The proposed constitution, property, and Christchurch

The experience of Canterbury homeowners highlights the need for better protection for property rights, says Sir Geoffrey Palmer

On November 3 the New Zealand Human Rights Commission launched in Wellington an important report: Staying in the red zones – Monitoring human rights in the Canterbury earthquake recovery.

I attended the launch.

The report had been launched in Christchurch the previous day.

During the launch I was pleased to see the Chief Commissioner David Rutherford holding up a copy of the book by Andrew Butler and me: A Constitution for Aotearoa New Zealand.

He did so because the proposed Constitution contains a protection for property rights.

Rutherford has taken the Human Rights Commission to important places during his tenure. This report is certainly one of those.

The report makes for sad reading concerning the plight of those whose properties were in the red zone in Christchurch and who did not accept the financial offer to acquire their properties made by the government.

One of the property owners told the Commission “I wondered what all this had to do with human rights. Now I realise that most New Zealanders own their own home so that no one can tell them what tscreen-shot-2016-11-08-at-2-01-04-pmo do in it. Now everyone is telling me what to do with my own home.”

Property rights are part of the Universal Declaration of Human Rights. But they were left out of the New Zealand Bill of Rights Act 1990.

The Human Rights Commission recommends in this report that they go in. This is because “the right to property is fragile in New Zealand. Property rights need to be better enshrined in the New Zealand Bill of Rights Act by Parliament.”

The case made for change is a powerful one.

The report states “The right to property is integral to individual autonomy and a free society, and protects individuals from arbitrary or excessive power by the State.”

Many worry that a protection for property rights protects only the rich and the wealthy.

This report demonstrates the opposite.

Property rights are linked to housing and also to the right to health and access to information and participation in decision-making.

The narrative provided by the Human Rights Commission demonstrates clearly how the Executive Government by misusing its power visited hardship and loss of dignity upon these Red Zoners  by abandoning them in their hour of need.

These are critical human rights issues. They need to be recognised.

What our proposed Constitution says is this:

104 Right to property  

(1)  Everyone has the right not to be deprived of his or her property except in accordance with the following principles:

(a) deprivation shall not occur except pursuant to an Act of  Parliament:

(b)  deprivation shall only be pursuant to a law of general application and in pursuit of a public purpose or public interest:

(c)  deprivation shall not be arbitrary:

(d)  deprivation by way of expropriation shall be subject to the 
prompt payment of just and equitable compensation.

(2)  For the avoidance of doubt, deprivation in pursuit of a public purpose or 
public interest shall include, but not be limited to—

(a) the carrying out of public works (whether or not the works are 
undertaken by a person or body referred to in Article 76):

(b)  taxation, and the levying of rates or charges:

(c)  the benefit of public health, resource management, the 
environment, public transport, the integrity of the financial sector, law enforcement, family relationship purposes, or any other aspect of the common good.

(3)  Nothing in this Article applies to any sanctions that the State is required to impose pursuant to a resolution of the Security Council of the United Nations.

This provision would have helped the Red Zone people greatly in their struggle.

It would have given a sharper legal focus to their human rights arguments and prevented the government from taking the positions it took.

The proposed Constitution is designed to help people and make the Government honour the human rights of the people.

We should salute the Human Rights Commission for their work.

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