Ordinary or Constitutional Law
In a human rights world, New Zealand likes to be seen upholding human rights and the
bill of rights, which all public bodies must abide by, has considerable moral force
especially when also regarded as constitutional law.
While the bill of rights was presented as ordinary law by Geoffrey Palmer in the
Parliamentary Debates on the bill of rights he also referred to it as ‘an important
Constitutional measure’ (Bill of Rights Bill. (1990)).
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As did Richard Northey when he called the discussions ‘an important Constitutional
day for New Zealand because there is progress towards the achievement of a bill of
rights’ (Bill of Rights Bill. (1990)).
Reflecting the confusion regarding the status of the bill of rights can be seen in the
Ministry of Justice’s descriptions. For instance, in ‘The New Zealand Bill of Rights Act
(Overview)’ it states: “‘The Bill of Rights Act is an ordinary statute and so does not
override other legislation’ (Ministry of Justice. (2002)).
Whereas, in the Ministry of Justice’s ‘Constitutional Policy and Human Rights’ it
describes the bill of rights as ‘Another constitutional document’ (Ministry of Justice.
(2013)).
Similar confusion exists elsewhere. In the ‘New Zealand Bill of Rights Act: A
Commentary’, the bill of rights is described as ‘…a short, but important piece of
constitutional law’ (Butler A. and Butler P. (2005)).
While in “The New Zealand Bill of Rights Act 1990: its operation and effectiveness” it
states: “The Bill of Rights is an ordinary statute and not entrenched” (Glazebrook S.
(2003)).
In 2012 a private member’s amendment bill from the Green Party described the bill of
rights as ‘an Act of fundamental constitutional importance’. The amendment bill saw it
as necessary to entrench the bill of rights by requiring 75 per cent of MPs to agree to
any change. It states: “Because the Bill of Rights is an Act of fundamental
constitutional importance, this Bill will also entrench its provisions so that these cannot
be amended or repealed by a simple majority of the House” (Green Party. (2012)).
If the Green Party amendment had succeeded a 75 per cent of MPs requirement would
have made it very difficult to include any omitted rights even those recommended by
the New Zealand Human Rights Commission i.e. equal rights, children’s rights and
perhaps also non-discrimination on the grounds of social origin (social status at birth)
(see below).
The above Green private member’s bill obviously agreed with the human rights
omissions in the bill which permitted collective dominance, the cultural cleansing of
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individual self-determination and exploitation.
Powerful or Weak Bill of Rights
Rather than being a ‘weak’ bill of rights, which, from my experience, left-academics
often described it as being, the following shows how powerful it really is:
Under Section 7 of the bill of rights the Attorney General is required ‘to report to
Parliament where Bill appears to be inconsistent with Bill of Rights’.
Sir Geoffrey Palmer states: “The possibility of an adverse report by the
Attorney-General will, I think, have a salutary effect on those involved in the
legislative process. It will send a clear message that legislative proposals must be
consistent with those basic principles before a Bill is introduced” (Palmer G. (1990)).
Geoffrey Palmer also stated that ‘a Bill of Rights provides a set of navigation lights for
the whole process of Government to observe’ (Butler P. (2006)).
While in July 2002, Tim Caughley, New Zealand’s representative, told the UN Human
Rights Committee, who were reviewing New Zealand’s human rights record: “The Bill
of Rights is a ‘road map’ for public agencies”. He added: “All agencies of the
Government were required to act in accordance with the BORA”, (Summary Record.
(2002)).
While parliament is sovereign and the bill of rights can be trumped by ordinary statute
in twenty years only 19 bills have been passed by parliament against the advice of the
Attorney General.
The former Minister of Justice, Simon Power, told the UN Human Rights Committee in
2010: “Thus far, 49 bills had been found by the Attorney-General to be inconsistent
with the Act. Of those bills 19 had been enacted as introduced, 9 bills had been enacted
after being amended during the legislative process to address the Attorney-General’s
concerns, and 21 had not been enacted” (Human Rights Committee. (2010)).
While the above Green Party member’s amendment bill very largely confirms this
stating: “A recent analysis suggested that since 1991 more than 20 Bills have been
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passed without identified inconsistencies being removed” (Green Party. (2012)).
As stated above s7 of the bill of rights requires the Attorney-General to report to
parliament on inconsistencies and the human rights omissions appears it may have
affected the culture of parliament itself in terms of what is discussed.
The former Minister of Justice, Simon Power, who said that ‘I have always told myself
I would leave politics before the idealism left me’, stated in his valedictory speech on 5
October 2011: “It’s our job to tackle the tough issues, the issues the public pays us to
front up to, and come to a view on. There are many debates that Parliament does not
want to have for fear of losing votes or not staying on message: abortion, adoption law,
children’s rights, and sexual violence issues. I don’t share this timid view” And he
added: “The truth is, if we don’t have those debates here, where will we have them?”
(Power S. (2011)).
Sir Ivor Richardson, President of Court of Appeal from 1996-2002 considers the
bureaucracy rather than the courts played the major role in the promotion of the bill of
rights.
And, in my view, this would also allow bureaucrats to exclude people’s rights i.e. in the
words of Warren Kyd ‘that rights, by not being included, could be excluded totally’
(see above).
Richardson states: “Litigation plays an important lesser part in assuring compliance
with basic legal standards and challenging ways of thinking.
He considers the role of the bureaucracy cannot be over emphasized: “In
practice………the Bill of Rights has had a major but less publicized impact on the
regular functioning of government — and not restricted to the duty of the
Attorney-General under s 7 to report to Parliament any provision in a Bill which
appears to be inconsistent with any of the rights and freedoms contained in the Bill of
Rights.
“The important further point going beyond s 7, and which cannot be overemphasized,
is that all governmental agencies, including local government agencies, are required to
build Bill of Rights standards into decision-making at all levels. So that wider impact
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affects day to day administration and policy development within government”
(Richardson I. (2004)).
Also, the strong impact of the Bill and that governments do not like to be seen ignoring
human rights is described by ‘Elections New Zealand’:
“While the Bill of Rights Act 1990 may provide weaker constitutional protection than
Palmer wanted, its impact has been significant on the behavior of both governments
and the courts. Its power has come from its persuasive force. Governments want to
avoid passing new bills that conflict with the Bill of Rights Act 1990. As a result, the
provisions of the Bill of Rights are taken into account when policy is drafted. Its
impact therefore is strong, but largely invisible to the public. Similarly, the courts have
been receptive to interpreting new legislation in a way that complements, rather than
conflicts with, the Bill of Rights” (Elections NZ. (2012)).
Human Rights Omissions/Statistics
Only very rarely, apart from the NZ Human Rights Commission and Amnesty
International (US), will anyone in the establishment, including MPs, talk about the
human rights omissions.
Amnesty International (America) described the omissions: “The New Zealand Bill of
Rights Act 1990 (BORA) did not have protected legal status, which allowed for the
possible enactment of legislation contrary to its provisions. The BORA did not
incorporate all the rights provided in the International Covenant on Civil and Political
Rights or the International Covenant on Economic, Social and Cultural Rights
(Amnesty. (2010)).
Also, some omitted human rights are recommended for inclusion by the NZ Human
Rights Commission – ‘equal rights’, children’s rights, as well as non-discrimination on
the grounds of social origin (i.e. social status at birth) is regarded as significant
(Human Rights in New Zealand. (2010)).
The New Zealand Human Rights Commission states: “The BORA [bill of rights act]
affirms New Zealand’s commitment to the ICCPR [International Covenant on Civil and
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Political Rights], although there is no explicit reference to equality before the law, the
right to privacy or reputation and family and children’s rights (which are also found in
the ICCPR), are not found in the BORA, but are partly addressed in other legislation”
(Human Rights in New Zealand. (2010)).
The Commission also states that the ‘omission of social origin or social class is also
considered significant’ (Human Rights in New Zealand. (2010)).
New Zealand has constantly ignored (in 1995, 2002, and 2010) the recommendations
of the UN Human Rights Committee to include many omitted civil and political rights
in the New Zealand Bill of Rights Act 1990.
The following are the recommendations of the UN Human Rights Committee which
are concerned with civil and political rights:
1) 1995: “The Committee recommends that the State party take appropriate measures
to incorporate all the provisions of the Covenant into domestic law” (Concluding
Observations. (1995));
2) 2002: “The State party should take appropriate measures to implement all the
Covenant rights in domestic law” (Concluding Observations. (2002))
3) 2010: “The Committee reiterates its concern that the Bill of Rights Act 1990
(BORA) does not reflect all Covenant rights. The State party should enact legislation
giving full effect to all Covenant rights” (Concluding Observations. (2010))
While in the Concluding Observations of the UN Committee on Economic, Social and
Cultural Rights which deals with economic, social and cultural rights the Committee in
addition to recommending that New Zealand ‘adopt a human rights approach to
[Christchurch] reconstruction efforts’ (Section 21) also states that it is concerned that
‘economic, social and cultural rights are not recognized in the Bill of Rights’ and
‘urges’ New Zealand ‘to incorporate economic, social and cultural rights into the 1990
Bill of Rights’ (Section 10) (Concluding Observations. (2012)).
Usually, when questioned by the UN Human Rights Committee about the omissions
New Zealand argued that the human rights omissions are covered by other legislation.
Former Minister of Justice, Simon Power, told the UN Human Rights Committee:
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“Where certain Covenant rights had not been directly included in the Bill of Rights Act,
they had been given effect by other legislation and the common law” (Summary
Record. (2010)).
Economic, social and cultural rights, although ratified by New Zealand under
international law in 1978, were also excluded from the bill of rights although the select
committee did recommend that they be included as principles to aim at but Geoffrey
Palmer followed the Western tradition of only including individual freedoms in
constitutional law which placed restraints on the powers of government rather than
‘welfare rights’ which made resource demands.
Geoffrey Palmer in the Parliamentary debates on the bill of rights stated: “The select
committee recommended the inclusion of some social and economic rights as
principles to aim at. Such rights would not have been enforceable, and it was decided
not to include any of them in the Bill. Bills of Rights are traditionally about putting
restraints on the powers of the State. Hence, they tend to focus on procedural rather
than substantive rights. Social and economic rights are in a different category. That
does not mean that those rights are of lesser importance, but, rather, that they should be
protected in a different way”
Palmer stated in the parliamentary debates: “A Bill of Rights is traditionally concerned
with putting restraints on the powers of the State and is about guarding individual
liberty. Social and economic rights are in a different category requiring positive action
by the State” (Parliamentary Debates. (1990)).
My research shows that many of New Zealand’s worst social statistics correlated with
the human rights omissions (see Appendix 1).
Our council’s submission on 23 May 2011 to the UN Committee on Economic, Social
and Cultural Rights, which was conducting a review of New Zealand’s record, is
entitled ‘New Zealander’s must speak out about the human rights omissions or be
reduced to mere numbers’ (Ravlich A. (2011)).
The submission lists many of the human rights omissions and provides the serious
social statistics which correlate with the omissions. This list is provided in the appendix
(further serious social statistics can also be found in my article, (Social Statistics.
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(2011)).
The submission lists the following omissions giving the relevant social statistics:
children’s rights, individual right to pursue one’s economic and social development
(individual self-determination), family rights, property rights, equal rights,
non-discrimination with respect to social origin and birth and non-retrogression i.e.
ensuring existing rights are not removed.
Economic, social and cultural rights are also omitted but are not covered in the
submission.
The UN’s ‘hidden collectivist agenda’ is accommodated in the bill of rights by the
exclusion of the right to individual self-determination, property rights (including
intellectual property rights), duties to the community, and the State’s core minimum
obligations with respect to economic, social and cultural rights.
Part ll, Article 2(1), of the UN Covenant on Civil and Political Rights provides a list of
prohibited grounds of discrimination such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status”.
However, New Zealand human rights law leaves out non-discrimination with respect to
social origin, property (including intellectual property), language, birth as well as
‘other status’.
In 2010 the New Zealand government when responding to a list of questions from the
UN Human Rights Committee stated: “The prohibited grounds of discrimination in the
Human Rights Act 1993….do not expressly cover language, social origin and property
as provided for in the Covenant (List of Issues. (2009)).
By accident or design New Zealand appears to have failed to include the omission of
non-discrimination on the grounds of birth, which allows Maori to discriminate on the
grounds of Whakapapa and supports New Zealand’s status as a Constitutional
Monarchy, when responding to the list of issues.
The above grounds of non-discrimination which were excluded enabled collectives,
including the Corporations, to be favored while suppressing individual
self-determination using bureaucratic compliance.
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In my view, the exclusion of non-discrimination with respect to intellectual property as
well as duty to the community permitted the ‘secular, liberal collectivists’, both
domestically and at the UN, to keep many important human rights truths ‘in-house’ by
virtually regarding human rights as their intellectual property while having no duty to
share their human rights intellectual knowledge with those they choose not to.
Consequently, in my view, employers, sometimes expressing concern about
confidentiality when hiring staff, exercised discrimination on the grounds of
intellectual property choosing only those they trusted to share their human rights
knowledge with.
From my observation, the latter were often the lower functioning, more dependent
individuals, those regarded as ‘victims’, those of the same class, often those
professional women, especially feminists, and Maori professionals afforded affirmative
action rather than those chosen on merit.
Affirmative action for gender, race and disability meant that ‘victims’ replaced ‘the
best and brightest’ reducing the establishment, in my view, to less than mediocrity.
In addition, included in the mass exodus may have been many white males suffering
the consequences of reverse discrimination.
Discrimination against men appears to be a major social problem which seems very
largely suppressed.
A Men’s rights advocate for 20 years, Kerry Bevin, cites one statistic which
particularly indicates the discrimination that exists against males. He quotes the
Coroner’s Report 2014/15 which states that 75% of deaths by suicide are males i.e. 428
males compared with 136 females, and this percentage has remained relatively constant
over the years since 2007/2008 (Coroner. (2014/15)).
Former Chief Coroner Neil MacLean is described as having been ‘very outspoken on
suicide, saying it remains a taboo topic that is rarely talked about or discussed’ (Herald.
(2016)).
Kerry Bevin in his submission to the N.Z. Family Court Review describes a ‘gender
bias against males’. He states: “Affirmative action” promoted by the Minístry of
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Women’s Affairs has developed feminist ideas toward a fatherless society, validating
gay parenting, denying obvious bias and placing legal process in a fraught context.
Such social engineering is disapproved of by many” (Bevin K. (2012)).
He describes a division which has grown between the sexes in the Western world
which he likens to a ‘Mexican stand-off’. He also cites a book, ‘Men on Strike’, written
by an American psychologist, Helen Smith.
Helen Smith considers that American society has become anti-male. She adds: “Men
are sensing the backlash and are consciously and unconsciously going “on strike”.
They are dropping out of college, leaving the workforce and avoiding marriage and
fatherhood at alarming rates. The trend is so pronounced that a number of books have
been written about this “man-child” phenomenon, concluding that men have taken a
vacation from responsibility simply because they can”.
Kerry Bevin regards Helen Clark’s nine years as Prime Minister was the source of
much anti-male social engineering. He describes some other areas of anti-male
discrimination:
(1) The legalized theft of men’s property. Bevin states that ‘under relationship
property law women who have lived with a man for only two years can claim half his
wealth and assets and a percentage of his business’;
(2) Bevin states that ‘prostate cancer screening with blood tests allows early detection
that enhances cure and recovery. This is not government subsidized. Large subsidies
are provided for cervical and breast screening which is free’;
(3) Bevin is very critical of the Family Court. He states: “Sexist bias against fathers in
family disputes and non-acceptance of equal shared parenting has generated an
abhorrence of judiciary. Complaints are ignored. Family devastation has become the
norm for many” (Bevin K. (2015)).
Hans Levin, a psychologist from the Ministry of Men’s Affairs, describes further areas
of discrimination against males which can be found in Appendix Three (Levin H.
(2015)).
[The Ministry of Men’s Affairs describes itself as ‘A Community Group because
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successive governments have failed to respect the voice and welfare of New Zealand
men’].
In my view, employers were often more concerned to ensure compliance rather than
achieve success and, from my observation, those perceived as ‘too truthful’, ‘too good’
or ‘too intelligent’ were often overlooked.
It was not uncommon to hear of people being excluded from employment for being
overqualified even when there were sparse opportunities available elsewhere.
There may also have been a national security concern when hiring staff. Human rights
is part of a countries ‘way of life’ and the protection of which people are prepared to
die in times of war.
Consequently, excluding individuals who might expose serious human rights
deficiencies may be regarded as a matter of national security.
Colin Keating, New Zealand’s representative told the UN Human Rights Council:
“With regard to discrimination in employment, he noted that all Governments
exercised some discretion as to which individual were employed to maintain national
security” (Summary Record. (1995)).
In my view, discrimination on the grounds of intellectual property was also used to
favor the intellectual property of the Corporations and the global free market.
For example, in my view, small business and the domestic free market appeared to be
discriminated against, suppressed by bureaucratic red-tape.
The latter, which is also described in chapter one, was exposed after the first
Christchurch earthquake in September 2010 when the government had to assumed
higher executive power and used ‘orders in council’, to cut though the red tape
involving 22 statutes to assist small business (Recovery Act. (2010)).
In my view, the failure to include the right to individual self-determination in the bill of
rights meant that small entrepreneurs could not challenge bureaucratic red-tape.
Furthermore, the right-wing National Party while often giving lip-service regarding the
importance of small business failed to take the opportunity to extend the assistance to
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small business nation-wide after the first Christchurch earthquake.
Julian Smith, the general manager of MYOB, an Australian multinational corporation
that provides tax, accounting and other services to small and medium businesses, said
that the Government’s support of Canterbury businesses in the wake of the region’s 7.1
magnitude quake should be replicated nationwide.
He said: “In less than a week, they cut through red tape to provide wage assistance for
employers, access to emergency funding, and a truly impressive level of flexibility
from the IRD [Inland Revenue Department], with much of it managed through a central,
local source”
“However, the kind of model they have put in place, and clearly demonstrated they
have the capability to do so, is essentially one that businesses all around the country are
asking for,” he said.
He said a survey, of more than 1000 New Zealand business owners, in August 2010
showed increasing dissatisfaction with red tape and the performance of the
Government. It reported almost twice as many businesses were dissatisfied with the
support of the Government (29 percent) than those that are satisfied (15 percent)
(MYOB. (2010)).
Entrepreneurial risk taking is also extremely difficult when failure can mean you, and
perhaps your family, joining the underclass.
And it is also, in my view, made more difficult by the exclusion of family and
children’s rights as the family unit often plays a very important part in small business
often run by families.
Business owners are often motivated by providing a good life for their children made
more difficult when children are attributed as being of little importance in a society
which shows little interest in growing the economy to provide them with employment.
The importance of a small family unit can be more clearly seen in Maori tribalism
where, from my observation, its extended family/whanau, makes it virtually impossible
for many Maori to operate a small business when so many others, without contributing,
seek to share in the profits.
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Consequently, it may not be surprising that Maori’s educational achievement (see
below) is so lacking because young Maori most likely see little hope in fulfilling their
dreams.
More recently the findings in the People’s Report of the Glenn Inquiry into domestic
violence can, in my view, be attributed to a considerable extent to the omissions of
children’s and family rights in the bill of rights while the ‘ideological capture’ of the
State may help explain the State’s seeming lethargy in addressing the problem.
The inclusion of children’s rights in the New Zealand Bill of Rights Act 1990 was not
included for discussion in the Green Paper for Vulnerable Children launched in July
2011 (see below) despite the inclusion of these rights being recommended by the NZ
Human Rights Commission (Human Rights Commission. (2010)).
From 2004 to 2008, the reported number of substantiated child maltreatment findings
for children 16 and younger had risen from 8,500 to 16,000. During that time, the total
number of children in that age range remained at about 1 million (Human Rights
Committee. (2010)).
In 2011 Committee expert Maria Herczog, UN rapporteur for New Zealand on
children’s rights, said that infant and child mortality rates remained “staggering”…. that
twenty percent of New Zealand children lived in poverty, and the high rate of Maori
and Pacific poverty was of particular concern…that New Zealand lacked “an
overarching comprehensive child policy” that integrated the Convention on the Rights
of the Child into legislation and strategy frameworks (3 News. (2011)).
It appears that while the conventions with respect to non-discrimination on the grounds
of gender and race took almost immediate affect e.g. affirmative action, in New
Zealand the failure to include children’s rights in the bill of rights meant the convention
on the rights of the child was of much less concern.
By 2013 the People’s Report state that Child, Youth and Family substantiated nearly
23,000 cases of child abuse (Glenn Inquiry. (2014)).
While the report describes New Zealand as having ‘the fifth highest rate of child abuse
in the OECD’.
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The People’s Report states that ‘indications are that in a similar percentage of child
abuse cases there is also domestic violence happening’ and that ‘almost 60% of all
reported violence in New Zealand is family related’ (Glenn Inquiry. (2014)).
Jonathan Boston, Professor of Public Policy at Victoria University, describes the child
poverty rate as almost doubling since the 1980s. He states: “For instance, on one
measure of income poverty (i.e. those living in households with equivalent disposable
incomes below 60% of the median, after housing costs) the child poverty rate in recent
years has been around 25%, this is almost twice the rate experienced during the 1980s,
which averaged about 13%” (Boston J. (2013)).
While a UNICEF report, ‘Children of the Recession’, compared New Zealand’s
performance with some other countries. It stated that New Zealand’s child poverty rates
have come down by less than half a per cent since 2008. By contrast, Australia reduced
its child poverty rate by more than 6 per cent over the same period, and Finland and
Norway, countries with similar populations, reduced theirs by more than 4 per cent and
3 per cent respectively (UNICEF report. (2014)).
Professor Paul Hunt, a New Zealander now at Essex University (UK), who was guest
speaker at the AGM of the Human Rights Foundation, said that while he personally
would like to see children’s rights included in New Zealand’s law that this is unlikely
to occur soon (Ravlich A. (2012)).
Professor Hunt, who was the United Nation’s Special Rapporteur (expert) on Health for
six years and formerly a member of the UN Committee on Economic, Social and
Cultural Rights, was giving a talk on ‘Poverty in New Zealand: A Human Rights
Imperative’ at the Auckland University Law School.
Professor Hunt was largely concerned with economic, social and cultural rights which
have also been omitted from the bill of rights, and he described how poverty was
getting worse in New Zealand and he provided three indicators of this:
1) He pointed to a 2008 New Zealand Living Standards Survey by the NZ Ministry of
Social Development which showed that 19 percent of children (0-17) have relatively
high hardship rates;
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2) Professor Hunt said that in relation to child health levels, rheumatic fever in New
Zealand was amongst the worst in the world, see (The Porritt Lecture. (2010));
3) He also pointed to the considerable growth in the use of food banks. He may have
been referring to statistics released in December 2010 which showed that the Salvation
Army distributed 67,000 food parcels during the year compared to 30,000 in 2008
(‘New Poor stretching food bank resources’, see (New Zealand Labor. (2011)).
Outsider, Ethical Human Rights 