Human rights are the rights and freedoms that every person ought to enjoy. Civil and political rights largely define what governments should not do to people, such as treat them cruelly, detain them arbitrarily or restrict their expression. Social and economic rights define what governments ought to do for people, such as provide them with health care, education and welfare.
There is no universally agreed and definitive list of all human rights.
The expression ‘human rights’ was first used by Allied leaders during the Second World War, when condemning Nazi atrocities. New Zealand was a vocal advocate for a prominent place for human rights in the United Nations Charter, the treaty which founded the organisation in 1945. Three years later the United Nations General Assembly proclaimed the Universal Declaration of Human Rights (UDHR).
The Magna Carta remains part of New Zealand law in the 21st century. One of the most important clauses of the Magna Carta is chapter 29, which states, ‘we will not deny or defer to any man either justice or right’. This is the root of laws such as the New Zealand Bill of Rights Act 1990, which guarantees the right to trial without undue delay. The Magna Carta remains an important symbol of the rights of the citizen in relation to the state. The Treaty of Waitangi has sometimes been referred to as ‘the Māori Magna Carta’.
The idea that human beings enjoy rights is much older than the United Nations. An early English rights document is the Magna Carta, the ‘Great Charter’, of 1215. The English barons listed their grievances against King John, along with rights they believed they should enjoy.
A further key rights document in English history is the Bill of Rights of 1688. This document declared that the monarch had no power to dispense with the law without the consent of Parliament. Members of Parliament were to have freedom of speech within Parliament. All persons were to be free from cruel and unusual punishments as well as excessive bail. Establishing Parliament as the supreme authority was seen as a means of protecting human rights.
Parliament is the ultimate guardian of human rights in New Zealand. Yet there is a real risk that a majority may make laws that unfairly affect a particular minority. Some therefore argue that Parliament’s law-making powers should also be constrained by a Bill of Rights – so that a law unreasonably infringing any person’s rights can be ruled invalid by a court.
Rights can be classed as either negative or positive. Negative rights are observed when the state merely refrains from acting – by not interfering with expression, liberty, conscience and religion. These correspond to basic human liberties. Positive rights are those that require some type of action, such as providing health care and education.
Civil and political rights are often, but not always, negative rights. The right to a fair trial may be understood as a negative right (that no person should be unfairly tried), but it is better described as the right to a fair system for trials. This certainly involves state action and can be very costly, requiring a comprehensive court system with independent judges, courtrooms and law libraries, along with legal aid and interpreters for those who need them.
Similarly, the right to vote is a civil and political right. It plainly requires the creation of a whole system for elections, including voter education, and is also very costly.
Not many countries include social and economic rights in their bills of rights and written constitutions, as these rights do not lend themselves to enforcement by courts (unlike civil and political rights). Social and economic rights require the allocation of budgets, which is not a judicial function. Some people consider that courts should be empowered to rule on social and economic rights. They point out that even civil and political rights carry financial implications, yet courts may enforce them.
Many of the fundamental assumptions and principles of New Zealand law derive from English ‘common law’, which is developed by judges through their decisions in cases.
The common law recognises important civil and political rights in various ways.
A set of basic human rights is therefore a fundamental assumption of our legal system. However, because law made by Parliament overrides common law, these common-law rights are not guaranteed.
The Treaty of Waitangi guaranteed Māori the rights of British subjects, along with chieftainship over their lands, homes and taonga (treasures). The proposed Bill of Rights of 1985 would have affirmed the rights guaranteed in the treaty. The Bill of Rights Act, as finally passed in 1990, did not mention the treaty – nor was it mentioned in the Human Rights Act 1993. While the treaty settlement processes have been an important way of redressing Māori grievances, the treaty itself has not featured in New Zealand’s human rights legislation.
In many countries the power of the legislature is controlled by a formal written constitution. Most contain written statements of human rights and freedoms constraining the power of government and legislature. The US Constitution, in particular, is famous for its Bill of Rights. In the US, the Supreme Court is able to declare laws invalid if they are inconsistent with the Constitution. In the UK, however, Parliament is the supreme law-making institution. Its laws cannot be declared invalid by a court or by any other institution. New Zealand follows the British model. It does not have a ‘supreme law’ bill of rights – one that can declare parliamentary laws invalid.
In 1985 the Labour government proposed a New Zealand Bill of Rights as a supreme law for New Zealand. The proposed Bill of Rights would have overridden any inconsistent law, with judges having the final say on whether a law was inconsistent with human rights.
The proposed Bill of Rights did not proceed. There were deep worries about giving judges, rather than elected politicians, the power to decide what human rights mean.
The New Zealand Bill of Rights Act 1990 was enacted, but as an ordinary statute – not as a ‘supreme law’. This meant the Bill of Rights could not invalidate laws that might be seen as inconsistent with human rights. The act does contain the set of basic civil rights initially proposed.
Since 1990 there have been 58 attorney generals’ reports to the House of Representatives advising that a bill introduced into the House contains a provision inconsistent with the Bill of Rights. Of these, 28 have been in relation to government bills and 30 in relation to private members’ bills.
These rights operate in several ways. The government and its agents may not infringe them by their actions and will be held to act unlawfully if they do. Courts are required to interpret all laws so as to make them, as far as possible, consistent with the listed rights. The attorney general is required to advise Parliament whenever he or she considers that a proposed law would be inconsistent with the Bill of Rights.
The Bill of Rights Act guarantees the following civil and political rights:
The act also guarantees:
The classic model of a Bill of Rights operates ‘vertically’, affirming rights for citizens against the powers of the state. An important question is whether a Bill of Rights should also operate ‘horizontally’, so that citizens must observe each others’ human rights. Much ordinary law, criminal law for example, is designed to protect citizens from each other. The Human Rights Act prohibits discrimination by one person against another. In that sense, many human rights already operate horizontally, even if the Bill of Rights itself is ‘vertical’.
Section 9A of the Race Relations Act, a section inserted in 1977, made it illegal to publish, broadcast or make public statements ‘likely to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons on the ground of their colour, race, or ethnic or national origins’. The section was repealed in 1989, after controversy over a Māori activist’s statement allegedly encouraging others to ‘kill a white.’ Section 9A did not apply as the alleged statement was made on a marae, not legally considered a public space. Section 61 of the Human Rights Act 1993 now prohibits the exciting of hostility and the bringing into contempt of groups of people. Concerns over freedom of speech led to an absence of references to ‘ill will’ or ‘ridicule.’
The Race Relations Act 1971 prohibited discrimination on the grounds of race, nationality or ethnic origin. It established the office of Race Relations Conciliator and set up procedures for complaints about racial discrimination. The Human Rights Commission Act 1977 added the grounds of marital status, sex, and religious and ethical belief. In 2001 the Race Relations Office was merged with the Human Rights Commission.
In July 1986 the Homosexual Law Reform Bill was passed after a turbulent 14-month campaign. It was, however, only a partial victory for law reformers. The first part of the bill, decriminalising a range of sexual acts, was passed. The second part, outlawing discrimination on the grounds of sexual orientation, was rejected. Discrimination due to sexual orientation was made illegal only with the passing of the Human Rights Act in 1993. The Human Rights Act was passed with little controversy – showing the change in public attitudes.
New Zealand’s Human Rights Act 1993 deals mainly with one human right: to be free from discrimination. It consolidated the two earlier acts and added new grounds, notably sexual orientation, family status and disability. It applies to private individuals as well as the government – but only in the context of employment, provision of goods and services, accommodation, education and access to public places.
The Human Rights Act established a Human Rights Commission with various statutory functions, including human-rights education, making public statements and submissions to Parliament on proposed legislation. Its most visible function is to receive complaints from persons who claim to have suffered discrimination. The commission attempts to mediate in those complaints. Unresolved complaints can be taken to the Human Rights Review Tribunal. The tribunal has the power to make binding rulings, including awards of damages up to $200,000.
Since the power to make declarations of inconsistency was conferred on the Human Rights Review Tribunal in 2001 there has been one such declaration. It concerned the Accident Compensation Act 2001 and the way in which benefits were calculated for people aged over 65. This declaration, made in a case called Howard v. Attorney-General in May 2008, was reported to the House of Representatives with the comment that the inconsistency had since been removed by further legislation.
Like the New Zealand Bill of Rights, the Human Rights Act does not prevent Parliament from enacting a law that is inconsistent with it. However, the Human Rights Review Tribunal may decide that a person has suffered discrimination through a particular law. It is then required to make a ‘declaration of inconsistency’ regarding that legislation. The minister of the Crown responsible for the legislation is required to draw that declaration to the attention of the House of Representatives, and state what the government proposes to do in response.
In 2004 MP Georgina Beyer introduced a private member’s bill adding gender identity to the grounds of discrimination prohibited in the Human Rights Act 1993. The Human Rights (Gender Identity) Amendment Bill was withdrawn in 2006 after a decision by the solicitor general that transgender people were protected by the ‘sex discrimination’ provision of the 1993 act. This decision was controversial. The Human Rights Commission and some transgender activists continued to maintain that the Human Rights Act needed to specifically mention that transgender people were protected from discrimination.
The Universal Declaration of Human Rights (1948) was not a binding international treaty. It was followed by a series of more detailed United Nations human-rights treaties, designed to be binding upon states who sign up to them. New Zealand is a party to seven of the nine core international human-rights treaties. These treaties operate at the international level and are not themselves a part of New Zealand law. The idea is that, by entering into these treaties, New Zealand agrees to ensure that the various rights will be recognised within law and made enforceable for the benefit of persons in New Zealand.
The UN human-rights treaties are typically monitored by periodic reporting to the UN. The Ministry of Foreign Affairs and Trade periodically prepares a report on New Zealand’s progress in implementing a treaty. NGOs and others are permitted to make ‘shadow reports’ (alternative reports prepared by non-government bodies).
New Zealand has consistently received high rankings on its human-rights record from monitoring agencies such as the UN Human Rights Committee, Amnesty International and Freedom House. The country is acknowledged as a world leader in human rights. Monitoring agencies have, however, expressed concerns over such issues as the police use of tasers, the high rate of Māori imprisonment, the level of violence against women and children, and aspects of New Zealand’s immigration policies.
Some treaties have optional protocols, which, if a state adopts them, allow individuals within that state to bring a complaint against it to the treaty monitoring body. New Zealand has adopted the individual complaints procedure for the International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The UN human-rights treaties to which New Zealand is a party are the:
The two UN human-rights treaties to which New Zealand is not a party are the:
In addition to government actions, groups of New Zealand citizens have for many years been concerned over international human-rights issues. Religious groups, trade unions, aid agencies and activist organisations have all protested at different times over breaches of human rights around the world.
Bedggood, Margaret, and Kris Gledhill, eds. Law into action: economic, social and cultural rights in Aotearoa New Zealand. Wellington: Thomson Reuters, 2011.
Lauren, Paul Gordon. The evolution of international human rights: visions seen. Philadelphia: University of Pennsylvania Press, 1998.
Rishworth, Paul, and others. The New Zealand Bill of Rights. Auckland: Oxford University Press, 2003.
Simpson, Alfred William Brian. Human rights and the end of empire: Britain and the genesis of the European Convention. Oxford: Oxford University Press, 2001.