HUMAN RIGHTS IN NEW ZEALAND 20 1 0 acting in accordance with the law. Section 47 of LGOIMA In giving this advice, the Attorney-General takes advice also confirms that, subject to the limited exceptions, every from the Solicitor-General and the Chief Justice of the meeting of a local authority shall be open to the public court to which the judge is to be appointed. Measures (including the media). such as permanent tenure, 20 judicial immunity and the Judicial review forms part of the New Zealand legal tradition. Judicial review is the body of law relating to the review of the justiciable acts, decisions, determinations, orders and omissions of individuals and bodies performing public functions. Judicial review of the decision-making activities of these bodies is generally perceived as an important constitutional procedure to prevent those exercising public functions from abusing their powers. Adjudicative procedures provided by the state should be fair setting of salaries by an independent body all protect judicial independence. Judges are also prohibited from undertaking other employment, unless the employment is compatible with judicial office. 21 Bias (including a perception of bias) is a reason for overturning judicial decisions. Where any potential conflicts of interest arise, the convention is that judges will voluntarily step down or ‘recuse’ themselves. The Office of the Judicial Conduct Commissioner was established in August 2005 to deal with complaints about the conduct of judges. The Judicial Conduct Commission- Equality and fairness are not just about having laws and er’s role is to receive and assess complaints about judges’ processes that appear to treat everyone equally or in the conduct that would warrant removal from office. same way (sometimes called ‘formal equality’). Equality and fairness are also about what happens in practice in New Zealand has a well-developed legal system, with a everyday life (sometimes called ‘substantive equality’). 17 range of courts and tribunals. The final appeal court is the Neither the BoRA nor the Human Rights Act 1993 (HRA) High Court and the District Courts. address the right to equality. However, the BoRA indirectly Supreme Court, below which are the Court of Appeal, the affirms it by reference to New Zealand’s commitment There are a number of specialist courts, including the to the ICCPR. The White Paper (which preceded the Family Court, the Youth Court, the Environment Court, the BoRA) considered that the term was “elusive and its Employment Court and the Mäori Land Court. There are significance difficult to discern”. 18 Rather, it said that over a hundred specialist tribunals, authorities, boards, the ‘general notion’ of equality before the law was committees or related bodies to deal with specific types implicit in reference in the proposed bill to “New Zealand of disputes (largely between individuals) on matters such being founded on the rule of law”. 19 The White Paper as human rights, 22 employment disputes, censorship, considered that a notion would bind the legislature. welfare and benefits, taxation, and licensing. An independent and impartial judiciary is a cornerstone The Waitangi Tribunal is a permanent commission of of a legal system, ensuring that questions of legal right inquiry, established by the Treaty of Waitangi Act 1975, and liability are resolved by application of the law. to inquire into claims by Mäori relating to the Treaty of Judicial independence from political interference by the Waitangi. It reports its non-binding findings and recom- executive is protected by the Judicature Act 1908 and the mendations to the Government. New Zealand also Constitution Act 1986. Most judges are appointed by the has specialist officers in the private sector, such as the Governor-General on the advice of the Attorney-General. Banking Ombudsman. 17 The differences between formal and substantive equality are widely recognised in sociological and legal writing. For examples, see: General Recommendation No. 25, on CEDAW, Article 4, para 1, on temporary special measures, paras 4–9 18 White Paper (1985), A Bill of Rights for New Zealand (Wellington: Government Printer). 19 This principle is further reflected in the Supreme Court Act 2003 20 Judges must retire at the age of 68. A bill is currently before Parliament raising the retirement age to 70. 21 Section 4(2a) Judicature Act 1908 22 The Human Rights Review Tribunal hears cases involving claims of discrimination under the Human Rights Act 1993, as well as cases involving privacy issues under the Privacy Act 1993, and some cases involving health and disability issues. 93