Interpreting Human Rights in New Zealand and the UK: Expansive but Narrow, Narrow but Expansive

1. 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

2. 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

3. 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

4. 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

5. 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

6. 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 non-discrimination principles

7. 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

8. 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

9. 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

10. 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:

11. 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.

12. 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).

13. Seeking Explanations • One court has got it wrong • Both are right because legally significant contexts are different

14. 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

15. 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