Overview of New Zealand’s international and domestic human rights framework

3.1 Introduction

Using violence to cause terror in a population to pursue political goals is inconsistent with the rights and inherent worth of those targeted and is contrary to democracy. But mistargeted and disproportionate state responses to threats of terrorism also have implications for human rights. So, states must carefully balance the need to protect public safety (which includes the right to life) with the preservation of individuals’ human rights. The tension between these two requirements is a recurrent theme in this report.

This chapter:

sets out the history of the Universal Declaration of Human Rights;
describes the different types of human rights;
describes the international and domestic human rights framework;
discusses how New Zealand protects human rights; and
explains how human rights are relevant to our inquiry.

3.2 Historic context – the 1948 Universal Declaration of Human Rights

On 10 December 1948, the General Assembly of the recently created United Nations approved the Universal Declaration of Human Rights. The Universal Declaration of Human Rights sets out the human rights that the then international community recognised as being the universal entitlements of all people. These encompass both civil and political rights, enabling people to participate in the civic and political life of their community and also economic, social and cultural rights, which recognise that without freedom from fear and want, people cannot flourish.

Forty-eight states voted in favour of the Universal Declaration of Human Rights. Support came from all continents of the globe and from states with different political, cultural and religious systems. New Zealand played a key role in the drafting of the Universal Declaration of Human Rights and supported the inclusion of economic, social and cultural rights.

The immediate aim of the Universal Declaration of Human Rights was to promote human rights by teaching and education. Its long-term goal was to establish mechanisms that would secure the recognition and observance of human rights.

Human rights concepts recorded in legislation or reports are of limited significance unless they are valued by the population. Each generation needs to renew its commitment to, and faith in, human rights. That, in turn, requires strong political leadership to remind all of the benefits and intrinsic merit of human rights.

For this reason, the United Nations’ Vienna Declaration and Programme of Action recommended that states develop specific programmes and strategies for ensuring the widest human rights education and the dissemination of public information.³²

Later in this chapter we discuss the absence in New Zealand of a coherent programme to deliver such programmes within schools, adult education and public sector settings.

3.3 The types of human rights

Human rights can be grouped into:

First and second-generation human rights: civil and political rights (such as the right to life and freedom of expression and religion) and economic, social and cultural rights (such as the right to work and the right to education).
Third-generation human rights: rights that are collectively held by the community, such as the right to a clean environment and the right to sustainable development.

At the international level, since 1948, it has been consistently stated that first and second-generation human rights are “universal, indivisible, interdependent and interrelated”.³³ Human rights are universal because they are enjoyed by all human beings. And they are expected to be recognised and given effect to regardless of a state’s political system (though “national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind”).³⁴ Human rights are indivisible in the sense that no particular category of right is more important than the other and neither set of rights can operate without the existence of the other. They are interrelated and interdependent.

Recognition of third-generation human rights at the international and domestic level has been slow. Many states’ constitutional systems now recognise them and within the international system they are given partial effect through issue-specific instruments (such as the United Nations’ treaties on climate change and the environment).

There are some important distinctions between the different categories of human rights. For example, while civil and political rights are expected to be given full and immediate implementation by states, it is accepted that some economic and social rights can only be progressively realised over time, depending on the resources available to each state.³⁵

3.4 International and domestic human rights systems

There is a complex web of international and domestic mechanisms that give effect to human rights. In addition to the United Nations and regional human rights systems, most states have adopted human rights in their domestic constitutions, legislation and government policies. Each state does so in accordance with its constitutional and legal systems as well as its social, cultural and political systems.

United Nations human rights system

The Universal Declaration of Human Rights is not a legally binding human rights instrument.³⁶ Instead it sets out a common understanding of important human rights, as accepted by the United Nations member states. The United Nations system has created numerous general and specific human rights instruments, including binding international treaties and non-binding declarations and resolutions. This work represents a substantial contribution to global human rights, underscoring the universal nature of human rights and progressively affirming practices and mechanisms that reinforce human rights standards as common standards to be observed by, and within, all states.

Since 1948, the United Nations has created a series of human rights treaties. While treaties are legally binding under international law, in New Zealand the executive branch of government cannot change New Zealand’s domestic law by becoming party to a treaty. If the obligations being assumed under the treaty cannot be performed under existing law, legislation will be required.

The two most important United Nations human rights treaties are the International Covenant on Civil and Political Rights (1966) and its companion the International Covenant on Economic Social and Cultural Rights (1966). New Zealand has ratified both of these treaties, with some reservations, and has incorporated some of the rights they recognise into domestic law.

Both treaties require the right of non-discrimination to be respected. This means that all civil, political, economic, social and cultural rights must be provided to all people without discrimination and, more generally, that no laws should unfairly discriminate against people. Among the grounds upon which discrimination is prohibited are “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.³⁷ Like the Universal Declaration of Human Rights, both treaties recognise that there can sometimes be conflicts between rights, or between rights and the public welfare, and that these conflicts may require that certain rights be limited. Both treaties establish mechanisms and standards by reference to which such limits can be assessed.

The United Nations has adopted a range of human rights instruments:

International Convention on the Elimination of all forms of Racial Discrimination (1965).
Convention on the Elimination of all forms of Discrimination Against Women (1975).
Convention on the Rights of the Child (1989).
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990).
Convention on the Rights of Persons with Disabilities (2006).
International Convention for the Protection of All Persons from Enforced Disappearance (2006).

Each of these instruments is supervised by a committee of experts that undertakes regular reviews of the human rights performance of member states. These committees are often allowed to receive complaints from individuals that their rights have been breached by a state. New Zealand has signed up to all these instruments except for those related to migrant workers and enforced disappearances.

An important feature of the United Nations human rights framework is the “periodic reporting” mechanism. Each of the United Nations human rights treaties requires its expert committee to monitor individual countries’ compliance with the obligations in the relevant treaty on a periodic basis, typically every three to five years, depending on which treaty is involved. The periodic reporting mechanism requires individual countries to submit reports indicating how they are complying with the treaty and what measures they are taking to improve compliance. The expert committee considers the country report as well as any material provided by non-governmental organisations and publicly available material. It then questions country representatives during an open committee session. The committee will then issue a report on compliance, noting areas for improvement and making recommendations.

In addition the Universal Periodic Review involves a review of the human rights records of all United Nations member states, every five years. The Universal Periodic Review provides the opportunity for each state to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. It is designed to ensure equal treatment for every country when their human rights situations are assessed. The aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.

Regional human rights systems

Another important development has been the creation of regional human rights systems. Such systems exist in Europe (the European Convention on Human Rights, which applies to 47 European states), North and South America (the American Convention on Human Rights, which applies to 23 states) and Africa (the African Charter on Human and Peoples’ Rights, which applies to 53 states).

The only region without an international human rights system is the Asia Pacific region. There have been concerted efforts over the years to create an Asia Pacific regional human rights system and, at other times, a Pacific regional human rights system. Those efforts have not been successful.

Limitations on rights and freedoms are allowed

An important feature of international and domestic human rights systems is the recognition that human rights can be subject to reasonable limits. The Universal Declaration of Human Rights permits limits to be placed on human rights “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.³⁸ In addition, the Universal Declaration of Human Rights states that the human rights recognised by it cannot “be exercised contrary to the purposes and principles of the United Nations”.³⁹

Over the last half century, political systems and courts in many states have developed guidelines and rules about what limits on human rights are acceptable. We will consider how New Zealand has grappled with limits on human rights when we consider section 5 of the New Zealand Bill of Rights Act 1990 below.

Not just about the obligations of states

An important development in the realisation of human rights over the last three decades has been the acceptance that for human rights to be universal, obligations must lie not only on states, but also on significant private actors (organisations and individuals) within those states.

For example, in the last 10 years, human rights frameworks to guide the business community have been established by the United Nations and in regional human rights systems. The best-known framework is the United Nations’ Guiding Principles on Business and Human Rights.⁴⁰ This recognises that businesses have a responsibility to respect human rights and should work with states to ensure they are complying with human rights principles in the course of their business activities.

Separately, because the human rights of particular members of a community can be threatened by other members of the community, states must proactively protect the human rights of threatened community members. A state that exposes a threatened community to unacceptable risk by not taking appropriate intervention measures breaches its own human rights obligations. In this way, the human rights obligations of states also indirectly apply to the behaviour of private actors.

Universal acceptance, but not necessarily universal implementation

An important feature of the success of the international human rights system has been the near universal acceptance of the core human rights principles. For example, 173 states are party to the International Covenant on Civil and Political Rights, while 171 states are party to the International Covenant on Economic Social and Cultural Rights. There are 182 states that are party to the Convention on the Elimination of Racial Discrimination.

Of course, agreeing to an international human rights instrument is not a guarantee that states are necessarily committed to full implementation of those obligations. A common criticism of the international human rights system is that many violations of human rights have occurred despite that system and many states take daily actions that are inconsistent with human rights principles. Those criticisms are, factually, correct. But they miss an essential point – one of the most important contributions of the international human rights system is that it establishes a framework and set of standards to measure the performance of states. Most states have accepted that they can and should be judged by these standards.

Different mechanisms have evolved over the decades to ensure that states effectively implement their international human rights obligations. Other mechanisms allow for state compliance with these instruments to be supervised and assessed. The various mechanisms respond to the needs and interests of different states and are designed to ensure that, over time, states improve the extent to which they recognise and abide by human rights instruments and principles.

3.5 New Zealand’s human rights systems

New Zealand’s human rights systems include laws that give effect to international human rights instruments. In addition, a number of practices have been adopted that are additional to legislation and assist in the better recognition and protection of human rights in New Zealand.

While New Zealand accepted the Universal Declaration of Human Rights in 1948 and became party to the two international human rights treaties in 1966, it was slow to give effect to them in domestic law. Initially there was little specific legislative recognition or public awareness of the rights and obligations outlined in these instruments. The development of enforcement mechanisms and the improvement in public awareness within New Zealand remain a work in progress.

What is the legal impact of the United Nations human rights instruments on New Zealand law?

In New Zealand, as in many other countries that adopt the common law legal system, an international human rights instrument becomes part of the domestic law only if this is provided for by Parliament. In New Zealand, none of the international human rights instruments has been completely adopted into domestic law. Only parts of each international human rights instrument have been included in New Zealand law.

New Zealand courts are prepared to have regard to the international human rights instruments while undertaking their usual tasks of interpreting and applying the law, even if the instrument has not been adopted through legislation. But where New Zealand domestic law is inconsistent with an international human rights instrument, New Zealand domestic law prevails, and the courts must give effect to the domestic law, not to the international human rights instrument.

Many international human rights instruments allow individuals who claim to have been adversely affected by a law, policy or state action to bring complaints to a United Nations human rights body asking it to declare that their rights have been breached. Where a breach has occurred, the human rights body may suggest action that the state should take to remedy the situation. While the decisions of those United Nations complaints mechanisms are not legally binding on the state, the expectation is that the state will seek to give effect to those decisions. This can impact on which international human rights instruments New Zealand is willing to give effect to through domestic law. It can indirectly influence what law will and will not be enacted by Parliament.

New Zealand’s human rights laws

New Zealand gives effect to international human rights instruments through domestic law in two ways:

by recognising specific human rights principles in specific laws, such as the right of children with disabilities to receive an education in the same setting as children not living with disabilities (provided by section 34 of the Education and Training Act 2020); and
through two general human rights laws – the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.

Despite its name, the Human Rights Act only focuses on one human right, the right to be free from discrimination. It prohibits discrimination on many grounds. The prohibited grounds of discrimination include sex, race, colour, religion, sexual orientation, disability and marital status. In the case of Public sector agencies, the Human Rights Act prohibits discrimination except where different treatment can be justified in a free and democratic society.⁴¹ In the case of non-Public sector agencies, the Human Rights Act prohibits discrimination on those grounds in areas such as employment, providing goods and services and providing accommodation. This means there are greater non-discrimination obligations on Public sector agencies than on non-Public sector agencies such as private businesses.

The New Zealand Bill of Rights Act is broader. Its focus is on the protection of civil and political rights. It protects:

the right to life and security of the person;
the right to political participation;
the rights of free expression, association, religion and thought;
the right to be free from discrimination;
the right to enjoy a minority culture; and
many rights related to the criminal justice system.

Notably absent from the New Zealand Bill of Rights Act are economic, social and cultural rights (such as the right to education, the right to housing and the right to social welfare). Also absent are the right to privacy, the right to property and third-generation rights such as the right to a clean environment.

Consistently with the Universal Declaration of Human Rights, section 5 of the New Zealand Bill of Rights Act allows rights and freedoms to be limited where that is demonstrably justified in a free and democratic society. Any limitation must be able to be shown to be justified – asserting that it is justified is not enough. And the limitation must be acceptable in a free and democratic society. This means that the values of a society that respects freedom and democracy set the standard against which any limitation will be assessed. Relevant to this assessment will be the legitimacy of the purpose of the limitation and whether the limitation is proportionate to its purpose. Generally speaking, the New Zealand courts recognise that Parliament should be given some flexibility in deciding how to balance human rights and limitations on those rights. But ultimately, section 5 of the New Zealand Bill of Rights Act means that the courts cannot avoid making a judgement call on whether a limitation on human rights is reasonable when a case requires them to do so.

In many countries bills of rights are part of the supreme law of the country, which means that all other law must respect the bill of rights or be set aside. That is not the position in New Zealand. Under New Zealand’s constitutional arrangements, Parliament is supreme and is free to enact legislation that is inconsistent with the New Zealand Bill of Rights Act. The courts cannot strike such legislation down. But the courts can declare that a particular law, or part of a law, is inconsistent with the New Zealand Bill of Rights Act.⁴² A similar mechanism is available under the Human Rights Act in respect of discrimination.⁴³ When such a declaration is made by a court (or the Human Rights Review Tribunal) Parliament can decide whether and how it responds.

How New Zealand human rights laws have affected its political and legal systems

The New Zealand Bill of Rights Act is the key source of legal obligation in respect of human rights in New Zealand.

At the political level, the fact that the New Zealand Bill of Rights Act has endured largely unamended for 30 years suggests that, even though it was the subject of opposition at the time it was proposed, it now enjoys a reasonably secure position within New Zealand’s political system.

Section 7 of the New Zealand Bill of Rights Act requires the Attorney-General to draw to the attention of Parliament any proposed legislation that appears to be inconsistent with the New Zealand Bill of Rights Act. The report must be tabled in Parliament and, in practice, such reports will often prompt debate at Select Committee and within the legislative chamber on whether it is appropriate for there to be an interference with rights. But probably more importantly, the reporting mechanism operates as a disincentive to governments from introducing a Bill into Parliament that would generate a negative report from the Attorney-General. When seeking Cabinet approval to introduce a Bill to Parliament, government ministers must confirm that Bills comply with the New Zealand Bill of Rights Act and the Human Rights Act. This obligation is set out in the Cabinet Manual.⁴⁴ Although there have been several instances where legislation has been passed that is inconsistent with the New Zealand Bill of Rights Act, it is rare for this to occur.⁴⁵

Section 6 of the New Zealand Bill of Rights Act requires courts to interpret laws consistently with guaranteed rights where this is possible. And the courts are fully empowered to deal directly with breaches committed by Public sector agencies in the exercise of their official functions, such as how New Zealand Police deal with people suspected of offending.

Before the enactment of the New Zealand Bill of Rights Act, very few human rights cases were litigated before New Zealand courts. The enactment of the New Zealand Bill of Rights Act has significantly changed this.

Criminal justice rights are the subject of litigation every day in New Zealand. This enables the courts to confirm the importance of law enforcement agencies respecting human rights. Some of the courts’ decisions have been controversial, but the important point is that the New Zealand Bill of Rights Act has enabled the issues to be litigated. The right to freedom of expression has been the subject of a large amount of litigation. As a result, the boundaries of important doctrines such as the law of defamation, hate speech and suppression of information about court cases have been the subject of critical review.

Litigation has also had substantial effects on how the right to freedom from discrimination is protected under New Zealand law. In litigation under the Human Rights Act, several laws have been held to be inconsistent with the right to freedom from discrimination. This has resulted in amendments to some of those laws. Litigation also gives vulnerable community members, who have often been ignored or marginalised, an effective voice. For example, litigation about the right to freedom from discrimination has resulted in the recognition of the adoptive rights of unmarried partners.⁴⁶

Other ways that New Zealand upholds human rights principles

Giving effect to international human rights instruments through domestic laws is not the only way that New Zealand upholds human rights principles. Public institutions, participation in international assessments of compliance and public discourse also contribute.

There are several public institutions that contribute to New Zealand’s observance of human rights, including the Human Rights Commission, the Office of the Ombudsman, the Privacy Commissioner, the Children’s Commissioner and the Independent Police Conduct Authority. The Human Rights Commission’s primary functions, which are set out in the Human Rights Act, are to:

advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society;
encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society;
promote racial equality and cultural diversity;
promote equal employment opportunities (including pay equity); and
promote and protect the full and equal enjoyment of human rights by persons with disabilities.⁴⁷

The Human Rights Commission exercises its functions through a mix of measures such as public advocacy, training and education campaigns, public statements on important human rights issues, submissions to Parliament and litigation. Before 2002, the Human Rights Commission could make decisions on complaints about alleged discrimination. Since 2002, the Human Rights Commission receives complaints and assists the parties to resolve them, but no longer makes decisions. If the parties cannot reach agreement, the complaint is referred to the Human Rights Review Tribunal for decision.

Public discourse on human rights issues also contributes to New Zealand’s human rights system. Even where litigation has been unsuccessful, it has encouraged public discussion of important issues, such as euthanasia.

3.6 How human rights are relevant to our inquiry

Human rights are relevant to our inquiry into the terrorist attack on 15 March 2019 in several ways:

The use of violence breaches the right to life and security of the person.
The use of violence to pursue political ends undermines the right to fair political participation, by privileging the use of violence over the power of persuasion.
The use of violence to pursue discriminatory ends discourages communities targeted by terrorism from being themselves by, for example, discouraging them from engaging in their religious practices. It can make members of the target community fearful by, for example, making them feel that they could be attacked at any time simply because of their colour, ethnicity, religious affiliation or sexual orientation.

But terrorism also relates to human rights in another way. This is because states’ actions to reduce the threat of terrorism, or to respond to a terrorist attack, can have an impact on human rights. In response to a terrorist attack, a state could introduce measures that threaten human rights, such as excessively harsh laws of arrest, detention without trial, surveillance and suppression of speech. If this were to occur, then terrorists would have succeeded in causing a democratic society to change how it balances public safety and human rights. Conversely, if done well, a state’s response to an act of terrorism could reaffirm its commitment to core human rights principles and, at the same time, recognise the need for the wider public and communities within it to feel that they are not being asked to bear unreasonable risk, nor being blamed for the acts of a few people who would do the community harm.

The connection between human rights and terrorism has been recognised by the United Nations. The Vienna Declaration and Programme of Action states that “[t]he act, methods and practices of terrorism in all its forms … are activities aimed at the destruction of human rights, fundamental freedom and democracy”.⁴⁸ It provides that “the international community should take necessary steps to enhance cooperation to prevent and combat terrorism”.

At the same time, the need for states to not overreact, and to proceed with caution and balance, has been consistently reaffirmed at the United Nations. Its 2006 Global Counter-Terrorism Strategy states that “international cooperation and any measures that we undertake to prevent and combat terrorism must comply with our obligations under international law, including … in particular human rights law, refugee law and international humanitarian law”.⁴⁹ Recognising the risk that terrorism can lead to the demonisation of certain sectors of the community, the Global Counter-Terrorism Strategy also states that “terrorism cannot and should not be associated with any religion, nationality, civilisation or ethnic group”.

We have considered human rights principles throughout our inquiry. They affect:

the balance between freedom of expression and the expression of views that are hateful toward members of New Zealand’s ethnic and religious communities;
the extent of the surveillance that Public sector agencies should conduct to gather intelligence that can inform them of the people and networks who pose terrorism threats and risks to New Zealand;
the impact that “othering” can have on New Zealand’s ethnic and religious communities and the importance therefore of measures to counteract any temptation to see members of those communities as not being “real New Zealanders”; and
the core values that New Zealand’s Public sector agencies are meant to promote and protect.

3.7 Concluding comments

Human rights are enjoyed by everyone in New Zealand. New Zealand’s human rights system upholds those rights not only through laws and in the courts, but also in the practice of public institutions, the periodic reporting process before the United Nations human rights bodies and public discourse. New Zealand has agreed to be bound by several international human rights instruments, although not all of these have been incorporated into domestic law. These obligations contribute to the human rights principles that are understood, supported and reflected by New Zealand society.

The architecture of the international and domestic human rights systems and the direct and indirect limits that those systems impose on the freedom of legislators to make laws and judges to interpret laws is a theme we return to from time to time. But it must always be recalled that human rights are more than laws. They are just as much about individual and societal attitudes and behaviours. All New Zealanders have important contributions to make.

_{32. United Nations Vienna Declaration and Programme of Action (1993) at Part II, paragraph 81.}

_{33. United Nations, footnote 32 above at Part I, paragraph 5.}

_{34. United Nations, footnote 32 above at Part I, paragraph 5.}

_{35. See Office of the United Nations High Commissioner on Human Rights Frequently Asked Questions on Economic, Social and Cultural Rights Fact Sheet No 33 (2008).}

_{36. There are many other non-binding declarations that the United Nations has agreed to, such as the Declaration on the Rights of Indigenous Peoples.}

_{37. United Nations International Covenant on Civil and Political Rights (1966) at Part II, Article 2.}

_{38. United Nations Universal Declaration of Human Rights (1948) at Article 29.2.}

_{39. United Nations, footnote 38 above at Article 29.3.}

_{40. United Nations Guiding Principles on Business and Human Rights (2011).}

_{41. For an illustration of how this works in practice, see the decision of the Court of Appeal, Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456, where the Court held that a Ministry of Health policy affecting payments to the caregivers of disabled children was discriminatory and was not justified as it encroached on the right to be free from discrimination to an extent that was greater than was necessary to give effect to the Ministry’s policy objectives.}

_{42. See Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213, where a provision in the Electoral Act 1993 (which disqualified prisoners from voting) was held to be inconsistent with right to vote under section 12(a) of the New Zealand Bill of Rights Act. This provision has since been repealed.}

_{43. See Howard v Attorney-General (No 3) (2008) 8 HRNZ 378 (HRRT) where such a declaration was made.}

_{44. Department of the Prime Minister and Cabinet, footnote 14 above at paragraph 7.65.}

_{45. An example of legislation being enacted despite a negative section 7 report is provided by the provision disqualifying prisoners from voting which was in issue in Attorney-General v Taylor, footnote 42 above.}

_{46. Re AMM and KJO [2010] NZFLR 629 (HC).}

_{47. Human Rights Act 1993, section 5(1).}

_{48. United Nations, footnote 32 above at Part I, paragraph 17.}

_{49. United Nations Global Counter-Terrorism Strategy (2006) A/RES/60/288.}

3. Overview of New Zealand’s international and domestic human rights framework