section
25 of the Constitution of the Republic of South Africa:
Section 25 Property
(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including
(4) For the purposes of this section
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection
(6).
Australia
Section 51 (xxxi) of the Commonwealth
of Australia Constitution Act:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
...
(xxxi) the acquisition of property on just terms from any State or person for
any purpose in respect of which the Parliament has power
to make laws.
India
Article 300A of the Constitution of
India:
300A Persons not to be deprived of property save by authority of
law
No person shall be deprived of his property save by authority of
law.
[1] Clause 3 of the New Zealand
Bill of Rights (Private Property Rights) Amendment
Bill.
[2] See, for example,
Geoffrey Palmer & Matthew Palmer Bridled Power 3rd ed
(Oxford University Press, Auckland, 1997), at page 264; Philip Joseph
Constitutional and Administrative Law in New Zealand 2nd ed
(Brookers, Wellington, 2001), at page
21.
[3] For example, by Thomas J in
R v Whareumu [2000] NZCA 380; [2001] 1 NZLR 655, at page 656: “The New Zealand Bill
of Rights Act 1990 ... is a critical document in the constitutional framework of
this country.”
[4] Paul
Rishworth et al The New Zealand Bill of Rights (Oxford University Press,
Melbourne, 2003), at page 3. See, for example, the entry on the web page of the
Governor-General of New
Zealand entitled ‘Constitution of New
Zealand’ at http://www.gov-gen.govt.nz/role/constofnz.htm.
[5]
UN Economic and Social Council Report of the Secretary-General: Promotion and
protection of human rights – human rights and bioethics
E/CN.4/2003/98, at page 8.
[6] Human Rights Commission
Submission on the Review of New Zealand’s Constitutional
Arrangements for the Constitutional Arrangements Committee, 14 April 2005,
at paragraphs 5.1 to 5.8.
[7]
Clause 39 of the Magna Carta provides that: “no man shall be ... disseised
of any tenement ... except by the lawful judgment
of his peers or by the law of
the land”.
[8] Richard
Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford
University Press, 2000) at paragraphs 18.01 and
18.04.
[9] Namely, the
International Covenant on Civil and Political Rights (ICCPR); and the
International Covenant on Economic, Social and
Cultural Rights
(ICESCR).
[10] Nihal Jayawickrama
The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence (Cambridge University Press, Cambridge, 2002) at
page 910.
[11] Nihal Jayawickrama
The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence (Cambridge University Press, Cambridge, 2002) at
page 910.
[12] Asbjørn
Eide, Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights
(2nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page
196.
[13] Asbjørn Eide,
Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights
(2nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page
196. The protection of trade union property has been derived from ILO
87 and
the June 1970 Resolution of the ILO, while the property rights of workers
derive, for example, from ILO 95 and ILO
117.
[14] Nihal Jayawickrama
The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence (Cambridge University Press, Cambridge, 2002) at
page 910, citing the European Convention’s travau
préparatoires, and the European Court of Human Rights in Marckx v
Belgium [1979] ECHR 2; (1979) 2 EHRR
330.
[15] Sporrong and
Lönnroth v Sweden [1982] ECHR 5; (1982) 5 EHRR 35 at paragraph 61, as cited in Richard
Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford
University Press, 2000) at paragraph
18.27.
[16] See Mellacher v
Austria (1989) 12 EHRR 391 at paragraph 48, as cited in Richard Clayton and
Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press,
2000) at paragraph 18.77.
[17]
The specific test suggested by the New Zealand courts is set out Moonen v
Film & Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), at paragraph 18.
[18] Lithgow v United Kingdom
[1986] ECHR 8; (1986) 8 EHRR 329 at paragraph 120, as cited in Richard Clayton and Hugh
Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000)
at paragraph 18.56.
[19] Some of
these issues as identified in Richard Clayton and Hugh Tomlinson The Law of
Human Rights (Oxford, Oxford University Press, 2000) at paragraph
18.02.
[20] Attorney-General v
Lawrence Court of Appeal of St Christopher and Nevis (1983) 31 WIR 176,
[1985] LRC (Const) 921 and Attorney-General v Jobe Privy Council on
appeal from the Court of Appeal of the Gambia [1985] LRC (Const) 556, cited in
Nihal Jayawickrama The Judicial Application of Human Rights Law: National,
Regional and International Jurisprudence (Cambridge University Press,
Cambridge, 2002) at pages 911 and
912.
[21] Shah v
Attorney-General (No 2) High Court of Uganda [1970] EA 523 cited in Nihal
Jayawickrama The Judicial Application of Human Rights Law: National, Regional
and International Jurisprudence (Cambridge University Press, Cambridge,
2002) at page 914. In addition, courts have held that the acquisition of
property without
the payment of compensation constitutes a deprivation: Poiss
v Austria European Court [1987] ECHR 8; (1987) 10 EHRR 231, cited in Nihal Jayawickrama
The Judicial Application of Human Rights Law: National, Regional and
International Jurisprudence (Cambridge University Press, Cambridge, 2002) at
page 920.
[22] Neilson v
Attorney-General [2001] NZCA 143; [2001] 3 NZLR
433.
[23] R v Hufsky
[1988] 1 SCR 621, at page 632, as included in the Human Rights
Commission’s submission on the Foreshore and Seabed Bill, provided to the
Fisheries
and Other Sea Related Legislation Select Committee on 12 July 2004, at
Appendices pages 39 and 40.
[24]
Marinucci v Italy European Commission (1988) 60 Decisions &
Reports 44, cited in Nihal Jayawickrama The Judicial Application of Human
Rights Law: National, Regional and International Jurisprudence (Cambridge
University Press, Cambridge, 2002) at page
915.
[25] Asbjørn Eide,
Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights
(2nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at pages
200 and 201.
[26] Nihal
Jayawickrama The Judicial Application of Human Rights Law: National, Regional
and International Jurisprudence (Cambridge University Press, Cambridge,
2002) at 919, citing the Privy Council in Morgan v Attorney-General on
appeal from the Court of Appeal of Trinidad and Tobago (1987) 36 WIR 396. As
included in the Human Rights Commission’s submission on the Foreshore and
Seabed Bill, provided to the Fisheries and Other
Sea Related Legislation Select
Committee on 12 July 2004, at Appendices pages 41 to 44. The Commission also
recommended the adoption
of statutory criteria for compensation, as a safeguard
against arbitrary use of discretion, and to ensure just and equitable redress.
[27] See section 25(3) of the
Constitution of the Republic of South Africa, reproduced in Appendix 1 to this
submission.
[28] Final Report of
the Justice and Law Reform Committee On a White Paper on a Bill of Rights for
New Zealand 1.8C, 1988, at page
10.
[29] Hansard, New Zealand
Bill of Rights Bill Introduction, 10 October 1989, Rt Hon Geoffrey Palmer (Prime
Minister). See also G. Palmer
New Zealand’s Constitution in Crisis
(Dunedin, McIndoe, 1992) at page 57 (cited in Philip Joseph Constitutional
and Administrative Law in New Zealand (2nd ed) (Wellington,
Brookers, 2001) at paragraph 26.3).
[30] R v Grayson and
Taylor [1997] 1 NZLR 399, at page
406.
[31] Westco Lagan v
Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40, McGechan J at paragraph 58, as cited in
Ministry of Justice The Guidelines on the New Zealand Bill of Rights Act
1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the
Public
Sector Wellington, August 2004, Part III, Section
21.
[32] Ministry of Justice
The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the
Rights and Freedoms in the Bill of Rights Act for the Public
Sector
Wellington, August 2004, Part III, Section 21. See Wilson v New Zealand
Customs Service (1999) 5 HRNZ 134, at pages 139 and
142.
[33] Asbjørn Eide,
Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights
(2nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page
209.
[34] Human Rights
Commission Submission to Select Committee on Justice: Bill of Rights Bill
1989 at paragraph 1.
[35]
Human Rights Commission’s submission for the Inquiry into New
Zealand’s Constitutional Arrangements, provided to the
Constitutional
Arrangements Committee on 14 April 2005, at paragraphs 3.27 to
3.31.
[36] Committee on Economic,
Social and Cultural Rights General Comment No 9: The Domestic Application of
the Covenant E/C.12/1998/24, at paragraph
8.
[37] Examples of this approach
are provided by, for example, the Third rule established by the European
Court of Human Rights, and Article 21(1) of the American Convention of Human
Rights.
[38] The specific test
suggested by the New Zealand courts is set out Moonen v Film & Literature
Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), at paragraph 18. See also the earlier
version in Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA),
Richardson J at page 283; and Moonen v Film & Literature Board of Review
(No. 2) [2002] NZCA 69; [2002] 2 NZLR 754 (CA), at paragraphs 14 and
15.
[39] New Zealand Law
Commission The Treaty Making Process: Reform and the Role of Parliament
(NZLC R45 1997), at paragraph
195.
[40] On the Prisoners’
and Victims’ Claims
Bill.
[41] See, for example,
Maharaj v Attorney-General of Trinidad and Tobago (No.2) [1978] UKPC 3; [1979] AC 385
(PC) which was instrumental in the New Zealand Court of Appeal developing the
concept of a public law remedy in Simpson v Attorney–General
(Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ
42.
[42] In 2001 the UN Human
Rights Committee criticised Australia’s domestic legal system for not
providing an effective remedy to
persons whose rights under the Covenant had
been violated.
[43] United
Kingdom and Scottish Law Commission Damages under the Human Rights Act
1998 (2000) at page 23.
[44]
Simpson v Attorney–General (Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ
42.
[45] Simpson v
Attorney–General (Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ 42, Cooke P at
pages 73 and 74. In addition, two of the Judges noted in the course of the
judgment that “it would be strange
if New Zealand citizens could get a
remedy from the United Nations Committee in New York that they could not obtain
in the New Zealand
courts”.
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