LAWS206 Human Rights Study Materials

Campbell’s definition of rights

Claims to entitlements that individuals and perhaps groups can justifiably make on other people and organisations." 

Iverson’s definition of rights

Enforceable moral claims

Dworkin’s definition of rights

Rights occupy a position in political discourse that sits above ordinary political decisions

Rights often exist latently and come into functional existence when a fundamentally important value is threatened. 

Entitlement

Entitlements are significant interests or expectations that can be expressed positively or negatively

Subjects of rights

Individuals

Groups

Non-human entities

Objects of claims

Claims are primarily made against governments and institutions of power

Challenge of claims

A significant challenge in modern frameworks is the functional power of large corporate interests which do not always fit the traditional individual-versus-state paradigm.  

Legal positivism

Asserts that rights depend on law for their existence. 

Natural law

Asserts that rights are natural or moral, existing independently of laws or customs.

NZBORA interpretation of legal positivism and natural law

NZBORA reflects aspects of both positivism and natural law

Particular NZBORA natural law phrasing

While the rights are provided through a piece of legislation (positivism) and can be set aside by other laws, the Long Title of the Act states its purpose is to "affirm" human rights. 

Universality

The central assumption of international human rights discourse is that rights are universal and apply to everyone. 

Universality critique

Assumption is often criticized as a Western conceit that prioritizes the individual as the base building block of society

Categories and generations of human rights

Human rights are categorized into three primary generations based on their nature and the period of their emergence. 

First generation of human rights

Civil and political rights

Second generation of human rights

Economic, social, and cultural rights

Third generation of human rights

An emerging category that attaches rights to nature or specific natural features

NZ mechanism for the protection of civil and political rights

NZBORA

Factors contributing to the lack of domestic legislation for second-generation rights

Alignment with existing laws

Enforcement challenges

Definitional ambiguity

Why are human rights protections a necessity?

Defence against tyranny and the abuse of power

Two examples of severe human rights violations

Guatanamo Bay

Alligator Alcatraz

Alligator Alcatraz human rights violation case study

Cell temperation 28 c

Limited access to shared toilets

Insect infestations

Lack of transparency

Human rights culture in NZ

History of being a leader in democratic rights e.g. universal suffrage (1893), labour standards, etc

UN Human Rights Council reporting

Conducts five-yearly reports on member states disclosing weak areas

NZ UN Human Rights Council 2024 report findings (4)

Persistence of racism

Domestic or sexual violence against women and children

Disproportionate Maori representation in prison

Lack of legislative transparency

International Bill of Rights content

Not a single document but a collective term for three foundational international law instruments

Foundational international law instruments in International Bill of Rights

Universal Declaration of Human Rights 1948

International Convenant on Civil and Political Rights 1966

International Convenant on Economic, Social, and Political Rights 1966

Universal Declaration of Human Rights 1948

A non-legally binding declaration that established the post-WWII rights framework

International Convenant on Civil and Political Rights 1966

A binding treaty building on the UDHR

International Covenant on Social, Economic, and Political Rights 1966

A mirror document to the ICCPR focus

Other specialised international covenants and customary law

International Convention on the Elimination of All Forms of Racial Discrimination

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities

What does customary international law establish?

Fundamental prohibitions that bind countries regardless of domestic statutes

Human Rights Act 1993

Specifies the grounds for discrimination referenced in the NZBORA

Original focus of HRA

Private sector

What was the HRA focus amended to?

To apply to the public sector

What the NZ human rights law operates through?

Statutory enactments

Common law principles

Constitutional conventions

International treaty obligations

Primary domestic NZ human rights legislations

NZBORA

HRA

Common law on human rights

The common law retains a vital constitutional function in protecting fundamental human liberties, providing the scope through which rights are interpreted

Crimes of Torture Act 1989

Enacted specifically to fulfill New Zealand's international law obligations under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)

Privacy Act 1993

Focuses specifically on informational and data privacy, regulating how public and private agencies collect, store, use, and disclose personal data. 

Treaty of Waitangi

Atypical human rights instruments, but a foundational document

What did the NZBORA spawn in response to?

Unchecked executive power within New Zealand's unicameral parliamentary system

1985 Government White Papers

An official report presenting the policy rationale, constitutional necessity, and proposed statutory draft for legislative reform

Who championed the 1985 Government White Papers?

Sir Geoffrey Palmer

What did Palmer claim the 1985 Government White Papers were to address?

“Unbridled power”

Explicit purpose of proposal in 1985 Government White Papers

To give domestic effect to the international obligations New Zealand assumed upon ratifying the ICCPR and ICESCR

Three core proposals of White Papers removed post-public consultation

Entrenchment

Express entrenchment of the Treaty

Judicial strike-down power

White Papers entrenchment proposal

Amendable only by a supermajority in the House of Representatives or a national referendum

White Papers entrenchment objection

Direct conflict with the doctrine of Parliamentary Sovereignty, which dictates that no current Parliament can legally bind a future Parliament. 

White Papers express incorporation of the Treaty proposal

Include Te Tiriti directly within the higher-law Bill of Rights framework.

White Papers express incorporation of the Treaty objection

Substantial opposition from Māori, who expressed concern that incorporating Te Tiriti into a statutory instrument would subject Treaty rights to political alteration or legislative amendment

White Papers judicial strike-down power proposal

Grant courts the power to declare inconsistent statutes unconstitutional and strike them down

White Papers judicial strike-down power objection

Politically unacceptable as an erosion of democratic accountability, transferring ultimate legislative authority from elected Members of Parliament to unelected judges. 

What did the 1985 White Papers become?

NZBORA

How was the NZBORA enacted?

As an ordinary statute passed by a simple majority, lacking supreme law status, entrenchment, or judicial invalidation powers. 

NZBORA S4

Explicitly prohibits courts from striking down, invalidating, or refusing to apply an enactment due to NZBORA inconsistenc

NZBORA status

Despite being an ordinary statute, it occupies a fundamental place in constitutional law

Impact of NZBORA on democracy

Queen v Hansen, while democracy requires that the majority view in Parliament prevails, a primary purpose of a Bill of Rights is to protect minority interests from being overridden by an overzealous majority

What international legislation does the NZBORA preamble explicitly commit to?

ICCPR

NZBORA Part 2

Substantive rights

NZBORA S8-11

Life and Liberty of the Person

NZBORA S8

Right not to be deprived of life

NZBORA S9

Right not to be subjected to torture or cruel, degrading, or disproportionately severe treatment or punishment (aligns with Article 7 ICCPR)

NZBORA S10

Right not to be subjected to medical or scientific experimentation without consent

NZBORA S11

Right to refuse to undergo medical treatment

NZBORA S12-18

Democratic and Civil Rights

NZBORA S12

Electoral rights (right to vote and stand for election)

NZBORA S13

Freedom of thought, conscience, and religion

NZBORA S12

Unreasonable search and seizure

NZBORA S13

Freedom of thought, conscience, and religion. 

NZBORA S14

Freedom of expression (includes the freedom to seek, receive, and impart information and opinions of any kind in any form; aligns with Article 19(2) ICCPR)

NZBORA S15

Freedom of manifestation of religion and belief

NZBORA S15

Freedom of peaceful assembly

NZBORA S16

Freedom of peaceful assembly

NZBORA S17

Freedom of association

NZBORA S18

Freedom of movement

NZBORA S19-20

Non-Discrimination and Minority Rights

NZBORA S19

Freedom from discrimination on the prohibited grounds set out in the Human Rights Act 1993.

NZBORA S20

Rights of ethnic, religious, or linguistic minorities to enjoy culture, profess religion, and use language

NZBORA S21-27

Criminal Procedure and Justice Rights

NZBORA S21

Unreasonable search and seizure

NZBORA S22

Liberty of the person (protection against arbitrary arrest or detention)

NZBORA S23

Rights of persons arrested or detained

NZBORA S24

Rights of persons charged with an offence

NZBORA S25

Minimum standards of criminal procedure

NZBORA S26

Protection against retroactive penalties and double jeopardy

NZBORA S27

Right to natural justice and judicial review of administrative action

Criticisms of NZBORA

Omission

Comparative examples

Review findings

NZBORA omitted covenants and international provisions

ICCPR articles

Second-generation rights

Third-generation rights

NZBORA comparative international and domestic examples

Victorian Charter of Human Rights and Responsibilities (Australia): Section 19(2) explicitly protects the distinct cultural rights of Aboriginal and First Nations persons. 

NZBORA international scrutiny and review findings

Universal Periodic Review (UN Human Rights Council, 2014): n Recommended that New Zealand adopt a written constitution. 

Application and operative scope of NZBORA (S3)

Who are bound by NZBORA:

• Three branches of government

  • Any person or body of public function

Legal principles for NZBORA governing application

Public v private sphere

Inclusion of omissions

Application to three branches

Sections on NZBORA constitutional mechanics

S4-6

NZBORA S4

Parliamentary supremacy guaranteed

NZBORA S5

Justified limitations framework

NZBORA S6

Interpretation in favour of rights

NZBORA sections on AG’s scrutiny role

S7, S7A, and S7B

NZBORA S7 on the AG’s reporting obligation

Mandates that where a Bill is introduced into the House of Representatives, the Attorney-General shall report to Parliament any provision that appears inconsistent with NZBORA rights