Q5: Are there human rights implications of the decision?
Human rights are part of the general law of New Zealand. This means that, if the protected rights are breached, the affected person may be able to sue and may be awarded compensation.
The primary source of human rights is the New Zealand Bill of Rights Act 1990, which protects a range of rights. The Human Rights Act 1993 (which focuses on prohibiting discrimination) and the Privacy Act 1993 (which focuses on protecting the privacy of individuals’ personal information) also protect individual rights. [See Question 13 for more information on privacy and requirements for treatment of personal information].
Increasingly, the Bill of Rights Act is being used to invalidate administrative decisions or challenge policy decisions.
A decision-making power will need to be interpreted consistently with the rights in the Bill of Rights Act, where this is possible. For example, the power to make rules relating to prisoners’ property must be interpreted consistently with the rights affirmed in the Bill of Rights Act where possible.
Where the decision-making power is a discretion, the discretion must be exercised consistently with the rights in the Bill of Rights Act. For example, the Minister of Immigration may only exercise the discretion to order surrender of a person consistently with the rights affirmed in the Bill of Rights Act. The rights most frequently relevant to public decision-making include:
- Freedom of thought, conscience and religion;
- Freedom of expression;
- Manifestation of religion and belief;
- Freedom of peaceful assembly;
- Freedom of association;
- Freedom of movement;
- Freedom from discrimination (on grounds from section 21 of the Human Rights Act);
- The right for a person belonging to a minority to enjoy the culture, profess and practice the religion, or use the language of that minority;
- The right to be secure against unreasonable search and seizure;
- The right not to be arbitrarily arrested or detained;
- The right to the observance of the principles of natural justice.
| The Police received information that a man was selling cannabis but the search warrant was for the wrong house. On entry, the Police were advised they had the wrong house but continued searching, finding nothing incriminating. The search was held to be in breach of the Bill of Rights Act and, in that case, damages were held to be the only appropriate remedy. |
| Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR |
| The High Court overturned a decision by the Department of Corrections not to allow a journalist access to interview a prisoner alleging miscarriage of justice (in a conviction for murder). |
| The right to freedom of expression as affirmed in section 14 of the Bill of Rights Act is of vital constitutional importance and, in the context of investigating possible miscarriage of justice, the consideration of the Department not to allow access to avoid further harm to victims was insufficient to justify the decision made. |
| Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227 |
However, a decision that infringes a right or freedom will not breach the Bill of Rights Act if the infringement is prescribed by law and can be demonstrably justified in a free and democratic society. This is a legal test to be applied by a court so, if you think your decision might infringe a right in a permissible way, you need to check with your in-house lawyer.
The Bill of Rights Act is not ‘supreme law’. Other statutes (though not regulations or subsidiary legislation) can override the Bill of Rights Act in some circumstances. If you think that might be a possibility, it is best to check with your in-house lawyer.
In limited circumstances, it may be mandatory to consider one or more of the rights in the Bill of Rights Act – if the decision being made could impact the right(s). For example, the Broadcasting Standards Authority, in deciding whether or not to uphold a complaint, must take into account the right to freedom of expression.
The Human Rights Act focuses on discrimination.
The Human Rights Act permits a person who considers they have been discriminated against to take a claim to the Human Rights Commission and/or to the Human Rights Review Tribunal. It also permits a person to challenge any government action, including legislation, on the grounds that it is discriminatory. However, note that discrimination (different treatment) is only prohibited where the difference is based on a prohibited ground of discrimination. These are set out in section 21 of the Human Rights Act, and include:
- Sex (which includes pregnancy and childbirth);
- Marital status;
- Religious belief;
- Ethical belief;
- Colour;
- Race;
- Ethnic or national origins (including nationality and citizenship);
- Disability;
- Age;
- Political opinion;
- Employment status;
- Family status; and
- Sexual orientation.
| Cases such as Child Poverty Action Group (CPAG) v Attorney General [2013] NZCA 402 and Atkinson v Ministry of Health [2012] NZCA 184 dealt with challenges to government policies regarding, respectively, eligibility for tax credits associated with social welfare policy (on the basis of employment status) and payments for the provision of disability support services by family members (on the basis of family status). In both cases, the relevant policy was declared to be discriminatory. In the CPAG case, the Court of Appeal also held that the relevant rule was a justified limit (under section 5 of the Bill of Rights Act) on the right of freedom from discrimination on the ground of employment status. In Atkinson, by contrast, the discriminatory policy was held not to be a justified limitation. |