Speaker by Various Artists

A Clayton's Bill of Rights

by David Haywood

The New Zealand Bill of Rights can be a dangerous subject. As constitutional lawyer (and former Prime Minister) Geoffrey Palmer has observed: "Extremely eccentric people seem to gravitate to constitutional issues and lavish their attention upon them." And he should know. But with the ongoing Ahmed Zaoui case and the recent controversies over freedom of speech -- or, at any rate, the freedom to draw cartoons -- it seems a good time to reconsider our precarious Bill of Rights legislation.

Most people would have little complaint with the protections that the New Zealand Bill of Rights purports to offer. It is a worthy document that has been developed by a group of highly intelligent and capable people. But what is -- or should be -- of major concern is a single extraordinary fact: the New Zealand Bill of Rights actually offers almost no protection at all. Despite its title, it is not really a Bill of Rights as ordinarily understood.

What is a Bill of Rights? It is a special piece of legislation that is designed to protect the civil and political rights of the public from the actions of government. At first glance, the New Zealand Bill of Rights would appear to do an excellent job of this. In commendably plain language it sets out the rights of the public in relation to Ministers of the Crown, Parliament, and the Judiciary. These include: Life and Security of the Person (the right not to be deprived of life or subjected to torture by the government); Democratic and Civil Rights (freedom of expression, peaceful assembly, and the right to vote); Non-Discrimination and Minority Rights (freedom from discrimination by the government on the grounds of sex, race, or religion); and Search, Arrest, and Detention (freedom from arbitrary arrest or detention, and the right to a fair trial). A Bill of Rights only applies to the activities of government -- a fact which is frequently misunderstood. In no way does it place any constraints on private citizens, organizations, or companies.

However, in order to fully protect the public, a true Bill of Rights must incorporate two other important features. Firstly, it must be entrenched legislation. Entrenchment would mean that a government could only change the Bill of Rights under special circumstances, for example: by holding a referendum of voters, or by gaining a majority of at least 75 per cent in parliament. Secondly, it must be supreme law. This would mean that the Bill of Rights had supremacy over all other legislation. If another law contradicted the Bill of Rights, then that law would be struck down.

These two extra features are obviously essential. After all, what is the point of a Bill of Rights that is not entrenched? If a government wanted to violate a protected right then -- by the simple majority that enables it to govern in the first place -- it could merely amend the Bill of Rights to make its actions legitimate. Even more nonsensical is a Bill of Rights that is not supreme law. This gives a determined government carte blanche to ignore the Bill of Rights altogether, and simply overrule it with other legislation.

Unfortunately, this is exactly the ludicrous situation that applies to the current New Zealand Bill of Rights. It is not entrenched, and neither is it supreme law. It can be changed or abolished by the government at any time. And the government can also pass new legislation which directly contradicts the Bill of Rights. In fact, New Zealand governments have done this on at least six occasions. On one of these occasions the enacted legislation also breached the United Nations Universal Declaration of Human Rights.

These significant flaws in our Clayton's Bill of Rights are well known. Such legal eminences as Lord Cooke of Thorndon have observed that it is: "regarded internationally as one of the weakest affirmations of human rights". And -- to their great embarrassment -- the New Zealand government has been repeatedly taken to task by the Human Rights Committee of the United Nations for providing inadequate protection of human rights.

So why isn't our Bill of Rights entrenched as supreme law? It comes down to the very thing that the Bill of Rights is trying to protect us from -- the government. Because the majority of voters have elected them to govern, our politicians claim that any check on their behaviour by unelected judges or jurors would be a violation of the fundamental principles of democracy.

This is plainly a nonsense argument. It implies that the will of the majority is more important than basic human rights. True, the politicians have been elected to govern, and no judge or jury should attempt to interfere with that. But there are clearly some areas where the government -- regardless of the size of its majority -- has no business. For example, a government has no right to determine what religion the public should follow, or to prohibit the speaking of certain languages, or to order the imprisonment of anybody without a fair trial. If a government attempts to interfere in these areas, then there must be a mechanism whereby their actions can be challenged through the legal system.

Most New Zealanders would be quick to acknowledge the fallibility of our politicians, and indeed -- occasionally -- of the voting public. From time to time it is inevitable that governments are elected who will be tempted to bend the rules on human rights. Don't forget that -- in the absence of a Bill of Rights that is supreme law -- the current government has incarcerated a refugee, Ahmed Zaoui, for over two years without convicting him of any crime. Amnesty International's investigation of the Zaoui case has found that his treatment did not meet international standards for human rights.

In fact, a Bill of Rights is especially important to a democracy like New Zealand, because we have none of the other checks on government power -- such as an upper house or president -- that are features of the political systems in other countries. A Bill of Rights can never, of course, offer complete protection against a government determined to tyrannize the populace. But it is an important safeguard against the gradual erosion of human rights that can occur through the misguided actions of politicians. And, in a post-September 11 world, this is something that can happen all too easily.

The current New Zealand Bill of Rights took a long time to become legislation. It was first proposed at an official level in 1985, but proved so contentious that it was not finally enacted until 1990. Many politicians were vehemently opposed to its implementation, and predicted that it would lead to the collapse of the New Zealand government in a cloud of litigation. Obviously these fears were unfounded, and -- over the years -- even its opponents have gradually become resigned to its existence.

Canada had a similar experience with its Bill of Rights legislation. The Canadian Bill of Rights was enacted in 1960, and -- as with the New Zealand Bill of Rights -- concerns that it would limit the sovereignty of parliament meant that it was not entrenched as supreme law. However this resulted in legislation which was widely acknowledged to be ineffective, and consequently the government was impelled to introduce the Canadian Charter of Rights and Freedoms in 1982. The Charter extended the existing human rights protections, and entrenched them as supreme law. It has come to be regarded as one of the cornerstones of Canadian identity, and has consistently enjoyed widespread support from the Canadian public.

Our own Bill of Rights is now 16 years old, and this seems an appropriate age for it to grow up. The next election would be the ideal time for a referendum that seeks to entrench the New Zealand Bill of Rights as supreme law. Only by taking this step can we fully protect important liberties such as freedom of expression and the right to a fair trial. Otherwise the New Zealand Bill of Rights will continue to be only what it is now -- merely a collection of fine words.

RELEVANT LINKS:

  • An admirably clear description and analysis of the New Zealand Bill of Rights is given in Chapter 16 of Bridled Power by Geoffrey Palmer and Matthew Palmer.

NOTES

  • "... in order to fully protect the public, a true Bill of Rights must incorporate two other important features":
    Of course, it should be acknowledged that the current 'aspirational' Bill of Rights does offer some degree of protection to human rights in New Zealand. In particular, this arises from Section 6 which dilutes the inferior status of the Bill of Rights by providing that: "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." Geoffrey Palmer gives his view of some of the protections offered by the current legislation in paragraphs 14 to 20 of a recent speech he made to a Ministry of Justice Symposium.
  • "... the government can also pass new legislation which directly contradicts the Bill of Rights":
    The Attorney-General is required to notify parliament when the government tries to introduce a new law which appears to be inconsistent with the Bill of Rights. In theory this is supposed to embarrass the government into not passing the new legislation. In practice, however, governments have managed to weather this embarrassment on a number of occasions (see below).
  • "In fact, New Zealand governments have done this on at least six occasions":
    See: Palmer, G. and Palmer, M. (2004), Bridled Power, Oxford University Press, Melbourne, p.326.
  • "These significant flaws in our Clayton's Bill of Rights are well known":
    For non-New Zealanders the Oxford New Zealand Dictionary kindly gives this definition of the word Clayton's: "a quasi-adjective indicating a pretence to or a largely unsuccessful imitation of the 'real thing'. [From] Clayton's: the proprietary name of a substitute for hard liquor [featured on] the 1980 TV advertisement with its punch-line 'It's the drink I have when I'm not having a drink'."
  • "Such legal eminences as Lord Cooke of Thorndon have observed that [the New Zealand Bill of Rights] is: "regarded internationally as one of the weakest affirmations of human rights"... the New Zealand government has been repeatedly taken to task by the Human Rights Committee of the United Nations for providing inadequate protection of human rights":
    See: Re-evaluation of the Human Rights Protections in New Zealand, Paragraph 51.
  • "... the current government has incarcerated a refugee, Ahmed Zaoui, for over two years without convicting him of any crime":
    Ahmed Zaoui's two year imprisonment included a ten month period spent in solitary confinement. A brief summary of the Ahmed Zaoui case is given in a recent article by Robert Fisk.
  • "... in a post-September 11 world, this is something that can happen all too easily":
    As in the case of the new counterterrorism laws proposed in Australia. Australia does not have a Bill of Rights, but -- interestingly -- a Bill of Rights was proposed in the Australian constitution, and was rejected because "it undermined [emphasis mine] some of the discriminatory provisions of the law... which disadvantaged Aboriginal people and the Chinese" (see A Bill of Rights for Australia -- But Do We Need It?).
  • "[The Canadian Charter of Rights and Freedoms] has consistently enjoyed widespread support from the Canadian public":
    Surveys have shown that the Canadian Charter of Rights and Freedoms has enjoyed public satisfaction rates of more than 80 per cent on an ongoing basis.