Common law rights
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.
- It assumes that all people have basic liberty to think and act – that everything is permitted, except what is expressly prohibited by a legal rule.
- State officials such as police and customs officers are bound by the same law as all other persons.
- It provides a system of remedies for infringements of rights – notably the writ of habeas corpus, which requires that no person may be detained by another, including the state, without lawful authority.
- In criminal cases a person is innocent unless proven guilty.
- Proof must be ‘beyond reasonable doubt’.
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.
Where’s the treaty?
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.
Human rights and Parliament
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.
Bill of Rights Act 1990
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 right not to be deprived of life
- the right not to be subjected to torture or ill treatment
- the right not to be subjected to medical or scientific experimentation
- the right to refuse to undergo medical treatment.
- electoral rights
- freedom of thought, conscience and religion
- freedom of expression
- manifestation of religion and belief
- freedom of peaceful assembly
- freedom of movement.
The act also guarantees:
- freedom from discrimination, and the rights of minorities
- freedom from unreasonable search, seizure, arrest or detention
- the rights of people arrested or detained and the minimum rights of those charged with an offence
- the right to justice of any person dealing with a tribunal or public authority.