When Parliament sets aside your rights

Is it okay for Parliament to limit human rights without bothering to consult the people affected?

The Bill of Rights Act protects New Zealanders’ basic civil and political rights. It protects the rights to life, freedom of speech, freedom of movement, freedom of thought, freedom of religion, and freedom from discrimination. It protects the right to vote for everyone aged over 18, and the right to justice and a fair trial. And it protects against arbitrary arrest or detention, cruel treatment, torture, and unreasonable search and seizure.

The law allows these rights to be limited, but ‘only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.

In practice, rights can be limited whenever Parliament says so. It has to consider whether laws that breach human rights are justified, but it can still pass them. It can pass any law it likes.

Laws that breach human rights

Since 1990, Parliament has passed more than 30 laws that breach the fundamental rights set out in the Bill of Rights Act in ways that, according to its own senior law officer (the Attorney-General) can’t be justified in a free and democratic society.

These laws curtailed rights to freedom of expression, freedom of movement, and freedom from discrimination. By enacting these laws, Parliament is saying that it is okay to limit these freedoms in ways that cannot be justified in a free and democratic society.

Other laws have curtailed rights to justice and a fair trial, to freedom from arbitrary arrest and detention, to freedom from unreasonable search and seizure, and to freedom from torture and cruel treatment.

Those rights mainly apply to policing and justice, but that doesn’t mean they should be taken lightly. They are part of the centuries old tradition of English law. Observance of those rights is what distinguishes open democracies from police states.

By enacting laws that breach fundamental rights, Parliament is saying that it is okay in some circumstances for state authorities to arrest, detain, or search someone in a manner that cannot be justified in a free and democratic society.

Is that okay?

Lack of consultation

Some of those laws were passed under urgency, with little or no public consultation. They didn’t even have broad Parliamentary support.

Chances are you didn’t even hear about these laws. Most received little or no coverage in a news media that is increasingly driven by commercial ratings. Opposition from political parties and lobby groups is no longer enough to guarantee coverage.

The only way to find out about these laws is to spend time deciphering parliamentary records and legal opinions. For most people this isn’t practical, so there’s no simple way of knowing when Parliament limits your rights, let alone having a say about it.

Is that okay?

Sloppy lawmaking

Many of the laws that breach human rights have important aims. Some are intended to prevent criminal activity, or improve public safety, or bring offenders to justice.

The Bill of Rights Act provides for such circumstances, in which rights such as freedom of movement are being breached for legitimate purposes. That’s why it provides for reasonable limits on rights and freedoms, so long as they can be justified in a free and democratic society.

Very often, according to the Attorney-General’s reports, Parliament could fulfil its aims without imposing unreasonable limits on human rights. Often, all that would be needed is minor amendments to proposed laws.

Parliament and the Government have regularly ignored that advice.

Is that okay?

Or should there be some way to ensure that Parliament gives proper consideration to human rights before it passes laws?

Discriminating against vulnerable families

One of the most infamous cases of Parliament limiting civil and political rights occurred in 2013. It concerned people who had given up work to care for disabled family members. The Government was willing to pay for professionals to provide this care, but was not willing to pay family members who gave up their livelihoods for that purpose.

The Court of Appeal found that the government was discriminating on grounds of family status, and therefore breached the Bill of Rights Act. The Government responded by introducing a law allowing it to deny funding to family members who cared for disabled children. The law also removed family members’ rights to challenge the government’s funding decisions in court or at the Human Rights Review Tribunal. In other words, it breached the rights to justice and to freedom from discrimination.

Parliament passed the law in a single day, under urgency, without consulting the families involved, or disability and human rights groups, or anyone else.

Just as it could pass that law, it has the power to pass other laws that limit human rights. Many other laws breach human rights in similar ways. ACC legislation, for example, discriminates against older people in ways that, according to the Human Rights Review Tribunal, can’t be justified.

Tax and welfare legislation commonly discriminates on the basis of age, sex, family and marital status, and sexual orientation.

Is that okay?

Parliament’s right to pass laws

Parliament is elected, and has the power to pass laws. That power is the cornerstone of New Zealand’s democracy, and no-one argues against it. No matter what checks and balances are in place, Parliament should have the final say on what laws should be passed, and it should be accountable to the electorate for the decisions it makes.

But elections are held only once every three years. In between times, shouldn’t Parliament exercise its lawmaking powers as carefully as possible? Shouldn’t it only limit rights and freedoms if that genuinely serves an important purpose, and then only to the extent needed?

The United Nations has repeatedly expressed concern about the weakness of New Zealand’s human rights protections, and Parliament’s practice of passing laws that are inconsistent with basic rights. The Human Rights Commission has also expressed its misgivings, as has Amnesty International, the Law Society, and many other organisations and experts.

Yet Parliament continues to limit basic rights in ways that can’t be justified in a free and democratic society.