Saturday, 12 March 2011


Until the BORA is entrenched in New Zealand law the human rights protections contained therein are largely hollow protections. One has only to look at the rapid erosion of our fair trial rights mooted by the Minister of Justice for example the denial of the right to elect trial by jury, the introduction of the adverse inference for maintaining the right to silence et, etc. Sadly we are in a chilling environment at the moment in terms of New Zealand's regard for human rights law. This will not get any better with a Government that prefers law change guided by opinion poll rather than having any guiding principle such as respect for the Rule of Law and principles of International Law.

It is lamentable that despite New Zealand signing the International Covenant on Civil and Political Rights (“ICCPR”) on 12 November 1968 and since ratifying it on 28 December 1978 that we have failed in our principle obligation to properly incorporate our human rights
obligations in domestic law.

NZ acceded to the First Optional Protocol to the ICCPR on 26 May 1989; and signed and ratified the Second Optional Protocol on 22 February 1990. The ICCPR was partially incorporated into domestic legislation by the BORA.

The Covenant is not fully implemented in New Zealand because the constitutional arrangements arising from the notion of parliamentary supremacy mean that there is no way to prevent Parliament from passing legislation that is discriminatory, or that breaches any of the
other Covenant rights, nor to overturn such legislation when it is enacted - even though the ICCPR requires effective protection and remedies for those whose rights have been violated.

Repeatedly the Human Rights Committee have reminded our Governments of our failure to provide an effective remedy for legislation that breaches our BORA and ICCPR rights. For example
The Committee's Concluding Observations on the 4th periodic report (CCPR/CO/75/NZL):
C. Principal subjects of concern and recommendations 8. Article 2, paragraph 2, of the Covenant requires States parties to take such legislative or other measures which may be necessary to
give effect to the rights recognized in the Covenant. In this regard the Committee regrets that certain rights guaranteed under the Covenant are not reflected in the Bill of Rights, and
that it has no higher status than ordinary legislation. The Committee notes with concern that it is possible, under the terms of the Bill of Rights, to enact legislation that is incompatible with the provisions of the Covenant and regrets that this appears to have been done in a few cases, thereby depriving victims of any remedy under domestic law.

"3 The State party should take appropriate measures to implement all the Covenant rights in domestic law and to ensure that every victim of a violation of Covenant rights has a remedy in
accordance with article 2 of the Covenant."

Currently there is a disdain among our elected representatives to entrench the BORA because of a concern regarding a shift of power from elected politicians to judges. Yet historically democracy since its inception has relied on judges (‘unelected’ precisely so they can be independent of party politics) to protect the rights of citizens against governments that abuse power. It is ironic that many of our MPs who scoff at a bill of rights, or call it undemocratic, fail to recognise that they owe their parliamentary privilege of free speech precisely to the Bill of Rights of 1689.

In essence the current trend with modern legislation to occasionally contain a purposive clause acknowledging a relationship between the BORA and a bill is no more than Claytons recognition offering lip-service to the BORA only. Just as Parliament gained its independence via the 1689 Bill of Rights from absolutist monarchy – it is time that we as citizens gained a real Bill of Rights that protects us from the tyranny of a Parliament that has no or little regard for human rights and fundamental freedoms.

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