Alex Conte I. Introduction



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Endnotes

* LLB (Cant), LLM (Hons) (VUW), Barrister and Solicitor of the High Court of New Zealand, Lecturer in Law (University of Canterbury)



1 The Race Relations Act 1971 (NZ) came into force on 1 April 1972; the United Nations Human Rights Committee concluding observations on New Zealand's Fourth Periodic Report under the International Covenant on Civil and Political Rights were adopted on 17 July 2002: see Human Rights Committee Comments on New Zealand's 4th Periodic Report, CCPR/CO/75/NZL (26 July 2002). It could quite correctly be argued that human rights legislation existed prior to this or, at least, legislation that impacted upon and/or protected human rights, through various means (eg, Crimes Act 1961 (NZ), Summary Proceedings Act 1957 (NZ) and Criminal Justice Act 1985 (NZ) providing protection for various criminal process rights). The Race Relations Act 1971 (NZ) was the first piece of legislation, however, which had the specific mandate of human rights protection (even though limited to protection of rights set out in the International Convention on the Elimination of All Forms of Racial Discrimination).

2 Prafullachandra Natwarlal Bhagwati, Human Rights Committee Concludes Consideration of New Zealand's Report, United Nations News Centre, Press Release, (10 July 2002).

3 Ministry of Foreign Affairs and Trade, New Zealand's Fourth Periodic Report to the Human Rights Committee (2001) CCPR/C/NZL/2001/4; Human Rights Committee Comments on New Zealand's 4th Periodic Report (2002) CCPR/CO/75/NZL. The Fourth Report is available through the Ministry's website: see

4 It should be said that, although this article criticises aspects of the Fourth Periodic Report by New Zealand, this should not be seen as a criticism of the reporting authority, the Ministry of Foreign Affairs & Trade. Ultimately, the Ministry is a Government Department and is subject to direction from the Minister of Foreign Affairs and the New Zealand Government as a whole.

5 Ministry of Foreign Affairs and Trade, New Zealand's Third Periodic Report to the Human Rights Committee (1994) CCPR/C/64/Add.10; Human Rights Committee Comments on New Zealand's 3rd Periodic Report (1995) CCPR/C/79/Add.47.



6 Even then, a selective approach has had to be adopted. Given natural restraints in article length, certain matters could not be discussed. For example, adverse comments were made by the Human Rights Committee in its response to the Fourth Periodic Report regarding immigration and refugee issues. See Human Rights Foundation, UN Report a Wake-Up Call for Government, Brookers Human Rights / Immigration Electronic News Service, Media Release (15 August 2002).

  1. Ratified by New Zealand in 1975.

  2. Ratified in 1978.

  3. Ratified in 1978.

  4. Ratified in 1984.

  5. Ratified in 1989.

  6. Ratified in 1993.

  7. Periodic Reports are required to be submitted under article 40(1)(b) ofthe ICCPR.

  1. Ministry of Foreign Affairs and Trade, 'Comments on the Fourth Periodic Report', above n 3. The Report supplements New Zealand's Initial Report submitted in January 1982 (CCPR/C/10 Add.6), the Second Report submitted in June 1988 9CCPR/C/37/Add.8), and the Third Report submitted in December 1993 (CCPR/C/64/Add.10). The Fourth Periodic Report covers the period from January 1994 to December 1996, but comments on various matters outside that period (for example, the development of the remedy of judicial indications of inconsistency through Moonen v Film and Literature Board of Review [2000] 2 NZLR 9. Likewise, this article focuses on some recent developments, outside the strict reporting periodic of the Fourth Report.

  1. Article 40(1)(a) ofthe ICCPR refers.

  1. Ministry of Foreign Affairs and Trade, New Zealand's Initial Report to the Human Rights Committee (1982) CCPR/C/10 Add.6

  1. Article 40(1)(b) ofthe ICCPR refers.

18 Ministry of Foreign Affairs and Trade, 'New Zealand's Third Periodic Report', above n 5.

  1. See the preamble to the Race Relations Act (NZ).

  2. Section 3.

21 Part II of that Act.

  1. Section 19(2).

  2. Section 20.

  3. Article 20(2) provides that 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law'.

25 See the Comments to the Third Periodic Report, above n 5, para 16.

  1. Ibid para 13.

  2. See the Third Periodic Report, above n 5, para 60. 28 Ibid para 61-7.

29 General Comments are intended to be used by States party as a tool for interpretation and implementation of rights commented upon.

30 The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17) CCPR General Comment 16 (08/04/88).



31 T McBride, 'Data Privacy: An Options Paper' (Released by the Minister of Justice the Rt. Hon. Geoffrey Palmer, December 1997).

32 Principle 1 provides that the purpose for obtaining the information must be lawful and connected with a function of the agency collecting that information. The collection of the information must be necessary to that function. Principle 2 states that an agency must collect personal information directly from the individual concerned, unless the circumstances are within one of the exceptions set out in principle 2(2). Principle 3 sets out what advice must be given to a person in respect of which personal information is being collected (that the information is being collected; of the reason that the information is being collected; of whom the intended recipients of the information are and their contact details; of the law that authorises the collection of information; of whether the supply of the information is voluntary or mandatory; of the consequences of not providing the information; and that they have the right to have access to, and to correct, personal information about themselves). Principle 4 prohibits the collection of personal information by unlawful, unfair or unreasonably intrusive means. Principle 5 requires an agency that holds personal information to store it securely to prevent any loss of, unauthorised access to, use, modification, disclosure, or any other misuse of it. Principle 6 entitles individuals to receive confirmation from an agency that it holds personal information on him or her and to have access to it, provided the agency can retrieve it readily. Principle 7 further entitles an individual with the right to request that an agency correct personal information that it holds about them. If the correction is not made, they are entitled to have a statement attached to the information that the correction was sought but not made. Under Principle 8, an agency that holds personal information must ensure, before using it, that it is accurate, up to date, complete, relevant and not misleading. An agency that holds personal information must not (according to Principle 9) keep it any longer than required for lawful purposes. Principle 10 states that an agency cannot use information for any purpose other than the one that it was obtained for, unless it comes within one of the exceptions set out in principle 10(a)-(g). Principle 11 prohibits an agency that holds personal information to disclose it unless the circumstances come within one of the exceptions set out in principle 11(a)-(h). Finally, Principle 12 states that an agency must not assign a unique identifier to an individual unless it is required for the efficient performance of its functions. An agency must not assign an identifier that it knows has been assigned to that individual by another agency, unless those two agencies are associated persons under the Income Tax Act 1994 (NZ). An agency that assigns unique identifiers must ensure that the individual 's identity is clearly established. An agency cannot require an individual to disclose any identifier assigned to them, unless it is, or is directly related to, one of the purposes for which it was assigned.

33 New Zealand Law Commission, Protecting Personal Information from Disclosure: A discussion paper, NZLC Preliminary Paper 49 (2002).

34 New Zealand Law Commission, Electronic Commerce Part Two: A Basic Legal Framework, NZLC Report 58 (1999); New Zealand Law Commission, Electronic Commerce Part Three: Remaining Issues, NZLC Report 68 (1999).



35 Ibid v-vi. Particularly in light of the events of September 11, 2001.

36 K Dalziel, Protecting Personal Information from Disclosure' [2002] New Zealand Law Journal 139.

37 For example, see the Health Information Privacy Code issued by the Privacy Commissioner in 1994, which creates 12 detailed rules that apply to the collection, use and maintenance of health information pertaining to identifiable individuals: for a detailed discussion on the Code, see S Johnson, Health Care and the Law (2nd ed, 2000).

38 Aspects of the right are guaranteed, for example, within s 21 New Zealand Bill of Rights Act 1990 (NZ) which guarantees the right to be secure against 'unreasonable search or seizure, whether of the person, property, or correspondence or otherwise'.

39 Article 1(1) of the ICCPR.

  1. See also the Charter of the United Nations, articles 1(2), 55, 56, 73; and the obligations of States (under General Assembly Resolutions 1514 and 1541) who have, within their territorial jurisdiction, what are known as 'Non Self Governing Territories'.

  1. Ministry of Foreign Affairs and Trade, 'Fourth Periodic Report', above n 3, para 55.

  2. See the Comments on the Fourth Periodic Report, above n 3, para 7.

  3. See the Comments on the Third Periodic Report, above n 5, para 8-10.

  1. Ibid para 8. Pointing to 'the increasing importance of the work of the Treaty of Waitangi Tribunal in dealing with Maori claims against the Crown. The Committee also appreciates that New Zealand has dedicated the first year of the International Decade of the World's Indigenous People to the Maori language. In this connection, the Committee takes note with satisfaction of the adoption of a language nest programme whereby Maori language, customs and values are taught to pre-school children, as well as other programmes set up to promote Maori language, art and culture'.

  1. Department of Justice, A Bill of Rights for New Zealand. A White Paper (1985).

  2. [1987] 1 NZLR 641.

  1. Ministry of Foreign Affairs and Trade, 'Comments on the Third Periodic Report', above n 5, 55. It should be acknowledged that this is not a universally held view. Considerable difficulty is created when attempting to guarantee group rights and individual rights within a bill of rights document, as will be seen through the subsequent discussion of Human Rights Committee jurisprudence on article 1 of the International Covenant on Civil and Political Rights.

  2. See A Group of Associations for the Defence of the Rights of Disabled and Handicapped Persons in Italy v Italy, Communication 163/1984. In this case, the authors of the communication were members of the Group of NGOs who claimed that they themselves were disabled or that they were parents of such people. The HRC held that 'According to Article 1 of the Optional Protocol, only individuals have the right to submit a communication. To the extent, therefore, that the communication originates from the Coordinamento, it has to be declared inadmissible because of lack of personal standing'.

  1. Communication 167/1984.

50 Communication 19/78.

51 Communication 197/1985.

52 Communication 167/1984.

53 Communication 413/1990.

54 Communication 342/1989.

55 This is not a new idea. See, eg, J S Davidson, 'Individual Communications to the United Nations Human Rights Committee: A New Zealand Perspective' [1997] New Zealand Law Review 374, 380.

56 There is a relationship between the right to self-determination in Article 1 of the ICCPR and minority rights which are protected by Article 27 of the Covenant. Article 27 provides that 'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language'. This does not, however, provide an absolute solution, since Art 27 does not provide a right to self govern (as mandated by the right to self-determination).

57 See the Comments on the Fourth Periodic Report, above n 3, para 27.

58 Ibid para 24-34. One should not, however, take this article as treating the Human Rights Committee's criticism as being entirely meritorious. It is, in fact, rather simplistic in its approach and assumes that the judiciary should be the ultimate body deciding upon the extent to which citizens should enjoy rights and freedoms. In a recent report of the Regulations Review Committee, for example, Parliament was described as having this role, the Committee referring to Parliament as the 'guardian of the public interest': see Report of the Regulations Review Committee, Inquiry into Regulation-Making Powers that Authorise International Treaties to Override any Provisions of New Zealand Enactments, NZAJHR (2002) I. 16H, 16. That is, however, a subject outside the scope of this article. What will be illustrated is that New Zealand's Fourth Periodic Report effectively ignored the criticism.

59 Department of Justice, A Bill of Rights for New Zealand. A White Paper (1985) 114.



60 This was a matter that drew criticism from the Human Rights Committee in response to New Zealand's Third Periodic Report. The Committee recommended that there should be remedies for all persons whose rights under the ICCPR have been violated. See commentary to this effect: Ministry of Foreign Affairs and Trade, 'Comments on the Fourth Periodic Report', above n 3, 8. Submitted under article 40, para 1(b) of the International Covenant on Civil and Political Rights in the 'Core Document' (2001) 13.

61 Ministry of Foreign Affairs and Trade, 'Comments on the Third Periodic Report', above



n 5, para 12.

  1. See the Comments on the Fourth Periodic Report, above n 3, para 12-9.

  2. [1994] 3 NZLR 667.

  3. [1994] 3 NZLR 720.

65 The significance of this being an interlocutory application is that witnesses did not give evidence viva voce and claims were not, therefore, assessed with findings of fact made.

  1. Ibid 676. In getting around the Crown Proceedings Act (NZ), note that the remedy in damages was characterised not as a remedy in tort but as a public law remedy which could be invoked directly against the state, and such that bad faith or malice was not required to be proved (only unreasonableness being a requisite element of such claims).

  2. Gault J dissenting.

  3. [1993] 2 NZLR 153.

  4. [1992] 2 NZLR 390.

  5. Human Rights Foundation, above n 6, 676.

  1. (1996) 3 HRNZ 179. The plaintiff received an award of $15,000.00.

  2. (2000) 3 NZLR 136. The highest single award in that case was $18,000.00.

  3. It is notable that the Baigent case prompted consideration of whether legislative reform was necessary to govern remedies under the NZBORA. Within the context of a broader report on Crown liability, the New Zealand Law Commission issued a study endorsing the approach taken by the Court of Appeal in Baigent's case and concluding that no legislative intervention was necessary: New Zealand Law Commission Report, Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derrick, No 37 (1997).

  4. [1995] 2 NZLR 419.

  5. Section 25(b) incorporates the equivalent right within article 14 of the ICCPR.

  6. (1999) 5 HRNZ 415.

  7. F M Brookfield, 'Constitutional Law' [1992] New Zealand Recent Law Review 231, 239.

  8. Above n 1, 17. Sections 4, 5 and 6 New Zealand Bill of Rights Act 1990 read as follows:

4. Other enactments not affected

No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

(b) Decline to apply any provision of the enactment—

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5. Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.




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