New Zealand lacks a Bill of Rights

United Nations reports on New Zealand

The Ninety-eighth session of the United Nations Human Rights Commission heard submissions from the New Zealand delegation over three days in March.  Minister of Justice Simon Power and New Zealand Human Rights Commissioner Rosslyn Noonan were on hand to give the official government spin.  Civil Rights Barrister Tony Ellis (pictured) also attended to present a Shadow Report.

In its official report to the New Zealand government issued last week, the UNHRC commended the government for legislation enacted to protect children from abuse, to recognise civil unions and to reform immigration.  It also identified 16 areas of concern regarding individual and indigenous rights.

Interestingly enough, while the NZ government was giving its spin on legal rights in New York, survivor of parolee William Bell’s massacre at the RSA, Susan Couch, was being dealt a blow by the serpentine Supreme Court.  Ms Couch was left with debilitating injuries after being left for dead by Bell.  It was revealed that he had a long history of violent offending and was not being properly monitored by the Department of Corrections despite numerous parole violations.

Back in 2002, the Privy Council overturned a NZ Court of Appeal judgment, ruling a State officer could be found liable for damages where his actions were woefully negligent “even though he was not consciously reckless“.  Soon after, the Privy Council was abolished as the last appeal court, replaced by a New Zealand Supreme Court made up of the judges from the old NZ Court of Appeal.  This included two judges – Andrew Tipping and Peter Blanchard JJ – whom the Privy Council had overturned on this issue.

In a 4 against 1 majority ruling in Couch v Attorney General, the Supreme Court reversed the Privy Council, with Blanchard and Tipping JJ leading the charge in “a departure from the Privy Council”, declaring “an award of exemplary damages where there was no consciousness of wrongdoing” was no longer acceptable.   The reversal raised the bar far higher for victims of alleged State abuse than for State criminal prosecutions of its citizens.

Chief Justice Sian Elias was the sole dissenter.  The Chief Justice claimed it was wrong to overturn the Privy Council, adding “Conduct of the defendant may be outrageous and deserving of denunciation through exemplary damages not because it entails advertent appreciation of risk, but because it should have.”

Back at the United Nations, Mr Ellis presented his shadow report which essentially demonstrated what he submitted was the “disingenuous” approach of the government when it came to the International Covenant on Civil and Political Rights.  Despite New Zealand ratifying the Covenant in 1979 and the first optional protocol ten years later, the New Zealand Courts have failed to adopt the principles in its interpretation of legal rights, and the legislature has not given full effect to the Covenant when it comes to guaranteeing individuals access to effective remedies within the domestic legal system.

The UNHRC agreed, suggesting New Zealand law enforcement and judicial officials be given human rights training and that steps be taken to increase awareness among non-governmental organizations and the New Zealand public.  The UNHRC called for the State party to give full effect to the Covenant rights concerning access to effective remedies within the legal system.