HUMAN RIGHTS IN NEW ZEALAND 20 1 0 ICCPR”. However, this affirmation can not be relied upon on any bill containing any provision that appears to to fill perceived gaps in the BoRA, such as the absence be inconsistent with any of the rights and freedoms of economic, social and cultural rights. This reflects the contained in the act. domestic norm that international law is part of domestic Of these measures, the reporting mechanism under law only to the extent that Parliament has incorporated section 7 in the BoRA has the most important deterrent it into the domestic system. Rather, international law is effect on policy-makers promoting measures contrary used as a helpful source of guidance in ascertaining the to the rights and freedoms contained in the BoRA. 9 meaning of domestic law. It constitutes a safeguard designed to alert members Section 27 of the BoRA guarantees three aspects of what of parliament to legislation which may give rise to an the section heading refers to as the “right to justice”: the inconsistency, and accordingly to enable them to debate right to observance of the principles of natural justice; the right to apply for judicial review; and the right to take the proposals on that basis. 10 While Parliament can pass legislation inconsistent with a section 7 report, it is and defend civil proceedings involving the Crown in the usually reluctant to do so. same way as civil proceedings between individuals. The The section 7 process is much more transparent now concept of the “principles of natural justice” in section that all advice provided by the Ministry of Justice and 27(1) can be (and is) developed as a matter of common the Crown Law Office to the Attorney-General on the law. The “principles of natural justice” include, as a consistency of bills with the BORA is placed on the minimum, the rights to notice (as to hearing and as to Ministry of Justice’s website, and all section 7 reports are the content of the case against one, where relevant), to available on Parliament’s website. 11 contradict, to representation, to an impartial determination, to an oral hearing, and to consultation in advance. 7 However, as observed by human rights experts, this reporting mechanism is deficient in a number of respects. The following institutional practices are designed to First, the obligation to report arises only in respect of guarantee protection of fundamental human rights: the introductory copy of a bill. Accordingly, there is no • The Regulations Review Committee ensures that regulations are made lawfully, and can draw to the attention of Parliament any regulations that ”trespass unduly on personal rights and liberties”. 8 • The Cabinet Office Manual requires human rights assessments of proposals for new laws and policies. statutory obligation on the Attorney-General to report the BoRA inconsistencies that appear in amendments proposed after the initial introduction of the bill (although this does occasionally occur in the context of selectcommittee proceedings and in the tabling of supplementary order papers). Government departments must act in a way that meets Secondly, section 7 of the BoRA focusses on a reporting human rights standards. obligation, but does not provide a mechanism that • The Ministry of Justice (along with the SolicitorGeneral and the Crown Law Office) has a particular role in checking draft legislation of other government departments for compliance with the BoRA. In channels the productive use of the information gleaned through the making of such a report. The AttorneyGeneral does not have a ‘second look’ at legislative proposals in the light of such information. particular, under Standing Order 264 and section 7 of Thirdly, because the views of successive Attorneys- the BoRA, the Attorney-General is required to report General have been that the obligation to report arises 7 Butler P and Butler A (2005), New Zealand Bill of Rights Act: A Commentary (Wellington: LexisNexis) 8 House of Representatives Standing Order 378 9 Palmer G (2006), The Bill of Rights Fifteen Years On, Keynote Speech at Ministry of Justice Symposium, 10 February, accessible online at http://www.lawcom.govt.nz/media/speeches/2006/bill-rights-fifteen-years 10 Mangawaro Enterprises Ltd v Attorney General [1994] 2 NZLR 451 11 Accessible online at http://www.justice.govt.nz/policy-and-consultation/legislation/bill-of-rights and http://www.parliament.nz/en-NZ/PB/ Presented/Papers/Default.htm 91