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

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

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

UN Core Human Rights Treaties and Monitoring Bodies ICERD 1965 and Committee on the Elimination of Racial DiscriminationICERD 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 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 WomenCEDAW 1979 and Committee on the Elimination of Discrimination against Women –UK ratified 1986, NZ 1985

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)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 CPRD 2006 and Committee on the Rights of Persons with Disabilities –UK ratified 2009, NZ 2008 CPED 2006 and Committee on Enforced Disappearance

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 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;Human Rights CommitteeFirst 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

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;CERDarticle 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

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;CEDAWOptional 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 The CAT may consider individual communications relating to States parties who have made the necessary declaration under article 22 of the Convention Against Torture;CATarticle 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.CRPDOptional 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

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

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:

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.

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).

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

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

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