may also be considered by the New Zealand
Courts. While judgments of the European Courts
are not binding upon them, New Zealand Courts
have displayed a willingness to consider and
refer to decisions of the ECtHR, and to decisions
of the UK courts made under its Human Rights
Act 1998 which incorporates much of the ECHR
into UK law.58
2.2 New Zealand Bill of Rights Act 1990
The preamble of the New Zealand Bill of Rights
Act 1990 (BORA) provides that it is an Act to:
a. affirm, protect, and promote human rights
and fundamental freedoms in New Zealand;
and
b. affirm New Zealand’s commitment to the
International Covenant on Civil and Political
Rights.
The preamble enunciates the purpose of the
BORA as a legislative instrument that affirms New
Zealand’s human rights obligations under the
ICCPR. Notably, BORA does not contain a freestanding right to privacy equivalent to Article 17
of the ICCPR.
The challenges brought about by contemporary
and future electronic surveillance and data
interception technology raise the question of
whether the BORA should be updated to include
a free-standing right to privacy. The Human
Rights Commission,59 the Office of the Privacy
Commissioner,60 and human rights advocates
and academics61 have called for the inclusion
of the right to privacy in the BORA or a written
constitution for New Zealand. To do so would
not only bring the BORA into greater substantive
alignment with the ICCPR. It would also ensure
that the Attorney-General considers the effect of
the right to privacy on any new bill introduced
into parliament under its BORA reporting
58 Butler & Butler, The New Zealand Bill of Rights Act, A Commentary,
2nd ed., pg 95.
59 See Submission of the Human Rights Commission on the Review
of New Zealand’s Constitutional Arrangements to the Constitutional
Advisory Panel https://www.hrc.co.nz/your-rights/indigenous-rights/ourwork/review-new-zealands-constitutional-arrangements/.
60 See Office of the Privacy Commissioner’s Submission to the
Constitutional Advisory Panel, https://www.privacy.org.nz/assets/Uploads/2017-12-08-Constitution-Aotearoa-Submission-Final.pdf
61 http://constitutionaotearoa.org.nz/the-conversation/rights-privacy/.
function.62 Furthermore, it would allow the
Courts to issue a declaration of inconsistency if
they believe that legislation is inconsistent with
the right to privacy.63
The challenges brought
about by contemporary
and future electronic
surveillance and data
interception technology
raise the question of
whether the BORA
should be updated to
include a free-standing
right to privacy.
BORA does, however, provide for the right
to protection from unreasonable search and
seizure,64 a right that is engaged when considering
the surveillance and interception of personal
data. There is a corollary between the civil right
to protection from unreasonable search and
seizure and the common law recognition of the
privacy of the home.65 The New Zealand Courts
have affirmed that private property rights, in
this context, have “special significance” in that
they “enable individuals to maintain their right
to privacy and their civil liberties in general
and…underline the value attached to personal
independence and freedom from official
harassment.”66
62 Section 7, BORA.
63 The question of whether the Courts have the inherent jurisdiction
to grant a declaration of inconsistency as a remedy if they believe
legislation is inconsistent with the Bill of Rights Act, was argued in the
Supreme Court in February 2018. That same month, the Minister of
Justice announced that Cabinet had agreed in principle to allow courts
to make a declaration of inconsistency and that the Bill of Rights Act will
be amended to give the Courts this power.
64 BORA, s 21
65 Butler, pg 65, 3.3.15 citing Morris v Beardmore [1981] AC 446 (HL).
66 Transport Ministry v Payn [1977] 2 NZLR 50 (CA) at 64
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