The right to self-determination has always been a matter that has been handled cautiously by both New Zealand and the Human Rights Committee within the article 40 reporting process. Article 1 of the International Covenant on Civil and Political Rights guarantees that all peoples have the right to self-determination and explains that this right entails that peoples may freely determine their political status and freely pursue their economic, social and cultural development.39 This guarantee is not isolated, also being reflected in article 1 of the International Covenant on Economic, Social and Cultural Rights.40
In its latest report to the Committee, the New Zealand Government made mention of Tokelau as being New Zealand's only non-self-governing territory. It reported that, under a programme of constitutional devolution, Tokelau (with New Zealand support) is developing the institutional framework through which the peoples of Tokelau will be able to make a choice concerning their future political status.41
Closer to home, and no doubt for various political reasons, the Report does not comment on the question of self-determination for Maori within New Zealand itself. Likewise, the Committee made no mention of Maori in that context.42 Nor did it do so in its response to the Third Periodic Report,43 although it did comment positively on developments affecting the interests of Maori.44
In this context, it should be noted that, while the NZBORA holds itself out as being the domestic instrument through which the ICCPR is implemented, there is no mention within the Act of the right to self-determination. The White Paper on the Bill of Rights was to include provisions on the Treaty ofWaitangi.45Clause 4 of the Bill (as in the White Paper) provided that the Treaty was to be 'recognised and affirmed' and that effect was to be given to the 'spirit and true intent' of the Treaty. This was consistent with the decision of the New Zealand Court of Appeal in New Zealand Maori Council v Attorney-General46in which the Court talked about the importance of the spirit of the Treaty of Waitangi, rather than the difference between the Maori and English texts. The White Paper discussed the Treaty as a document that articulates Maori as the tangata whenua and stated that:
A Bill of Rights that ignored this would be at best an incomplete document.47
Clause 4 was removed during the Parliamentary process, as were other provisions that would have seen the NZBORA take on a much stronger status.
Having said this, one might ask: does the Human Rights Committee have the ability, legal or moral, to make any comment on the status of the enjoyment of the right to self-determination within a State party's territory? Certainly, the mandate of the Committee is to monitor, through the various means discussed, the enjoyment of rights and freedoms. However, the Committee itself can hardly be said to have been proactive in this area. Under the First Optional Protocol to the ICCPR, individual communications (effectively 'complaints') may be made directly to the Human Rights Committee once domestic remedies have been exhausted.
The point to make is that only individuals who claim to be victims of a violation of any of the substantive rights set out in the ICCPR can submit a communication to the HRC. An organisation or corporate body does not have standing, although members of that body may have standing in their own right.48 However, in Ominayak and the Lake Lubicon Band v Canada,49the Committee stated that:
There is ... no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about the alleged breaches of their rights.
The emphasis appears to be on the way in which the communication is lodged. That is, a communication can be lodged by a group ofindividuals, but not by a group or association on behalf of individuals. The problem with this approach lies in its practical application to the particular problem of tribal or indigenous groups. Communications may not be lodged by tribal or similar 'first nations' groups unless it can be shown that the person lodging the application is doing so either as a victim in his or her own right; or with the consent of the other individual members of the tribe or nation who claim to be victims.
In AD v Canada, AD claimed to be the Grand Captain of the Mikmaq (a tribal group within Canada).50 He submitted a communication on behalf of the Mikmaq alleging that the Government of Canada had denied and was continuing to deny the Mikmaq their right to self-determination. He also claimed that Canada had denied members of the tribe of their means of subsistence and had adopted laws and policies which were destructive to their way of life. He claimed the objective of the communication was, inter alia, to secure recognition of the Mikmaq as a State. The Committee held that AD had not proven that he was authorised to act as a representative on behalf of the Mikmaq tribal society and, accordingly, refused to admit the communication.
The cultural rights and right to self-determination of the Sami people was raised in Kitok v Sweden.51The HRC held the individual complainant could not be a 'victim' of the right to self-determination because self-determination deals with rights of peoples whereas the First Optional Protocol only allows individuals to have recourse to the procedure where their individual rights have been violated. The same view adopted in: Ominayak and the Lake Lubicon Band v Canada;52 AB et al v Italy;53 and RL et al v Canada.54In the latter case, the Human Rights Committee held:
With respect to the authors' claim of a violation of Art. 1ICCPR, the Committee recalls its constant jurisprudence that pursuant to Art. 1 of the Optional Protocol, it may receive and consider communications only if they emanate from individuals who claim that their individual rights have been violated by a State Party. While all people have the right to self-determination ... the Committee has already decided that no claim for self-determination may be brought under the Optional Protocol.
This has clear implications for the question of the right to self-determination. Self-determination stands alone as the only provision in Part I of the ICCPR. It might, for that reason, be regarded as a 'super right' - one that must be given effect to before the ability to enjoy other rights and freedoms can be guaranteed.55 Self-determination is a group right, and it would seem that only groups would have the appropriate standing to complain of a violation. This, in turn, presents something of a paradox. Since only 'peoples' can enjoy the right of self-determination (as a collective) they may not, in the case of alleged violation, use the Human Rights Committee complaints process to enforce this substantive right, since the enforcement procedures can be invoked only by individuals. 56Self-determination is not, either within the International Covenant on Civil and Political Rights or the New Zealand Bill of Rights Act, a judicially enforceable right.
IV. Implementation and Enforcement
Equally important, if not more, is the issue of the extent to which and how civil and political rights are given effect to within New Zealand's legislation. Four broad issues are considered within this framework: the legislative status of human rights law; remedies; statutory interpretation; and the ability of New Zealanders to complain directly to the Human Rights Committee.
The Legislative Status of Human Rights Law in New Zealand
Paragraph 11 of the Human Rights Committee's comments on the Third Periodic Report stated:
The Committee regrets that the provisions of the Covenant have not been fully incorporated into domestic law and given an overriding status in the legal system. 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 does not repeal earlier inconsistent legislation, and has no higher status than ordinary legislation. The Committee notes that it is expressly possible, under the terms of the Bill of Rights, to enact legislation contrary to its provisions and regrets that this appears to have been done in a few cases.57
In reply to those criticisms by the Committee, the Fourth Report seems to have either fudged its own response or misunderstood the criticism.58 The Government's response was to redirect the HRC criticism to the limited issue of the ability of Parliament to be able to pass legislation despite a report from the Attorney-General under s 7 of the NZBORA, allowing the possibility of some legislation enacted in breach of the Act and possibly the Covenant. The Fourth Report explained:
Section 7 constitutes a safeguard designed to alert Members of Parliament to legislation which may give rise to an inconsistency with the Bill of Rights Act and, accordingly, to enable them to debate the proposals on that basis (see Mangawaro Enterprises Ltd. v. Attorney-General [ 1994] 2 NZLR 451,457). The role of scrutinizing bills for consistency with the Bill of Rights Act and providing advice to the Attorney-General on the exercise of his or her duties under Section 7 is performed by the Ministry of Justice (in the case of legislation being promoted by a Minister other than the Minister of Justice), and by the Crown Law Office (in the case of legislation being promoted by the Minister of Justice).
The New Zealand Government points out that this vetting process can involve complex issues and that, in a number of circumstances, it is quite possible for there to be reasonably held competing points of view as to whether a provision does or does not infringe the provisions of the Act. While that is an entirely rational point, it fails to answer the Committee's earlier comments to the Third Periodic Report. The comments of the Human Rights Committee did not amount to a criticism of the legislative safeguards against enacting inconsistent legislation; they were in essence stating that this should not be a question for Parliament but one for the judiciary, with the power for the judiciary to strike down inconsistent provisions.
The provision of effective remedies by a State for breach of an individual's rights or freedoms is mandated by article 2(3) of the International Covenant. Article 2(3) provides that:
Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
In its White Paper form, the Bill of Rights was to contain a remedies clause (providing for 'such remedy as the Court considers appropriate and just in the circumstances').59 Amendment of the Bill during its passage through Parliament saw this remedies provision removed. The resulting Act did not mention remedies.60 Notwithstanding this, remedies have been granted by the courts where breaches of the rights and freedoms contained in the NZBORA have occurred. This was a matter in respect of which New Zealand attracted negative comment from the Human Rights Committee in response to its Third Periodic Report, where the Committee stated that it expressed 'concern about the absence of express provision for remedies for all those whose rights under the Covenant or the Bill of Rights have been violated'.61 In its latest report, the New Zealand Government was able to report on progress within this area, albeit that progress having been made through judicial development of remedies under the Bill of Rights rather than legislative change.62 The Report noted the development of three principal remedies: compensation and civil damages; the grant of a stay of execution for undue delay and/or the failure to allow for testing of evidence; and declarations of incompatibility.
The idea of damages for breaches of civil rights is one developed under the Act and in reliance on the Covenant. Two cases, both which involved essentially the same issues, are of relevance: Simpson v Attorney-General (Baigent 's Case)63and Auckland Unemployed Workers' Rights Centre Inc v Attorney-General.64
In Baigent 's Case, Mrs Baigent's property had been mistakenly identified as the premises of a drug dealer. The police insisted on executing the search warrant even when they knew, or at least ought reasonably to have known, that they were in error. Indeed, Mrs Baigent claimed that the police had persisted with the search unreasonably, in bad faith and maliciously. She made claims against the Crown alleging negligence in applying for a search warrant for the premises; trespass to land; misfeasance in public office; trespass to goods; and damages for breach of s 21 of the NZBORA. Section 21 guarantees a person's right to be secure against unreasonable search and seizure. In the Auckland Unemployed Workers' case, the plaintiffs had leased premises which were searched by police relying on an illegal search warrant. They similarly brought proceedings alleging malicious abuse of process (in applying for the search warrant); trespass to land; and damages for breach ofs21 of the NZBORA.
In response to both claims, the Crown claimed that the police were immune from suit, relying on s 6(5) of the Crown Proceedings Act 1950. This found favour with the High Court but the New Zealand Court of Appeal, on an interlocutory application regarding the pleadings, allowed the appeals.65 It held that the Crown could not rely on s 6 of the Crown Proceedings Act if the police were not acting in good faith.66 Of particular relevance, however, is the fact that the Court of Appeal held that a cause of action lay against the Crown directly for breach of the NZBORA and that this was not affected by any of the statutory immunities set out in the Crown Proceedings Act.67 In doing so, the majority of the Court rejected the Crown's argument that the absence of any remedies clause from the NZBORA meant that Parliament intended to exclude a right to monetary compensation in the case of violation. In part, they looked at the way in which the New Zealand courts had fashioned exclusion remedies in cases like R v Goodwin68and R v Goodwin (No 2) 69In particular, however, the Court of Appeal examined New Zealand's international obligations under the ICCPR. Given the long title to the NZBORA, which expressly refers to New Zealand's commitment to the ICCPR, the Court of Appeal considered that the Courts were under an obligation to provide an effective remedy for breach of the Act, following the specific wording of article 2(3)(a). In the words of Cooke P:
Section 3 of the New Zealand Act makes it clear that the Act binds the Crown in respect of functions of the executive government and its agencies. It "otherwise specially provides" within the meaning of s 5(k) of the Acts Interpretation Act 1924. Section 3 also makes it clear that the Bill of Rights applies to acts done by the Courts. The Act is binding on us, and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed. In a case such as the present the only effective remedy is compensation. A mere declaration would be toothless. In other cases a mandatory remedy such as an injunction or an order for return of property might be appropriate: compare MaganavZaire (1983)2 Selected Decisions ofthe Human Rights Committee (under the Optional Protocol) (Communication No 90/1981) 124, 126.70
As noted in the New Zealand Government's recent report to the United Nations Human Rights Committee, claims for compensation under the Bill of Rights have been subsequently considered by the courts. Compensation was awarded in Upton v Green (No 2) 71 for breach of the right to natural justice by a Judge; and in Dunlea v Attorney-General72for unreasonable searches and arbitrary detention.73
Stay of Prosecution
In Martin v Tauranga District Court74the New Zealand Court of Appeal held that a stay of proceedings was the appropriate remedy for a 17 month delay from charge to trial date. A delay of such length was found to be, on the facts, a breach of s 25(b) of the NZBORA.75 In a later case, Dalton v Police,76the accused had been convicted and sentenced. On appeal, the Court held that there had been an unreasonable delay in trying the accused. Accordingly, the accused was discharged without conviction. However, the Fourth Report points out that the remedial power under s 25(b) of the NZBORA will arise in a narrower range of cases than the equivalent remedial powers under the inherent common law jurisdiction and under s 347 of the Crimes Act 1961. This is because a finding of a breach requires that there must have been undue delay after a person has been charged with an offence, while the common law applies to pre-charge delay as well.
Declarations of Inconsistency /Incompatibility
The potential for the judiciary to issue a declaration upon finding an inconsistency between the NZBORA and another piece of legislation was indicated as being available as early as 1992.77 However, it was not until the relatively recent judgment in Moonen v Film and Literature Review Board that the judiciary followed this approach. In that decision, the NZCA set out the circumstances in which a declaration might be made, namely where there is a provision in an enactment which; first, conflicts with the NZBORA; and, second, cannot be interpreted consistently with the NZBORA (involving application of s 6); and, next, cannot be justified as a reasonable limit in a free and democratic society (involving application of s 5); and must therefore take precedence over the right contained in the NZBORA (by virtue of s 4).78 In such a situation, the Court found that there are two consequences. Primarily, the inconsistent provision within the enactment takes precedence and must be accorded full effect, by operation of section 4. In addition, however, the Court may issue a declaration advising that, although the enactment must be given effect, it is inconsistent with the right(s) or freedom(s) contained in the NZBORA. While the implications of the Declaration are weighty, the courts have not issued a declaration of incompatibility to date - despite what might be described as the perfect test cases for such action. As indicated earlier, there may be reason to suspect that the courts have shied away from the idea. The case of R v Poumako79involved consideration of an amendment to s 80 of the Criminal Justice Act 1985, which increased the minimum non-parole period for home invasion offending. The increase in penalty was, in itself, inoffensive. What the Court was concerned with was the fact that this increase in the minimum non-parole period was expressed to be retrospective: as applying to offences committed on or before that amendment to the Criminal Justice Act. Poumako had committed murder, with the aggravating feature that the killing occurred during a home invasion. He did this prior to the amendment of the Criminal Justice Act and, therefore, while the minimum non-parole period for such offenders was 10 years. He pleaded guilty to the charge and was sentenced to the mandatory term of life imprisonment. Between the time of his offending and sentencing, the CJA was amended to increase the minimum non-parole period to 13 years. Pursuant to that amendment, the sentencing Judge ordered Poumako to serve a minimum non-parole period of 13 years imprisonment. Not surprisingly, Poumako appealed the sentence, relying on s 25(g) of the NZBORA, which affirms the right of an accused to incur no greater penalty than existed when the offence was committed. There was a clear inconsistency between the Criminal Justice Act amendment (providing for retrospective effect) and section 25(g) of the NZBORA. In a dissenting decision, Thomas J took the same approach as that of the Court of Appeal in Moonen and indicated that he was prepared to issue a declaration of inconsistency. Unfortunately, the rest of the Court avoided the issue by saying that it was not necessary to consider the NZBORA because, in the particular circumstances of Poumako's offending, a minimum non-parole period of 13 years was appropriate.
Next is the case of R v Pora.80 At first glance, the Court of Appeal took a similarly evasive approach. In fact, the decision of Elias CJ, Tipping and Thomas JJ entirely side-stepped the NZBORA.81 Despite the fact that s 80 of the Criminal Justice Act states itself to be applicable to offences committed before the amendment of that Act, they concluded that s 80 is not in fact retrospective.
In what must be seen as a shift in the application of general principles of statutory interpretation, the judgments referred to and placed considerable emphasis on s 4 of the Criminal Justice Act (a general interpretive provision) which states that penal enactments are not to have retrospective effect to the disadvantage of an offender. The normal position would be that, since s 80 is specific (referring to sentencing on convictions for home invasion) and s 4 is general (referring to penalties in general), then the more specific provision should take precedence. Instead, the opposite position was taken and justified by stating that:
Section 4 [of the Criminal Justice Act] was first enacted ... in deliberate fulfilment by Parliament of the obligations undertaken by New Zealand under Article 15(1) of the International Covenant on Civil and Political Rights [prohibition of retrospective penalties].82
Largely for that reason, it was concluded that, although s 80 might be considered as being more specific, it should not prevail over s 4 on the basis that s 80 did not express itself to be a provision to be applied 'notwithstanding s 4'. By doing so, priority was effectively given to article 15(1) of the ICCPR, which prohibits retrospective penalties. This time, the international human rights treaty was used to interpret the Criminal Justice Act, not the Bill of Rights Act.
The declaration of inconsistency has been met with controversy.83 And, indeed, a number of significant questions do arise. Do the courts have the ability to use declarations of inconsistency as a legitimate remedy under the Act? Is there, in fact, a duty for the courts to do so? Much centres around the tension between judicial and legislative functions: legislative supremacy versus the judicial ability to carry out a balancing and checking of power. Furthermore, is the role of the judiciary limited to simply acting as an arm of Government and implementing the wishes of Parliament; or is a more proactive role required, whereby the courts are empowered and obliged to protect the individual against the adverse exercise of public power? By enacting the NZBORA, although not an entrenched instrument, Parliament allocated to the courts the task of determining whether the legislation it has passed complies with the rights and freedoms set out in the NZBORA. The function of the courts is augmented by the additional responsibility of checking public power and operating to protect fundamental human rights. The extent of the courts' jurisdiction in executing this function is not clearly defined. What might be described as a somewhat haphazard development of remedies for breach of the NZBORA exemplifies the nebulous relationship between the two branches of State (and underscores the developing role of the judiciary and the increasing recognition of fundamental human rights). This issue is discussed by the writer within a two-part article aimed at carrying out an in-depth examination of the declaration of inconsistency, although the article is awaiting publication.84
Something else highlighted within the Fourth Report is the prominent role played by the International Covenant and the Bill of Rights in matters of statutory interpretation.85 This is a significant matter and should not be underplayed, as it has the effect (or, at the very least, the potential) of requiring all laws in our country to be applied with due regard to our individual rights and freedoms.
First, the role of international human rights conventions in statutory interpretation has become significant in determining the meaning of rights and or provisions within enactments86 and, as has been seen, in the provision of remedies. This is a significant topic in and of itself and is not canvassed any further for the purpose of this article.87
Next, it must be said that so too is the role of the NZBORA significant. For present purposes, two main features will be examined: the Act's general effect on other legislation; and its impact upon and strengthening of existing presumptions in statute law in New Zealand.
In terms of the general effect of the Act, ss 4, 5 and 6 lie at the heart of the operation of the Bill of Rights Act 1990. They direct how the Act is to be applied to other statutes and, thereby, how it is to be used as a tool of statutory interpretation. However it has not been clear cut (until relatively recently) how these operative provisions are to be applied themselves.88 Two main approaches have been adopted to the application of the operative provisions of the Act, each set out in Noort v MOT; Curran v Police.89 On the one hand, Cooke P took the view that primary focus should be placed upon ss 4 and 6 by determining whether there is an "irreconcilable conflict" between the legislation and the NZBORA. That is, the court should first apply s 6 to try to achieve a consistent interpretation and then, if there is no consistent application, apply s 4 to override the NZBORA. In contrast, the approach of Richardson and McKay JJ placed emphasis on s 5 by first asking whether or not the provision or practice in question can be justified under s 5 of the Act.90
This divergence in views had led to uncertainty in the area. Fortunately, the NZCA has resolved the position and issued a unanimous decision (in a decision of a bench of 5 judges) in Moonen v Film and Literature Board of Review.91Delivering the judgment, Tipping J outlined the following approach; after determining the scope of the relevant right or freedom, he set out a five-step process for application of ss 4, 5 and 6:
1. Identify the different interpretations of the words contained in the enactment being examined: if only one interpretation is open: that meaning should be adopted (s4); if more than one meaning is open, proceed to the next step.
2. Identify the meaning which constitutes the least possible limitation on the right or freedom in question and adopt that meaning (s6).
3. Having adopted the appropriate meaning (through either steps one or two), identify the extent - if any - to which that meaning limits the relevant right or freedom.
4. Consider whether that limitation (if found) can be demonstrably justified in a free and democratic society (s5): if it can, then that is the end of the matter; if it cannot, proceed to the next step.
5. Although a particular meaning to the enactment will have been adopted by this stage (ss4 or 6), if that meaning "fails" the s5 test, then it is a limitation that is not justifiable in a free and democratic society. Step 5 accordingly requires the court to issue a declaration to that effect (termed a declaration of inconsistency or incompatibility).
In its latest report to the Human Rights Committee, the Ministry of Foreign Affairs and Trade further pointed to the recent decision of R v Poumako, in which the Court of Appeal said:
The meaning to be preferred is that which is consistent (or more consistent) with the rights and freedoms in the Bill of Rights. It is not a matter of what the legislature (or an individual member) might have intended. The direction is that whenever a meaning consistent with the Bill of Rights can be given, it is to be preferred.92
That statement bears particular relevance to step two from the Moonen decision, where one is to identify the meaning which constitutes the least possible limitation on the right or freedom in question and adopt that meaning. The Court in Poumako was correct in saying that it is bound, by virtue of the particular wording of s 6, to prefer an interpretation which is most consistent with the Bill of Rights. However, for it to have said that the legislative intent is not a matter for consideration, it is suggested, is a huge step and somewhat misleading. It should not be taken from that statement that legislative intent will not, or should not, be taken into account in matters of interpretation in the Bill of Rights context. By application of the operative provisions in tandem, for example, if a meaning less consistent with the Bill of Rights than another was intended by Parliament and is found to be justifiable under s 5, then that less consistent meaning should be adopted, notwithstanding s 6.
Finally, one should consider the impact of the NZBORA upon and strengthening of existing presumptions in statute law in New Zealand. There are two presumptions within New Zealand statute law upon which the NZBORA impacts directly. The first is the presumption regarding ouster, or 'privative', clauses: provisions within an enactment that purport to exclude a person's right to seek judicial review of a decision by an executive decision-maker. The presumption is that such clauses should be read in as narrow a context as possible, thereby protecting the right of those affected by such decisions to retain access to the courts. The courts have been particularly unwilling to hold that a statute which establishes a tribunal, or creates an executive discretion, takes away the right to have any consequent decision reviewed by the judiciary.93 In New Zealand Waterside Workers Federation Industrial Association of Workers v Frazer,94which precedes the NZBORA by over half a century, it was held that the following ouster clause did not entirely deprive the right of judicial review:
No award, order, or proceeding of the Court [the Arbitration Court] shall be liable to be reviewed, quashed, or called into question by any Court of judicature on any account whatsoever.
This presumption has existed at common law for a considerable time.95 In the modern context, it is strengthened by the s 27(2) of the Bill of Rights guarantee of one's right to justice and the requirement to read enactments - ouster clauses included - in a manner that least impinges upon the Bill of Rights (if that is possible).96 Section 27(2) provides that:
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
The next presumption of statutory interpretation is that against retrospectivity.97In the context of penalties, this is particularly significant.98 Section 4(1) of the Criminal Justice Act 1985 expressly prohibits the retrospective application of penalties, albeit in very cumbersome language. As discussed in the judgment of Elias CJ and Tipping J (delivered by Chief Justice Elias) in R v Pora, s 4 of the Criminal Justice Act 1985 was first enacted in deliberate fulfilment by Parliament of the obligations undertaken by New Zealand under Article 15(1) of the ICCPR.99 Article 15(1) provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
In turn, ss 25 and 26 of the Bill of Rights provide as follows:
25. Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty
26. Retroactive penalties and double jeopardy
(1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred."
This has now come to be further reflected in the Interpretation Act 1999 which simply states that an enactment does not have retrospective effect. 10°
Complaints to the Human Rights Committee
As well as being a party to the International Covenant on Civil and Political Rights, New Zealand is a party to the ICCPR First Optional Protocol 1966.101 Underthe First Optional Protocol, an individual can bring a complaint of abuse of his or her civil and political rights to the Human Rights Committee (HRC).102 Article 1 of the Protocol recognises the competence of HRC 'to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant'. Individuals in New Zealand (including residents that are not citizens) who claim that any of their substantive rights enumerated in the ICCPR have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration. Within the Third Periodic Report, the Human Rights Committee commended New Zealand on its accession to the Protocol (this having been a recommendation of the Committee to New Zealand in response to New Zealand's Second Periodic Report.103 The Fourth Periodic Report is the first within which any consideration has been given to communications against New Zealand under the First Optional Protocol. Within this aspect of enforcement, two matters may be considered: the nature and result of complaints filed with the Human Rights Committee against New Zealand; and issues concerning the complaints procedure itself.
The Fourth Periodic Report comments that, during the report period between January 1994 and December 1996, the Centre for Human Rights forwarded to the New Zealand Government three communications from individuals subject to New Zealand jurisdiction alleging violation of ICCPR rights.104 The first communication alleged discrimination in New Zealand's treatment of individuals who had been prisoners of the Japanese army during World War II, and the Government's signing of the 1951 Treaty of Peace which released Japan from further reparation obligations. The second communication concerned criminal proceedings against an individual and his treatment in prison. The final communication related to the Government's decision to enact the Citizenship (Western Samoa) Act 1982.105 As to the third communication, the Human Rights Committee found in 1998 that the communication against New Zealand was admissible in part, and requested certain relevant information which was supplied by the New Zealand Government in 1999. The Committee has since found that there was no violation of rights under the Covenant in relation to this Communication. The Committee found that the Communication made in respect of the Treaty of Waitangi (Fisheries Settlement) Act 1992 was admissible in part in 1995, and has since found that there was no violation of rights underthe Covenant.106
Prior to this, the Committee had found that three communications against New Zealand were inadmissible.107
The Complaints Process
In Moonen v Film and Literature Review Board, Justice Tipping made the following statement regarding the utility of a declaration of inconsistency (a remedy under the Bill of Rights, already discussed): It might be said that the potentially difficult and detailed process involved under s 5 is somewhat academic when the provision in question is bound to be applied according to it tenor by dint of s 4. Section 5 would have had more persuasive effect if the Court had been given the power, as in Canada, to declare legislation invalid. That was deliberately not done in New Zealand and the late introduction of s 4 into the Bill of Rights was not accompanied by any express recognition of the remaining point of s 5. That section was, however, retained and should be regarded as serving some useful purpose. That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum. In the light of the presence of s 5 in the Bill of Rights, New Zealand society as a whole can rightly expect that on appropriate occasions the courts will indicate whether a particular legislative provision is or is not justified thereunder.108 In saying this, Tipping J expressly recognised that it might be considered academic to consider the potentially difficult and detailed process involved under s 5 of the Act (justified limitations in a free and democratic society) if the courts are ultimately bound to apply the enactment (due to s 4). He pointed out, however, that when s 4 was inserted into the Act, thereby removing the power of the courts to declare legislation invalid, s 5 was nevertheless retained. As such, it should be regarded as serving some useful purpose. He recognised that declarations, while not binding, generally bring considerable pressure on Parliament and/or the Crown to address the issue in question. Declarations certainly bring an issue within the public domain and thereby have the potential to create domestic public and political pressure in the event that the issue is regarded as being a violation of concern. Most significantly, in the context of the International Covenant on Civil and Political Rights, such declarations could clearly stand as the basis upon which an individual complaint could be made to the Human Rights Committee under the First Optional Protocol to the ICCPR.
Justice Tipping's proposition was that a declaration of inconsistency could stand as a judicial indication of the compliance of a particular provision in an Act with the Bill of Rights Act. That being the case, such a declaration could also stand as a (domestic) indication of the legislation's compliance with New Zealand's international obligations under the ICCPR. This must be so, given that the Bill of Rights is the domestic instrument through which the ICCPR has been incorporated into domestic law and, as a corollary, the ICCPR is used to interpret the Bill of Rights 109Tipping J himself comments that such judicial indications 'will be of value should the matter come to be examined by the Human Rights Committee'.110 Whether the Human Rights Committee can provide effective remedies and thereby an effective means of enforcement for New Zealanders is debatable. Arguing against its effectiveness, one could point to procedural and jurisdictional inadequacies; the lack of certainty in the binding nature of its decisions; and the unavailability of legal aid for those seeking redress through the Committee. On the other hand, the Committee is the principal international tribunal through which the ICCPR is administered and its decisions have significant standing.
Procedural inadequacies: a lack of resources
The Human Rights Committee has three functions under the ICCPR and its First Optional Protocol. It receives Periodic Reports under article 40(1) of the Covenant, these reports detailing the measures States party have adopted to give effect to the rights recognised in the ICCPR and on the progress made in the enjoyment of those rights.111 It makes General Comments on the provisions of the ICCPR, which are designed to help parties implement the rights recognised in the Covenant. It receives Communications from individuals under the First Optional Protocol. The Committee sits either in New York or Geneva. It usually holds three six week sessions per year: one in New York and two in Geneva. About four weeks of these sessions are spent reviewing State parties' periodic reports, which leaves only two weeks for consideration of individual communications. This is little time for communications which are often detailed and complex.
Given those time constraints and the backlog in consideration of individual communications, the HRC Secretariat has made a practice of providing summaries of the communications for the Committee. Few Committee members actually see the entire file. This has led to criticism that the quality of the HRC's jurisprudence has suffered. New Zealand and Australia have been critical about the way in which the HRC has dealt with communications which may have important consequences for domestic social policy.112
Non-admissibility of self-determination complaints
As discussed in some detail already, since only 'peoples' can enjoy the right of self-determination they may not, in the case of alleged violation, use the Human Rights Committee complaints process to enforce this substantive right, since the enforcement procedures can be invoked only by individuals.
Status of Decisions of the Human Rights Committee
A considerable problem is the uncertainty as to the status of decisions of the Human Rights Committee (which are termed 'views'). During the debates on the Optional Protocol by the Third Committee of United Nations General Assembly, the term 'views' was preferred to 'recommendations' or 'suggestions', in that the term was seen as more persuasive.113 Whether or not that is the case, it seems clear that the aim was for the Human Rights Committee to be capable of making a determination of the issues which is not legally binding. That position is supported not only by the drafting work of the Third Committee and initial statements by the Human Rights Committee itself, but also by the current Japanese Member Nisuke Ando:
Everyone is aware that the HRC is not a court of law. It can only adopt 'views' which are not binding on States parties concerned and they have the discretion to implement the views or not.114
Despite this widely received opinion, Professor Scott Davidson115 has pointed out that there has been a clear move away from this approach by the Human Rights Committee, since the pronouncement of its very first views in Massera v Uruguay.116Some suggest that this approach can be seen from the process and format of final views:
None of the decisions hitherto handed down reads like a diplomatic communiqué. Obviously, they have all been drafted on the pattern of a judicial decision. After an accurate description of the facts of the case and of the proceedings before the HRC, legal reasons are set out. In a final operative part a precise enunciation of the violations having occurred is given, coupled with the invitation to the Government concerned to take immediate steps in favour of the victims.117
McGoldrick put it rather more succinctly when he said that the 'Human Rights Committee's views follow a judicial pattern and are effectively decisions on the merits'.118 Form, however, is not necessarily indicative of substance, nor of legal status. While the HRC has always indicated the remedial action required of a State party in order to comply with its obligations under the Convention, Nisuke Ando has pointed out that some States have complied and some have not.119
The Committee has itself noted that its views are not legally binding. It acknowledged that 'the Committee is neither a court nor a body with a quasi-judicial mandate' but that it applied the Covenant and the Optional Protocol in a 'judicial spirit'.120 However, the Committee has retreated from this position. Fausto Pocar has argued that a close examination of the relationship between article 2(3) of the ICCPR and the Optional Protocol suggests that the final views of the HRC might have some indirect legally binding force. He argues that Article 2(3) ICCPR provides that where a violation of an individual right under the ICCPR takes place, the State is under a legal obligation to provide an effective and enforceable remedy. The Optional Protocol provides the machinery to establish whether such a violation has occurred. Where a violation is found by the HRC, therefore, the State is under a legal obligation to provide a remedy. He says:
The decision concluding the procedure under the Optional Protocol contains the finding of a violation. Although the decision is not binding as such, it makes the provision of article 2 applicable in the particular case.121
He further argues that Article 2(3)(b) ICCPR makes it clear that a person claiming a remedy for the violation of a right is to have that remedy determined by a competent legal authority of the State. This, in his opinion, supports the view that States intend to 'accept the determination of the victim's right made by the Committee, even if it is contained in a formally non-binding decision'.122
The current position adopted by the Human Rights Committee seems to be rather more robust than that suggested by Pocar. In recent final views, the HRC has clearly linked a State party's obligations under Article 2 ICCPR with the competence of the HRC to determine whether or not there has been a breach and to indicate a remedy. The typical formula now used by the Committee is as follows:
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.123
Through this oft repeated formula, the Committee appears to be claiming legal competence to make an authoritative determination of whether a violation has occurred and what steps are to be taken as a result. As Professor Davidson puts it:
While it has been well established that the Committee issues "views" not "decisions", and that its "views" are not binding ... recent developments could be taken to imply that some judicial or quasi-judicial status should be attached to them.124
Former Minister of Foreign Affairs, Don Mackay, would seem to suggest that he is not in favour of such a development:
Whether this is a good thing or a bad thing is obviously a matter for debate, and I do not propose embarking on that here. But it does raise another question, whether it is appropriate for an international body to have such a judicial or quasi-judicial role in cases which may have huge significance for States - more significance perhaps than some of the cases before the International Court of Justice or the WTO Disputes Settlement Body - if it does not have robust procedures and resources to match.125
What remains, therefore, is a degree of uncertainty as to the status of the final views of the Human Rights Committee.
The final criticism relates to the fact that, in New Zealand, there is no statutory provision authorising legal aid for communications to the Human Rights Committee.
The question of whether the Legal Services Act 1991 implicitly authorised the provision of legal aid for such communications was the subject of the decision in Wellington District Legal Services Committee v Tangiora.126 Tangiora and other iwi and whanau had lodged an application with the Human Rights Committee alleging that the Treaty ofWaitangi (Fisheries Claims) Settlement Act 1992 had violated articles 1, 2, 14(1), 18, 26 and 27 of the ICCPR. The HRC found that the claims relating to the alleged breaches of article 14(1) and article 27 (in conjunction with article 1) were admissible. Tangiora claimed costs of $89,000.00 by way of legal aid under s 19(e)(v) of the Legal Services Act 1991. The section provided:
Civil legal aid may be granted in accordance with the provisions of this part of the act in any of the following proceedings ... proceedings in any administrative tribunal or judicial authority.
The Wellington District Law Society refused to grant legal aid under this provision, on the ground that it had no jurisdiction to award legal aid for proceedings outside New Zealand. Judicial review of this decision was sought on the grounds that the Committee was a 'judicial authority' within the meaning of s 19(e)(v). At first instance, after reviewing the characteristics of a judicial authority, Gallen J held that the HRC did bear such characteristics and therefore fell within the meaning of the term in s 19(e)(v) of the Act. However, the Court of Appeal found that the Committee could not be classified as such for a number of reasons. It said that the nomenclature of the Committee, together with a clear indication in the travaux préparatoires, indicated that it was not designed to have judicial status and that the non-binding nature of the HRC's views further militated against the classification of the Committee as a judicial authority.127
There remains one question in this matter that has not received attention. Might the failure of the Legal Services Act to provide legal aid for Human Rights Committee communications amount to a breach of New Zealand's obligations under the ICCPR? As mentioned earlier, there is a presumption of statutory interpretation (codified within the NZBORA) that a restrictive interpretation of ouster clauses is to be adopted to give effect to individuals' right to access to justice. Might the same right require the Legal Services Act to be interpreted in a manner consistent with it, thereby allowing legal aid to be provided to those that wish to lodge a communication with the HRC? It seems likely that the answer must be in the negative, since the New Zealand Court of Appeal has determined that the Human Rights Committee is not a 'judicial authority' within the meaning of the Legal Services Act. However, in light of developments in the remedial jurisprudence of the Bill of Rights, might the Court now take a different approach? One might argue that, having regard to Justice Tipping's comments on the utility of declarations to the Human Rights Committee complaints process, the Committee process should in fact be accorded greater respect and seen as a judicial authority. That was not a matter that was put to the Court, since its decision pre-dated Moonen.
Even if that argument was successful, however, there are two significant hurdles. First, and by virtue of s 4 of the Bill of Rights, the Legal Services Act must prevail if the conflict between the legislation is irreconcilable. At best, the Court might be able to make a declaration of inconsistency if it was satisfied that a lack of providing legal aid for HRC communications was unreasonable in a free and democratic society.128 Furthermore, it is doubtful whether the right to access itself includes the right to be legally aided. The Bill of Rights itself only provides for the rights to natural justice and judicial review (s 27), and only expressly mandates the provision of legal aid in the case of persons charged with an offence (s 24(f)). Nor do the ICCPR, the First Optional Protocol or the Human Rights Committee Rules provide for legal aid to a communicant.
In summary, four main criticisms can be made against the idea that the Human Rights Committee provides effective remedies and, accordingly, that declarations are effective remedies through the assistance they could offer the Committee. First, the Committee must deal with a number of matters and has limited time to carry out those functions, leading to various means by which normal judicial processes are condensed. Next, the Committee has clearly taken the view that self-determination is not a right enforceable through the individual complaints process. That is, in fact, not of such concern to the current issue given that the right to self-determination is not enunciated within the Bill of Rights. Third is the fact that there is doubt concerning the status of the final views of the Committee. While the Human Rights Committee has clearly adopted the view that its decisions are binding, there are conflicting views on the validity of this approach. Finally, in terms of access, there is no express provision allowing New Zealanders to obtain legal aid assistance for complaints to the Human Rights Committee, nor have existing legal aid provisions been interpreted to allow this.
These might appear to be overwhelmingly strong criticisms against the effectiveness of the Human Rights Committee process as a remedial tool. However, there are various factors that counter those criticisms. Whether or not the Committee's views are strictly binding, the fact is that they set out means by which breaches of civil rights may or are to be redressed by the State.129 In addition, under Rule 95 of the Human Rights Committee's Rules of Procedure, a member of the Committee (the Special Rapporteur for the Follow-up of Views) is required to maintain contact with a respondent State to observe the manner in which it gives effect to the final views of the Committee. This is the most effective way of ensuring compliance with its views, since it enables the HRC to keep pressure on a respondent State to fulfil its obligations under the ICCPR. The Human Rights Committee can also use the periodic reporting system under discussion to keep pressure on. States party are required to address not only the measures which they have taken to give effect to the rights recognised in the Covenant, but also 'the progress made in the enjoyment of those rights'.130
And despite the Court of Appeal's finding that the Committee is not a 'judicial authority' in the context of the Legal Services Act 1991, it has also stated that the Human Rights Committee is 'part of the judicial structure of New Zealand' .131 That dictum has been cited with apparent approval in a number of cases: Lawson v Housing New Zealand;132 Elika v Minister of Immigration;133 Northern Regional Health Authority v Human Rights Commission134and Quilter v Attorney-General.135
When considering the evolution of civil rights in New Zealand, in particular the developments reported and commented upon in the time between New Zealand's Third and Fourth Periodic Reports, both positive and negative conclusions may be drawn. Indeed, the writer is conscious that those reading this work might be left with a view that New Zealand is not doing well. That would be a wrong inference to draw. While there are various aspects of human rights protection that require attention, the overall picture is set in a positive frame. As stated by the Committee this year, there have been various measures adopted and laws enacted that go a long way towards attaining high standards in the achievement of human rights. New Zealanders should nevertheless remain aware and be sure that progress continues and that steps are not taken to regress.