The Judicial Use of International Human Rights Law in New Zealand

Abstract

In this essay we briefly examine the judicial use of international human rights law in NewZealand. In particular, we identify the relevant sources of international human rights law for New Zealand and the possible methods of application of international human rights law in New Zealand's domestic judicial system, we assess the actual significance accorded to international human rights law, and attempt to account for the marked increase in use of international human rights law by New Zealand judges.

Managing International Migration in Australia: Human Rights and the “Last Major Redoubt of Unfettered National Sovereignty”

“…In the result, the Minister's appeal to the High Court failed because his delegate had not afforded Teoh that procedural right. Decisions in Canada and New Zealand have also found, in different ways, that ratification of a treaty has implications for administrative decision making, even in the absence of 19 legislative implementation (Butler and Butler, 1999;Dyzenhaus and Fox-Decent, 2001;Mclean, 2005). 21 Considered alone, Teoh's Case appears to support the claim that liberal democracies are substantially constrained in their capacity to deport unwanted migrants.…”

Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand

“…Finally, the courts have utilized NZBOR to grant new protections against being subject to unreasonable search and seizure, and to develop a remedial power to exclude evidence connected with unreasonable searches or seizures that go beyond that provided under the common law. Thus, although the “prima‐facie exclusionary rule” elucidated in R v. Jefferies (1994) was modified into a “balancing” test in R. v. Shaheed (2002), Butler and Butler (2005) still find that “exclusion of evidence obtained following a breach of BORA [New Zealand Bill of Rights Act] is frequently sought and granted as a remedy” (1050). This contrasts with a pre‐NZBOR position where, as Scott Optican (2008) notes, “physical evidence garnered in an illegal police search” was rarely excluded from a subsequent criminal trial (412) 8…”

“…NZBOR has also had a nonnegligible legal impact in the area of freedom of expression. Although clearly not having a similarly strong quantitative impact on NZBOR jurisprudence as criminal justice issues, it is nevertheless true that “the enactment.….of BORA [New Zealand Bill of Rights Act] has given added emphasis to the importance of free expression and has given a strong statutory base for its vindication” (Butler and Butler 2005, 1110). Thus, in the Lange cases, 9 which involved the attempt by the former Prime Minister David Lange (1984–1989) to sue for defamation, the New Zealand court of appeal found that section 14 of NZBOR provided a principal reason for the recognition of a right of qualified privilege in defamation law to accommodate the publication of untruthful statements made in relation to the performance of politicians.…”

“…In significant contrast, judicial rights protection based on NZBOR has been “minimal” (Butler and Butler 2005, 1107) in other areas of the law. As will be seen below, this is particularly surprising given that this instrument, at a formal level, protects a range of other rights including, most notably, rights not to be subject to discrimination.…”

“…Furthermore, it is not implausible to argue that, over time, the weight of claims put forward in this area (coupled with some potential for strategic interaction between them) has tended to encourage the expansive interpretation of these rights within NZBOR. Similarly, it may not be entirely coincidental that freedom of expression provisions have received a generous interpretation, given that such a right “goes to the heart of the operations of various media organizations,” which are also generally well‐resourced enough to finance and sustain lengthy and expensive legal cases (Butler and Butler 2005, 1110). Indeed, in this context, it may be noted that not only were one of the respondents in Lange —one of the first major freedom of expression cases decided under NZBOR—a wealthy media organization (Australian Consolidated Press) but the case also benefited from the intervention of the New Zealand Press Council and the Commonwealth Press Union.…”