Q7: Are there any relevant international obligations?
Consideration should be given to New Zealand’s international obligations if they are relevant to a decision being made.
International obligations do not immediately become part of the law of New Zealand. However, there are at least three ways that international obligations may be relevant to a decision.
First, they may be mandatory relevant considerations (express or implied) that the decision-maker must take into account. [See Question 15 for more information on spotting mandatory considerations].
Second, they may give rise to a presumption that, where possible, legislation and the powers conferred under it will be interpreted consistently with relevant international obligations.
Third, a treaty may have been incorporated into existing domestic law – such as in the International Crimes and International Criminal Court Act 2000.
| New Zealand legislation, where possible, should be read consistently with New Zealand’s international obligations, whether or not the legislation was enacted with the purpose of implementing the relevant obligation. |
| This presumption will depend on the actual text of the international instrument and relevant statute. |
| The text of the Chicago Convention was assessed in this way in New Zealand Airline Pilots’ Association v Attorney General [1997] 3 NZLR 269. |
| Section 127 of the Immigration Act 2009 requires a refugee and protection officer to act in accordance with the Act and “in a way that is consistent with New Zealand’s obligations under the Refugee Convention”. |
| The Extradition Act 1999 does not expressly provide for consideration of whether or not an individual will receive a fair trial in the country to which s/he is to be extradited. But this issue must be addressed in making surrender decisions because the provisions of the Act must be interpreted, to the extent its wording permits, consistently with NZ’s obligations under the International Convention on Civil and Political Rights and the Convention Against Torture. |
| Kim v Minister of Justice [2019] NZCA 209 |