Submission to Constitutional Advisory Panel

1   Introduction

The objectives of the New Zealand Council for Civil Liberties (“The Council”) are set out as in its Constitution, and are as follows:

3.0 OBJECTS

3.1 The objects of the Council shall be to:

(a) assist in the maintenance of civil liberties including freedom of speech and assembly,

(b) advance measures for the recovery and enlargement of civil liberties,

(c) encourage and support debate and dialogue within New Zealand on civil liberties, and

(d) educate and inform the people of New Zealand on issues and events arising from the application and operation of international and national treaties and legislation on  human rights.  

The Council was established in 1952 and currently has more than 60 members and supporters around the country.   The Council is a watchdog, speaking out against the erosion and diminution of civil liberties.

The Council’s membership were invited to participate in a series of workshop discussions to prepare this submission to the Constitutional Advisory Panel.  From these workshops, and input from members meeting in Nelson, this submission was developed and approved by the members. 

Our submission will concentrate on those issues which affect the protection of civil liberties and human rights, and the codification of these.

We request an opportunity to present our submission to the Panel, and to elaborate upon various points.

We request that the following abstract of our submission, should be reproduced verbatim in any summary documents produced in the course of any analysis of submissions.                                                           

 

Abstract

The Council submits that centuries of discussion, across many nations and societies, have given civil liberties and human rights a level of popular mandate that transcends any mandate given to a regularly elected governing body.  It is never the intention of citizens, while engaging in the electoral process, to grant their elected representatives the power to diminish or abrogate civil liberties or human rights.  The Council submits that:

• Breaches of civil liberties and human rights have always produced bad results, regardless of the expediencies used to justify such breaches: New Zealand would benefit from effective mechanisms to ensure that civil liberties and human rights are protected against breaches or diminution;
• New Zealand needs constitutional mechanisms by which civil liberty and human rights implications of legislation can be tested by an independent body,
• Citizens’ appreciation of duties and rights, and their ability to participate fully in the general process of governance is impeded by the current situation in which constitutional arrangements are fragmented and difficult to identify, and include unwritten conventions[1];
• This is a good time to review the civil liberties encompassed by New Zealand's constitutional arrangements, to ensure these are fully protected, including civil liberties set out in international human rights instruments to which New Zealand is a party.

 

2   Submission focus

The Council notes that the purpose of the constitution conversation is to

“…inform and engage New Zealanders’ on constitutional issues and so gain an understanding of New Zealanders' perspectives on their country's constitutional arrangements, topical issues, and areas where reform is considered desirable…” 

From our members' discussions a focus developed for our submission, and we bring to the Panel's attention the following areas for further consideration for reform:

• articulating the processes of government and lawmaking in a single constitutional document;
• improving citizens' participation in democratic government;
• strengthening the protections for civil liberties and freedoms.

2.1  Clarifying the principles and processes of government and lawmaking

We are concerned that it is difficult for New Zealanders to appreciate how laws are made, the roles of the current institutions, such as that of committees of Parliament, and of the Governor-General are poorly understood. 

Civics education would help this issue, but we believe that a written constitution contained in a single document, would be helpful at this stage of the nation's development.  The constitution document would articulate high level principles, set out how laws are made, the rules of engagement between the three branches of government, and citizen's rights and responsibilities. 

 

2.2  Strengthening civil liberties

The New Zealand Bill of Rights Act 1990 (BoRA) was intended to function as a protection for civil rights and freedoms in New Zealand.  The Council believes that the functions envisaged for the BoRA have not been achieved, partly because the Act’s reporting and enforcement provisions are inadequate, and partly because the provisions of the Act do not automatically take precedence over provisions of any other Acts.  The Council submits that the civil liberties and rights identified in the BoRA need to be fully protected, and effective mechanisms for identifying and rectifying breaches of these liberties and rights need to be provided.   

Currently the courts must apply other statutes, even where they cannot identify an interpretation of such statutes that is consistent with the BoRA.  Raising the status of the BoRA provisions above those of other statutes would allow Courts to have real options to draw attention to inconsistency, and so force the executive/Parliament to reconsider proposed legislation or to bring current legislation into alignment with the provisions of the BoRA. 

The Council believes that a small number of essential liberties and rights are not adequately identified in the current BoRA (some are partially codified in Acts other than  the BoRA), and submit that these should not only be recognised, but given the same status as other fundamental liberties and rights.

 

3  Specific submission points

3.1  Reasons – and aspirations – for Civil Liberties

The Council found it a useful exercise to set out the aspirations we have for civil liberties in New Zealand.  The basic principles are:

• Civil rights and freedoms inherently belong to every person in New Zealand.
• Civil liberties are not a reward for “good citizens”, and they should never be forfeit to an extent beyond what is demonstrably necessary for society to function.  For example, the Council considers that the forfeiture of prisoners' voting rights is contrary to this principle. 
• The standard set by Section 5 of the BoRA is a high standard and should be met rigorously before rights and freedoms are limited.
• Civil liberties and human rights need to be given the widest scope possible.  Any restrictions  must be examined critically and be open to independent scrutiny. 
• New Zealand ought to aspire to be a world leader and model of excellence in giving effect to civil liberties and human rights to the highest degree possible in a free and democratic society. 

Civil liberties uphold the basic values and qualities of Fairness, Freedom and Liberty, Security of the person, Personal privacy, Dignity of the person, and Respect for differences.

 

The Council notes that

The contributions that civil rights and freedoms make to sustainable civil society are not always direct or readily measured, but we identify them to be:

• Civil rights and freedoms protect the fundamental dignity essential to the well-being of each person;
• Governments derive moral authority from acting in accordance with civil rights standards, no matter the provocation;
• The experience of civil rights and freedoms conveys to each person that they are valued and belong, and can be expected to result in improved citizenship;
• Civil rights and freedoms underpin a decent society where people are secure both from the State and from disorderly elements;
• Civil liberties ensure that those who rule never lose sight of the sole reason for their role; improvement of the lives of citizens

Civil liberties and freedoms set limits on government actions, and require accountability.

The Council notes that

• Our world has seen many shameful periods and dark times in even recent history: The real harm done to countless millions should never be forgotten.
• Many such dark times, have occurred within societies that were previously considered “civilised”: History gives us absolutely no reason to assume that New Zealand is inherently immune.
• Many of the decisions leading to historical “dark times”, were justified by political expediency, and in some cases they were even endorsed by popular vote.
• The broad and long lesson of history has been that abuses of civil liberties and human rights always end badly, regardless of the expediencies that were used to “justify” the constraint of these liberties and rights.      

For these reasons the Council submits that civil liberties and human rights should always be expressed within a constitutional framework that puts any abrogation outside any but the most rigorous of processes.

The Council notes that

• Civil liberties and human rights, as exemplified in the Universal Declaration of Human Rights, have been developed via a very broad consultative process, involving civil society from many nations, distilling, codifying and building upon concepts. 
• The concepts that are distilled into current codification of civil liberties and human rights, can be traced back over centuries: their provenance is qualitatively different from a party political manifesto produced in anticipation of an electoral term.
• The civil liberties and human rights that are internationally, and also nationally, recognised have arisen out of a deep knowledge of the consequences of historical abuses.

For these reasons, the Council submits that civil liberties and human rights, have a very well-established and popular mandate that should be recognised constitutionally, as taking precedence over any expediencies proposed by a body of regularly-elected representatives.

The Council notes that

• the overwhelming majority of historical abuses of civil liberties and human rights, have been carried out by those in power – and indeed one can observe that it is inherently hard for groups that have no power, to carry out abuses of such rights! 
• The great majority of other countries have some form of oversight/constraint upon the powers of their regularly-elected representatives (whether by a rigorously enforced constitution or an upper house, House of Lords etc.):
• There are very few, if any, countries in which the regularly-elected representatives have power to change human rights or civil liberties, or to modify the constitution.

For these reasons, the Council submits that

• the protection of civil liberties and human rights in New Zealand, must also, by definition, involve the constraint of the exercise of power by our regularly elected representatives,
• it is inherently wrong to place responsibility for protection of civil liberties and human rights, with the body who (if such abuse were to occur) is most likely to be the source of the abuse.  This is a general principle of good management.
• the protection of civil liberties and human rights, can only be reasonably assigned to a body that is both independent from day-to-day governance of the country, and has the authority to actually prevent civil liberties and human rights from being diminished/abrogated in the course of day-to-day governance.

Those elected to carry out day-to-day governance should recognise that citizens have already endorsed civil liberties and human rights, and that the regular election process does not include any intention (on the part of electors) to give their regularly-elected persons/groups, the power to abrogate civil liberties and human rights,

The Council notes that any codification (whether of law or civil liberties) will inevitably require interpretation – such interpretation is seldom seen as an abrogation of the popular mandate, it is simply inevitable when specific situations need to be measured against a documented principle.  Society has readily accepted the necessity of judicial interpretation of statute, and NZCCL considers that there is no need for concern that the judicial branch of government cannot reasonably interpret codified civil liberties and human rights.

 

3.2  Necessity for giving effect to protection of liberties and rights

The Council notes with concern that the reporting of inconsistencies under section 7 of the current BoRA, appears to be quite ineffective.  The Council would strongly recommend that the provisions of the BoRA be set above all other Statutes:  Our strong preference is that the provisions of the BoRA be incorporated in a constitutional codification, however as a practical step towards this goal we also recommend consideration of the following options. 

3.2.1 Entrenchment

• Entrenchment” is one approach that could, in principle, enhance the status of the BoRA, and in that way strengthen the protection of civil liberties. 

We recognise that such entrenchment would necessarily require a consultation to confirm the contents of the (enhanced) BoRA.  We also recognise that it would be important to provide mechanisms for change, though we consider that a high hurdle should be set. 

3.2.2 Reporting on consistency of proposed legislation

Reporting under section 7 of the BoRA was intended to strongly discourage the passing of legislation inconsistent with the BoRA. 

The Council has, however, observed many examples where reporting was either inadequate or ineffective in this regard.  We appreciate that the reports are in the opinion of the Attorney-General, and on advice.  We note that since 1990 there have been 59 cases where proposed legislation was reported as inconsistent, and in only 9 of these were changes made to address the concerns. 

We also note that where amendments are proposed to legislation after the BoRA reporting, these amendments can introduce inconsistencies with the BoRA, yet not be reported on. 

The Council considers that all proposed legislation, including any changes made during its passage, should be evaluated for consistency with the BoRA.  Reporting needs to be independent of the Executive, and the Council does not consider that the Attorney-General is sufficiently independent of the Executive.  The Council would prefer to see the reports provided to Parliament by an officer of Parliament, or by a specialist committee. 

 

3.2.3  Strengthening the role of the courts, to protect civil liberties

There are many benefits to a representative democracy, but protection of the rights of minorities is not always one of them.  There are a number of ways in which the role of the courts could be strengthened.  We think new mechanisms to give the courts a greater role in protecting civil liberties need to be explored, for example the power to make declarations of inconsistency, advisory opinions, a specific power to grant remedies for breaches of the rights in the BoRA.

 

3.3  International Human Rights Instruments

Over the years New Zealand has become a party to a number of key human rights instruments[2].  Ratifying them usually involves reflecting the instrument's provisions in domestic legislation, enabling enforcement and making remedies available.  The Council commends the fact that New Zealand is a party to these instruments, but further action is needed. 

The Council's aspiration is that New Zealand becomes a model international citizen and takes its obligations under these instruments seriously. 

We appreciate that New Zealand participates in the Universal Periodic Review, however we think the process is weakened by the fact of favourable comparisons with countries with very poor human rights records, and the reporting being only four yearly. 

To ensure New Zealand takes its human rights obligations seriously the Council sees a need for an independent domestic body to investigate and report to Parliament on whether the New Zealand Government has taken all appropriate steps to incorporate the provisions of the instruments to which it is a party, into domestic law.   We would also like to see independent reporting on New Zealand's performance under the key human rights instruments in the Universal Periodic Reporting. 

 

3.4 Rights and liberties that require additional protection

The Council notes that significant rights, including some clearly identified under the United Nations’ Universal Declaration of Human Rights (UN UDHR), are not protected under NZ’s BoRA,.   While aspects of these rights may be somewhat protected under other statute, we would strongly recommend that these be recognised as having the status of “rights”, and hence warrant a higher level of protection than common statute.   Specifically we believe that this category should include:

 

3.4.1 Privacy

We favour adding privacy to the rights protected by the BoRA.  Privacy is a right that protects the dignity and self-worth of each individual; it goes to the root of autonomy, and the ability to participate as an individual in society.  We recognise that a right to privacy is protected by the common law through the recently developed tort of invasion of privacy and by the Privacy Act.  We think the right needs a higher level of protection against intrusion by state agencies.  The right underpins other BoRA rights, such as the right to be free from unreasonable search, and that the courts have the capacity to interpret the right, give the right appropriate scope, and develop the right balance vis a vis other rights.

 

3.4.2  Property

Article 17 of the Universal Declaration of Human Rights states that:

•(1) Everyone has the right to own property alone as well as in association with others.

•(2) No one shall be arbitrarily deprived of his property.

The Council notes that the BoRA already recognises some aspects of  property rights e.g. the right to be free from unreasonable seizure of property.  Addition of a right to property is likely to promote these BoRA rights.

Current provisions in other statutes, such as the Resource Management Act, of a process for the taking of land and payment of compensation, would continue to govern specific types of property takings.

 

3.5 Codification of governance principles and inclusion of Civil Liberties

The Council notes that:

• There are very few, if any, countries in which the regularly-elected representatives have power to change human rights or civil liberties, or to modify the country’s constitution.
• Elsewhere in the world, it is extremely rare to find cases in which elected officials express significant concern at the necessity to operate constitutionally
• Elsewhere in the world, it is extremely rare to find cases in which there is significant objection, on the part of the public (voters) to the assumption that elected officials will operate within (be constrained by) a constitution

For these reasons, the Council submits that NZ should welcome a formalisation of the necessity for the NZ House of Representatives to operate within a codified constitution that in turn codifies civil liberties and human rights.

The Council also notes that:

• All but 2 other nations in the world, operate within a constitution that is codified in a single document
• New Zealand law requires every publicly listed company, and every incorporated society to have a constitution, codified in a single document
• It would be highly unusual for even very small organisations to not have their constitutions codified in a single written document,
• The UN UDHR includes the right to “participate in government” and emphasise the value of open and transparent government

For these reasons, the Council

• Expresses concern at the motivation of any elected representatives who consider that a

constitution (codified in a single document) would impede their freedom to govern:  We ask what aspect of unconstitutional governance is being contemplated by such representatives? 

• Submits that the lack of a single, coherent codification of NZ’s constitution makes NZ’s national governance processes unnecessarily opaque – and hence impedes the ability of citizens to review and participate in the full scope of the governance process. 
• Submits that the lack of a single, coherent codification of NZ’s constitution impedes the ability of our citizens to appreciate their duties, rights and governance expectations

 

Summary of Recommendations

The Council submits that consideration should be given to reform of New Zealand's constitutional arrangements in the following areas:

• Strengthen the New Zealand Bill of Rights Act by raising its constitutional status and  improving the reporting process on proposed legislation;
• Review the processes for incorporating human rights and civil liberties in international human rights instruments to which New Zealand is a party, into our domestic law;
• Add to the Universal Periodic Review an internal process for reporting on progress in implementing measures to protect and enhance civil rights and freedoms in New Zealand; 
• Add a right to privacy and to property to the rights protected in the Bill of Rights Act;
• Develop a single, coherent codification of New Zealand’s constitution to enable citizens to better appreciate their duties, rights and expectations as to standard of governance.