Saturday, August 28, 2010

20 years of the BORA

Twenty years ago today, the New Zealand Bill of Rights Act 1990 became law. Criticised during its third reading as "a Claytons Bill of Rights", "a diversion", and "an absolute waste of time" which would "achieve nothing", it has since grown into a fundamental pillar of our constitution.

The BORA affirms basic human rights guaranteed by the International Covenant on Civil and Political Rights - the right to life, the right to be free from torture and discrimination, the right to vote, the freedoms of conscience, expression, religion, assembly, association, and movement, and basic due process rights around search, arrest and detention. Originally it was envisioned as superior law, with the courts able to overturn any legislation incompatible with these rights. However, the select committee process found that New Zealanders did not want such an instrument - in those pre-Bolger days, they trusted politicians more than the courts. And so the power to overturn laws was removed, and the "teeth" of the bill reduced to two clauses: one requiring the Attorney-General to notify Parliament of any inconsistency, and a second requiring the courts to, insofar as it was possible, interpret all laws so as to be consistent with the BORA. That doesn't sound like much, but it turned out to be all we needed to create a revolution.

The first change - s7 notification - meant that all legislation and policy had to be scrutinised for consistency. This deterred governments from some breaches (though not all), but more importantly, by building human rights into the process from the start, it prevented them. Its not perfect - all governments pass legislation which is notified as being inconsistent with the BORA - but it makes them stop and think and ask themselves "is this really necessary? Can we make a case?" This at least prevents casual and inadvertent breaches. Now the government only violates fundamental human rights when it means to (unfortunately, the current government seems to mean to with alarming regularity).

The second change, meanwhile, meant that as laws came before the courts, they were progressively reinterpreted (if necessary) to recognise prevailing international human rights norms. This slow process has meant much greater protection for protest, for free speech, for the rights to natural justice and a fair trial, and for the right to be treated with dignity by the state. In extreme cases - e.g. the anti-flag-burning provisions of the Flags, Emblems, and Names Protection Act 1981 - the law has been reinterpreted so far as to practically gut it. And the result is a much freer society. Thanks to the BORA, we can now protest on Parliament grounds, we can't (legally) be arrested for protesting peacefully, we can't be subjected to a secret trial by a stooge judge with secret evidence, and we can't be subjected to prolonged solitary confinement in prison. And we can burn the New Zealand flag. These are all important rights, and they have come not from politicians, but through the reinterpretation of New Zealand law through the lens of human rights.

This is far more than the politicians of 1990 expected, but at the same time its not enough. Despite the BORA, some important human rights violations - e.g. the current heteronormative Marriage Act - remain on the books. Meanwhile, politicians come up with new ways to violate human rights in their efforts to grub votes. The only way these problems will be overcome is if the original vision of the BORA is realised and the courts are given the power to declare laws to be inconsistent and overturn them. Twenty years is long enough to wait in the half-way house; its time we had a real Bill of Rights Act with teeth.