Transcript Interpreting Human Rights in New Zealand and the UK

Interpreting Human Rights in New
Zealand and the UK: Expansive but
Narrow, Narrow but Expansive
Kris Gledhill
Director, NZ Centre for Human Rights
Law, Policy and Practice, Faculty of
Law, University of Auckland
Outline
• NZ and UK – dualist but engaged in international
human rights mechanism
• Common law and the use of international
obligations to assist interpretation: narrow in UK
but wide in NZ
• Statutory human rights protection with
interpretive obligation: substantively similar, but
narrowly interpreted in NZ and widely interpreted
in UK
• Seeking explanations
Participation in International
Human Rights Regimes
• Regional
• UN level –
– NZ involvement in UDHR 1948
– Membership of Core Human Rights Treaties
– Allowing complaints to UN bodies
UN Core Human Rights Treaties and
Monitoring Bodies
• ICERD 1965 and Committee on the Elimination of Racial
Discrimination
– UK ratified 1969, NZ 1972
• ICCPR 1966 and Human Rights Committee
– UK ratified 1976, NZ 1978
• ISESCR 1966 and Committee on Economic, Social and
Cultural Rights
– UK ratified 1976, NZ 1978
• CEDAW 1979 and Committee on the Elimination of
Discrimination against Women
– UK ratified 1986, NZ 1985
UN Core Treaties and Monitoring Bodies
Cntd
• CAT 1984 and Committee against Torture
– UK ratified 1988, NZ 1989
• & Optional Protocol to the Convention against Torture
(OPCAT) - Subcommittee on Prevention of Torture (SPT)
– UK ratified 2003, NZ 2007
• CRC 1989 and Committee on the Rights of the Child
– UK ratified 1991, NZ 1993
• ICRMW 1990 and Committee on Migrant Workers
• CPRD 2006 and Committee on the Rights of Persons with
Disabilities
– UK ratified 2009, NZ 2008
• CPED 2006 and Committee on Enforced Disappearance
Individual Complaints to Treaty
Monitoring Bodies
• Complainants – ie claim that rights have under relevant covenant or
convention have been violated by a State party. Jurisprudence
collated in various places: useful site is www.bayefsky.com
• The Human Rights Committee may consider individual
communications relating to States parties to the First Optional
Protocol to the International Covenant on Civil and Political Rights;
– NZ signed and ratified 1989; Australia in 1991;
– UK, whilst a party to the ICCPR, does not allow individual complaints (though it
does allow inter-state complaints);
– NB the vast majority of Council of Europe members also allow individual
complaints to the HRC – often with limitation that individual must chose ECtHR
or HRC
– NB some rights under ICCPR not in ECHR – eg much stronger nondiscrimination principles
Individual Complaints - cntd
• The CERD may consider individual communications
relating to States parties who have made the necessary
declaration under article 14 of the Convention on the
Elimination of Racial Discrimination;
– NZ has NOT; Australia did in 1993
– UK has NOT; most CoE countries have.
– Example - Mahali Dawas and Yousef Shava v
Denmark, UN Doc CERD/C/80/D/46/2009; 6 March
2012 – under-prosecution of racially-motivated attack
breached CERD duty to take effective steps to
prevent racial discrimination
Individual Complaints - cntd
• The CEDAW may consider individual communications relating to
States parties to the Optional Protocol to the Convention on the
Elimination of Discrimination Against Women;
– NZ signed and ratified in 2000, Australia in 2008
– UK acceded in 2004 – only 2 complaints listed on www.bayefsky.com
• The CAT may consider individual communications relating to States
parties who have made the necessary declaration under article 22 of
the Convention Against Torture;
– NZ made the declaration in 1989, Australia in 1993
– UK has not (but does allow inter-state complaints)
• The CRPD may consider individual communications relating to
States parties to the Optional Protocol to the Convention on the
Rights of Persons with Disabilities.
– NZ has NOT joined this; Australia DID in 2009
– UK also DID join in 2009
Common law approach to
international law
• UK – Brind principle – [1991] 1 AC 696 –
ambiguity allows account be taken of
presumption of compliance with intl law; can also
be used for discretions – Rantzen v Mirror Group
[1994] QB 670
• NZ – stronger approach – not requiring
ambiguity, and “as far as possible” interpretation
– Tavita v Minister of Immigration [1994] 2
NZLR 257; Huang v Minister of Immigration
[2009] 2 NZLR 700, Takamore v Clarke [2012] 1
NZLR 573
Domestic Statutes - NZBORA
1990/HRA 1998
• Both NZBORA and HRA –
– (i) bind public authorities (including courts) not
to breach the rights set out unless a statute
makes that necessary.
– (ii) provides a remedy for breaches of those
rights (case law development in NZ – AG v
Simpson; in the statute in UK and other
statutes)
– (iii) provides a strong interpretive obligation:
Interpretive Obligation
• NZ BORA - 6. Interpretation consistent with Bill
of Rights to be preferred— Wherever an
enactment can be given a meaning that is
consistent with the rights and freedoms
contained in this Bill of Rights, that meaning
shall be preferred to any other meaning.
• HRA – 3. Interpretation of legislation. (1)So far
as it is possible to do so, primary legislation and
subordinate legislation must be read and given
effect in a way which is compatible with the
Convention rights.
Interpreting the Interpretive
Obligation
• R v Lambert [2002] 2 AC 545 – reverse burden
of proof interpreted as evidential burden to
prevent disproportionate interference with
presumption of innocence
• R v Hansen [2007] 3 NZLR 1 – Lambert not
followed, on basis Parliamentary language could
not be given reasonable construction as
evidential burden, even though it was a
disproportionate breach (and Parl had been
wrongly advised by AG to contrary).
Seeking Explanations
• One court has got it wrong
• Both are right because legally significant
contexts are different
Comments
• Is NZ statutory language weaker? (Lords Cooke
and Steyn in Kebilene and Ghaidan; rejected in
Hansen; cf Victorian Charter)
• NZ statute as a whole emphasises
Parliamentary sovereignty more? (But s3(2)
HRA; Hansen court engaged with political
question of proportionality of breach; NZ courts
have made declarations of inconsistency)
• Both statutes expressly indicate international
links
Comments cntd
• Both countries have common law legality (ex p Simms
[2000] 2 AC 115, R v Pora [2001] 2 NZLR 37)
• NZ has stronger interpretive obligation towards
international law (and does not have the Pepper v Hart
restriction re examining Parliamentary material re
purpose)
• EU membership – hinted at in Hansen; but do
Marleasing and Factortame amount to anything beyond
(i) interpretive power of same sort and (ii) simple
reconciliation of conflicting statutes.
• Which leaves? (i) legal realism or (ii) legal error by one