Amend the NZ Bill of Rights to align with the UN Universal Declaration of Human Rights
A constitution sets out the powers of government. New Zealand does not have a written constitution.
A bill of rights sets out clear boundaries to protect the individual from the government. The NZ Bill of Rights is a law that can be repealed like any other law.
Governments are not tested in normal times. The test comes in times of crisis, emergency, when the social contract is under pressure. When that happens, if the powers accorded to government lack certain checks and balances, damage can result. The time to examine the limits of government are not during the crisis, but before or after.
With its unicameral Parliament and the political party system, power is centralised within a small circle consisting of senior party members, either of one party or an MMP coalition. During a crisis or emergency, there is a much greater risk the decisions by this small cohort can get it wrong, especially if there is a public level of fear.
In this governance brief, it is proposed the NZ Bill of Rights needs to be strengthened, and it needs to have more binding power than a simple Act of the Crown.
In 1948, the United Nations proclaimed the Universal Declaration of Human Rights. At that time New Zealand played a key role in the drafting of the declaration, supporting the inclusion of economic, social and cultural rights. However, the declaration is not a legally binding instrument. New Zealand has ratified, with some reservations, 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 incorporated some of the rights they recognise into domestic 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 gives effect to international human rights instruments 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.
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. There is no protection for
- the right to a job
- the right to education
- the right to adequate housing
- the right to social welfare
- the right to privacy
- the right to property
- third-generation rights such as the right to a clean environment.
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.
When such a declaration is made by a court (or the Human Rights Review Tribunal) Parliament can decide whether and how it responds.
NZ needs a Bill of Rights that requires a much more rigorous process to repeal or overturn than a simple vote of the Parliament of the day.
In this brief, two rights are discussed…
Article 23: The Right to Work
The Universal Declaration of Human Rights, Article 23 states
- Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
- Everyone, without any discrimination, has the right to equal pay for equal work.
- Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
- Everyone has the right to form and to join trade unions for the protection of his interests.
This right is not found in NZ law, and increasingly, the threat of losing ones job and career is used to secure conformity and obedience. Some make the sacrifice, ruining their career out of principle or a deep and sometimes well-founded disagreement with the official party line. Most capitulate, but in doing so, the nation erodes confidence, trust and the social contract necessary for a free and open democracy – as well as losing some of its best workers – those who not only do, but who think about what they are doing.
Article 19: Freedom of opinion and expression
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Under the banner of combatting misinformation, disinformation, fake news and organised strategies to manipulate public opinion, governments are developing laws and regulations ostensibly to suppress that which runs counter to the official narrative. While situationally the officials and the majority may believe they are right, history is littered with the collateral damage of the best of intentions enacted without sufficient checks and balances, including pushback by a minority. This becomes especially important as the fourth estate, the mainstream media is in retraction due to loss of supporting revenue where journalists are fearful of rocking the boat because it may mean not only loss of ones job, but ones career.
Democracy works when everyone has the right to express their opinions and views without censorship or repression, including the threat of losing ones job or career. It is well established that what is called the wisdom of crowds comes when many different people, thinking independently of each other are asked to address the same topic, while no individual may get it right, generally the crowd as a whole will. This is because different people see different aspects of the same subject. To learn more about why this works, read the Wisdom of Crowds essay.
If this freedom is supressed, society and civilisation are the losers. Politicians especially seek to control the narrative, but in doing so, they fail to achieve the public interest that is central to their job.