Alex Conte I. Introduction



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Apirana Mahuika et al v New Zealand, Communication No. 547/1993, UN Doc. CCPR/C/ 70/D/547/1993 (15 November 2000).

  1. The first communication was noted in New Zealand's Third Report and concerned an individual's allegation that provisions of New Zealand's Social Security legislation violated equal protection under the law: S.B. v New Zealand, Communication No. 475/1991, UN Doc. CCPR/C/50/D/475/1991 (4 April 1994). The second and third communications to be dismissed by the Committee in 1997 concerned alleged violations affecting former prisoners of the Japanese army during World War II, and an individual convicted and imprisoned for certain sex offences: see Evan Julian et al v New Zealand, Communication No. 601/1994, UN Doc. CCPR/C/59/D/601/1994 (3 April 1997); and Evan Drake and Carla Maria Drake v New Zealand, Communication No. 601/1994, UN Doc. CCPR/C/59/D/601/1994 (29 April 1997).

  2. [2000] 2 NZLR 9, 18.

  1. As discussed above. See also, Ministry of Foreign Affairs and Trade, 'New Zealand's Third Periodic Report', above n 5.

  2. Ibid.

  3. New Zealand submitted its periodic report under article 40 of the International Covenant on Civil and Political Rights in 2001: Ministry of Foreign Affairs and Trade, Fourth Periodic Report, above n 3.

  4. Australia was very critical, for example, of the Committee's decision in Toonen v Australia, Communication 488/1994 (concerning the criminalisation of homosexuality in Tasmania). In New Zealand, former Minister of Foreign Affairs, Don Mackay, said (in a public address) that the time constraints and lack of resources 'may suggest a need for caution in the elevation of the Human Rights Committee as part of our quasi domestic legal structure, and the status to be accorded its views. The Committee should not be seen as a substitute for domestic processes, nor is it there to function as a final Court of Appeal in assessing whether a particular decision is right or wrong'.

113 M Nowak, UN covenant on Civil and Political Rights: CCPR Commentary (1993) 708. 114 N Ando, 'The Future of Monitoring Bodies - Limitations and Possibilities of the Human Rights Committee' 1991 - 1992 Canadian Human Rights Yearbook 169, 171.

  1. J S Davidson, 'Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee' (Paper presented at the Conference on the future of the New Zealand Constitution, Auckland, 20-21 August 1999). The paper canvasses and critiques the Committee's jurisprudence in this regard, as well as academic commentaries on the issue of final views of the Human Rights Committee.

  2. Selected Decisions under the Optional Protocol, Vol I 37.

  3. C Tomuschat, 'Evolving Procedural Rules: The United Nations Human Rights Committee's First Two Years of Dealing with Individual Communications' (1980) 1 Human Rights Law Journal 249, 255.

118 D McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1990), cc 2-4.

119 Above n 40.

  1. Selected Decisions under the Optional Protocol, Vol II 1.

  2. Fausto Pocar was the Italian Member of the Human Rights Committee between 1998 and 2000. See his article 'Legal Value of the Human Rights Committee's Views' 1991-1992 Canadian Yearbook of Human Rights 119.

  3. Ibid.

  4. See, eg, the formulation of final views in Communications 532/1993 (Thomas v Jamaica), 555/1993 (La Vende v Trinidad and Tobago), 569/1993 (Matthews v Trinidad and Tobago), 577/1994 (Polay Campos v Peru), 585/1994 (Jones v Jamaica), 609/1995 (Williams v Jamaica), 615/1995 (Young v Jamaica), 623/1995 (Domukhovsky v Georgia), 624/1995 (Tsikhlauri v Georgia), 626/1995 (Gelbakhiani v Georgia), 627/1995 (Dokvadze v Georgia), 672/1995 (Smart v Trinidad and Tobago), and 676/1996 (Yasseen and Thomas v Guyana).

  5. Ministry of Foreign Affairs and Trade, 'Fourth Periodic Report', above n 3, 6.

  1. D McKay, 'The UN Covenants and the Human Rights Committee' (1999) 29 Victoria University of Wellington Law Review 11, 16. Simon Upton, the Associate Minister of Foreign Affairs and Trade took the same view: 'The willingness of the Human Rights Committee to consider complaints by groups [of individuals] has considerably broadened the scope of matters before the Committee beyond those for which it was designed. It has also taken steps to elevate the status of its 'views' and 'decisions' to those of a judicial body. Yet the Committee is simply not equipped for this kind of task': Ministry of Foreign Affairs and Trade, 'Fourth Periodic Report', above n 3, 7.

  2. [1998] 1 NZLR 129. See also B Robertson , 'The Human Rights Committee as a "Judicial Authority”’ [1997] 3 Human Rights Law and Practice 5.

  3. Ibid.

128 Applying the s 5 New Zealand Bill Of Rights (NZ) justified limitation test.

  1. See discussed above.

  2. Article 40(1)(b) of the ICCPR.

  3. Tavita v Minister for Immigration [1994] 2 NZLR 257, 266 (Cooke P).

  4. [1997] 2 NZLR 474, 497 (Williams J).

  5. [1996] 1 NZLR 741, 744 (Williams J).

  6. [1998] 1 NZLR 218, 236 (Cartright J).

  7. [1998] 1 NZLR 523, 577 (Tipping J).



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