Protecting rights in New Zealand

The protection of rights in New Zealand is shaped by its lack of an entrenched constitution. Australia’s cross-Tasman neighbour has a history not dissimilar to our own. It was circumnavigated by Captain James Cook in 1769 and visited intermittently by European and American ships before a British expedition landed and claimed the islands in 1837. After some conflict with native Maori tribes, the 1840 Treaty of Waitangi agreed upon British sovereignty as well as Maori rights and ownership of certain lands. Initially part of New South Wales, New Zealand became a separate colony with the passing of the New Zealand Constitution Act in 1852. New Zealand finally became an independent nation in 1947, though it was effectively self-governing for decades before.

Like Australia, New Zealand is a constitutional monarchy and a liberal democracy, governed by a representative parliament. Unlike Australia, New Zealand does not have a single constitutional document – its constitution is instead similar to that of the United Kingdom, formed from the collective mass of legislation, treaties, executive orders, court decisions and unwritten conventions. There is a statute, the Constitution Act (1986), which outlines the political framework and separation of powers in New Zealand, however, this document is not entrenched and could be amended or repealed by parliament. Because New Zealand has no entrenched constitution it obviously has no entrenched rights. Instead, rights are protected by statues, particularly the Bill of Rights Act (1990) and the Human Rights Act (1993). These items of legislation contain an extensive list of human, civil and legal rights. The following are outlined in the Bill of Rights Act:

The right to life (Section 8 ).
The right to freedom from torture and cruel or disproportionate punishments (Section 9).
Freedom from medical or scientific experimentation without consent (Section 10).
The right to refuse any medical treatment (Section 11).
The right to vote in elections with equal suffrage and a secret ballot (Section 12).
Freedom of thought, conscience, religion and belief (Section 13).
Freedom of expression and opinion (Section 14).
The right to religious worship, ceremonies and gatherings, in public or private (Section 15).
The right to assemble peacefully (Section 16).
The right to freedom of association (Section 17).
Freedom of movement within New Zealand and freedom to enter and leave New Zealand (Section 18).
Protections from arbitrary searches, seizures, arrests and detention (Sections 21-22).
A comprehensive list of legal rights and processes, such as the right to a fair trial, to legal counsel and defence, to natural justice, the right to appeal and protection from ‘double jeopardy’ (Sections 23-26)

The Bill of Rights is not superior to other acts but instead requires New Zealand’s parliament and courts take these rights into account when considering new bills or making rulings. Any bill introduced into the parliament must be consistent with the rights and freedoms expressed in the Bill of Rights. If not, the New Zealand attorney-general is required to bring any inconsistencies to the attention of the parliament. Courts must make rules and form interpretations that are consistent with the content of the Bill of Rights. A court can declare an act of parliament to be inconsistent with the Bill of Rights but has no power to overturn or invalidate the act; it is instead referred back to the parliament for reconsideration and possible amendment.

The Human Rights Act extended these rights to guard against discrimination on the grounds of age, gender, marital status, sexual orientation, religious belief, colour and race, employment status and political opinion. This act also formed the New Zealand Human Rights Commission, a government-funded independent agency. The Commission receives complaints about alleged human rights infringements and, if it sees fit, can initiate court action and/or make recommendations for legislative change to the government.