Speech by Sir Geoffrey Palmer QC to Friends of Hastings Libraries Hastings War Memorial Library Corner Eastbourne and Warren Streets, Hastings, 15 March 2017, 7pm

New Zealand has had a Bill of Rights since the New Zealand Bill of Rights Act was enacted by the New Zealand Parliament in 1990. It follows the provisions of the International Covenant on Civil and Political Rights, an international Treaty that New Zealand ratified in 1977.

The Bill of Rights provides protection for civil and political rights, human rights such as the right to vote, freedom of thought, conscience and religion, freedom of peaceful assembly and freedom from discrimination.

We used to think in New Zealand that we had always protected those rights properly in our law, but once the Bill of Rights was passed we discovered we were falling below the standards in some respects. For example, the New Zealand Police had to revise many of their methods and procedures as a result of the Bill of Rights. A Commissioner of Police told me it made them a better Police force.

The United Nations Committee on Human Rights when reviewing New Zealand’s performance has said on several occasions we need to give greater weight to the Bill of Rights than our Act of Parliament does now. The existing Bill of Rights can be overruled by Parliament. The Attorney-General makes a report to Parliament on whether a Bill introduced is in breach of the Bill of Rights. Parliament can, however, go ahead and pass it anyway. It does so not infrequently. In 25 years of the Bill of Rights, legislation inconsistent with it has been passed on 37 occasions.

So Dr Butler and I take the view the Bill of Rights should be given more weight. The Bill of Rights should become part of a superior law Constitution. So, if there are breaches by legislation, the offending provision can be struck down by the Supreme Court. If Parliament thinks that ruling should not stand for one reason or another, it should be able to overrule it by legislation passed by a 75 per cent majority. In this way, the final word remains with the Parliament. Such a step means that important rights cannot be ignored by legislation passed by a tiny majority, as is the case now.

Not only do we want the Bill of Rights strengthened in that fashion; we think more rights should be added to the list of those protected. These are as follows:

the right not to be deprived of security of the person, except in accordance with the principles of fundamental justice

  • the right not to be held in slavery or in servitude or required to perform forced or compulsory labour
  • the right not to be subject to arbitrary or unlawful interference with privacy, family, home or correspondence
  • the right to be treated as equal before the law and be given equal protection of the law
  • the right to be free from discrimination on the grounds of gender
  • the right to property
  • the right to free enrolment and free education at any state primary or secondary school, and
  • the right to an environment that is not harmful to health or wellbeing.

It is upon this last right that I want to expand tonight. There have been, in the last few months, certain difficulties with water in this region. A Government inquiry into what occurred is being conducted.

Becoming ill from drinking contaminated water is not the type of problem that New Zealanders expect to afflict them. At one level this seems a failure of governance – there are two local authorities and central government who all have responsibilities for aspects of the issue. People are entitled to some checks and balances against this type of situation occurring.

Some international environmental scholars say there is an environmental rights revolution going on in the world right now. It is known as the age of the Anthropocene, a time where we see significant human impact on the Earth’s geology and ecosystems. The ‘clean green’ image that New Zealand used to have is in jeopardy on a number of fronts. Yet this is a vital aspect of what it is to be a Kiwi: access to an incomparable outdoors.

Here is the environmental right we propose:

Everyone has the right—

(a) to an environment that is not harmful to his or her health or wellbeing; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that—

(i) reduce pollution and ecological degradation:

(ii) promote conservation:

(iii) pursue ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The importance of elevating such a right to a constitutional level, so that it is protected by a superior law constitution would be three-fold:

  • it would be binding upon governments of the day and they would have to think more carefully and do better analysis before allowing water quality to decline rapidly, as has been the case with the intensification of agriculture in New Zealand over the last few years
  • it would provide an avenue for matters to be tested through independent analysis in the courts free from political spin, in much the same way as the Ruataniwha Dam proposal has been tested
  • it would ensure that vital issues of importance to future generations are not brushed under the carpet.
  • New Zealand is unusual in having no written, codified Constitution. We could improve the standard of governance if we had one. Such will not, of course, save us from every political or human rights disaster, but it will help.