Legal system

The legal system takes the framework of a parliamentary

Parliamentary system

A parliamentary system is a system of government in which the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined....

 representative democratic

Representative democracy

Representative democracy is a form of government founded on the principle of elected individuals representing the people, as opposed to autocracy and direct democracy...

 monarchy

Monarchy

A monarchy is a form of government in which the office of head of state is usually held until death or abdication and is often hereditary and includes a royal house. In some cases, the monarch is elected...

. In the absence of a single constitution, various legislative documents such as the Constitution Act 1986, Imperial Laws Application Act 1988

Imperial Laws Application Act 1988

The Imperial Laws Application Act 1988 is an important part of New Zealand's uncodified constitution. The Act applies certain enactments of the Parliament of the United Kingdom and its predecessors, rulings of the Privy Council and English common law into New Zealand law.-Background:The first...

 and New Zealand Bill of Rights Act 1990 have been implemented to cover such areas. Human rights in New Zealand have never been protected by any single constitutional document or legislation, and no single institution has been primarily responsible for enforcement. Because New Zealand's human rights obligations are not entrenched and are simply part of common law, Parliament can simply ignore them if it chooses. The Human Rights Commission has identified this constitutional arrangement as an area in need of action to identify opportunities for giving greater effect to human rights protections.

The 2009 report by the U.S. Department of State noted that, "[t]he law provides for an independent judiciary, and the government generally respected judicial independence in practice".

Freedom of speech

The right to freedom of speech

Freedom of speech

Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 is not explicitly protected by common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 in New Zealand but is encompassed in a wide range of doctrines aimed at protecting free speech. An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press. In particular, freedom of expression is preserved in section 14 of the New Zealand Bill of Rights Act 1990 (BORA) which states that:

“Everyone has the right to freedom of expression, including the right to seek, receive, and impart information and opinions of any kind in any form”.

This provision reflects the more detailed one in Article 19 of the ICCPR. The significance of this right and its importance to democracy has been emphasised by the New Zealand courts. It has been described as the primary right without which the rule of law

Rule of law

The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

 cannot effectively operate. The right is not only the cornerstone of democracy; it also guarantees the self-fulfilment of its members by advancing knowledge and revealing truth. As such, the right has been given a wide interpretation. The Court of Appeal

Court of Appeal of New Zealand

The Court of Appeal of New Zealand, located in Wellington, is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court...

 has said that section 14 is “as wide as human thought and imagination”. Freedom of expression embraces free speech, a free press, transmission and receipt of ideas and information, freedom of expression in art, and the right to silence

Right to silence

The right to remain silent is a legal right of any person. This right is recognized, explicitly or by convention, in many of the world's legal systems....

. The right to freedom of expression also extends to the right to seek access to official records. This is provided for in the Official Information Act 1982

Official Information Act 1982

The Official Information Act 1982 is a New Zealand law passed by the 3rd National government in 1982 to "make official information more freely available, to provide for proper access by each person to official information relating to that person, to protect official information to the extent...

.

Limitations

There are limitations on this right, as with all other rights contained in BORA.

“It would not be in society’s interests to allow freedom of expression to become a licence irresponsibly to ignore or discount other rights and freedoms”.

Under article 19(3) ICCPR, freedom of expression can be limited in order to:

• respect the rights and reputations of others; and
• protect national security, public order, or public health and morals.

Jurisprudence under BORA closely follows these grounds. Freedom of expression is restricted only so far as is necessary to protect a countervailing right or interest. The Court of Appeal has held that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom to the least possible amount.
The right to freedom of expression may also be limited by societal values which are not in BORA, such as the right to privacy

Privacy law

Privacy law refers to the laws which deal with the regulation of personal information about individuals which can be collected by governments and other public as well as private organizations and its storage and use....

 and the right to reputation.

Hate speech

Hate speech

Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....

 is prohibited in New Zealand under the Human Rights Act 1993 under sections 61 and 131. These sections give effect to article 20 ICCPR. These sections and their predecessors have rarely been used. They require the consent of the Attorney-General to prosecute. Incitement to racial disharmony has been a criminal offence since the enactment of the Race Relations Act 1971. Complaints about racial disharmony often concern statements made publicly about Maori-Pakeha

Pakeha

Pākehā is a Māori language word for New Zealanders who are "of European descent". They are mostly descended from British and to a lesser extent Irish settlers of the nineteenth and twentieth centuries, although some Pākehā have Dutch, Scandinavian, German, Yugoslav or other ancestry...

 relations and immigration, and comments made by politicians or other public figures regarding minority communities.

Freedom of the media

Freedom of the media

Freedom of the press

Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...

 is also recognised as an important democratic principle. New Zealand is ranked eighth on the Press Freedom Index

Press Freedom Index

The Press Freedom Index is an annual ranking of countries compiled and published by Reporters Without Borders based upon the organization's assessment of their press freedom records. Small countries, such as Andorra, are excluded from this report...

 2010 and there tends to be strong legal, public and media comment where this right is infringed. Section 68 of the Evidence Act 2006 provides a qualified form of privilege

Qualified privilege

The defense of qualified privilege permits persons in positions of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else...

 for journalists who wish to protect the identity of their sources. The Court of Appeal has also laid down guidelines for the police when searching media premises for law enforcement reasons, so that their sources remain protected.

The Courts may order that publication of information be withheld in whole or part, in the interests of justice. Often this is to protect the right to a fair trial

Right to a fair trial

The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....

, to protect the interests of the parties, or to uphold public confidence in the integrity of the justice system. It is not uncommon for New Zealand Courts to suppress names

Gag order

A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...

 and evidence in civil and criminal proceedings so as to protect the right to a fair trial.

"The law of New Zealand must recognise that in cases where the commencement of criminal proceedings is highly likely the Court has inherent jurisdiction to prevent the risk of contempt of Court by granting an injunction. But the freedom of the press and other media is not to be interfered with lightly and it must be shown that there is a real likelihood of a publication of material that will seriously prejudice the fairness of the trial".

The Broadcasting Act 1989 is a statute limiting the media’s right to freedom of expression. Broadcaster’s have a responsibility to maintain programme standards that are consistent with: the observation of good taste and decency, the maintenance of law and order, the privacy of the individual, the principle of balance when controversial issues of public importance are discussed, and approved code of broadcasting practice applying to programmes. The Broadcasting Standards Authority is a Crown Entity that hears complaints from the public where codes of practice have been breached. Print news media are self regulated through the Press Council

New Zealand Press Council

The New Zealand Press Council is a Non Governmental Organisation which exists to uphold standards in the New Zealand print media and promote freedom of speech in New Zealand. Founded in 1975, it is enabled to hear complaints against newspapers and other publications, particularly regarding...

.

Freedom of religion

Freedom of religion is addressed specifically in the New Zealand Bill of Rights Act 1990, and the government has generally respected this in practice.

Political rights

New Zealand is a parliamentary democracy, and as such acquires rights generally associated with such a system. Democratic rights include electoral rights, the right for citizens to take part (directly or indirectly) in government, and the right to equal access to the public service. There is an associated duty of responsible citizenship, or being willing to play one’s part in public affairs and to respect the rights and freedoms of others. These rights give the ability to participate in both public and political life when considered together.

Constitution

Political and democratic rights are purported to be upheld by the ‘unwritten’ Constitution of New Zealand. One of the many sources that make up the constitution is the New Zealand Bill of Rights Act 1990. This legislation was the first aspect of the New Zealand constitution to specially refer to the International Covenant on Civil and Political Rights

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...

 (ICCPR) with the rights contained within. Together with the New Zealand Human Rights Act 1993, these two statutes make up a basis for Human Rights protection in New Zealand. They were not incorporated directly into the legal system, however many of the rights within the ICCPR were replicated in the Bill of Rights Act 1990. These include electoral rights under section 12, and freedom of association under section 17. The Human Rights Act 1993 also concerns non-discrimination based on political opinion under section 21.

There has been concern expressed that due to the nature of the New Zealand constitution, and the lack of full integration into the legal system, rights under the ICCPR are not sufficiently protected. The Bill of Rights Act 1990 is not entrenched legislation

Entrenched legislation

Entrenched legislation is legislation that may be amended or repealed only after certain prescribed procedures have been observed, for example a special majority, or referendum. See also Legislation, Manner and form; Repeal....

, and this means that it can effectively be overturned by a simple majority in Parliament. A counter to this concern is that rights do exist in the New Zealand constitution regardless; however it is the finding of them that is the difficult part.

Electoral Rights

Electoral rights include the right to vote in Members of Parliament, and the right to run for the House of Representatives. This is done by way of a secret ballot

Secret ballot

The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of...

, and there is universal suffrage

Universal suffrage

Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...

, with voting rights given to both men and women of the age 18 and over who are New Zealand citizens or permanent residents. Freedom of association

Freedom of association

Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....

 allows people to join with other individuals into groups that express, promote, pursue and defend common interests collectively. The Electoral Act 1993 is also important because it is one of the few ‘constitutional’ documents to contain entrenched provisions. These maintain the rights to voting and the size of the electorates which represent 'the people'. In the New Zealand context, entrenching provisions is one of the most effective ways to protect rights, as there is no possibility of total protection due to the doctrine of Parliamentary Sovereignty

Parliamentary sovereignty

Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

. However entrenching provisions would appear to indicate intent to protect rights. Section 6 of the Bill of Rights Act provides for judicial interpretation in favour of right-protecting interests, which allows judges to interpret around provisions in other legislation that may appear to impede human rights.

This in itself had opposition, with arguments that allowing such a provision to exist undermines the doctrine of Parliamentary Sovereignty and impinged on the political rights of citizens as it allowed un-elected and non-representative judges to interpret rights somewhat at their discretion. The universality of rights under the Universal Declaration of Human Rights

Universal Declaration of Human Rights

The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

 would then be threatened also under this critique, as those who could afford good lawyers would then be at a greater advantage. Whether this is true in practice has not been proven, however it was one of the biggest points of opposition to the Bill of Rights Act prior to its inception.

The New Zealand context

The ICCPR also contains statements on all peoples having a right to self-determination

Self-determination

Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...

. Part of this right to self-determination is the right to determine political status freely. International human rights standards recognise that democratic and political rights require the protection of a range of other rights and freedoms, including the right to justice, freedom of expression, the right to peaceful assembly and freedom of association contained in the ICCPR. They must also be enjoyed without discrimination. This is stated in the ICCPR (as well as the Convention on the Elimination of All Forms of Discrimination against Women

Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of all Forms of Discrimination against Women is an international convention adopted in 1979 by the United Nations General Assembly....

 (CEDAW) and the Convention on the Elimination of Racial Discrimination (CERD). Both CEDAW and CERD provide with specificity that the State should take steps to ensure the equal representation and participation of women, and of all ethnic and racial groups, in political processes and institutions (Article 7 of CEDAW and Article 5c of CERD).

New Zealand portrays a system by which these political rights are maintained. Equal possibility for representation exists for any citizen, regardless of gender or race. In this respect, the democratic rights standard under the ICCPR (and other UN conventions) is fulfilled with women and minority groups being able to vote, and be elected to Parliament. For example, New Zealand has female Members of Parliament, as well as those in the Maori, Pacific Islander, Asian, homosexual and Muslim minorities. Maori political rights are further protected by giving Maori people the option to be on the General or Maori electoral roll, and by having reserved seats in the House of Representatives. This formula in turn projects the number of Maori electorates, General electorates and thus party list seats under the Mixed member proportional representation

Mixed member proportional representation

Mixed-member proportional representation, also termed mixed-member proportional voting and commonly abbreviated to MMP, is a voting system originally used to elect representatives to the German Bundestag, and nowadays adopted by numerous legislatures around the world...

 electoral system.

Citizens are also given a further ability to participate in the system and exercise some democratic rights by way of ‘citizen initiated referenda’(or citizen initiative). However these are not binding on Parliament and as such do not necessarily have a large degree of influence. It does however provide for assistance on public opinion for policy makers, and results can be taken into consideration when formulating Bills at various stages. Political and democratic rights are also protected under the Treaty of Waitangi

Treaty of Waitangi

The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....

, one of New Zealand's founding documents and a source of law under the unwritten constitution. Article 1 of the Treaty infers the right to govern in New Zealand being the basis for the Westminster system

Westminster System

The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....

 of government. The rights of Maori to govern their own affairs where necessary is inferred by Article 2, and the extent to which all New Zealanders are proportionately represented in the institutions of the State, and which New Zealanders participate in political processes such as voting is covered by Article 3.

Framework for Political Rights protection

Human rights and democracy are internationally recognised as interdependent and provide a framework for assessing the extent to which democratic rights are respected in law and practice. According to this framework, there are two key democratic principles. The principle of popular control is the right to a controlling influence over public decisions and decision-makers. The principle of political equality is the right to be treated with equal respect and as of equal worth in the context of such decisions. Recognition of the above principles requires a framework for guaranteed citizens' rights, a system of representative and accountable political institutions subject to popular authorisation, and active channeling of popular opinion and engagement with government by the people. Under this model, New Zealand recognises the political rights of its citizens in both law and practice. It does so by way of the Human Rights Commission, which provides a framework within the legal and political system; the ability to communicate and participate in the political system, and processes such as judicial review

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

 and complaints to the Office of the Ombudsman

Office of the Ombudsman

The Office of The Ombudsman, Hong Kong is an independent statutory authority, established in 1989 under the Ombudsman Ordinance, to redress grievances arising from maladministration in the public sector through independent and impartial investigations to improve the standard of public...

 hold government and governmental departments accountable where necessary in order to maintain political rights.

Indigenous people

There are concerns regarding inequality between Māori and other ethnic groups, in terms of the disproportionate numbers of Māori people in the penitentiary system and on welfare

Welfare

Welfare refers to a broad discourse which may hold certain implications regarding the provision of a minimal level of wellbeing and social support for all citizens without the stigma of charity. This is termed "social solidarity"...

 support. The UN Committee on the Elimination of Racial Discrimination highlighted issues regarding the government handling of Māori land claims, suggesting that amendments should be made to the Treaty of Waitangi

Treaty of Waitangi

The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....

 and the Bill of Rights Act.

Māori population on average run greater risks of many negative economic and social outcomes. Over 50% of Māori live in areas in the three highest deprivation deciles, compared with 24% of the rest of the population. Although Māori make up only 14% of the population, they make up almost 50% of the prison population.
Other issues include higher unemployment-rates than the general population in New Zealand
There are also issues regarding health, including higher levels of alcohol and drug abuse, smoking and obesity. Less frequent use of healthcare services mean that late diagnosis and treatment intervention lead to higher levels of morbidity and mortality in many manageable conditions, such as cervical cancer

Cervical cancer

Cervical cancer is malignant neoplasm of the cervix uteri or cervical area. One of the most common symptoms is abnormal vaginal bleeding, but in some cases there may be no obvious symptoms until the cancer is in its advanced stages...

 diabetes per head of population than Pākehā

Pakeha

Pākehā is a Māori language word for New Zealanders who are "of European descent". They are mostly descended from British and to a lesser extent Irish settlers of the nineteenth and twentieth centuries, although some Pākehā have Dutch, Scandinavian, German, Yugoslav or other ancestry...

 (non-Māori) Māori also have considerably lower life expectancies compared to non-Māori. In 2005-2007, at birth Māori male life expectancy was 70.4 years versus 79 years for non-Māori males (a difference of 8.6 years), while the life expectancy for Māori females was 75.1 years versus 83 years for non-Māori females (a difference of 7.9 years).

Others have voiced concern for the area of 'linguistic human rights', due to the degree of prejudice against the use of Māori language.

In 2010, Maori Affairs Minister Pita Sharples announced that the New Zealand Government would now support the Declaration on the Rights of Indigenous Peoples

Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007....

.

Refugees

New Zealand was a signatory to the 1951 UN Convention Relating to the Status of Refugees

Convention Relating to the Status of Refugees

The United Nations Convention Relating to the Status of Refugees is an international convention that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not...

and the 1967 protocol. In 2009, the government proposed an immigration bill which had provisions for passenger screening. In addition, the bill would permit the withholding of reasons for the denial of entry, and would deny the applicant access to judicial review. Such developments caused concern that the bill could lead to the possibility for prolonged detention.

Human Rights Commission

The primary watchdog for human rights in New Zealand is the Human Rights Commission. Its stated mission is to work "for a fair, safe and just society, where diversity is valued, human rights are respected, and everyone is able to live free from prejudice and unlawful discrimination." The body is a member of Asia Pacific Forum of National Human Rights Institutions and of the International Coordinating Committee of national human rights institutions.

In 2010 the Commission conducted a publicly available review of human rights in New Zealand in order to both identify the areas in which New Zealand does well, and where it could do better to combat persistent social problems. The 'report card' is an update of the Commissions' first report in 2004, and will lead its work for the next five years. The report notes steady improvements in New Zealand's human rights record since 2004, but also "the fragility of some of the gains and areas where there has been deterioration." In the report, the Commission identifies thirty priority areas for action on human rights in New Zealand under a number of sections: general; civil and political rights; economic, social and cultural rights; and rights of specific groups.

External links

• Freedom in the World 2006 Report: New Zealand
• Amnesty International Report 2009: New Zealand
• Human Rights Commission report Human Rights in New Zealand 2010
• NZ Action Plan for Human Rights