Interpreting Human Rights in New Zealand and the UK: Expansive but Narrow, Narrow but Expansive

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Interpreting Human Rights in New Zealand and the
UK Expansive but Narrow, Narrow but Expansive

• Kris Gledhill
• Director, NZ Centre for Human Rights Law, Policy
  and Practice, Faculty of Law, University of
  Auckland

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Outline

• NZ and UK dualist but engaged in international
  human rights mechanism
• Common law and the use of international
  obligations to assist interpretation narrow in
  UK but wide in NZ
• Statutory human rights protection with
  interpretive obligation substantively similar,
  but narrowly interpreted in NZ and widely
  interpreted in UK
• Seeking explanations

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Participation in International Human Rights
Regimes

• Regional
• UN level
• NZ involvement in UDHR 1948
• Membership of Core Human Rights Treaties
• Allowing complaints to UN bodies

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UN Core Human Rights Treaties and Monitoring
Bodies

• ICERD 1965 and Committee on the Elimination of
  Racial Discrimination
• UK ratified 1969, NZ 1972
• ICCPR 1966 and Human Rights Committee
• UK ratified 1976, NZ 1978
• ISESCR 1966 and Committee on Economic, Social and
  Cultural Rights 
• UK ratified 1976, NZ 1978
• CEDAW 1979 and Committee on the Elimination of
  Discrimination against Women
• UK ratified 1986, NZ 1985

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UN Core Treaties and Monitoring Bodies Cntd

• CAT 1984 and Committee against Torture 
• UK ratified 1988, NZ 1989
•  Optional Protocol to the Convention against
  Torture (OPCAT) - Subcommittee on Prevention of
  Torture (SPT)
• UK ratified 2003, NZ 2007
• CRC 1989 and Committee on the Rights of the
  Child 
• UK ratified 1991, NZ 1993
• ICRMW 1990 and Committee on Migrant Workers 
• CPRD 2006 and Committee on the Rights of Persons
  with Disabilities 
• UK ratified 2009, NZ 2008
• CPED 2006 and Committee on Enforced
  Disappearance 

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Individual Complaints to Treaty Monitoring Bodies

• Complainants ie claim that rights have under
  relevant covenant or convention have been
  violated by a State party. Jurisprudence collated
  in various places useful site is
  www.bayefsky.com
• The Human Rights Committee may consider
  individual communications relating to States
  parties to the First Optional Protocol to the
  International Covenant on Civil and Political
  Rights
• NZ signed and ratified 1989 Australia in 1991
• UK, whilst a party to the ICCPR, does not allow
  individual complaints (though it does allow
  inter-state complaints)
• NB the vast majority of Council of Europe members
  also allow individual complaints to the HRC
  often with limitation that individual must chose
  ECtHR or HRC
• NB some rights under ICCPR not in ECHR eg much
  stronger non-discrimination principles

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Individual Complaints - cntd

• The CERD may consider individual communications
  relating to States parties who have made the
  necessary declaration under article 14 of the
  Convention on the Elimination of Racial
  Discrimination
• NZ has NOT Australia did in 1993
• UK has NOT most CoE countries have.
• Example - Mahali Dawas and Yousef Shava v
  Denmark, UN Doc CERD/C/80/D/46/2009 6 March 2012
  under-prosecution of racially-motivated attack
  breached CERD duty to take effective steps to
  prevent racial discrimination

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Individual Complaints - cntd

• The CEDAW may consider individual communications
  relating to States parties to the Optional
  Protocol to the Convention on the Elimination of
  Discrimination Against Women
• NZ signed and ratified in 2000, Australia in 2008
• UK acceded in 2004 only 2 complaints listed on
  www.bayefsky.com
• The CAT may consider individual communications
  relating to States parties who have made the
  necessary declaration under article 22 of the
  Convention Against Torture
• NZ made the declaration in 1989, Australia in
  1993
• UK has not (but does allow inter-state
  complaints)
• The CRPD may consider individual communications
  relating to States parties to the Optional
  Protocol to the Convention on the Rights of
  Persons with Disabilities.
• NZ has NOT joined this Australia DID in 2009
• UK also DID join in 2009

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Common law approach to international law

• UK Brind principle 1991 1 AC 696
  ambiguity allows account be taken of presumption
  of compliance with intl law can also be used for
  discretions Rantzen v Mirror Group 1994 QB
  670
• NZ stronger approach not requiring ambiguity,
  and as far as possible interpretation Tavita
  v Minister of Immigration 1994 2 NZLR 257
  Huang v Minister of Immigration 2009 2 NZLR
  700, Takamore v Clarke 2012 1 NZLR 573

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Domestic Statutes - NZBORA 1990/HRA 1998

• Both NZBORA and HRA
• (i) bind public authorities (including courts)
  not to breach the rights set out unless a statute
  makes that necessary.
• (ii) provides a remedy for breaches of those
  rights (case law development in NZ AG v
  Simpson in the statute in UK and other statutes)
• (iii) provides a strong interpretive obligation

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Interpretive Obligation

• NZ BORA - 6. Interpretation consistent with Bill
  of Rights to be preferred Wherever an enactment
  can be given a meaning that is consistent with
  the rights and freedoms contained in this Bill of
  Rights, that meaning shall be preferred to any
  other meaning.
• HRA 3. Interpretation of legislation. (1)So far
  as it is possible to do so, primary legislation
  and subordinate legislation must be read and
  given effect in a way which is compatible with
  the Convention rights.

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Interpreting the Interpretive Obligation

• R v Lambert 2002 2 AC 545 reverse burden of
  proof interpreted as evidential burden to prevent
  disproportionate interference with presumption of
  innocence
• R v Hansen 2007 3 NZLR 1 Lambert not
  followed, on basis Parliamentary language could
  not be given reasonable construction as
  evidential burden, even though it was a
  disproportionate breach (and Parl had been
  wrongly advised by AG to contrary).

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Seeking Explanations

• One court has got it wrong
• Both are right because legally significant
  contexts are different

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Comments

• Is NZ statutory language weaker? (Lords Cooke and
  Steyn in Kebilene and Ghaidan rejected in
  Hansen cf Victorian Charter)
• NZ statute as a whole emphasises Parliamentary
  sovereignty more? (But s3(2) HRA Hansen court
  engaged with political question of
  proportionality of breach NZ courts have made
  declarations of inconsistency)
• Both statutes expressly indicate international
  links

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Comments cntd

• Both countries have common law legality (ex p
  Simms 2000 2 AC 115, R v Pora 2001 2 NZLR 37)
  
• NZ has stronger interpretive obligation towards
  international law (and does not have the Pepper v
  Hart restriction re examining Parliamentary
  material re purpose)
• EU membership hinted at in Hansen but do
  Marleasing and Factortame amount to anything
  beyond (i) interpretive power of same sort and
  (ii) simple reconciliation of conflicting
  statutes.
• Which leaves? (i) legal realism or (ii) legal
  error by one