Vertical or horizontal application
The classic model of a Bill of Rights operates ‘vertically’, affirming rights for citizens against the powers of the state. An important question is whether a Bill of Rights should also operate ‘horizontally’, so that citizens must observe each others’ human rights. Much ordinary law, criminal law for example, is designed to protect citizens from each other. The Human Rights Act prohibits discrimination by one person against another. In that sense, many human rights already operate horizontally, even if the Bill of Rights itself is ‘vertical’.
Freedom of speech?
Section 9A of the Race Relations Act, a section inserted in 1977, made it illegal to publish, broadcast or make public statements ‘likely to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons on the ground of their colour, race, or ethnic or national origins’. The section was repealed in 1989, after controversy over a Māori activist’s statement allegedly encouraging others to ‘kill a white.’ Section 9A did not apply as the alleged statement was made on a marae, not legally considered a public space. Section 61 of the Human Rights Act 1993 now prohibits the exciting of hostility and the bringing into contempt of groups of people. Concerns over freedom of speech led to an absence of references to ‘ill will’ or ‘ridicule.’
The Race Relations Act 1971 prohibited discrimination on the grounds of race, nationality or ethnic origin. It established the office of Race Relations Conciliator and set up procedures for complaints about racial discrimination. The Human Rights Commission Act 1977 added the grounds of marital status, sex, and religious and ethical belief. In 2001 the Race Relations Office was merged with the Human Rights Commission.
Homosexual Law Reform
In July 1986 the Homosexual Law Reform Bill was passed after a turbulent 14-month campaign. It was, however, only a partial victory for law reformers. The first part of the bill, decriminalising a range of sexual acts, was passed. The second part, outlawing discrimination on the grounds of sexual orientation, was rejected. Discrimination due to sexual orientation was made illegal only with the passing of the Human Rights Act in 1993. The Human Rights Act was passed with little controversy – showing the change in public attitudes.
Human Rights Act 1993
New Zealand’s Human Rights Act 1993 deals mainly with one human right: to be free from discrimination. It consolidated the two earlier acts and added new grounds, notably sexual orientation, family status and disability. It applies to private individuals as well as the government – but only in the context of employment, provision of goods and services, accommodation, education and access to public places.
The Human Rights Act established a Human Rights Commission with various statutory functions, including human-rights education, making public statements and submissions to Parliament on proposed legislation. Its most visible function is to receive complaints from persons who claim to have suffered discrimination. The commission attempts to mediate in those complaints. Unresolved complaints can be taken to the Human Rights Review Tribunal. The tribunal has the power to make binding rulings, including awards of damages up to $200,000.
Declarations of inconsistency
Since the power to make declarations of inconsistency was conferred on the Human Rights Review Tribunal in 2001 there has been one such declaration. It concerned the Accident Compensation Act 2001 and the way in which benefits were calculated for people aged over 65. This declaration, made in a case called Howard v. Attorney-General in May 2008, was reported to the House of Representatives with the comment that the inconsistency had since been removed by further legislation.
Like the New Zealand Bill of Rights, the Human Rights Act does not prevent Parliament from enacting a law that is inconsistent with it. However, the Human Rights Review Tribunal may decide that a person has suffered discrimination through a particular law. It is then required to make a ‘declaration of inconsistency’ regarding that legislation. The minister of the Crown responsible for the legislation is required to draw that declaration to the attention of the House of Representatives, and state what the government proposes to do in response.
In 2004 MP Georgina Beyer introduced a private member’s bill adding gender identity to the grounds of discrimination prohibited in the Human Rights Act 1993. The Human Rights (Gender Identity) Amendment Bill was withdrawn in 2006 after a decision by the solicitor general that transgender people were protected by the ‘sex discrimination’ provision of the 1993 act. This decision was controversial. The Human Rights Commission and some transgender activists continue to maintain that the Human Rights Act needs to specifically mention that transgender people are protected from discrimination.