OPINION: Unlike most democracies we like to compare ourselves with - Australia, Canada, the European Union (with notable exception of the UK) and the US - New Zealand doesn’t have a constitution to protect fundamental human rights and spell out clearly the limits on governmental powers.
That such is needed is clear from the election of Donald Trump as US President and the nightmare scenario of what he and some extreme neo-conservatives in Congress might do if they didn’t have a Constitution and Bill of Rights to keep them in check.
The closest New Zealand has come to "constitutional" protection of fundamental human right is the NZ Bill of Rights Act 1990. Its purpose is to "affirm, protect and promote human rights and fundamental freedoms in New Zealand" and affirm our commitment to the International Covenant on Civil and Political Rights (ICCPR), a bedrock international human rights treaty which New Zealand has ratified.
While the Bill of Rights Act can be amended or repealed completely, the courts have breathed real life into it and on many occasions recognised and declared its "constitutional" status in our law.
The Bill of Rights Act recognises and protects such fundamental freedoms as the right to life, not to be subject to torture or cruel treatment, medical or scientific experimentation and treatment, democratic and civil rights such as the right to vote, freedom of expression, religion and belief, association and movement, the right not to be discriminated against, and the rights of minorities.
It also protects us against unreasonable search and seizure and guarantees the right not to be arbitrarily arrested, and to receive a fair trial.
Most New Zealanders would agree that these are all bedrock values in a free and democratic society.
So, when the High Court and the Court of Appeal solemnly declare that a law breaches the Bill of Rights Act and “cannot be justified in a free and democratic society”, as happened with the National/Act Party ban on prisoner voting you would have thought alarm bells would have started ringing.
The Crown appealed the Court’s findings and next Tuesday and Wednesday I, with the support of the Human Rights Commission, will be defending the High Court and the Court of Appeal’s judgement in the Supreme Court. On Monday, Andrew Little, the Minister of Justice, and David Parker, the Attorney-General, announced that the Government is to amend the Bill of Rights Act to give statutory recognition to what I am fighting for in the Supreme Court.
Most importantly, when the courts make a declaration that a law is inconsistent with the Bill of Rights Act, Parliament would then be required to reconsider the offending law.
This will do much to stop laws that intrude on our fundamental human rights getting off the starting block in the first place. It will create a so-called 'chiller effect', in that politicians will be reluctant to see any legislation inconsistent with the Bill of Rights Act formally declared by the courts to be so, with attending damage to New Zealand’s international human rights reputation.
The proposed legislation is the most significant and far-reaching measure to entrench and protect New Zealand’s most important human rights since the Bill of Rights Act itself was enacted and should receive everyone’s support. Obviously, those who might hope to one day be in a position to encroach on, or even take away New Zealander’s most important human rights will oppose it. They want to reflect on the fact that it is their rights and that of their families that will be much better protected by the proposed law.
Arthur Taylor is a prisoners’ rights activist and is currently an inmate at Waikeria Prison
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