Freedom of Expression in the United Kingdom Under the Human Rights Act 1998
Eric Barendt
|
The right to freedom of expression is now protected in the United Kingdom by the Human Rights Act 1998 (UK), incorporating the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. One might have expected that consequently the courts would have given the right more protection than it enjoyed at common law. In practice, the impact of the Human Rights Act 1998 (UK) has been more strongly felt in political and public debate than in the decisions of the courts. On the other hand, the courts have considered free speech arguments more carefully than they used to under the common law, and have begun to develop a free speech jurisprudence. In particular, they have drawn up categories of speech, holding that gossip and pornography are less strongly protected than political speech. |
The New Zealand Bill of Rights: Where Have We Got To After 16 Years?
Rt Hon Peter Blanchard
|
Since its commencement in September 1990, the New Zealand Bill of Rights Act 1990 has engaged proportionately more of the New Zealand courts’ time than any other human rights instrument. In this article, the author surveys New Zealand’s experience during the first 16 years of the New Zealand Bill of Rights Act 1990 and compares how, despite various differences in the way rights are articulated, other common law jurisdictions have found similar practical solutions to procedural and substantive uncertainties. Cases in both the civil and criminal arenas are examined. The author concludes that whilst it is far too soon to say that the jurisprudence under the New Zealand Bill of Rights Act 1990 has settled down, overall, New Zealand’s report card on the legislation is quite good. |
The Interpretative Obligation: the Duty to Do What is Possible
Kris Gledhill
|
The issue for the New Zealand Supreme Court in R v Hansen [2007] 3 NZLR 1 (SC) was the extent to which the judiciary could “interpret away” a breach of the right to be presumed innocent by way of the interpretive obligation in the New Zealand Bill of Rights Act 1990. In holding that the breach of a fundamental right could not be avoided in this way, so that the New Zealand Parliament must be taken to have intended there to be such a breach, the New Zealand Supreme Court found itself at odds with the persuasive authority of the House of Lords in R v Lambert [2002] 2 AC 545 (HL). In this case, a similar potential breach of the presumption of innocence was avoided by way of the interpretative obligation in the Human Rights Act 1998 (UK), which provides the United Kingdom courts with the same tools as those available in New Zealand. The argument of this article is that the approach of the New Zealand Supreme Court was in error, and that the Court failed to carry out the task given to it by Parliament in the New Zealand Bill of Rights Act 1990 of preventing inadvertent breaches of fundamental rights. It is also suggested that the question in Hansen could have been seen as a simple matter of statutory interpretation involving two potentially contradictory provisions and that, since one of those provisions reflected a fundamental right, it should have been given primacy in the absence of a clear parliamentary intention to breach that fundamental right. The outcome of Hansen represents a failure by the judiciary to abide by the intention of New Zealand Parliament, as the approach adopted involves a narrow and legalistic approach to the New Zealand Bill of Rights Act 1990 that undermines the protection of fundamental rights, and amounts to an unwarranted conclusion that the New Zealand Parliament’s intention in passing the New Zealand Bill of Rights Act 1990 was to provide lesser protection to fundamental rights in New Zealand than arises from the United Kingdom Parliament adopting substantively the same model. |
Rights Against Legislated Discrimination: A Sleeping Giant? Part 1A of the Human Rights Act 1993
Royden Hindle
|
The Human Rights Review Tribunal has power to declare that an Act of Parliament is inconsistent with the right to freedom from discrimination as set out in the New Zealand Bill of Rights Act 1990. The power was conferred on the Tribunal as a result of amendments to the Human Rights Act 1993 in 2001, but despite its obvious constitutional significance, this power has been given little attention. This article gives an historical context for this power to make a declaration of inconsistency, and suggests some reasons why it has not attracted the level of attention that might have been expected. Reference is made to the corresponding jurisdiction in the United Kingdom, and the idea of a “dialogue” between the legislature and the courts. Activity in this part of the Tribunal’s portfolio of jurisdictions is described and discussed, including (but not limited to) general difficulties in dealing with the idea of discrimination under the New Zealand Bill of Rights Act 1990. The article concludes with some observations about the potential for a “declaration of inconsistency” solution to be applied more widely in the context of human rights issues, as a middle ground between the competing ideals of parliamentary sovereignty and legalism. |
Damages for Breach of the New Zealand Bill of Rights — Why Aren’t They Sufficient Remedy?
Geoff McLay
|
This article attempts to explain the relative lack of cases brought for “public law compensation” or damages under the New Zealand Bill of Rights Act 1990 both by reference to the reluctance of the New Zealand courts to expand the remedy and to the nature of the New Zealand Bill of Rights Act 1990 and its place within the New Zealand legal universe. The author links that lack of success with the marked reluctance by judges in the United Kingdom to use damages as a remedy for breaches of the Human Rights Act 1998 (UK). This article argues that the source of the failure of Baigent’s Case, in which the New Zealand Court of Appeal asserted jurisdiction to award compensation for breaches of the New Zealand Bill of Rights Act 1990, lies not only in a combination of factors to do with the sorts of right recognized by that enactment, but also in the fact that Baigent’s Case (along with human rights compensation in other jurisdictions) has been undertheorized. The author examines and rejects the usual justifications given for compensation in private law cases, namely compensation, deterrence, and “corrective justice”. In the author’s view, the Supreme Court of New Zealand’s decision in Taunoa v Attorney-General in August 2007, hints at, but does not completely explain, a signalling role for monetary awards against the government. Any complete theory of human rights compensation needs to be placed within the body of wider “public” mechanisms that courts have to control public authorities and to assess the extra value that such damages awards have in relation to other remedies. The article suggests that such an inquiry would force a little more light onto the much vexed division between public and private law. |
The Impact of the Bill of Rights on Administrative Law Revisited: Rights, Utility, and Administration
Janet McLean
|
In this article the author tests whether the New Zealand Bill of Rights Act 1990 has contributed to a more transparent judicial review methodology. She attempts to explain apparent inconsistencies and technical doctrinal disagreements in the case law about the roles played by s 5 of that enactment and the “proportionality calculus” by reference to the nature of the different individual rights themselves and the philosophical controversies about whether to take an “act utilitarian” or “rule utilitarian” approach. The very justification for some rights, such as the right to be free from torture and the right to natural justice, can be framed in a “rule utilitarian” way, which does not allow for limitations to be imposed in particular cases, so that one may never need reach the balancing calculus. Where certain liberty rights, such as the right to freedom of expression and religion, are at issue, then a balancing approach is more likely to be appropriate. She argues that s 5 of the New Zealand Bill of Rights Act 1990 does not clearly set out a methodology by which one can take account of the importance of political judgements and relative institutional competence. The test in s 5 may actually magnify the problems of achieving transparency that already existed in traditional administrative law judicial review methodology. |
“Front-End”/“Back-End” Adjudication (Rights Versus Remedies) Under Section 21 of the New Zealand Bill of Rights Act 1990
Scott L Optican |
Supplementing the legislative control of police investigations via numerous statutory provisions, s 21 of the New Zealand Bill of Rights Act 1990 requires that police searches and seizures also be reasonable. Early case law from the New Zealand Court of Appeal declared that all illegal police searches would be unreasonable under s 21. However, subsequent decisions divorced the connection between unlawfulness and unreasonableness, principally — this article argues — to avoid application of the judicially created “prima facie rule of exclusion” for evidence obtained by the police in violation of the New Zealand Bill of Rights Act 1990. However, in R v Shaheed, the New Zealand Court of Appeal abandoned the prima facie rule in favour of a discretionary approach to exclusion that involves weighing various factors and interests in each criminal case. The new “proportionality-balancing” test — now enshrined by Parliament in s 30 of the Evidence Act 2006 — recently caused the New Zealand Court of Appeal to declare, in R v Williams, that all substantively unlawful police searches would once again be considered unreasonable under s 21 of the New Zealand Bill of Rights Act 1990. In doing so, the Court recast the most significant considerations relevant to reasonableness under s 21 of the New Zealand Bill of Rights Act 1990 as factors for consideration under Shaheed and s 30 of the Evidence Act 2006. This article explores the interconnected relationship between the Court’s “front-end” adjudication of reasonableness under s 21 and its “back-end” approach to excluding evidence obtained by police in violation of the New Zealand Bill of Rights Act 1990. It argues that the shifting nature of the exclusionary rule has improperly driven the Court’s changing approach to the interpretation of reasonableness under s 21. The article criticizes the New Zealand Court of Appeal for allowing the possibility of exclusion to distort a principled application of the New Zealand Bill of Rights Act 1990. It calls for a return to the “prima facie rule of exclusion” and is sceptical of the attempt in Williams to bring doctrinal coherence to the balancing test under Shaheed and s 30 of the Evidence Act 2006. The article concludes that, by contrast with the approach under Shaheed and s 30, every police violation of s 21 of the New Zealand Bill of Rights Act 1990 must be accompanied by a remedy that courageously addresses its breach.
|
|
2008 Issues 
